Shelter Mutual Insurance Company v. Trevor Hill, Leslie Hill, Lanie Hill and Shelbie Alexander

• Court: Missouri Court of Appeals
• Decided: February 20, 2024
• Docket: WD85527 Majority and Concurring
• Status: Published

Opinion

IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT SHELTER MUTUAL INSURANCE ) COMPANY, ) ) Appellant, ) ) v. ) WD85527 ) TREVOR HILL, LESLIE HILL, ) Opinion filed: February 20, 2024 LANIE HILL AND SHELBIE ) ALEXANDER, ) ) Respondents. )

APPEAL FROM THE CIRCUIT COURT OF RANDOLPH COUNTY, MISSOURI THE HONORABLE SCOTT A. HAYES, JUDGE

Division Two: W. Douglas Thomson, Presiding Judge, Thomas N. Chapman, Judge and Janet Sutton, Judge

Shelter Mutual Insurance Company (“Shelter”) appeals the summary

judgment of the Circuit Court of Randolph County (“trial court”) holding a minor

child (“Daughter”) is not a resident of her natural father’s (“Father”) household for

purposes of an insurance policy exclusion. Shelter raises three points on appeal,

arguing the trial court erred in granting summary judgment for Respondents and

denying its own motion for summary judgment, because the trial court erroneously (1) applied Missouri law to the parties’ stipulated, uncontroverted facts because

such facts establish that an exclusion under the policy applied to bar coverage, (2)

relied on facts outside the parties’ stipulated, uncontroverted facts and the record

as the basis for its summary judgment holding, and (3) applied Missouri law by

invoking rules of policy construction instead of applying the plain language of the

policy exclusion. We affirm in part and reverse in part and remand for further

proceedings.

Factual and Procedural History1

This case was presented to the trial court on the parties’ Joint Statement of

Undisputed Stipulated Facts. On July 26, 2018, when she was eleven years old,

Daughter was injured while riding on an ATV driven by Brother. The ATV was

owned by Father and the injury occurred on his property in Randolph County,

Missouri. As a result of this incident, “[Daughter] was seriously and permanently

injured, including severe and permanent facial scarring and disfigurement, limited

vision, PTSD, etc.” It was stipulated “that damages resulting from the July 26,

2018 incident exceed $1 million.”

About eleven years prior to the incident, Daughter’s natural mother

(“Mother”) and Father had divorced. Since then, Mother has lived in Linn County,

1 “[W]hen reviewing a summary judgment, we may only review the undisputed

material facts established by the process set forth in Rule 74.04(c); we do not review the entire trial court record.” Alvis v. Morris, 520 S.W.3d 509, 512 (Mo. App. S.D. 2017) (citations omitted). Accordingly, this Factual and Procedural History consists of the facts relevant to the issues on appeal within the parties’ Joint Statement of Undisputed Stipulated Facts, as well as the procedural history found within the legal file. See Jones v. Am. Fam. Mut. Ins. Co., S.I., 632 S.W.3d 482, 484 n.1 (Mo. App. W.D. 2021). 2 Missouri, while Father has lived in Randolph County since approximately the same

time. The divorce judgment granted Daughter’s parents joint legal and physical

custody of Daughter. A Joint Parenting Plan was put in place which stated that

“[t]he parties wish to continue to share the responsibility for the care of their minor

child and to each fully participate in all major decisions affecting their child’s

residence, health, education and welfare.” The Parenting Plan also declared that

“[t]he parties shall share physical custody as equally as possible and as agreed to

between the parties[,]” but provided a custody schedule in the event the parties

were unable to agree. The parties followed this custody schedule. For educational

purposes only, Mother’s residence was designated as Daughter’s primary

residence. The Judgment of Dissolution denominated Father as the “Non-

Residential Parent,” meaning the “parent with whom the child is not residing[,]”

and further pronounced that “[p]rimary physical placement of [Daughter] shall be

with Petitioner [Mother], subject to the Respondent’s [Father’s] rights of

reasonable and liberal visitation.”2 (Fourth and fifth alterations in original).

2 We recognize that joint legal and physical custody necessarily provides that both

parents have parenting time, as opposed to one parent having visitation and the other having custody as described in the dissolution judgment and the stipulated facts. We note this was corrected in a later modification judgment in which the parties continued their joint legal and physical custody of Daughter, who “shall reside with [Mother] and have parenting time with [Father] pursuant to the ‘Joint Parenting Plan.’” Further, and as recognized by § 452.375.5, there are four types of custody dispositions, including joint physical custody and visitation. See In re Marriage of Swallows, 172 S.W.3d 912, 913 n.1 (Mo. App. S.D. 2005). This is not a visitation case, but rather a joint custody case. Given the above, and for continuity’s sake, we refer to each parent’s time with Daughter as parenting time throughout this opinion. 3 In 2015, the Judgment of Dissolution was modified by the Linn County

Circuit Court. The circuit court continued joint legal and physical custody of

Daughter with Father and Mother. Father’s parenting time continued to be every

other weekend, two weeks in the summer, and alternating holidays, but a

Wednesday night visit between Father and Daughter was eliminated.

On the date of the ATV accident, a Farmowners Policy issued by Shelter to

Father was in effect. In relevant part, the Farmowners Policy includes:

FARMOWNERS INSURANCE POLICY SPECICAL COVERAGE FORM 3

***

DEFINITIONS USED THROUGHOUT THIS POLICY . . .

8. Insured means:

(a) You; (b) Your relatives residing in your household; and (c) Any other person under the age of 21 residing in your household who is in your care or the care of a resident relative.

SECTION II – COMPREHENSIVE PERSONAL LIABILITY PROTECTION

COVERAGE E – PERSONAL LIABILITY

We will pay all sums arising out of any one loss which an insured becomes legally obligated to pay as damages because of bodily injury or property damage and caused by an occurrence covered by this policy.

EXCLUSIONS – SECTION II . . .

Under Personal Liability we do not cover: . . .

4 9. Bodily injury to: a) You; b) Your relatives residing in your household; and c) Any other person under the age of 21 residing in your household who is in your care or the care of a resident relative.

At the time of the July 26, 2018 accident, Daughter lived with Mother in Linn

County during Mother’s parenting time, and visited Father and Daughter’s step-

mother (“Step-Mother”) in Randolph County during Father's parenting time.

Mother and Father lived about an hour away from each other. Daughter visited

Father approximately 20% of the time and lived with Mother approximately 80%

of the time in the six months prior to the accident. Father’s parenting time with

Daughter continued to be every other weekend, alternating holidays, and

approximately two weeks during the summer. Otherwise, Daughter stayed at

Mother’s house. Daughter maintained a bedroom at Father’s home with limited

clothing. She had no key to his home, received no mail at his house, and did not

participate in any sports, events, or clubs in Randolph County. Father was several

months behind in his monthly child support payments, and accordingly did not

pay monthly expenses for Daughter or provide substantial support of Daughter or

to Mother’s household.

On the date of the accident, “[f]or educational purposes only, [Mother’s]

residence [was] designated [Daughter’s] primary residence,” pursuant to the Joint

Parenting Plan. Daughter attended school in Linn County, as she had done her

entire life. She had a room at Mother’s house with the vast majority of her clothing

there, had digital keys to the home, and received mail at the house. Daughter was

5 also “very active in multiple activities in Linn County,” including feeding cows and

sheep daily as part of her involvement in FFA and 4H, attending church, and being

active in the youth group within her parish.

On June 16, 2020, Daughter filed a three-count Petition (“Underlying Suit”)

by and through Mother as her next friend against Father and Step-Mother. The

three counts alleged were negligent entrustment, negligent supervision, and

negligently supplying dangerous instrumentality. This Underlying Suit was

ultimately voluntarily dismissed without prejudice.

On September 23, 2020, Shelter filed a Petition for Declaratory Judgment

against Father, Step-Mother, Daughter, and Mother.3 The Petition sought, in

relevant part, a determination that “there is no insurance coverage under a Farm

Owner’s Policy issued to [Father.]”4 Among other facts, Shelter alleged that

“[u]nder Missouri law, [Daughter] is a resident of [Father]’s home for purposes of

insurance coverage” and that “[t]here is no coverage for the Underlying Suit, under

the Shelter Farmowners Policy Personal Liability Coverage, due to that policy’s

exclusion providing that ‘there is no Personal Liability for bodily injury to “[y]our

relatives residing in your household.”’” (Last alteration in original). Respondents

and Shelter subsequently filed cross-motions for summary judgment, each

3 We note that Brother was listed as a defendant in the “Parties and Jurisdiction”

section of the Petition, but not in any other filing in this case nor as a Respondent here on appeal. 4 Shelter’s Petition also sought a determination “that available insurance coverage

for Bodily Injury Liability an [sic] Automobile Policy is limited to $25,000.00; and that insurance coverage limits for medical payments coverage under the Automobile Policy are $1,000.00” which is not before us on appeal. 6 incorporating the parties’ Joint Statement of Undisputed Stipulated Facts. The

Joint Statement of Undisputed Stipulated Facts did not include a stipulation about

the ultimate issue to be decided by the trial court – whether Daughter was residing

in Father's household at the time of the accident.

The trial court ultimately found “that under the facts and the law . . .

Daughter is not a resident of [Father]’s household and that [Respondents] are

entitled to judgment as a matter of law.” Accordingly, the trial court granted

summary judgment in favor of Respondents and against Shelter on the issues

concerning the Farmowners Policy, and correspondingly denied the cross-motion

for summary judgment filed by Shelter. The trial court thus decreed that Shelter

has a duty to provide insurance coverage for Daughter’s claims under the

Farmowners Policy. Additionally, the trial court found that insurance coverage is

also available under an Automobile Policy issued to Father.

Shelter appeals only the trial court’s findings concerning the Farmowners

Policy.

Standard of Review

Our review is governed by the standard set forth by the Missouri Supreme

Court:

The trial court makes its decision to grant summary judgment based on the pleadings, record submitted, and the law; therefore, this Court need not defer to the trial court’s determination and reviews the grant of summary judgment de novo. In reviewing the decision to grant summary judgment, this Court applies the same criteria as the trial court in determining whether summary judgment was proper. Summary judgment is only proper if the

7 moving party establishes that there is no genuine issue as to the material facts and that the movant is entitled to judgment as a matter of law.

