Kemp v. State Farm Fire & Cas. Co.

442 So. 2d 642, 1983 La. App. LEXIS 9688
CourtLouisiana Court of Appeal
DecidedNovember 22, 1983
Docket83 CA 0179
StatusPublished
Cited by6 cases

This text of 442 So. 2d 642 (Kemp v. State Farm Fire & Cas. Co.) 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
Kemp v. State Farm Fire & Cas. Co., 442 So. 2d 642, 1983 La. App. LEXIS 9688 (La. Ct. App. 1983).

Opinion

442 So.2d 642 (1983)

Richmond F. KEMP, III
v.
STATE FARM FIRE AND CASUALTY COMPANY, et al.

No. 83 CA 0179.

Court of Appeal of Louisiana, First Circuit.

November 22, 1983.
Writ Denied January 27, 1984.

Walker P. Macmurdo, Baton Rouge, for plaintiff-appellant Richard F. Kemp, III.

Dale M. Maas, John Dale Powers and David M. Vaughn, Baton Rouge, for defendants-appellees Dr. Joseph C. Bonck and Joseph C. Bonck, Jr.

Horace C. Lane, Baton Rouge, for defendant-appellee State Farm Fire and Casualty Co.

Before COVINGTON, COLE and SAVOIE, JJ.

COVINGTON, Judge.

Plaintiff, Richmond F. Kemp, III, sued defendants, State Farm Fire and Casualty Company, Dr. Joseph C. Bonck and Joseph C. Bonck, Jr., seeking recovery for personal *643 injuries sustained when he attempted to light a butane gas burner which was located at Dr. Bonck's camp. The issue presented for determination is whether Joseph C. Bonck, Jr. was an "insured" under a homeowners policy, No. 1800210195, issued by State Farm Fire and Casualty Company to Dr. Joseph C. Bonck. The trial court held that he was not an "insured" and granted a summary judgment in favor of State Farm. We affirm.

On July 3, 1981, Dr. Joseph C. Bonck was the owner of a camp at Grand Isle. On that day, Joseph C. Bonck, Jr. and Richmond F. Kemp, III, both young men about twenty-one years of age, were at the Bonck camp, with Dr. Bonck's permission, and both young men suffered burns when they attempted to light a butane gas burner to boil some crabs. Dr. Bonck did not accompany the young men on the trip and was not present when the accident occurred.

Dr. Bonck and Mary L. Bonck, the mother of Joseph C. Bonck, Jr., were divorced more than eight years ago, and Mrs. Bonck was given legal custody of Joseph, Jr., who has attained the age of majority, but continues to reside with his mother.

At the time of the accident, State Farm Fire and Casualty Company had in force a policy of homeowners insurance providing liability insurance coverage for Dr. Bonck, his second wife and their relatives residing with them in their household.

In the District Court, the judge granted the motion of State Farm for summary judgment, finding no genuine issue as to a material fact. The District Court found that Joseph C. Bonck, Jr. was not a resident of his father's household and, as a result, not insured under his father's policy.

The Court below made its ruling based on the insurance policy and the depositions of Dr. Bonck, Joseph, Jr. and Richmond F. Kemp, III, all of these documents having been filed in evidence in connection with State Farm's motion for summary judgment.

The depositions of Dr. Bonck and his son make it clear that the son was not residing with his father at the time of the accident. The policy insures Dr. Bonck and his second wife, as the named insureds, and those relatives of theirs who are residents of their household. The term "resident of household," has been judicially interpreted many times in this state and the jurisprudence shows, under the established facts of this case, that Joseph, Jr. was not a resident of his father's household. He resided with his mother.

Briefly, the depositions show that Dr. and Mrs. Mary L. Bonck were divorced when Joseph C. Bonck, Jr. was still a minor. The accident occurred many years later when Joseph, Jr. was about twenty-one years old. At the time he was a student at Southeastern Louisiana University, and still lived full time with his mother, who is insured by State Farm under another policy. The depositions show that in the divorce Mrs. Bonck was awarded custody of the son, and that he has lived with her up to the present time. The depositions also show that he did not spend any time at his father's house. In fact, he could only remember spending the night there once in the last five years. He kept no clothes there and has not lived in his father's house since Dr. Bonck and Mrs. Bonck were divorced.

The pertinent definition of "insured," reading from the policy, is as follows:

* * * * * *

3. "insured" means you and the following residents of your household:
a. your relatives;
b. any other person under the age of 21 who is in the care of any person named above.

In order to be insured under his father's policy, Joseph, Jr. would have had to be a resident of his father's household. The contrary is demonstrated by the testimony of Dr. Joseph C. Bonck.

Q. Doctor, do you recall what year you and your first wife were divorced?
A. I'd say about eight years ago.
*644 Q. Okay.
A. We were separated about ten, divorced about eight.
Q. And was there a property settlement?
A. Yes, sir, there was.
Q. And did the Court award Mrs. Bonck custody of the children?
A. Yes, they did.
Q. Subsequent to the divorce, did Joe ever live with you at your house?
A. No, he hasn't.
Q. And you heard him testify that he had spent one night in your house in the last four or five years. Would you agree with that?
A. That is certainly correct.
Q. Did he keep any clothes at your house, any possessions?
A. No, sir.

Joseph Bonck, Jr. testified in his deposition that his date of birth was March 2, 1959. At the time of the accident he was a college student. The following testimony from his deposition confirms that of his father to the effect that he was not on the date of the incident a resident of the household of Dr. Bonck:

Q. Are your mother and father divorced?
A. Yes, sir, they are.
Q. Do you know what year they were divorced?
A. No, sir. I'm not sure.
Q. About how long?
A. About 11, 12 years.
Q. Has either one of them remarried?
A. Yes, sir. My father has.
Q. You would have been 11 or 12 years old when they got the divorce?
A. I believe I was 13.
Q. Do you know whose custody you were placed in as a result of the divorce?
A. Yes, sir. I was placed in my mother's custody.
Q. Have you lived with her ever since?
A. Yes, sir, I have.
Q. What is her address?
A. 409 East Buffwood, B-u-f-f-w-o-o-d.
Q. And you were living with your mother in July of 1981 except for the time you put in at school?
A. Yes, sir, I was.
Q. Have you ever lived in your father's house since he and your mother were divorced?
A. No, sir.
* * * * * *
Q. In the past several years, had you ever spent the night at your father's house?
A. Yes, sir. I believe on one occasion I did.
Q. When was that?
A. It seems like maybe a year, a year and a half before the accident. I believe I stayed over. We were planning on going to Grand Isle fishing, before we had the camp. And I showed up. I came home about 10:30, 11:00 o'clock that night and stayed on his couch.

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Cite This Page — Counsel Stack

Bluebook (online)
442 So. 2d 642, 1983 La. App. LEXIS 9688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kemp-v-state-farm-fire-cas-co-lactapp-1983.