Davis ex rel. Rose v. Pleasant

68 So. 3d 679, 2010 La.App. 4 Cir. 1383, 2011 La. App. LEXIS 783, 2011 WL 2419937
CourtLouisiana Court of Appeal
DecidedJune 15, 2011
DocketNo. 2010-CA-1383
StatusPublished
Cited by1 cases

This text of 68 So. 3d 679 (Davis ex rel. Rose v. Pleasant) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis ex rel. Rose v. Pleasant, 68 So. 3d 679, 2010 La.App. 4 Cir. 1383, 2011 La. App. LEXIS 783, 2011 WL 2419937 (La. Ct. App. 2011).

Opinion

TERRI F. LOVE, Judge.

h State Farm appeals the trial court’s finding that the decedent’s primary residence was with its insured at the time of death. According to the testimony, the decedent resided with the insured, which would provide insurance coverage for the decedent pursuant to the insured’s uninsured motorist coverage with State Farm. However, State Farm produced documentary evidence that the decedent utilized addresses other than the insured’s for voting, identification, and employment records. The trial court found the testimony credible as to the decedent’s residence due to her lifestyle and found that the decedent resided with the insured. For the reasons that follow, we do not find that the trial court committed manifest error in [681]*681finding that the decedent resided primarily with the insured and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Valerie Molette died from injuries received from a single vehicle motorcycle accident. The motorcycle was operated by Charles Green and owned by Ellwood Pleasant, both of whom were uninsured. Arsceola Molette Davis filed a petition for damages on behalf of two of Ms. Molette’s minor children, Zaire Ali Rose and Coreion I. Jena Molette, against Mr. Green, State Farm Automobile Insurance Company (“State Farm”), ABC Insurance Company, and Mr. Pleasant. The [ 2petition was amended to add Paula Honoré as a plaintiff on behalf of Ms. Molette’s third minor child, Uniqué Honoré. Louis Davis, Jr., Ms. Molette’s stepfather, was insured by State Farm with a policy of uninsured/un-derinsured motorist insurance with limits of $100,000 each person/$300,000 each accident.

The Plaintiffs filed a motion for partial summary judgment, which was followed by State Farm’s motion for summary judgment and opposition. State Farm alleged that Ms. Molette did not reside in Mr. Davis’ household and was, therefore, not covered by his insurance policy. The trial court denied the Plaintiffs’ motion for summary judgment, but granted State Farm’s motion for summary judgment and dismissed the claims with prejudice. After the trial court denied a motion for new trial, the Plaintiffs appealed. This Court reversed the trial court and remanded for further proceedings finding that the trial court erred because genuine issues of material fact existed as to whether Ms. Mol-ette was a resident of Mr. Davis’ household for insurance purposes.

On remand, and following a bench trial, the trial court found that Ms. Molette was insured under Mr. Davis’ policy with State Farm in effect at the time of the accident and ordered State Farm to pay $100,000 to the minor children. The award was to be divided equally and included judicial interest from the date of judicial demand and all costs. State Farm’s appeal followed.1

State Farm contends that the trial court committed manifest error by finding that Ms. Molette primarily resided with Mr. Davis and by finding that Ms. Molette was covered by State Farm’s insurance policy.

STANDARD OF REVIEW

| ¡Appellate courts review findings of fact using the clearly wrong/manifestly erroneous standard of review. Chimneywood Homeowners Ass’n, Inc. v. Eagan Ins. Agency, Inc., 10-0368, p. 5 (La.App. 4 Cir. 2/2/11), 57 So.3d 1142, 1146. During review, we “must find from the record that there is a reasonable factual basis for the finding of the trial court” and “that the record establishes the finding is not clearly wrong or manifestly erroneous.” Ardoin v. Firestone Polymers, L.L.C., 10-0245, p. 6 (La.1/19/11), 56 So.3d 215, 219. Once the review is completed, “[i]f the trial court’s findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse.” Id. The trial court also has a “better capacity to evaluate live witnesses as compared to our access only to a cold record, as well as the proper allocation of trial and appellate functions between the [682]*682respective courts.” Fletcher v. Rein, 10-1095, p. 3 (La.App. 4 Cir. 1/19/11), 56 So.3d 1080, 1082. Thus, “when there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous.” Ardoin, 10-0245, p. 6, 56 So.3d at 219.

PRIMARY RESIDENCE

State Farm asserts that the trial court committed manifest error by finding that Ms. Molette resided with Mr. Davis at the time of her death because despite the testimony, none of the documentary evidence proves she resided with Mr. Davis.

Mr. Davis’ insurance policy included the following pertinent language regarding uninsured motor vehicle coverage:

UNINSURED MOTOR VEHICLE-COVERAGE U Who Is an Insured— Coverages U and UEO
Insured — means the person or persons covered by uninsured motor vehicle coverage or “economic-only” uninsured motor vehicle coverage.
This is:
|41. the first person named in the declarations;
2. his or her spouse;
3. their relatives

(Emphasis in original). It is undisputed that Ms. Molette was not a named insured, nor was she the insured’s spouse. Thus, Ms. Molette was covered by State Farm if she was considered a relative of Mr. Davis by the insurance policy. Mr. Davis’ insurance policy’s pertinent definition of a relative was a “person related to you or your spouse by blood, marriage or adoption who resides primarily with you.” (Emphasis in original).

“Whether a person is or is not a resident of a household is a question of law as well as fact that is to be determined from all the facts of each case.” Prudhomme v. Imperial Fire & Cas. Ins. Co., 95-1502, p. 3 (La.App. 3 Cir. 4/3/96), 671 So.2d 1116, 1118; see also Berryhill v. Entergy New Orleans Inc., 05-0005 (La. App. 4 Cir. 8/3/05), 925 So.2d 12. “The intention of a person to be a resident of a particular place is determined by his expressions at a time not suspicious, and his testimony, when called on, considered in the light of his conduct and the circumstances of his life.” Id. “Although residency is dependent on the facts of each case, the principal test is physical presence with the intention to continue living there.” Id., 95-1502, p. 3, 671 So.2d at 1119.

Dwayne Franklin, Mr. Davis’ younger brother, testified that Mr. Davis asked him to move Ms. Molette from her Chalmette address to Mr. Davis’ household. Mr. Franklin thought that Ms. Molette moved after Mr. Davis married her mother, but he was “not really sure.” However, Mr. Franklin was certain that Ms. Molette was living with Mr. Davis at the time of her death. Mr. Franklin also stated that he was told that Ms. Molette would be “staying there.”

|fiCoreion, Ms. Molette’s fourteen year-old daughter at the time of trial, testified that Ms. Molette moved in with her at Mr. Davis’ household a few months before Mr. Davis and Mrs. Davis’ wedding on December 25, 2003. She stated that Ms. Molette was living there at the time of the wedding, was living there when she died, and did not reside anywhere else between the time of the wedding and her death.

On cross-examination, State Farm tried to demonstrate inconsistencies in Coreion’s statement because she stated in her deposition that her mother moved in one month before death.

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Bluebook (online)
68 So. 3d 679, 2010 La.App. 4 Cir. 1383, 2011 La. App. LEXIS 783, 2011 WL 2419937, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-ex-rel-rose-v-pleasant-lactapp-2011.