Green v. Fotoohighiam, 606 S.W.3d 113, 115 (Mo. banc 2020) (quoting Goerlitz v.

City of Maryville, 333 S.W.3d 450, 452 (Mo. banc 2011) (abrogated on other

grounds)).

“Because the case was submitted on stipulated facts entered into between

the parties in the proceedings before the trial court, ‘[t]he only question before us

is whether the trial court made the proper legal conclusion from the stipulated

facts.’” Jones v. Am. Fam. Mut. Ins. Co., S.I., 632 S.W.3d 482, 487 (Mo. App. W.D.

2021) (alteration in original) (quoting Cady v. Ashcroft, 606 S.W.3d 659, 665 (Mo.

App. W.D. 2020)).

Generally, an order denying a party’s motion for summary judgment is not a final judgment and is therefore not subject to appellate review. Hussmann Corp. v. UQM Electronics, Inc., 172 S.W.3d 918, 922 (Mo. App. E.D. 2005). The denial of a motion for summary judgment, however, may be reviewable when, as in this case, the merits of the motion for summary judgment are “intertwined with the propriety of an appealable order granting summary judgment to another party.” See id.

Columbia Mut. Ins. Co. v. Heriford, 518 S.W.3d 234, 238 n.2 (Mo. App. S.D. 2017)

(quoting Schroeder v. Duenke, 265 S.W.3d 843, 850 (Mo. App. E.D. 2008)). Here,

both motions relied on the application of the same law to the stipulated facts in

order to answer the question of whether Daughter is a resident of Father’s home;

the merits of the motions are thus intertwined.5 See Jones, 632 S.W.3d at 486 n.3.

Accordingly, we will review both the grant and denial of summary judgment.

5 Accordingly, we reject Respondents’ argument that this appeal should be dismissed due to the multifariousness of Shelter’s Points Relied On. Specifically, 8 Analysis

Though Shelter raises three points on appeal, our resolution of Shelter's first

point on appeal is dispositive. In Point I, Shelter claims,

[t]he [trial court] erred in granting [Respondents’] Motion for Summary Judgment and denying Shelter’s Motion for Summary Judgment because it erroneously applied Missouri law to the parties’ stipulated uncontroverted facts, which establish as a matter of law that the household exclusion in Shelter’s Farmowners policy issued to [Father] applies to bar Personal Liability coverage under the Farmowners policy for bodily injury sustained by [Daughter], in that [Daughter] was [a] dual resident of her divorced parents’ households, [Father] and [Mother] had joint legal and physical custody of [Daughter], the custody and visitation arrangement was permanent, and [Daughter] lived with [Father] regularly, although not continuously, as part of his family unit such that Shelter owes no duty to provide liability coverage for the injuries sustained by [Daughter] under Shelter’s Farmowners policy issued to [Father].

Shelter thus argues that the parties' stipulated uncontroverted facts required the

trial court to conclude, as a matter of law, that the household exclusion in the

Farmowners Policy precluded coverage for Daughter's injuries. Shelter's

contention requires us to interpret the Farmowners Policy.

As with any other contract, the “interpretation of an insurance policy is a question of law that this Court also determines de novo.” Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007). “In construing the terms of an insurance policy, this Court applies the meaning which would be attached by an ordinary person of average understanding if purchasing insurance. . . .” Id. (quotation marks omitted). “Absent an ambiguity, an insurance policy must be enforced according to its terms.” Id. Notably, “[w]here the policy language has already been judicially defined,” no ambiguity exists, and “the judicial definition[] assigned to [a] policy term [is] controlling.” Walden v. Smith, 427 S.W.3d 269, 274 (Mo. App. 2014).

Respondents contend Shelter’s Points Relied On “assert challenges to separate rulings – that the trial court erred in granting [Respondents’] motion for summary judgment and also erred in denying Shelter’s motion for summary judgment.” 9 Griffitts v. Old Republic Ins. Co., 550 S.W.3d 474, 478 (Mo. banc 2018) (alterations

in original).

“‘An ambiguity exists when there is duplicity, indistinctness, or uncertainty

in the meaning of the language in the policy.’” Seaton v. Shelter Mut. Ins. Co., 574

S.W.3d 245, 247 (Mo. banc 2019) (quoting Taylor v. Bar Plan Mut. Ins. Co., 457

S.W.3d 340, 344 (Mo. banc 2015)). Ambiguous language also exists when the

language “‘is reasonably open to different constructions.’” Seeck, 212 S.W.3d at

132 (quoting Gulf Ins. Co. v. Noble Broad., 936 S.W.2d 810, 814 (Mo. banc 1997)).

“Any ambiguity is resolved in favor of the insured.” Swadley v. Shelter Mut. Ins.

Co., 513 S.W.3d 355, 357 (Mo. banc 2017) (citing Ritchie v. Allied Prop. & Cas. Ins.

Co., 307 S.W.3d 132, 135 (Mo. banc 2009)). Yet, “[c]ourts may not create an

ambiguity when none exists.” Doe Run Res. Corp. v. Am. Guarantee & Liab. Ins.,

531 S.W.3d 508, 511 (Mo. banc 2017) (citing Todd v. Mo. United Sch. Ins. Council,

223 S.W.3d 156, 160 (Mo. banc 2007)).

Here, the Farmowners Policy obligates Shelter to pay "all sums arising out

of any one loss which an insured becomes legally obligated to pay as damages

because of bodily injury . . . caused by an occurrence covered by this policy."

However, this coverage for the insured's personal liability is expressly excluded for

"Bodily injury to: a) You; (b) Your relatives residing in your household; and c)

Any other person under the age of 21 residing in your household who is in your

care or the care of a resident relative." "Insured" is defined by the policy using

precisely the same language as the aforesaid exclusion. It is thus plain that the

10 exclusion to coverage for an insured's personal liability is intended to be co-

extensive with the definition of the term "insured," such that the policy will not

provide coverage for bodily injury to an "insured."

The question thus framed by this case is whether Daughter was barred from

recovering under the policy by the exclusion to coverage because Daughter was an

"insured" under the Farmowners Policy. Both parties agree that the controlling

language in both the definition of "insured," and in the exclusion provision, is in

subpart (b) of both provisions which refers to "Your relatives residing in your

household." Though "your" is defined in the policy to mean "Father," the terms

"relative," "residing in" and "household" are not defined therein. We are directed,

however, to give these terms their plain and ordinary meaning, if possible. Doe

Run Res. Corp., 531 S.W.3d at 511.

A "relative" is commonly understood to include a person who is related by

blood, marriage, or adoption. Daughter is clearly one of Father's relatives,

employing this common understanding of the term.

The term "household" has, for purposes of insurance contracts, been defined

as

a collection of persons, whether related by consanguity [sic] or affinity or not related at all but who live or reside together as a single group or unit which is of a permanent and domestic character, with one head, under one roof or within a single curtilage; who have a common subsistence and who direct their attention toward a common goal consisting of their mutual interest and happiness.

Watt by Watt v. Mittelstadt, 690 S.W.2d 807, 816 (Mo. App. W.D. 1985). Further,

the Watt court “declared that the term ‘household’ is found to be a term which is 11 not ambiguous within and for the purposes of ‘homeowners’ insurance policies.”6

Id.

That leaves the term "residing in," which is also undefined by the

Farmowners Policy. Our courts have held that "residing" is a term that does not

have an absolute or commonly understood meaning, such that the definition of the

term is "dependent upon the facts of each case." Am. Fam. Mut. Ins. Co. v.

Hoffman ex rel. Schmutzler, 46 S.W.3d 631, 634 (Mo. App. W.D. 2001) (citing

Columbia Mut. Ins. Co. v. Neal, 992 S.W.2d 204, 209-10 (Mo. App. E.D. 1999)).

However, as is evident by the preposition “in,” the terms “residing in” and

“household” must be read in conjunction with one another and in context. Clearly,

“household” gives context to “residing” as it addresses where Daughter must reside

in order that the exclusion apply. “Words, phrases, and provisions in an insurance

contract must be examined in the context of the policy as a whole and are not to be

interpreted in isolation.” Mendelson v. McLaughlin, 660 S.W.3d 386, 392 (Mo.

App. E.D. 2022) (citation omitted).

6 We recognize Liberty Mut. Ins. Co. v Havner, 103 S.W.3d 829, 833 (Mo. App.

W.D. 2003) has stated the Watt definition is itself ambiguous. A thoughtful reading of Havner, however, notes the Havner court primarily takes issue with, and only discusses, the word, “curtilage.” Id. at 833-34. It does not question Watt’s reference to a group of persons “under one roof.” Id. In Havner, the grandson of insureds did not live in insureds’ home nor within the curtilage of said home, but rather in another house on insureds’ property, and thus was not a resident of insureds’ household. Id. We also note Havner appears to be an outlier in its decision, as detailed further in the concurrence hereto. Further, if Havner’s declaration that “household” is ambiguous when undefined in a policy, Havner, 103 S.W.3d at 833, is to be understood as a declaration that any clause utilizing the term “household” is ambiguous, then this declaration from Havner would conflict with a prior Missouri Supreme Court case indicating that an exclusion clause containing the word “household” was unambiguous. See Am. Fam. Mut. Ins. Co. v. Ward, 789 S.W.2d 791, 792, 796 (Mo. banc 1990). 12 We are left then with the task of interpreting the Farmowners Policy for the

purpose of determining coverage (a question of law pursuant to Griffitts, 550

S.W.3d at 478), and to apply terms that are not defined in the Farmowners Policy,

and one whose definition has been held by our courts to be inherently dependent

on the facts of each case. Countryside Cas. Co. v. McCormick, 722 S.W.2d 655,

658 (Mo. App. S.D. 1987) (“The question of residence is one of fact.”) (citations

omitted). Shelter argues that the stipulated facts require the conclusion that

Daughter resided in both Mother's and Father's households, and that because the

occurrence giving rise to Daughter's bodily injury occurred while she was "residing

in" Father's household, the exclusion in the Farmowners Policy operates to deny

coverage for those injuries. Respondents do not quarrel with the premise that the

facts in a particular scenario may support finding that a person resides in more

than one household. See Pruitt v. Farmers Ins. Co., 950 S.W.2d 659, 663 (Mo.

