Gloria Mercer v. Progressive Gulf Insurance Company ( 2003 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2003-CA-01796-SCT
GLORIA MERCER
v.
PROGRESSIVE GULF INSURANCE COMPANY
DATE OF JUDGMENT: 6/13/2003
TRIAL JUDGE: HON. ANDREW K. HOWORTH
COURT FROM WHICH APPEALED: TIPPAH COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: B. SEAN AKINS
BART ADAMS
ATTORNEY FOR APPELLEE: MARTHA BOST STEGALL
NATURE OF THE CASE: CIVIL - INSURANCE
DISPOSITION: AFFIRMED - 07/29/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE SMITH, C.J., EASLEY AND RANDOLPH, JJ.
EASLEY, JUSTICE, FOR THE COURT:
STATEMENT OF THE CASE
¶1. In this insurance coverage dispute this Court is requested to determine if a trial court
correctly granted a summary judgment for an insurer on the issue of whether Gloria Mercer
(Mercer) was a member of her father's household for uninsured motorist insurance purposes.
On November 14, 2001, Mercer was injured in an automobile accident. At the time of the
accident, Mercer was driving her 1992 Oldsmobile, not insured by her father's policy, and was
hit by an uninsured motorist. Mercer’s father, John Paul Jones (Jones), had an automobile
insurance policy with Progressive Gulf Insurance Company (Progressive). Following her
accident, Mercer made a claim under her father’s policy claiming that she was a resident of
her father’s household and thus an insured pursuant to the policy. Progressive denied the
claim and sued Mercer in the Circuit Court of Tippah County seeking a declaratory judgment
of no coverage.
¶2. Following a hearing the circuit court granted summary judgment for Progressive
stating:
THIS CAUSE came before this Court on Petitioner Progressive Gulf Insurance
Company's Motion for Summary Judgment and the Court, viewing the facts
in a light most favorable to the non-moving party, and considering all
arguments of counsel, both in the briefs and in oral argument for Summary
Judgment, finds that said motion is well taken, as no genuine issue of material
facts exists.
Gloria Mercer is not entitled to any benefits under the subject policy for any
injuries and damages she may have suffered in a motor vehicle accident that
occurred on November 14, 2001, and there is not a sufficient nexus between
her residence and her father’s residence as to treat them as parts of a common
household.
Following this ruling, Mercer appealed to this Court.
STATEMENT OF THE FACTS
¶3. Mercer admitted all the allegations set forth in Progressive's complaint for declaratory
judgment with the one exception of Paragraph 8 which alleged that she was "not entitled to
recover any benefits under the subject policy because she was not a resident of the household
of Jones, the named insured, and did not otherwise meet any definition of an insured under
the policy." Mercer similarly admitted the allegations in Progressive's motion for summary
judgment again with the exception that she denied that she was not entitled to recover
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benefits because she was not a resident of the household of the insured (her father) at the time
of the accident.
¶4. On the date of the accident, November 14, 2001, Mercer, age 28, was living at 360
County Road 203 with her two children. Since the accident, Mercer moved to a different
house less than a mile away from her parents. Mercer’s father owned the house where she
and the children lived on November 14, 2001. John Paul Jones is Mercer’s father, and he
lives at 330A County Road 203. The house that Mercer lived in on the date of the accident
had previously been occupied by her grandmother. Mercer stated in her deposition, response
to complaint for declaratory judgment and response to Progressive's motion for summary
judgment that the house that she lived in on the date of the accident and her father’s home
had separate mailboxes. Both houses were served by separate utility meters. In her two
responses, Mercer admitted that there was a distance of over 100 yards between her residence
and her father’s residence. While Mercer could not recall exactly, she believed that the
electricity bill for her house was in her father’s name, the water bill was in either her name
or her father’s name, and the cable bill was in her name. Both Mercer and her father paid the
bills. The cable services were separate for each house. The home insurance was in Jones’s
name, and he paid the insurance bill for the house. Mercer did not pay her father any rent
while she lived in the house. The two houses have separate driveways. In addition, Mercer
and her children kept clothing, personal items and toys at the 360 County Road 203 house.
In this house were a stove and microwave, refrigerator, freezer and food. Mercer cooked
meals at this house approximately 3-4 times a week. Mercer and the children went to her
father’s home everyday to visit, eat and sometimes they stayed the night at his house. They
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would walk or drive to her father’s house. Mercer used the 360 County Road address to fill
out information sheets for her children for school. She also received mail at a separate mail
box. After the accident Mercer moved back to her parents' home until about February, 2002.
¶5. On the date of the accident, Mercer owned her own vehicle which was insured in her
name by Farm Bureau. Mercer had settled her claim with Farm Bureau by the date of the
deposition.
¶6. Jones's automobile insurance policy with Progressive stated in part:
INSURING AGREEMENT - UNINSURED MOTORIST BODILY INJURY
COVERAGE
Subject to the Limits of Liability, if you pay a premium for
Unisured/Underinsured Motorist Coverage, we will pay for
damages, other that punitive ore exemplary damages, which an
insured person is entitled to recover from the owner or operator
of an uninsured motor vehicle because of bodily injury:
1.
sustained by and insured person;
2.
caused by accident; and
3.
arising out of the ownership, maintenance,
or use of an uninsured motor vehicle.
* * * *
ADDITIONAL DEFINITIONS
When used in this Part III:
1. “Insured person” and “insured persons” mean:
a. you or a relative;
b. any person occupying a covered vehicle; and
c. any person who is entitled to recover damages covered by this Part III
because of bodily injury sustained by a person described in a or b
above.
GENERAL DEFINITIONS
12. “Relative” means a person residing in the same household as you, and
related to you by blood, marriage, or adoption, including a ward,
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stepchild, or foster child. Unmarried dependant children temporarily
away from home will be considered residents if:
a. they are under the age of twenty-five (25) years; and
b. they intend to continue to reside in your household.
