Northland Insurance Co. v. State Farm Mutual Auto Insurance Co.

916 S.W.2d 924, 1995 Tenn. App. LEXIS 572
CourtCourt of Appeals of Tennessee
DecidedAugust 30, 1995
StatusPublished
Cited by8 cases

This text of 916 S.W.2d 924 (Northland Insurance Co. v. State Farm Mutual Auto 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
Northland Insurance Co. v. State Farm Mutual Auto Insurance Co., 916 S.W.2d 924, 1995 Tenn. App. LEXIS 572 (Tenn. Ct. App. 1995).

Opinion

OPINION

McMURRAY, Judge.

This action was initiated by Northland Insurance Company seeking a declaratory judgment as to whether it or State Farm Mutual Insurance Company had primary liability insurance coverage on a vehicle being driven by the defendant, Robert S. Ogle. After a bench trial the court found that State Farm was the primary insurer. This appeal resulted. We affirm the judgment of the trial court.

The only issue presented for review is as follows:

Was Robert Ogle “living with” his mother and stepfather at the time of the accident in question on November 23, 1990?

The pertinent parts of the liability insurance policy issued by State Farm are as follows:

Relative — means a person related to you or your spouse by blood, marriage or adoption who lives with you. It includes your unmarried and unemancipated child away at school.
* ⅜ ⅝ * ⅜ *
You or your — means the named insured or named insureds on the declarations page.
⅜ ⅜ ¾{ ⅜ ⅜ ⅜
[926]*926Who is an Insured
⅜ ⅜ ⅜ ⅝ ⅜ ⅜
When we refer to a non-owned car, insured means:
1. The first person named in the declarations;
2. ...
3. their relatives; and ...
(All emphases in original).

The material facts of this case are generally undisputed. The only witness who testified at the trial was Jeanette Jones, mother of the defendant, Robert Ogle. Ms. Jones’ testimony stands uncontroverted and unim-peached to any material degree.

At the hearing, the parties were allowed time within which to brief their respective positions. Subsequently, the trial judge issued a memorandum opinion which is cogent, detailed and accurately states the facts of the case. We adopt and concur with the trial court’s findings of fact. Likewise, we adopt pertinent parts of the trial court’s conclusions of law as a part of our opinion in the resolution of this case. In so doing, we apply the standard of review found in Rule 13(d), Tennessee Rules of Appellate Procedure. Findings of fact by the trial court in civil actions are reviewed de novo upon the record, accompanied by a presumption of the correctness of the finding unless the preponderance of the evidence is otherwise. No such presumption attaches to conclusions of law. See Adams v. Dean Roofing Co., 715 S.W.2d 341, 343 (Tenn.App.1986).

Pertinent portions of the chancellor’s memorandum opinion are as follows:

The sole issue before the court is whether Robert S. Ogle (Ogle) was a relative who “lived with” the insured at the time of the accident.
If so, defendant, State Farm Mutual Auto Insurance Company (State Farm) is liable for primary coverage. If not, North-land has primary coverage.
Ogle was involved in an accident on November 23,1990. At the time, he was test-driving a vehicle owned by Supreme Auto Sales which had a garage policy with Northland. The Mother [Jeanette Jones] of Ogle had a policy with State Farm which covered relatives who lived with the insured.
At the evidentiary hearing, the following facts were established:
(1) Ogle, age twenty-three and apparently unmarried had been sleeping in an abandoned car prior to the accident.
(2) On November 1, 1990, some two weeks prior to the accident, his mother had offered him her home until he could get established, which offer was accepted.
(3) Ogle intended, when he went to stay with his mother, to make arrangements to move to his sister’s home, but the record does not reveal steps taken toward that end.
(4) Ogle had first left his parents’ home at the age of nineteen (19) and had “bounced about” ever since, living with a brother, a girlfriend, an uncle, a friend and perhaps others.
(5) Ogle moved some personalty to the home of his mother, while leaving other personalty at his brother’s and uncle’s.
(6) Ogle stayed at the home of his mother about “half and half’ prior to the accident, according to his mother.
(7) At his mother’s house, Ogle primarily occupied a sofa in a playroom which had been converted from a bedroom.
(8) Ogle received what mail was sent to him at his mother’s and brother’s.
(9) Ogle had keys to his mother’s house and his driver’s license listed his mother’s address.
(10) After the accident, Ogle went to stay at his sister’s house.
(11) While living at his mother’s house, Ogle did not use his mother’s vehicle, nor was he listed on her policy with State Farm.
* * * * ⅜ *

[927]*927CONCLUSIONS OF LAW

There is no dispute that the burden is on Northland to show that State Farm had primary coverage. There is also no dispute that, where a policy is ambiguous, it should be interpreted in favor of the insured and against the insurance company.

The Tennessee Court of Appeals, Middle Section, has set out criteria to be considered in determining whether a person “lived with” the insured for the purposes of coverage.

To be considered are his physical presence, prior living arrangements, property left behind, the maintenance of living quarters at the insured’s home, marital status, legal emancipation and intent. McDonough v. State Farm Mut. Auto. Ins., 755 S.W.2d 57 (Tenn.App.1988).1

⅜ ⅜ ⅜: ⅜ ⅜ ⅜

Importantly the court also equated the term “living with” as being the nearest equivalent of “residing with”, so that cases defining residence should be persuasive. It denoted that “reside” has a connotation of dwelling for a time, or dwelling permanently for some time.

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Hyder v. Hyder, [16 Tenn.App. 64] 66 S.W.2d 235 (Tenn.App.1932) is a case involving one’s domicile, but contains some discussion regarding residence

A person cannot live in one place and by some force of imagination constitute some other his place of abode.
⅜ ⅜ ⅝* ⅜ ⅝' ⅜
When residence was important it was necessary that the man start upon his journey in order to cast off the impediment of his residence at his domicile of choice. [Hyder, at page 241],
The applicability of that case to the present case is that while Ogle intended to move to his sister’s, he had made no affirmative action to do or had not “started upon his journey” to acquire another residence.

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Bluebook (online)
916 S.W.2d 924, 1995 Tenn. App. LEXIS 572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/northland-insurance-co-v-state-farm-mutual-auto-insurance-co-tennctapp-1995.