App. S.D. 1997) (“This court has also acknowledged the possibility that a person

may be a ‘resident’ of more than one place for purposes of insurance coverage.”)

(citing Countryside, 722 S.W.2d at 659). However, Respondents argue that the

stipulated facts do not support the conclusion that Daughter was residing in

Father's household at the time of the occurrence giving rise to her bodily injuries,

such that the household exclusion in the Farmowners Policy does not operate to

deny coverage.

“While the insured bears the burden of proving coverage under an insurance

policy, the insurer bears the burden of showing that a policy exclusion precludes

13 coverage for a particular loss.” Messina v. Shelter Ins. Co., 585 S.W.3d 839, 843

(Mo. App. W.D. 2019) (emphasis removed) (citation omitted). “An insurance

company, relying on an exclusion in a policy, has the burden of proving facts which

make the exclusion applicable.” Neal, 992 S.W.2d at 209 (citation omitted). When

potential application of the "household exclusion" in a liability policy is triggered

by a scenario involving a child of divorced parents, Missouri courts have not

ascribed a settled definition to the term "residing in," but have articulated factors

that are relevant to resolving the factual question of whether a child resides with

only one or both parents. Countryside, 722 S.W.2d at 657-59; Hoffman, 46 S.W.3d

at 634-36.7 Missouri courts have regularly read the terms “residing” and

“household” in context with one another in determining whether an individual is a

resident of a particular household. See Hoffman, 46 S.W.3d at 634-35;

Countryside, 722 S.W.2d at 657-58.

In this case, we conclude that the language of the contract is plain and

unambiguous. This comports with Missouri Supreme Court precedent indicating

that an exclusion clause utilizing the terms “residing” and “household” was

“unequivocal and unambiguous” and “not subject to construction or

interpretation.” See Am. Fam. Mut. Ins. Co. v. Ward, 789 S.W.2d 791, 792, 796

(Mo. banc 1990) (exclusion stating “[b]odily injury to any person injured while

operating your insured car or for bodily injury to any person related to and residing

7 Had the Farmowner’s Policy defined “reside,” we would have utilized such definition and would not resort to utilizing the Countryside analysis. 14 in the same household with the operator[,]” is “unequivocal and unambiguous and

is not subject to construction or interpretation.”).8

In Countryside, a five-year-old child was fatally injured as a result of an

automobile accident in which she was a passenger in an uninsured vehicle operated

by her mother’s husband. 722 S.W.2d at 655. The child’s mother and biological

father were divorced. Id. The issue before the Southern District was whether the

father was entitled to benefits under a provision of an uninsured motorist

automobile policy, resolution of which depended “on whether [the child] was ‘a

relative’ of [the father], who was the named insured.” Id. The policy at issue had

defined “relative” as “a person related to the named insured . . . by blood . . . and

who is a resident of and actually living in the same household as the name insured

. . . .” Id. at 656.9

8 That said, we note that there appears to be uncertainty regarding whether, based

on the underlying evidence, the facts indicate that Daughter was residing in Father’s household. This type of uncertainty, that may arise with regard to the application of the contract language to the facts, has at times been referred to as a latent ambiguity – when the language of the contract is plain but may become uncertain upon the application of the language to the facts. See Havner, 103 S.W.3d at 833 (citing Gen. Am. Life Ins. Co. v. Barrett, 847 S.W.2d 125, 131 (Mo. App. W.D. 1993)). In the context of whether a person resides in the household of another, this type of uncertainty – which is not a matter of uncertainty in the contract language but rather a matter of uncertainty as to whether the underlying facts trigger particular contract language – has regularly been held to present a question of fact for the trier of fact. Countryside, 722 S.W.2d at 658; Hoffman, 46 S.W.3d at 634 (“The question of whether a person is a resident of a particular household is one of fact.”). 9 In discussing the interplay between the terms “a resident of” and “actually living

in,” the Southern District explained that “reside” and “live” are synonymous terms, stating “‘the conjunctive use of both terms in the policy definition is simply repetitive and cumulative and adds nothing in meaning or effect.’” Countryside, 722 S.W.2d at 659 (quoting Clarkson v. MFA Mut. Ins. Co., 413 S.W.2d 10, 12-13 (Mo. App. 1967)). 15 The Southern District provided context for its analysis by stating “[w]hen a

separation is clearly permanent, the courts almost always examine the

circumstances with a view to evaluating whether the nature of the relationship

between the injured child and the non-resident parent at the time of the accident

justifies an extension of coverage.” Id. at 657 (quoting WIDISS, UNINSURED AND

UNDERINSURED MOTORIST INSURANCE, 2nd ed., vol. 1, § 4.13). The court then stated

that “[t]he most significant factor in determining the residence of the child is a

judicial determination awarding custody.” Id. (emphasis added) (quoting WIDISS).

The court also applied two theories provided in our Supreme Court's decision in

Cobb v. State Sec. Ins. Co., 576 S.W.2d 726 (Mo. banc 1979) to be utilized in

determining residency, to wit: “One theory examines the length of time the parties

intended to remain in the home and whether the arrangement is permanent or

temporary. . . . The other theory focuses on the functional character of the

arrangement or whether the parties function as a family unit under one

management[.]” Id. at 658 (quoting Cobb, 576 S.W.2d at 738).

In applying these factors, the Southern District determined the child was a

resident of her father’s household and therefore an insured under the policy,

entitling the father to benefits. Id. at 658-59. While there were certain facts that

tended to support the opposite finding, such as the award of legal custody to the

mother, the court found that the following factors in the aggregate supported its

determination:

16 [The child] was only five years old at the time of her death; her divorced parents were still living within 25 miles of each other although each was maintaining a separate household; the father had been awarded reasonable rights of visitation under the divorce decree and he was current in his payments of weekly child support for [the child]; [the child] spent some time in her father’s home while [the mother and the mother’s husband] lived in Blytheville; [the child] and her father had a good relationship and there was testimony that she spent “at least one full week, the weekends, a few weeks” in the household of her father; [the child] came very regularly to spend the night at her father’s house; she came at “every other week” intervals; [the child] had her own bedroom at her father’s house and [she] kept “permanent clothing” or a separate wardrobe at her father’s house; [the child] was with her father “as much or more than she was with [her mother].” [The child] spent “as much time” in her father’s residence as she did in her mother’s residence.

Id. at 658 (second-to-last alteration in original).

With respect to Cobb’s permanency theory, the court specifically found that

“[t]he frequent visits of [the child] to the home of her father, where she had her

own wardrobe and personal belongings in her own bedroom, were likely to be a

‘permanent arrangement.’” Id. at 659 (citation omitted). And, concerning the

family unit theory, the court stated,

[The child] and her father continued to function as a family unit, although a similar relationship existed between [the child] and her mother. [The child] and her father lived together, regularly although not continuously, as a family in a closely knit group and they dealt with each other informally and not at arm’s length.

Id. (citation omitted). The court found that the record before it “justified the trial

court in finding that [the child] was a resident of, and ‘actually living in,’ two

separate households[.]” Id. The court concluded by asserting “[t]he policy did not

require that [the father]’s residence be [the child]’s ‘sole’ residence, or even her

‘principal’ residence or her residence ‘most of the time.’” Id.

17 In Hoffman, we similarly addressed the factual question of a child's

residency in the face of a divorce, though in the context of determining the

application of an exclusion to coverage. 46 S.W.3d at 633-34. In Hoffman, we

acknowledged just as the Southern District did in Countryside, that the most

significant factor in determining with whom a child resides is the judicial

determination of custody. Id. at 635. We further recognized that the factors

pertaining to both Countryside standards – permanency and family unit – must

be evaluated to determine whether the child was a resident relative, such that an

exclusion would apply to bar coverage. We stated, “[T]he court in Countryside

applied the two standards articulated in Cobb – whether the arrangement was

permanent or temporary, and whether the parties functioned as a family unit – to

determine that the child was, in fact, a resident of the non-custodial parent’s

household.” Id. (citing Countryside, 722 S.W.2d at 658). See also e.g., Neal, 992

S.W.2d at 211 (in determining whether a decedent was a resident of his

grandparents’ household for purposes of a policy exclusion, the Eastern District

stated “the courts, faced with similar determinations, have examined whether the

person had become an integrated part of the family and whether the person’s stay

was temporary[,]” i.e., a family unit standard and a permanency standard).

The parties agree that the Countryside factors must be considered to resolve

whether Daughter was residing with both Father and Mother, or was residing only

with Mother. It is plain, in fact, that the Joint Statement of Undisputed Stipulated

Facts the parties presented to the trial court was purposefully crafted around the

18 Countryside factors. The trial court was thus required to determine whether the

stipulated facts supported the entry of summary judgment as a matter of law in

favor of either party.

Though the stipulated facts are comprehensive, the ultimate factual

determination required in this case – whether Daughter is, or is not, a resident of

Father's household – is not stipulated to by the parties. In fact, though the parties

stipulated to facts that are relevant to making this ultimate factual determination,

it is plain from the competing summary judgment motions that the ultimate factual

determination was contested, and thus remained a material factual matter in

dispute.10 As such, despite a comprehensive stipulation of facts, the entry of

summary judgment as a matter of law in favor of either party is not permitted here.

Facts, whether stipulated or uncontroverted, do not entitle a party to summary

judgment unless those facts support the entry of summary judgment as a matter of

law. The stipulated facts in this case do not support the entry of summary

judgment as a matter of law. This is best evidenced by the fact that in its grant of

summary judgment to Daughter, the trial court first resolved a genuine issue of

material fact in dispute by finding that Daughter was not a resident of Father's

household at the time of her injury, before drawing the legal conclusion that the

Farmowners Policy provided coverage for Daughter's injury. This was error.

