Robertson v. Cumis Ins. Co.

355 So. 2d 1371, 1978 La. App. LEXIS 3723
CourtLouisiana Court of Appeal
DecidedMarch 7, 1978
Docket6331
StatusPublished
Cited by13 cases

This text of 355 So. 2d 1371 (Robertson v. Cumis Ins. 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
Robertson v. Cumis Ins. Co., 355 So. 2d 1371, 1978 La. App. LEXIS 3723 (La. Ct. App. 1978).

Opinion

355 So.2d 1371 (1978)

Malcolm Allen ROBERTSON, Plaintiff-Appellant,
v.
CUMIS INSURANCE COMPANY, Defendant-Appellee.

No. 6331.

Court of Appeal of Louisiana, Third Circuit.

March 7, 1978.

*1372 Kramer & Davis, James D. Davis, Alexandria, for plaintiff-appellant.

Stafford, Randow, O'Neal & Smith, H. Dillon Murchison, III, Alexandria, for defendant-appellee.

Before GUIDRY, FORET and JOHNSON, JJ.

JOHNSON, Judge.

This appeal is from a dismissal by the trial court of plaintiff's lawsuit. The trial judge sustained a motion for summary judgment by the defendant. The case involves a question of insurance coverage. We consider that this is a proper case in which to consider a motion for summary judgment. There is no dispute about the facts. They are:

1) Malcolm Allen Robertson, Sr., father of the plaintiff, is domiciled and has his residence in Pineville, Rapides Parish, Louisiana. He owns two automobiles. Each of them is insured with the defendant, Cumis Insurance Company. Each has $10,000.00 in uninsured motorists coverage making an aggregate of $20,000.00.
2) Malcolm Allen Robertson, Jr., son of Malcolm Allen Robertson, Sr., was twenty years of age. He was stationed in Minot, North Dakota at the air force base and had been for a period of about a year and a half when the accident occurred. He was not married.
3) On July 30,1976, young Robertson was a guest passenger in the car owned and being driven by his friend, one William Nasiatka, in or near Minot, North Dakota. Nasiatka, through his fault alone, rear ended another vehicle causing extensive injuries to young Robertson. Robertson's injuries, for which he is entitled to recover, cannot be adequately compensated for by the $10,000.00 liability policy on Nasiatka's automobile.
4) Young Robertson filed suit in Rapides Parish for recovery under his father's uninsured (underinsured) motorist coverage on the two policies insuring his father's automobiles.
5) Young Robertson owned an automobile which he kept with him in North Dakota. Apparently, though the evidence does not make clear, it was not insured.
6) The facts show that young Robertson maintained his domicile with his father in Rapides Parish; that he was only away because of the fact that he was in the service. He always returned to his father's residence. There was a place for him there.

The trial court held that young Robertson was not an insured under his father's insurance policies because, although a resident of his father's household, he was the owner of a private passenger automobile. The district judge held that the purchase by young Robertson of his own automobile took him out of the classification of an "insured". This resulted in young Robertson not being an "insured" under the father's policies. A dismissal of his lawsuit by the trial court on the motion for a summary judgment resulted. The court held that one had to be an insured to be covered by uninsured motorist coverage.

The portions of the policies we are concerned with are:

"PERSONS INSURED: Under the liability and Medical Expense Coverages, the following are insureds:

(a) . . .

(1) . . .

(2) . . .

(3) . . .

(b) with respect to non-owned automobile,
(2) a relative, but only with respect to a private passenger automobile or utility trailer, provided his actual operation or (if he is not operating) the other actual use thereof is with the permission, or reasonably believed to be with the permission, of the owner and is within the scope of such permission, and . . ." (Emphasis by this Court)

"`relative' means a person related to the named insured by blood, marriage, or *1373 adoption who is a resident of the same household, provided neither such relative nor his spouse owns a private passenger automobile." (Emphasis by this Court)

To begin with, we note that in order for one to be insured under the "uninsured" and "underinsured" provisions he must first be insured under the liability provisions. This seems to be so well established that we do not feel it requires further comment. See: Seaton v. Kelly, 339 So.2d 731 (La. 1976).

From the above policy language, we see that the first requirement for young Robertson to be covered by his father's policies is that he be a "resident of the same household", or of his father's household, since his father is the named insured under the two policies. Our courts have uniformly held that a person can have more than one residence. There are a number of cases so holding most of which are reviewed in the fairly recent case by this Court, Hobbs v. Fireman's Fund American Insurance Companies, 339 So.2d 28 (La.App. 3 Cir. 1976). Also, see Fielding v. Casualty Reciprocal Exchange, 331 So.2d 186 (La.App. 3 Cir. 1976); LaFleur v. Seaboard Fire & Marine Insurance Company, 296 So.2d 860 (La.App. 3 Cir. 1974); and Manuel v. American Emp. Insurance Company, 228 So.2d 321 (La.App. 3 Cir. 1969).

From the foregoing jurisprudence we see that, in some respects at least, one, such as young Robertson here, can have a residence in two or more places. We find that he has a residence in North Dakota. We also find that he has a residence in his father's household. There is a place there for him. He always comes back there every time he gets leaves from the service. He spends his leave time with his parents. In accordance with the cases cited hereinabove, and the evidence herein, we find that he has a residence with his father.

We note again that the clause we are speaking of in the definitions in the insurance policy not only uses the word "resident" but in its complete sense is shown as "who is a resident of the same household".

We find that at times our Appellate Courts have made a distinction in the terminology, "resident" and "who is a resident of the same household". Our Louisiana Supreme Court dealt with this terminology in 1965, in the case of Taylor v. State Farm Mutual Automobile Insurance Co., 248 La. 246, 178 So.2d 238 (1965). This case involved a minor whose father's home was in Arkansas. The minor left his father's home in Arkansas and came to live with an uncle in Alexandria, Louisiana. The uncle in Alexandria secured employment for the minor. Sometime later the minor was involved in an automobile accident as the driver of his uncle's car. The policy involved, that is the policy on the father's car in Arkansas, with respect to the definition of relative, read as follows:

"Relative—means a relative of the named insured who is a resident of the same household."

The Supreme Court held that the coverage of the automobile liability insurance policy of the minor's father, written on the father's car in Arkansas, covered this minor driving his uncle's car in Alexandria, Louisiana. The Court found the minor to be "a resident of the same household" as the father in Arkansas.

We find an opposite result in the case of Tingstrom and Ehrhard v. State Farm Mutual Automobile Insurance Company, 274 So.2d 911 (La.App. 1 Cir. 1973). In that case, the minor was on active duty as a member of the U. S. Navy. He had completed one and a half years on a three year enlistment. He was living in Atlanta, Georgia. He had been stationed there for a period of six months. The minor was temporarily at home with his father in Louisiana. The minor owned an automobile which was insured with State Farm.

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Bluebook (online)
355 So. 2d 1371, 1978 La. App. LEXIS 3723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robertson-v-cumis-ins-co-lactapp-1978.