Government Employees Insurance v. Allstate Insurance

369 S.E.2d 181, 235 Va. 542, 4 Va. Law Rep. 3053, 1988 Va. LEXIS 100
CourtSupreme Court of Virginia
DecidedJune 10, 1988
DocketRecord No. 850529
StatusPublished
Cited by6 cases

This text of 369 S.E.2d 181 (Government Employees Insurance v. Allstate Insurance) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Government Employees Insurance v. Allstate Insurance, 369 S.E.2d 181, 235 Va. 542, 4 Va. Law Rep. 3053, 1988 Va. LEXIS 100 (Va. 1988).

Opinion

STEPHENSON, J.,

delivered the opinion of the Court.

In this appeal of a declaratory judgment, we again consider the meaning and application of the term “resident of the same household” as used in an automobile liability insurance policy. Specifically, Government Employees Insurance Company (GEICO), [544]*544challenges the trial court’s determination that a named insured’s spouse who had left the marital home was a resident of the named insured’s household.

The declaratory judgment proceeding was brought by Allstate Insurance Company (Allstate) against GEICO and State Farm Mutual Automobile Insurance Company (State Farm),1 seeking an adjudication of the rights and obligations of the parties with respect to certain automobile liability insurance policies. In a prior action, Lloyd L. Menscer was awarded a judgment of $50,000 against Teresa L. Nighohossian (Teresa) for personal injuries he sustained as a result of Teresa’s negligent operation of an automobile owned by James R. Luther (James). Allstate, Menscer’s insurance carrier, defended Menscer’s personal injury action pursuant to the uninsured motorist clause in the policy Allstate had issued to him.

Allstate contended in the subsequent declaratory judgment proceeding that James’ automobile was covered under a policy issued by GEICO to Wilhemina E. Luther (Wilhemina), James’ wife. Allstate also contended that Teresa was insured under a policy State Farm had issued to Samson Nighohossian (Samson), Teresa’s husband.

In response, GEICO alleged that James was not a resident of the household of its insured, Wilhemina, at the time of the accident and, thus, James was not a “named insured” under the policy that GEICO had issued to Wilhemina. Consequently, GEICO asserted, Teresa could not have been operating the automobile with the permission of a named insured as required by GEICO’s policy. Similarly, State Farm claimed that Teresa was not a resident of the household of its named insured, Samson, when the accident occurred and, thus, was not covered under State Farm’s policy.

. The trial court decided that James was a resident of Wilhemina’s household when the accident occurred and, therefore, qualified as a named insured under GEICO’s policy. The court further concluded that James had given Teresa permission to use his automobile. Accordingly, the court held that primary coverage for the accident rested with GEICO. The court also ruled that Teresa was a resident of Samson’s household on the date of the accident and, therefore, was a named insured under the State [545]*545Farm policy. Thus, the court decided that secondary or excess coverage for the accident rested with State Farm.

GEICO and Wilhemina have appealed from the trial court’s judgment. The sole question on appeal is whether the court erred in finding that James was a resident of Wilhemina’s household when the accident occurred.

The evidence is undisputed. Wilhemina was the only witness to testify at the trial of the present case, although Teresa’s deposition was presented. James was present at the trial, but he did not testify.

The accident occurred on July 29, 1981. At that time, a liability insurance policy was in effect that had been issued by GEICO to Wilhemina, who resided on Foxdale Drive in the City of Norfolk. Two automobiles were listed in the policy: James’ 1967 AMC Ambassador and a 1972 Chrysler owned by Wilhemina.

Until April 10, 1981, James and Wilhemina resided together in their jointly-owned residence on Foxdale Drive. On that date, however, James left the marital home and never moved back. When he left, he removed virtually all his personal belongings.2

James’ and Wilhemina’s separation was not sudden; marital problems had existed for a number of years. The basic problems were James’ “heavy drinking and [his] not coming home after work.” On April 10, James again failed to come home after work. Wilhemina, however, “knew where he was so [she] went there and asked him to either come home or don’t come home.” When James made no response, Wilhemina returned home and packed his belongings. James subsequently moved out of the house, taking his belongings with him. James never objected to his wife’s actions.

James returned to the marital home only once between April 10 and the date of the accident. On that occasion, he and Wilhemina dined out with another couple. The occasion ended unpleasantly. While at dinner, Teresa “came over to the table and asked [James] to go outside and talk to her.” James did, and when he returned, he immediately took Wilhemina home.

James and Wilhemina never discussed a reconciliation. Their infrequent telephone conversations “weren’t usually pleasant.”

[546]*546James continued to allow his retirement check of approximately $500 to be deposited into his and Wilhemina’s joint checking account until September or October 1981. From that account, Wilhemina paid the mortgage, “big bills [and other joint] expenses that [she] and [her] husband had incurred during [their] marriage.” Wilhemina also used the account to maintain the household.

From April 10 to the date of the accident, Wilhemina entertained “some hope,” at least “in [her] mind,” of a reconciliation with James. After the accident, however, she decided that “the marriage was essentially lost.” Wilhemina and James never reconciled after the April 10 separation and subsequently were divorced, based on a continuous, one-year separation from that date.

On July 24, 1981, Teresa took “a few change[s] of clothes, toothbrush, make-up, and enough to survive on” and moved into the house in which James resided. She remained there until “about three, four” days after the accident, at which time she returned to live with Samson. At the time of the accident, a State Farm policy issued to Samson was in effect.

GEICO was not notified that James had moved from the marital home until after the accident. Wilhemina took no steps to remove James’ automobile from the GEICO policy until after the accident. She continued to pay GEICO the monthly premiums on her policy through May or June 1981. Wilhemina never demanded a refund of premiums paid to GEICO to insure James’ automobile, and GEICO never refunded any premiums to Wilhemina for the period of coverage after April 10, 1981. On July 7, 1981, Wilhemina completed a GEICO questionnaire in which she listed James’ automobile as a vehicle to be insured under her policy and indicated that James drove the 1967 AMC Ambassador 100 percent of the time.

Under the terms of GEICO’s policy, James’ 1967 AMC Ambassador was an “owned automobile” at the time of the accident, because it was “a private passenger . . . automobile described in [the] policy for which a specific premium charge indicates that coverage is afforded.” With respect to an “owned automobile,” the policy provides that the following persons are insured:

(1) the named insured and any resident of the same household,
[547]*547(2) any other person using such automobile with the permission of the named insured, provided his actual operation ... is within the scope of such permission ....

The policy defines “named insured” to mean “the individual named in [the policy] and also includes his spouse, if a resident of the same household.”

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GOVERNMENT EMP. INS. v. Allstate Ins.
369 S.E.2d 181 (Supreme Court of Virginia, 1988)

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Bluebook (online)
369 S.E.2d 181, 235 Va. 542, 4 Va. Law Rep. 3053, 1988 Va. LEXIS 100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/government-employees-insurance-v-allstate-insurance-va-1988.