10 Indeed, as we note in the Factual and Procedural History, Daughter at various

times “lived with,” “visited,” and “stayed at” the home of one of her parents. These quoted words and phrases were taken directly from the Joint Statement of Undisputed Stipulated Facts of the parties. Notably absent in these uncontroverted, stipulated facts is the word, resided, and more specifically, where Daughter resided. 19 Stipulated facts that may be relevant to resolving a contested ultimate fact do not

render the ultimate fact a question of law. See e.g., McHenry v. Claspill, 545

S.W.2d 690, 693 (Mo. App. 1976) (holding that "when a case comes to the

reviewing court on stipulated facts, review is made to determine whether judgment

is a proper legal conclusion upon the facts stipulated, provided that all

ultimate facts or factual inferences have been stipulated") (emphasis

added) (cited with approval in Mo. Highway & Transp. Com'n v. Sample, 702

S.W.2d 535, 536 (Mo. App. E.D. 1985)).

Because a material fact, indeed the ultimate fact at issue in this case, is in

dispute, that dispute must be resolved in a judgment on the merits and not by

summary judgment. This procedural difference is of critical importance here, as

our standard of review following a trial on the merits of contested factual issues

resolved by a trial court is not de novo, but is instead pursuant to Murphy v.

Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). And, where a trial on the merits is

benefitted by stipulated facts that do not include a stipulation as to the ultimate

fact, our review on appeal of the ultimate fact is not de novo (as would apply to a

question of law), but is instead deferential review. See Graue v. Mo. Prop. Ins.

Placement Facility, 847 S.W.2d 779, 782 (Mo. banc 1993) (holding after trial on

merits, standard of review is pursuant to Murphy v. Carron, and that "[w]hen the

record is stipulated but not all ultimate facts or factual inferences have been

conceded, this Court reviews the stipulated facts in the light most favorable to the

20 respondent and disregards inferences favorable to the appellant") (citations

omitted).

Further, reversal and remand of this case for further proceedings is required

by Hoffman, where we reversed the grant of summary judgment in favor of the

insurer on the issue of whether an injured party was a "resident" of the

policyholder's household at the time of the injury, noting that "[t]he trial court in

Countryside made its findings on [the Countryside factors] and its

determination of the child's residency after a trial." 46 S.W.3d at 635

(emphasis added). We then held that it was therefore error "to rule in favor of [the

insurer] on its motion for summary judgment," because to do so, "the trial court

had to resolve [] factual disputes [regarding the Countryside factors] to make the

ultimate finding of fact in this case – that [the injured person] was a resident

of [both parents'] households." 11 Id. at 636 (emphasis added).

Though evidence about the Countryside factors was in dispute in Hoffman,

and is instead largely if not wholly stipulated to here, the ultimate fact in dispute

which remained to be determined in Hoffman is the ultimate fact in dispute which

remains to be determined in this case. Plainly, the ultimate fact here, whether

Daughter is, or is not, a resident of Father's household, is not uncontroverted or a

11 Thus, Hoffman and Countryside, though applying the same factors for residency

even though they are an exclusion case and a coverage case, respectively, are treated quite differently upon appellate review due to the procedural posture upon which they were presented to the appellate court. Countryside was a declaratory judgment action based on stipulated facts and a brief evidentiary hearing before the court, and thus applied a deferential standard of review, infra, while Hoffman presented in the same fashion as the case at hand, as competing summary judgment motions subject to de novo review. 21 matter of stipulation between the parties. Rather, the parties have agreed to a

litany of facts, all of which are useful in determining the ultimate fact, but leave the

determination of the ultimate fact for the trial court. 12 Trial courts are not

permitted to resolve factual disputes in summary judgment proceedings. Pruitt,

950 S.W.2d at 665 (“‘There may be no summary disposition of any disputed factual

matters.’”) (quoting Int’l Mins. v. Avon Prods., 817 S.W.2d 903, 906 (Mo. banc

1991)).13

Conclusion

For the foregoing reasons, the trial court's judgment concerning the

Farmowners Policy is reversed, and this matter is remanded to the trial court for

further proceedings. The portion of the trial court’s judgment concerning the

Automobile Policy, which was not appealed by Shelter and thus not at issue on this

12 Similarly, in Columbia Mut. Ins. Co. v. Heriford, 518 S.W.3d 234, 244 (Mo. App.

S.D. 2017), both parties failed to recite material facts regarding ownership of a vehicle and residence of parties in their statement of undisputed material facts. Columbia miscategorized “selected evidence as material facts that . . . [only] inferentially[] supports Delcia’s non-ownership of the truck and Leslie’s non-residency with Delcia.” Id. at 243 (emphasis added) (footnote omitted). Because each party failed to properly allege in their respective SUMF either the existence or non-existence of Delcia's ownership of the truck and Leslie's residency or non-residency with Delcia as material facts, in accordance with the requirements of Rule 74.04(c), neither made a prima facie showing of a right to judgment as a matter of law. The lack of such a showing precludes the entry of summary judgment for either party. Id. at 244 (citation omitted). 13 To be clear, we are not holding that the trial court arrived at the wrong factual

conclusion on the issue of Daughter's residency. Nor are we holding that additional evidence is required over and above the stipulated facts to permit the trial court to resolve on the merits the ultimate fact in dispute in this case. Rather, we are simply holding that when an ultimate factual determination remains in dispute, summary judgment is not a proper procedure for resolution of that contested fact. 22 appeal, is not affected by this opinion. The trial court’s judgment is therefore

affirmed in part, and reversed and remanded in part.

______________________________ W. DOUGLAS THOMSON, JUDGE

Judge Sutton concurs. Judge Chapman concurs in a separate concurring opinion.

23 IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT SHELTER MUTUAL INSURANCE ) COMPANY, ) ) WD85527 Appellant, ) v. ) FILED: ) TREVOR HILL, LESLIE HILL, ) February 20, 2024 LANIE HILL, AND SHELBIE ) ALEXANDER, ) ) Respondents. )

CONCURRING OPINION

I concur in the result of the majority opinion. Missouri courts have long

considered the question of whether a person resides in the household of another

for purposes of insurance contracts to be a question of fact. See Am. Fam. Mut.

Ins. Co. v. Hoffman ex rel. Schmutzler, 46 S.W.3d 631, 634 (Mo. App. W.D. 2001)

(“The question of whether a person is a resident of a particular household is one of

fact.”); Countryside Cas. Co. v. McCormick, 722 S.W.2d 655, 658 (Mo. App. S.D.

1987) (“The question of residence is one of fact.”); Am. Fam. Mut. Ins. Co. v. Auto.

Club Inter-Insurance Exch., 757 S.W.2d 304, 306-07 (Mo. App. W.D. 1988)

(affirming jury finding that 16-year old son of divorced parents did not “live in the

household of” his custodial parent (father) or “live with” his non-custodial parent (mother)); Mission Ins. Co. v. Ward, 487 S.W.2d 449, 450-51 (Mo. banc 1972)

(finding “as a fact” that father and son were not “members of” grandfather’s

“household” because their stay was temporary);

1 Reed v. Am. Std. Ins. Co. of Wisconsin, 231 S.W.3d 851, 853 (Mo. App. W.D.

2007) (“Whether a person lived in another’s household is a question of fact.”);

Pruitt v. Farmers Ins. Co., Inc., 950 S.W.2d 659, 665 (Mo. App. S.D. 1997)

(“Residence is a question of fact.”).

In this case, both parties rely on the same stipulated facts, and both parties

argue that the stipulated facts establish that they are entitled to summary

judgment as a matter of law. In this scenario, remand may seem a peculiar result;

however, the parties did not stipulate as to whether the child was residing in

Father’s household. If this question is one of fact, as the authorities repeatedly

indicate, and if conflicting but reasonable inferences can be drawn from the

stipulated facts to answer this ultimate question of fact, as is the case based on the

facts stipulated in this matter, then remand is the appropriate result so that the

trier of fact can decide which of a number of conflicting yet reasonable inferences

are to be drawn from the stipulations to answer the ultimate question of whether

the child was residing in Father’s household.

At the same time, I recognize that the approach taken by Missouri courts to

treat this issue as a question of fact may lead to (or has already produced)

1 Ward applied a standard of review that is no longer applicable. Ward, 487 S.W.2d at 451 (“In this court-tried case we review the record upon both the law and the evidence, determine the weight and value to be given to the testimony, and make our own findings of fact.”). 2 uncertainty in the law. I also recognize tension between the notion that this

question is one of fact, as the authorities have indicated, and the principle that

questions of coverage are generally questions of law. See D.R. Sherry Constr., Ltd.

v. Am. Fam. Mut. Ins. Co., 316 S.W.3d 899, 902 (Mo. banc 2010) (“As with any

other contract, the interpretation of an insurance contract is generally a question

of law, particularly in reference to the question of coverage.”). Nevertheless,

whether the child of divorced parents resides in one or both of their households

has always been considered a question of fact. Hoffman, 46 S.W.3d at 634; Am.

Fam. Mut. Ins. Co., 757 S.W.2d at 306-07; Countryside, 722 S.W.2d at 658.

However, when the same contract language may, on the same set of underlying

facts, produce conflicting results, then continuing to consider the issue to be one

of fact may perpetuate a lack of certainty between parties as to the terms of the

contract they are entering and a lack of predictability in the law. Although I do not

disagree with the result of the majority as there is ample support for its result, I

write separately to address some of the reasons for this uncertainty and to consider

possible alternatives.

I.

Shelter Mutual Insurance Company (“Shelter”) filed a petition for

declaratory judgment that alleged, inter alia, that Daughter resided in Father’s

household at the time of her injuries such that an exclusion in Father’s

“Farmowners Insurance Policy” precluded coverage under the policy. Father’s

policy indicates that coverage would be excluded if Daughter was “residing in”

3 Father’s “household.” Shelter had the burden of establishing that the policy

exclusion precluded coverage. See Messina v. Shelter Ins. Co., 585 S.W.3d 839,

843 (Mo. App. W.D. 2019).

Father, along with the other named defendants,2 moved for summary

judgment and attached to the motion a joint statement of stipulated facts. Shelter

also moved for summary judgment on the same set of stipulated facts.

