McDonough v. State Farm Mutual Automobile Insurance Co.

755 S.W.2d 57, 1988 Tenn. App. LEXIS 243
CourtCourt of Appeals of Tennessee
DecidedApril 13, 1988
StatusPublished
Cited by10 cases

This text of 755 S.W.2d 57 (McDonough v. State Farm Mutual Automobile Insurance Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McDonough v. State Farm Mutual Automobile Insurance Co., 755 S.W.2d 57, 1988 Tenn. App. LEXIS 243 (Tenn. Ct. App. 1988).

Opinion

OPINION

TODD, Presiding Judge.

On March 6, 1985, Richard McDonough, son of plaintiffs, was a guest passenger on a motorcycle operated by Michael D. Thomas, an uninsured motorist, when an accident occurred in which Richard McDon-ough lost his life. This action was brought by Richard McDonough’s parents seeking a declaratory judgment that State Farm Mutual Automobile Insurance Company and/or State Farm Fire and Casualty Company is/are liable as uninsured motorist insurer(s) for damages which may be assessed against the uninsured host-operator.

From an adverse judgment, the plaintiffs have appealed and presented the following issues:

1. Whether the trial court committed reversible error by finding that the preponderance of the evidence was that Richard McDonough did not live with his parents at the time of his death?
2. Whether the trial court committed reversible error by finding that the preponderance of the evidence was that Richard McDonough was not an insured under the terms and conditions of the automobile liability insurance policies or personal liability umbrella policy issued by Defendants to Plaintiffs?
3. Whether the trial court committed reversible error by not holding that the Defendants should be estopped from denying coverage to Plaintiffs based upon their alleged defense that Richard Mc-Donough was not living with his parents or was not a member of their household at the time of the accident which caused his death?

In effect on March 6, 1985, was a policy issued by State Farm Mutual on August 28, 1984, expiring on April 19, 1985. The “named insured” was designated “Paul Mc-Donough”. Uninsured Motor Vehicle coverage was designated, “Each Person $100,-000”. The Uninsured Motor Vehicle Coverages section of the policy states coverage is afforded to 1. the named insured 2. the spouse of the named insured and 3. “their relatives”. The Defined Words section of the policy states:

Relative — means a person related to you or your spouse by blood, marriage or adoption who lives with you_(empha-sis supplied)

Also in effect on March 6, 1985, was a “Personal Liability Umbrella Policy” issued to Paul & Vivian McDonough by State Farm Fire and Casualty Company on August 28, 1984, and extending to August 28, 1985. The policy states:

We will pay, up to the Option U limit, the amount which you and your passengers are legally entitled to recover as damages from the owner or driver of an uninsured or underinsured automobile.
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5. Option U will apply in accordance with the terms and condition of your underlying Uninsured Motorist Coverage.

It is seen that the liability of State Farm Mutual is dependent upon the condition that the relative (Richard McDonough) “lives with you” (Paul McDonough); and that the liability of State Farm Fire is conditioned upon the injured party (Richard McDonough) being your (Paul or Vivian McDonough’s) passenger or, possibly coverage extending to Richard McDonough under the “conditions of the underlying Uninsured Motorist coverage” (lives with you).

Thus, unless Richard McDonough lived with Paul McDonough on March 6, 1985, [59]*59there is no uninsured motorist coverage by either party.

By the verbiage of their first issue, quoted above, it appears that plaintiffs conceive that the burden was upon defendants to prove by a preponderance of the evidence that Richard McDonough did not live with his father, Paul McDonough. This Court does not agree with such a conception. It was and is the burden of plaintiffs to prove by a preponderance of the evidence that their son’s injuries were insured by one or both of the defendants, and this includes proof that the conditions of insurance were in existence, including that deceased lived with the insured. Farmers Bank and Trust Co. of Winchester v. Transamerica Ins. Co., 674 F.2d 548 (6th Cir.1982), cert. den. 459 U.S. 943, 103 S.Ct. 257, 74 L.Ed.2d 200; Card v. Commercial Casualty Ins. Co. 20 Tenn.App. 132, 95 S.W.2d 1281 (1936); 46 C.J.S. Insurance § 1321f p. 456.

The distinction may be academic, but the true issue is:

Whether the Trial Court erred in finding that plaintiffs had not shown by a preponderance of the evidence that Richard McDonough did live with Paul McDon-ough on March 6, 1985?

Mr. and Mrs. Paul McDonough moved from Pennsylvania to Murfreesboro, Tennessee in 1976. Richard McDonough remained in Pennsylvania where he was in college for eight months and then followed his parents to Murfreesboro. For about two years, he resided with his parents and attended Middle Tennessee State University. Thereafter, he attended the State Area Vocational School for about two years, during part of which 2 years he resided with his parents, and during part of which time he lived in a house on Leaf Avenue which he rented from the fall of 1981 until April, 1984. Thereafter, he resided with his parents six to eight months. On September 1, 1984, Richard McDonough leased for 1 year a house at 1714 Bartway which he occupied with a roommate who was expected to pay part of the rent. Richard Mc-Donough continued the lease and use of the house to and including the date of his fatal injury.

The record has been closely scrutinized for evidence that, at the time of his injury, deceased was living with his parents. The testimony most favorable to the plaintiffs is that of the plaintiffs themselves.

Mr. Paul McDonough testified in pertinent part as follows:

“Q. You’ve heard testimony from Mr. Houston Carlton that Richard rented a house from him on Leaf Avenue for something in excess of two years. Do you know whether that is true or not?
“A. I’d say it’s true, yes, sir.
“Q. And I think Mr. Carlton said that that period of time began in November or December of ’81 and continued until April of ’84. Is that about right?
“A. That’s about right, sure.
“Q. And then did Richard then return home on a full-time basis at the conclusion of his use of the house at Leaf Avenue?
“A. Yes, he did.
“Q. And did he stay there with you at 2214 Moccasin Trail on a full-time basis until September 1, of ’84?
“A. Yes, sir.
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“Q. How long did Richard stay with you at 2214 Moccasin Trail on a full-time basis?
“A. About six to eight months.
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“Q. Very well. Now, let’s direct our attention to the time that Richard had some use of the house on Leaf Avenue owned by Mr. Carlton, okay?
“A. All right.
“Q. During that period of time, whatever it was, did Richard spend any nights in your home at 2214 Moccasin Trail?

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Cite This Page — Counsel Stack

Bluebook (online)
755 S.W.2d 57, 1988 Tenn. App. LEXIS 243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdonough-v-state-farm-mutual-automobile-insurance-co-tennctapp-1988.