The stipulated facts are as follows. Mother and Father divorced shortly after

Daughter was born. The judgment in the divorce proceedings provided that

Mother and Father would have joint physical and joint legal custody and that

Mother’s residence would be Daughter’s primary residence for educational

purposes only. Per the judgment, Father was identified as the “Non-Residential

Parent.” The judgment provided that the primary physical placement of child was

to be with Mother. In 2015, the judgment was modified. The judgment of

modification provided that Mother and Father were to retain joint legal and joint

physical custody of Daughter, that Daughter’s residence was to continue to be that

of Mother, and that Father was to have parenting time pursuant to the parenting

plan. Following the divorce, Mother and Father lived in separate counties over an

hour apart. Daughter attended school in Mother’s county of residence.

2 There were other named defendants in the petition for declaratory judgment that jointly litigated the summary judgment proceedings. For ease of reference, I simply refer to the collective defendants as “Father” when discussing the joint litigation of the defendants to the declaratory judgment action. 4 On July 26, 2018, Daughter suffered serious and permanent injuries while

visiting Father’s property. On July 26, 2018, Daughter “lived with her Mother” in

Mother’s county of residence. At the time of the incident, Daughter would

periodically visit Father on weekends and would spend approximately two weeks

with Father during the summer. The rest of the time Daughter stayed at Mother’s

house. In the six months prior to the incident, Daughter lived with Mother

approximately 80% of the time and visited Father approximately 20% of the time.

Daughter had keys to Mother’s home but did not have keys to Father’s home.

Daughter received mail at Mother’s home including mail from her paternal

relatives. Daughter did not receive mail at Father’s house. Mother had primary

custody of Daughter on the date of the incident. On the date of the incident, Father

did not provide substantial support of Daughter. On the date of the incident,

Father did not pay for any monthly expenses for Daughter and was several months

behind in monthly child support. At the time of the incident, Daughter maintained

a room at her Mother’s home with the vast majority of her clothing kept there,

while also maintaining a bedroom at Father’s house with limited clothing there.

Daughter was very active in multiple activities in Mother’s county of residence and

did not participate in activities in Father’s county of residence.

Father’s motion for summary judgment argued that the stipulated facts

established that Daughter was not residing in his household as a matter of law.

Father’s motion relied heavily on Countryside Cas. Co. v. McCormick, 722 S.W.2d

655, 657-58 (Mo. App. S.D. 1987), and argued that an analysis of the factors in

5 Countryside established that Daughter did not reside with Father as a matter of

law. Father also argued that the Farmowners Policy did not define “residing” and

therefore the term was ambiguous, such that the exclusion should be construed in

favor of the insured so as to provide coverage under the policy.

Shelter argued that the stipulated facts established that Daughter was

residing in Father’s household as a matter of law. Shelter also relied primarily on

Countryside. Shelter noted that Countryside indicated that a child of divorced

parents could be a resident of two separate households, and argued that the factors

identified in Countryside established that Daughter resided in Father’s household

as a matter of law. See Countryside, 722 S.W.2d at 658.

Thus, in moving for summary judgment, both parties relied primarily on

Countryside. Both parties’ briefing indicated that the question of residence was

one of fact. See Countryside, 722 S.W.2d at 658 (“The question of residence is one

of fact.”).

At the motion hearing, both parties represented to the trial court that the

issue could be resolved as a matter of law because the facts were stipulated and

there were cross-motions for summary judgment.

With respect to Father’s Farmowners Insurance Policy, the trial court found

in favor of Father on his motion for summary judgment. On appeal, Shelter argues

that the trial court erred in granting summary judgment to Father.

6 II.

“As with any other contract, the interpretation of an insurance contract is

generally a question of law, particularly in reference to the question of coverage.”

D.R. Sherry Constr., Ltd. v. Am. Fam. Mut. Ins. Co., 316 S.W.3d 899, 902 (Mo.

banc 2010). Generally, an issue of coverage becomes a fact question “only when

the court determines that the contract is ambiguous and that there exists a genuine

factual dispute regarding the intent of the parties.” Id. (citing Graham v.

Goodman, 850 S.W.2d 351, 354 (Mo. banc 1993)). “When interpreting an

insurance policy, this Court gives the policy language its plain meaning, or the

meaning that would be attached by an ordinary purchaser of insurance.” Doe Run

Res. Corp. v. Am. Guar. & Liab. Ins., 531 S.W.3d 508, 511 (Mo. banc 2017) (citation

and quotation omitted). “If the policy language is clear and unambiguous, it must

be construed as written.” Id. “An ambiguity exists when there is duplicity,

indistinctness, or uncertainty in the meaning of the language of the policy.

Language is ambiguous if it is reasonably open to different constructions.”

Swadley v. Shelter Mut. Ins. Co., 513 S.W.3d 355, 357 (Mo. banc 2017) (quoting

Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007)). “Any

ambiguity is resolved in favor of the insured.” Id. However, “[c]ourts may not

create an ambiguity when none exists.” Doe Run, 531 S.W.3d at 511. “Notably,

where the policy language has already been judicially defined, no ambiguity exists

and the judicial definition assigned to a policy term is controlling.” Griffitts v. Old

7 Republic Ins. Co., 550 S.W.3d 474, 478 (Mo. banc 2018) (quoting Walden v. Smith,

427 S.W.3d 269, 274 (Mo. App. W.D. 2014) (brackets and quotes omitted).

The insurance company has the burden of establishing an exclusion applies.

Burns v. Smith, 303 S.W.3d 505, 510 (Mo. banc 2010). Exclusionary clauses are

strictly construed against the drafter. Id.

III.

Before going on to analyze the issues in this case, I first provide a backdrop

of the relevant case law, as Missouri Courts have long struggled with the definition

of terms such as “residence” and “household” when left undefined in insurance

policies. See, e.g., Watt by Watt v. Mittelstadt, 690 S.W.2d 807, 815-16 (Mo. App.

W.D. 1985).3

In 1979, in Cobb v. State Sec. Ins. Co., 576 S.W.2d 726 (Mo. banc 1979), the

Missouri Supreme Court addressed how to interpret the term “household” in an

insurance contract and stated:

“Household” is a chameleon like word. The definition depends on the facts of each case. It is difficult to deduce any general principles. One theory examines the length of time the parties intended to remain in the home and whether the arrangement is permanent or temporary. The other theory focuses on the functional character of the arrangement or whether the parties function as a family unit under one management.

Although for different purposes the meaning of the word may differ, “household” is a word to describe a close relationship, varying in

3 Many of the cases highlighted below are so factually dissimilar from the present appeal that I do not address the evidence of those cases at length. I do note, however, that the most factually similar cases appear to be Countryside Cas. Co. v. McCormick, 722 S.W.2d 655 (Mo. App. S.D. 1987) and American Family Mut. Ins. Co. v. Hoffman ex rel. Schmutzler, 46 S.W.3d 631 (Mo. App. W.D. 2001). 8 detail, where people live together as a family in a closely-knit group, usually because of a close relationship by blood, marriage or adoption and who deal with each other informally and not at arms length.

Cobb, 576 S.W.2d at 738 (internal citations omitted). Cobb noted that the

definition of household may vary depending on the context, declined to provide a

clear definition, and instead chose to describe some characteristics of a household.

See id.

In 1983, this court in Am. Fam. Mut. Ins. Co. v. Brown, 657 S.W.2d 273, 275

(Mo. App. W.D. 1983), recognized the principle set forth in Cobb that the phrase

“resident of the same household” was a phrase “subject to variable interpretation

depending on the facts of each particular case.” Brown, 657 S.W.2d at 275.

In 1985, this court in Watt addressed an argument that the term “household”

was ambiguous. Watt, 690 S.W.2d at 815-16. The court in Watt noted the Supreme

Court’s prior statements in Cobb, but ultimately found that the term was not

ambiguous. Id. at 815-16.

Contrary to what is asserted by the Watts, what this court observes from the above authorities is not that the term “household” is ambiguous and thus capable of two or more interpretations, but rather these authorities reveal a struggle of determining whether, under a prescribed set of facts an individual is an insured or not within the terms of any insurance policy.

The Watts further reference American Family Mutual Insurance Co. v. Brown, 657 S.W.2d 273 (Mo.App.1983), a case from this court dealing with the term “resident of the same household” within an exclusionary clause of an automobile insurance policy. In Brown, this court referred to Cobb and Giokaris4 in its discussion of the term “household”. Again, this court in Brown restated the problem, i.e., the determination of that issue must start with an acknowledgement 4 Giokaris v. Kincaid, 331 S.W.2d 633, 639 (Mo. 1960). 9 that “resident of the same household” is a phrase subject to variable interpretation depending on the facts of each particular case. Thus, again what is illustrated is the struggle courts face in determining in each case whether a person or persons are insureds and thus within a certain policy provision.

What has occurred is the focus by our courts upon the disposal of a particular case from and upon the facts of each case and not the setting forth of any definition of the term “household”. As the various authorities are read and considered, it is readily observable that attention to and concern with the term “household” has been to justify or explain the results reached in those cases. Perhaps in those cases the courts were never asked, nor was the real issue in those cases the setting forth of any definition of the term “household”. That issue is presented squarely herein.

Thus, it is herein declared that the term “household” is found to be a term which is not ambiguous within and for the purposes of “homeowners” insurance policies.

Watt, 690 S.W.2d at 815-16 (emphases in original).

The Watt court then provided a definition of “household”:

The term “household” as that term is expressed and to be made use of within insurance contracts shall mean a collection of persons, whether related by consanguinity or affinity or not related at all but who live or reside together as a single group or unit which is of a permanent and domestic character, with one head, under one roof or within a single curtilage; who have a common subsistence and who direct their attention toward a common goal consisting of their mutual interest and happiness.

Id. at 816.

In 1987, the Southern District of our court addressed a situation in which a

child of divorced parents was fatally injured in a car crash while with the child’s

mother, who was the custodial parent. Countryside Cas. Co. v. McCormick, 722

S.W.2d 655, 655-56 (Mo. App. S.D. 1987). The child’s father, who was not the

10 custodial parent, sought coverage under his automotive insurance policy. Id. at

655. Whether the policy provided coverage hinged on whether the child was “a

resident of and actually living in the same household” as her father. Id. at 656.

Following a bench trial in a declaratory judgment action brought by the insurer,

the trial court found that the child was a resident of and actually living in the same

household as her father. Id. at 655-56. On appeal, the insurance company argued

that the trial court’s finding was against the weight of the evidence, contending that

the child was within the custody of her mother and was physically living with her

mother at the time of the accident. Id. at 656.

The court in Countryside did not address the definition of “household”

provided in Watt but looked at statements from secondary sources and results

from courts from other jurisdictions suggesting that a child of divorced parents

could be a resident of both parents’ households, while noting that the issue was

generally considered to present a question of fact. Id. at 657-58. The court in

Countryside then noted the description of “household” from Cobb. Id. at 658

(quoting Cobb, 576 S.W.2d at 738).

Countryside then declared residence to be a question of fact and examined

the evidence in the record that would or would not support the trial court’s finding.

Id. The court noted that there were factors in the record that would support a

finding that the child was not a resident of her father’s household. Id. The Court

then noted that there were factors that supported the finding of the trial court such

11 that the trial court’s finding that the child was a resident of her father’s household

was not against the weight of the evidence. Id. at 658-59.

One takeaway from Countryside is that a child of divorced parents can be a

resident of both parents’ households. Id. at 658. However, the court considered

the question to be one of fact, and because the court was simply addressing an

against the weight of the evidence challenge, the court in Countryside did not

decide when a child of divorced parents is a resident of both parents’ households

as a matter of law but rather identified the evidence that it viewed as being relevant

to the trial court’s factual determination. Id. at 658-59.

In 1988, this court affirmed a jury finding that a child of divorced parents

did not live in the household of his custodial parent or live with his non-custodial

parent. Am. Fam. Mut. Ins. Co., 757 S.W.2d at 305-07. The court did not address

the definition of household provided in Watt. The court cited to family law cases

for the proposition that there is a presumption that a child’s residence was that of

the child’s custodial parent, but also stated that the custody of a child does not

necessarily mean that a child as a matter of law lives with one or the other of his or

her parents. Id. at 306 (citing Jackson v. Shannon Cnty. Dep’t of Soc. Services,

592 S.W.2d 320, 321 (Mo. App. S.D. 1979) and Phelps v. Phelps, 246 S.W.2d 838,

845 (Mo. App. K.C. 1952)). The court indicated that residence depends on a

person’s physical location coupled with an intent to remain there for an indefinite

period of time. Id. at 306. The court ultimately considered the question to be one

12 of fact and found the evidence sufficient to support the jury’s finding. Id. at 307

(“[T]he residence of a child is a question of fact.”).

In 1990, the Missouri Supreme Court in Ward addressed whether there was

ambiguity in an exclusion that would exclude coverage for the following: “Bodily

injury to any person injured while operating your insured car or for bodily injury

to any person related to and residing in the same household with the operator.”

See Am. Fam. Mut. Ins. Co. v. Ward, 789 S.W.2d 791, 792, 796 (Mo. banc 1990).

The Supreme Court stated: “The clause is unequivocal and unambiguous and is not

subject to construction or interpretation.” Id. at 796. However, the court in Ward

apparently was not confronted with an argument that the terms “residing” or

“household” were ambiguous.

In 1995, the Missouri Supreme Court in Ballmer addressed language of a

household exclusion that provided: “THERE IS NO COVERAGE.... FOR ANY

BODILY INJURY TO.... ANY INSURED OR ANY MEMBER OF AN INSURED'S

FAMILY RESIDING IN THE INSURED'S HOUSEHOLD.” State Farm Mut. Auto.

Ins. Co. v. Ballmer, 899 S.W.2d 523, 525 (Mo. banc 1995) (emphasis in original).

The court held that the language was not ambiguous. Id. Again, however, the court

did not appear to be confronted with an argument that the words “residing” or

In 1996, relying on Watt, 690 S.W.2d at 815-16, the Eastern District of our

court held that the “term ‘household’ is unambiguous when used in ‘homeowners’

13 insurance policies. Cameron Mut. Ins. Co. v. Marler, 926 S.W.2d 62, 64 (Mo. App.

E.D. 1996) (citing Watt, 690 S.W.2d at 815-16).

In 2001, this court reversed and remanded a grant of summary judgment in

favor of an insurer on its petition for declaratory judgment. Am. Fam. Mut. Ins.

Co. v. Hoffman ex rel. Schmutzler, 46 S.W.3d 631, 632-33 (Mo. App. W.D. 2001).

The issue was whether a child of divorced parents with joint custody was a resident

of his mother’s household for purposes of an exclusion in his mother’s

homeowner’s insurance policy. Id. at 634. The trial court granted summary

judgment to the insurer after finding that the child was a resident of the households

of both his father and mother. Id. On appeal, the Hoffman court reiterated that

“[t]he question of whether a person is a resident of a particular household is one of

fact.” Id. (citing Cobb, 576 S.W.2d at 738 and Pruitt, 950 S.W.2d at 665). Hoffman

did not address the definition of household set forth in Watt and repeated the prior

understanding that the terms “resident” and “household” were dependent upon

the facts of each case. Id. (citation omitted). Hoffman addressed the “factors”

addressed in Countryside and noted that Countryside addressed these factors after

a trial rather than in summary judgment proceedings. Id. at 635 (citing

Countryside, 722 S.W.2d at 657-58). Hoffman then addressed the summary

judgment evidence and noted that there were factual disputes on many of the

factors identified in Countryside. Id. at 635-36. In reversing and remanding for

further proceedings, the court in Hoffman indicated that it would be necessary for

the trier of fact to resolve these factual disputes in order to make “the ultimate

14 finding of fact” of whether the child was a resident of both of his parents’

households. Id. at 636.

In 2003, this court in Liberty Mut. Ins. Co. v. Havner, 103 S.W.3d 829, 830-

31 (Mo. App. W.D. 2003), addressed whether a child was a resident of the

household of his grandparents when the child lived with his parent on the same

land but in a different house in close proximity to the house in which his

grandparents lived. Id. at 831-32. Following a grant of summary judgment for the

injured party, the Havner court reversed, finding that there was no genuine

dispute as to the material facts and that the child did not reside in the household

of his insured grandparents as a matter of law. Id. at 832-34. The court then

remanded with instructions to enter judgment in favor of the insurer on the

insurer’s motion for summary judgment. Id. at 834. As part of its analysis, the

court addressed the definition of “household” in Watt but, unlike the court in Watt,

found that the term “household” was ambiguous, noting specifically that factual

circumstances may render a term ambiguous. Id. at 832-33. Havner indicated

that, when Watt referenced a struggle of determining whether an individual was a

resident of another’s household, the referenced struggle was actually the product

of a latent ambiguity wherein the language of an agreement that “is plain on its

face, becomes uncertain upon application.” Id. (quoting Gen. Am. Life Ins. Co. v.

Barrett, 847 S.W.2d 125, 131 (Mo. App. W.D. 1993)). Havner found “unclear” the

meaning of the term “curtilage” in the definition of “household” provided by Watt,

which led Havner to declare that the term “household” is ambiguous when

15 undefined in a homeowners policy. Id. at 833. Havner recognized that insurance

policies should be interpreted to provide coverage where reasonably possible, but

determined that there would be no coverage under any reasonable interpretation

of the policy. Id. In its analysis, the court recognized that “[w]hether a person is a

resident of another’s household is a question of fact,” id. at 833, but found that

there was no genuine issue for the trier of fact to resolve as to whether the child

was a resident of his grandparents’ household due to the fact that the child lived in

a separate house. Id. at 834.5

In 2003, shortly after the decision in Havner, the Eastern District of our

court cited to Watt for the proposition that the term “household” in an insurance

contract was not ambiguous and utilized the definition of “household” provided in

Watt. Allied Mut. Ins. Co. v. Brown, 105 S.W.3d 543, 545 (Mo. App. E.D. 2003)

(citing and quoting Watt, 690 S.W.2d at 816).6 The court in Brown did not

reference Havner’s statement that the term was ambiguous in application.

5 Because Havner found ambiguity based solely on the inclusion of “curtilage” in the definition of household previously provided by Watt, and then went on to apply the definition provided by Watt rather than how the term had previously been understood, the ambiguity found in Havner would seemingly be limited to cases in which the meaning of curtilage was at issue. The broad declaration in Havner indicating that the term “household” is ambiguous when undefined by a policy (if read to be a broadly applicable holding of Havner) would seemingly be at odds with the Missouri Supreme Court’s declaration in Ward (if read to be a broadly applicable holding) that an exclusionary clause that utilized the terms “residing” and “household” “was unequivocal and unambiguous and [] not subject to construction or interpretation.” See Ward, 789 S.W.2d at 792, 796. 6 Whereas Havner referred to this case as Watt when using short-form citations, see Havner, 103 S.W.3d at 833, Brown referred to it as Mittelstadt. See Brown, 105 S.W.3d at 545. In this opinion, I refer to the case as Watt. 16 To recap, Missouri courts have described the term “household” to be

indefinable without reference to factual context. See Cobb, 576 S.W.2d at 738.

Missouri courts have long considered the question of whether a person resides in

the household of another to be a question of fact. See Hoffman, 46 S.W.3d at 634;

Countryside, 722 S.W.2d at 658; Am. Fam. Mut. Ins. Co., 757 S.W.2d at 306-07.

And, Missouri courts have found the term “household” to be both ambiguous and

unambiguous when used in an insurance policy. Compare Watt, 690 S.W.2d at

815-16, and Brown, 105 S.W.3d at 545, with Havner, 103 S.W.3d at 833. However,

the Missouri Supreme Court has found policy language in exclusions unambiguous

despite the usage of the terms “residing” and “household,” albeit in cases in which

no party apparently made the specific argument that the terms “residing” or

“household” were ambiguous. See Ward, 789 S.W.2d at 792, 796; Ballmer, 899

S.W.2d at 525.

IV.

I agree with the majority’s result because Missouri courts have long

considered the question of whether a person resides in the household of another

to be a question of fact. See Hoffman, 46 S.W.3d at 634; Countryside, 722 S.W.2d

at 658; Am. Fam. Mut. Ins. Co., 757 S.W.2d at 306-07. Accordingly, I believe that

the trial court erred in granting summary judgment to Father. Although the

reasonable inferences to be drawn from the stipulated facts could support that

result, the drawing of inferences in favor of the moving party is improper at the

summary judgment stage. ITT Com. Fin. Corp. v. Mid-Am. Marine Supply Corp.,

17 854 S.W.2d 371, 382 (Mo. banc 1993). In this matter, I believe that the stipulated

facts are such that, depending on the inferences drawn by the trier of fact from the

stipulated facts to the ultimate question of fact, a trier of fact could reasonably

conclude that Daughter resided in Father’s household, or the trier of fact could

reasonably conclude that Daughter did not reside in Father’s household. If the

question of whether a person resides in the household of another is an ultimate

question of fact, which the authorities have long indicated, see, e.g., Hoffman, 46

S.W.3d at 636, then I fail to see why the stipulated facts could not support

reasonable but conflicting answers to that question depending on the inferences to

be drawn by the trier of fact and the significance placed on the various stipulated

facts by the trier of fact.

I do not believe that Countryside created a factor test for determining when

a child of divorced parents resides in the household of another as a matter of law,

because Countryside addressed only an against the weight of the evidence

challenge and fully considered the issue to be one of fact for the trier of fact.

Countryside, 722 S.W.2d at 658-59. Rather, given the posture of the case (an

against the weight of the evidence challenge following a bench trial), I believe

Countryside stands for the proposition that a child of divorced parents can be a

dual resident when the evidence supports such a finding. Id. Because the court in

Countryside considered the question to be one of fact, and because the court was

not tasked with determining whether a converse factual finding of the trial court

was supported by the evidence, Countryside is silent as to when a child of divorced

18 parents is a dual resident of both parents’ households as a matter of law. See id.

Granted, I believe that Countryside did identify the evidence relevant to the

question.

In interpreting the policy language, I believe the trial court should adopt the

meaning of “household” as judicially defined in Watt. See Watt, 690 S.W.2d at

816; see also Griffitts, 550 S.W.3d at 478 (declaring that no ambiguity exists where

policy language has been judicially defined and that the assigned judicial definition

is controlling).

The term “household” as that term is expressed and to be made use of within insurance contracts shall mean a collection of persons, whether related by consanguinity or affinity or not related at all but who live or reside together as a single group or unit which is of a permanent and domestic character, with one head, under one roof or within a single curtilage; who have a common subsistence and who direct their attention toward a common goal consisting of their mutual interest and happiness.

Watt, 690 S.W.2d at 816. This definition of “household” is essentially a synthesis

of the principles stated in Cobb, 576 S.W.2d at 738, which were subsequently

utilized in Countryside to determine whether a child was a resident of her father’s

household. See Countryside, 722 S.W.2d at 657-59. Thus, in applying the policy

language to the facts, the analysis in Countryside is quite relevant to determining

whether Daughter was residing in Father’s household, even if Countryside did not

create a legal “test” based on the factors identified in Countryside.

19 V.

Because of the unique posture of this case, a few words are warranted

regarding why summary judgment is not appropriate in this case even though two

parties have cross-motions for summary judgment based on stipulated facts. The

parties below represented to the trial court that the issue before the trial court was

simply one of law due to the stipulated facts relied on by both parties and due to

the parties having filed cross-motions for summary judgment. However, where

the parties have failed to stipulate to ultimate facts or where reasonable but

contrary inferences may be drawn from the stipulated facts, summary judgment

may nevertheless be inappropriate in cases such as this one.

Courts have said that when a case is submitted on stipulated facts, the only

question before the appellate court “is whether the trial court made the proper legal

conclusion from the stipulated facts.” Jones v. Am. Fam. Mut. Ins. Co., 632 S.W.3d

482, 487 (Mo. App. W.D. 2021) (quoting Cady v. Ashcroft, 606 S.W.3d 659, 665

(Mo. App. W.D. 2020)). Whether one or the other party with cross-motions for

summary judgment is entitled to summary judgment as a matter of law based on

the stipulated facts is indeed a legal conclusion that is tested on appeal with a de

novo standard of review. Brockington v. New Horizons Enterprises, LLC, 654

S.W.3d 876, 880 (Mo. banc 2022) (quoting Green v. Fotoohighiam, 606 S.W.3d

113, 115 (Mo. banc 2020)). However, the fact that there were cross-motions for

summary judgment in this case does not necessarily mean that summary judgment

for either one or the other of the parties will necessarily result.

20 A party is entitled to summary judgment only when the moving party

establishes that there is no genuine issue as to the material facts and that the

movant is entitled to judgment as a matter of law. Id. In summary judgment

proceedings, all reasonable inferences are drawn in favor of the non-moving party.

Brockington, 654 S.W.3d at 880 (quoting ITT Com. Fin. Corp., 854 S.W.2d at

382). This rule means that “if the movant requires an inference to establish his

right to judgment as a matter of law, and the evidence reasonably supports any

inference other than (or in addition to) the movant’s inference, a genuine dispute

exists and the movant’s prima facie showing fails.” Id.; see also Brentwood Glass

Co., Inc. v. Pal’s Glass Serv., Inc., 499 S.W.3d 296, 302 (Mo. banc 2016) (“A factual

question exists if evidentiary issues are actually contested, are subject to conflicting

interpretations, or if reasonable persons might differ as to their significance.”).

In this matter, the parties stipulated to a set of facts but did not stipulate as

to whether Daughter resided in Father’s household, which Missouri courts have

indicated is an ultimate question of fact. See Hoffman, 46 S.W.3d at 636. Thus,

in addressing Father’s motion for summary judgment, it was necessary for all

reasonable inferences from the stipulated facts to be drawn in favor of Shelter. In

addressing Shelter’s motion for summary judgment, it was necessary for all

reasonable inferences from the stipulated facts to be drawn in favor of Father. In

this matter, there were varying reasonable inferences that could be drawn from the

stipulated facts.

21 The notion that one party is necessarily entitled to summary judgment

where two parties have cross-motions for summary judgment on a stipulated

record presupposes that all ultimate or material facts have been stipulated and that

there is no divergence of reasonable inferences to be drawn from the stipulated

facts. Cf. Graue v. Missouri Prop. Ins. Placement Facility, 847 S.W.2d 779, 782

(Mo. banc 1993) (citing Murphy v. Doniphan Tel. Co., 147 S.W.2d 616, 620 (Mo.

1941)). Had this case been tried by the court on stipulated facts instead of

proceeding on cross-motions for summary judgment, the trial court could have

drawn reasonable inferences from the stipulated facts and decided whether or not

to draw them, see id.; however, because the case was presented in the posture of

summary judgment, the non-movant to the respective cross-motions for summary

judgment was entitled to the benefit of all reasonable inferences such that neither

movant was entitled to an inference where it was not necessary to draw such an

inference or when a contrary inference was reasonably supported by the stipulated

facts. See Brockington, 654 S.W.3d at 880 (quoting ITT Com. Fin. Corp., 854

S.W.2d at 382). The stipulated facts in this case could give rise to a broad array of

reasonable inferences. In this matter, I believe that (in the absence of any clear

indication that as a matter of law a child is a resident of the household of either

parent actively exercising joint custody) a trier of fact could reasonably draw

inferences giving rise to two reasonable but conflicting answers to the fact question

of whether Daughter was residing in Father’s household. Although the ability of

the trial court to draw inferences is restricted in a summary judgment proceeding,

22 the trier of fact following trial is not so restricted, and this is true even when the

parties agree to a stipulated set of facts. See Graue, 847 S.W.2d at 782. That is

why, in reviewing a stipulated record following a bench trial, the inferences to be

drawn from the stipulated facts are still viewed in the light most favorable to the

judgment. See id. (“When the record is stipulated but not all ultimate facts or

factual inferences have been conceded, this Court reviews the stipulated facts in

the light most favorable to the respondent and disregards inferences favorable to

the appellant.”); see also Bus. Men’s Assur. Co. of Am. v. Graham, 984 S.W.2d 501,

506 (Mo. banc 1999) (“[T]his Court defers to the trial court as the finder of fact in

determinations as to whether there is substantial evidence to support the judgment

and whether that judgment is against the weight of the evidence, even where those

facts are derived from pleadings, stipulations, exhibits and depositions.”). 7 This is

so because what inferences to draw from the facts of a case is central to the role of

the trier of fact. In summary judgment proceedings, all reasonable inferences are

7 I recognize that there has been disagreement regarding whether deference is afforded the trial court following a bench trial when a case is submitted on stipulated facts rather than live testimony. See e.g., 17 Mo. Prac., Civil Rules Practice § 84.13:5 (2023 ed.) (collecting cases and noting that the “cases are in utter disarray” and “impossible to reconcile” with respect to the conflicting interpretations regarding the deference afforded the trial court when a case is submitted on documents, such as stipulations, exhibits, and transcripts rather than conflicting testimony or the credibility of witnesses). However, this disagreement appears to be derived from Rule 84.13(d), which does not apply to review of a grant of summary judgment, as the rule expressly applies to appellate review “in cases tried without a jury or with an advisory jury.” (emphasis added). In any case, I believe that Missouri Supreme Court cases support the proposition that the trier of fact fulfills its role as trier of fact by drawing inferences from stipulations when a case proceeds to a bench trial on a stipulated record. Graue, 847 S.W.2d at 782; Graham, 984 S.W.2d at 506. And, as noted previously, the parties in this matter did not stipulate to all material facts as the parties did not stipulate to the fact question of whether Daughter was residing in Father’s household. 23 drawn in favor of the non-movant, because summary judgment effectively prevents

the case from being decided by the trier of fact. Thus, summary judgment

proceedings assume that the trier of fact would draw all inferences favorable to the

non-movant, because only by testing the strength of the movant’s case in this

manner can a court determine whether it is appropriate to withdraw the case from

the trier of fact and to decide it as a matter of law without a trial.

VI.

I concur with the majority’s result because Missouri courts have long

considered the question of whether a person resides in the household of another

person to be a question of fact. Hoffman, 46 S.W.3d at 634; Am. Fam. Mut. Ins.

Co., 757 S.W.2d at 306-07; Countryside, 722 S.W.2d at 658-59. However, I have

given strong consideration to whether this result best serves the law. If cases such

as this one are indeed left to the trier of fact, then the law becomes, to some extent,

unpredictable, which necessarily entails that parties, in entering insurance

contracts, could not have certainty as to whether a child of divorced parents resides

in the household of one or both of the parents until the trier of fact makes its

ultimate finding – one that is necessarily made after the contract is entered and

the loss for which coverage is sought is sustained. That is, contrary findings could

be found by different triers of fact in different cases based on the same set of

undisputed factual circumstances.

Courts could potentially resolve this uncertainty in a couple of alternative

ways. It could potentially be resolved as a matter of defining the uncertain terms

24 in the specific context of a child of divorced parents. Alternatively, it could

potentially be resolved by considering the question to be one of pure contract

interpretation, wherein an uncertainty as to which of the parents’ households a

child resides could be viewed as the product of a latent ambiguity in the contract,

giving rise to principles of construction in which ambiguities are resolved in favor

of the insured.

Missouri courts have long struggled to define what it means to be a resident

of another’s household. See Cobb, 576 S.W.2d at 738; Watt, 690 S.W.2d at 815-16.

Regarding the definition of “household,” Missouri courts have indicated that the

very definition of the word depends upon the facts of a particular case. Cobb, 576

S.W.2d at 738. Certain definitions have been provided in light of contexts that are

radically different from the context of a child of divorced parents. See, e.g., Watt,

690 S.W.2d at 816 (providing definition for household in the context of whether

two couples resided in the same household); Ward, 487 S.W.2d at 450-51 (defining

household in the context of whether father and son resided in household of

grandfather). However, because these definitions have been provided in radically

different contexts, they have seemed to provide little clarity in the context of a child

of divorced parents.

Courts have never provided a specific definition for when a person “resides”

in the “household” of another in the specific context of a child of divorced parents.

Of course, because the courts consistently considered the question to be one of fact,

the role of the courts in interpreting the contract was simply to interpret the

25 meaning of the policy language and to allow the trier of fact to decide whether the

facts satisfy the meaning of the policy language. Cf. State Farm Mut. Auto. Ins.

Co. v. Allen, 744 S.W.2d 782, 786 (Mo. banc 1988) (“There is no precise formula

for determining whether a vehicle is ‘furnished for the regular or frequent use of

the insured.’ The question is purely factual, and the trier of fact must apply the

policy language to the facts brought out in the evidence.”).

To provide clarity to the law and to parties in entering contracts in which

this issue may arise, it may be appropriate for courts to define terms such as

“reside” and “household” in the specific context of the child of divorced parents

when the child spends time with each parent. Such a judicial definition could

provide predictability and consistency to the broad array of factual scenarios that

may arise in this context. One such definition could provide that the child of

divorced parents with joint custody resides with both parents, provided the child

regularly spends time with both. An alternative definition could provide that a

child of divorced parents resides with the parent they live with most frequently or

the parent with primary custody. Either would carry the benefit of adding certainty

to the law and to parties in entering contracts.

An alternative resolution would be to treat the matter solely as one of

interpretation and to resolve any uncertainty in favor of the insured. There is some

support in the law for this approach. Certainly, numerous cases have stated that

terms such as “reside” and “household” are not ambiguous. Brown, 105 S.W.3d at

545; Marler, 926 S.W.2d at 64; Watt, 690 S.W.2d at 815-16. The Missouri

26 Supreme Court has declared policy language that has included such terms to be

“unequivocal and unambiguous and [] not subject to construction or

interpretation.” Ward, 789 S.W.2d at 792, 796. However, other cases have

recognized that an ambiguity may not reveal itself until words, which are plain on

their face, are viewed in factual context. Havner, 103 S.W.3d at 832-33

(recognizing the notion of a latent ambiguity when language that appears plain on

its face becomes uncertain in application). Generally, in Missouri, ambiguities in

an insurance contract are resolved in favor of an insured. Swadley, 513 S.W.3d at

357. However, the extent to which this principle applies when the ambiguity arises

from a factual uncertainty rather than the use of terms that are themselves

ambiguous may be questionable, given that courts have also indicated that an

ambiguity may give rise to a question of fact. See D.R. Sherry Constr., 316 S.W.3d

at 902. That is, in Missouri, depending on the context, it is not entirely clear when

an ambiguity may be properly resolved by the trier of fact or when it can be decided

purely as a question of law as a matter of the presence of an ambiguity to be

resolved in favor of an insured – particularly when the ambiguity is not a matter of

uncertainty in the meaning of the language but instead a matter of uncertainty as

to whether the facts satisfy the meaning of the words employed in the contract.

Compare D.R. Sherry Constr., 316 S.W.3d at 902 (noting that an ambiguity may

present a fact question for the trier of fact), with Swadley, 513 S.W.3d at 357 (“Any

ambiguity is resolved in favor of the insured.”). The case law in Missouri indicates

that the scenario in this matter presents a question of fact to be resolved by the

27 trier of fact. Hoffman, 46 S.W.3d at 634; Am. Fam. Mut. Ins. Co., 757 S.W.2d at

306-07; Countryside, 722 S.W.2d at 658-59.

Other jurisdictions have addressed a scenario similar to the one presented

in this case. In Nat’l Auto. & Cas. Ins. Co. v. Underwood, 11 Cal.Rptr.2d 316 (Cal.

Ct. App. 1992), the court addressed a grant of summary judgment on an insurer’s

declaratory judgment action based on an exclusion that would exclude coverage if

the children of divorced parents were residents of their mother’s household. Id. at

317. The children’s mother and father shared legal and physical custody, though

the divorce agreement designated the father as the primary caretaker of the

children. Id. The children usually lived with their father, attended school in their

father’s county of residence, but stayed with their mother every other weekend and

ten weeks during the summer. Id. The children were at their mother’s residence

the day before the car accident, and kept some personal items at their mother’s

apartment. Id. at 317-18.

The trial court granted summary judgment to the children’s father and

mother, determining that the children resided with their father and thus were not

residents of their mother’s household. Id. at 318. The insurer appealed,

contending that the underlying facts could indicate different possible outcomes

such that summary judgment was inappropriate. Id. The appellate court

determined that the conflicting inferences to be drawn from the facts were actually

a product of conflicting interpretations, that reinforced why it was necessary for

the court to assume its role of interpreting the contract language. Id. (citation

28 omitted). The appellate court noted that the terms “resident” and “household” had

been interpreted in numerous different ways in the insurance context leaving the

area of the law “muddled.” Id. at 320. The court noted that prior courts had

instructed subsequent courts to look to whether coverage had been extended or

excluded under the facts of those cases rather than whether the terms were

inherently ambiguous, while taking into consideration that most courts interpret

the terms in favor of coverage. Id.

The Underwood court then looked at the language and the facts of the case

before it and found that there were three reasonable constructions of “residence.”

Id. The court noted that one reasonable construction was that the children resided

with their father as the children spent a majority of their time at their father’s. Id.

at 320-21. The court noted that another reasonable construction was that the

children were residents of where they were physically at the time of the accident,

which would be with their mother. Id. at 321. The court noted that a third

reasonable construction would be that the children had dual residences with their

mother and father. Id. The court then determined that the term “resident” was

ambiguous as used in the policy and was to be construed against the insurer. Id.

at 321-22. The court reached this result despite noting a prior case in which a child

was held to be residing in his father’s household and therefore excluded from

coverage where the child spent a substantially equal amount of time with his father

and mother. Id. at 321 (citing Safeco Ins. Co. v. Gibson, 259 Cal.Rptr. 206, 211

(Cal. Ct. App. 1989)).

29 Of course, the Underwood case was decided in another jurisdiction, whereas

Missouri law has repeatedly held that the issue of whether a child of divorced

parents was residing in one or the other or both of their households is a question

of fact rather than a matter of pure contract interpretation. 8 See Hoffman, 46

S.W.3d at 634; see also Am. Fam. Mut. Ins. Co., 757 S.W.2d at 306-07;

Countryside, 722 S.W.2d at 658-59. Nevertheless, the route taken in Underwood

could potentially add certainty to the law and consistency to the results in cases

such as this one that pose the question of whether the child of divorced parents

resides in one or the other or both of their households, depending on whether the

issue is being determined in the context of providing or excluding coverage.

As previously discussed, as an alternative means to provide clarity to the law,

courts could (in the absence of a policy definition) refine the definition of terms

such as “reside” and “household” in the specific context of the child of divorced

parents. One such refinement could provide that the child of divorced parents with

joint custody resides with both parents, provided the child regularly spends time

with both. An alternative could provide that a child of divorced parents resides

with the parent they live with most frequently or the parent with primary custody.

8 Although I believe my interpretation of the law as it pertains to the drawing of inferences for purposes of summary judgment (as discussed in section V of this opinion) to be correct according to Missouri law, I do recognize that other jurisdictions have rejected that approach and instead determined that where conflicting reasonable inferences may be drawn from the facts, it indicates that there is an ambiguity in the contract language, such that the language should be interpreted against the drafting insurer and in favor of the insured as a matter of law. However, that has not heretofore been the route taken by Missouri courts in cases addressing similar factual scenarios and policy language. 30 Any such judicial refinement of “residency” and “household” would provide

certainty to parties entering into insurance contracts, regardless of whether the

terms are used in the context of coverage or exclusion of coverage.

In conclusion, I believe that there is uncertainty in the law in this type of

case in which the question is whether a child of divorced parents “resides” in the

“household” of one or both of said parents. One way to resolve such cases is to

treat the question as one of fact and allow the trier of fact to resolve such questions.

That has been the method of resolution in Missouri. Because there are numerous

cases providing ample support in the law for this method of resolution, and

because to resolve the question differently would involve disagreement with and a

departure from an established line of cases, I concur in the result of the majority

opinion. However, I have written separately due to my concerns about the

uncertainty that may follow in future cases if the question of whether a child of

divorced parents resides in the household of one or both parents continues to be

considered a question of fact.

___________________________ Thomas N. Chapman, Judge