****
16. “You” and “Your” mean the persons shown as the named insured on
the Declarations Page, and that person’s spouse if residing in the same
household.
The policy listed Jones as the insured and he and his wife Ruby were the listed drivers of
their two vehicles. Mercer's 1992 Oldsmobile was not a listed vehicle on her father's
automobile insurance policy.
¶7. This Court finds that the trial court did not err by granting summary judgment in favor
of Progressive finding that Mercer was not a member of her father’s household. The trial
court was correct in finding that there was no genuine issue as to any material fact and that
Progressive, therefore, was entitled to a judgment as a matter of law.
DISCUSSION
Whether the trial court erred in granting a summary judgment to an
uninsured motorist insurance carrier.
¶8. Mercer argues that the trial court erred in granting summary judgment because there
is a question of material fact to be determined by the jury, that being whether she was a
member of her father’s household at the time of her accident.
¶9. This Court applies a de novo standard of review on appeal from a grant of summary
judgment by the trial court. Russell v. Orr, 700 So.2d 619, 622 (Miss. 1997); Richmond v.
Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss. 1997); Merrimack Mut. Fire Ins. Co.,
v. McDill, 674 So.2d 4, 7 (Miss. 1996); Northern Elec. Co. v. Phillips, 660 So.2d 1278,
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1281 (Miss. 1995). Rule 56(c) of the Mississippi Rules of Civil Procedure provides that
summary judgment shall be granted by a court if "the pleadings, depositions, answers to
interrogatories and admissions on file, together with affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as
a matter of law. M.R.C.P. 56(c) (emphasis added). The moving party has the burden of
demonstrating that there is no genuine issue of material fact in existence, while the non-
moving party should be given the benefit of every reasonable doubt. Tucker v. Hinds
County, 558 So.2d 869, 872 (Miss. 1990). “Issues of fact sufficient to require denial of a
motion for summary judgment obviously are present where one party swears to one version
of the matter in issue and another says the opposite.” Id.
¶10. Of importance here is the language of the rule authorizing summary judgment "where
there is no genuine issue of material fact."
The presence of fact issues in the record does not per se entitle a party to avoid
summary judgment. The court must be convinced that the factual issue is a
material one, one that matters in an outcome determinative sense...the
existence of a hundred contested issues of fact will not thwart summary
judgment where there is no genuine dispute regarding the material issues of
fact.
Simmons v. Thompson Mach. of Miss., Inc., 631 So.2d 798, 801 (Miss. 1994) (citing Shaw
v. Burchfield, 481 So.2d 247, 252 (Miss. 1985)). The evidence must be viewed in the light
most favorable to the non-moving party. See Russell, 700 So.2d at 622; Richmond, 692
So.2d at 61; Merrimack Mut. Fire Ins. Co., 674 So.2d at 7; Northern Electric Co., 660
So.2d at 1281; Simmons, 631 So.2d at 802; Tucker, 558 So.2d at 872.
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¶11. To avoid summary judgment, the non-moving party must establish a genuine issue of
material fact within the means allowable under the Rule. Richmond, 692 So.2d at 61 (citing
Lyle v. Mladinich, 584 So.2d 397, 398 (Miss. 1991)). "If any triable issues of fact exist, the
lower court's decision to grant summary judgment will be reversed. Otherwise the decision
is affirmed.” Richmond, 692 So.2d at 61.
¶12. In Merrimack Mut. Fire Ins. v. McDill, 674 So.2d 4 (Miss. 1996), this Court
determined whether Brown, a 28-year-old adult, was a member of a household for
homeowner insurance purposes. Brown shot and wounded McDill, his former girlfriend, and
shot and killed her fiancé. Id. at 6. Thereafter, McDill filed suit against Brown. Id. At the
time of the shootings, Brown was living in a garage apartment located in a separate building
on his parents' property. Id. at 8. The parents had a homeowners insurance policy with
Merrimack. Id. at 6. Brown’s parents notified Merrimack of the suit but Merrimack claimed
that it had no obligation to defend Brown because he was not an insured under the policy.
Id.
¶13. Prior to litigation, Brown and McDill entered into an agreed judgment in the amount
of $100,000. Merrimack, 674 So.2d at 6. Thereafter, McDill obtained a writ of garnishment
against Merrimack. Id. Merrimack claimed that Brown was not insured under the policy. Id.
The trial court initially granted partial summary judgment determining that Brown was
insured under the policy. Id. at 7.
¶14. This Court in Merrimack held that “[t]he key in determining the intent of the parties
is whether they created and maintained a household, and not the existence of a contiguous
roof.” Id. at 8. Merrimack is distinguishable because Brown received his mail at his parents'
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address, ate numerous meals in his parents' home, and his parents imposed specific guidelines
to living in the apartment. Id. at 8.
¶15. This Court ultimately reversed and remanded for a jury trial on the issue of Brown’s
“household resident” status. Id. at 10. In reaching this decision, this Court determined that
there were material facts in dispute and, therefore, the lower court erred in granting summary
judgment. Id.
¶16. In Wright v. Allstate Indem. Co., 618 So.2d 1296, 1300 (Miss. 1993), this Court
reversed a grant of summary judgment in favor of the insurer, Allstate. James Wright and
his wife bought a home insurance policy for a house that was occupied by their son. Id. at
1297. The son alleged that occupants of a passing car shot at him, but when he returned fire
the bullet killed a sleeping neighbor. Id. at 1297. The wrongful death beneficiaries filed suit
against the son and Allstate filed a complaint for declaratory judgment claiming that the son
was not a member of the household. Id. This Court held that a question of material fact
existed in regard to the insurance coverage. Id. at 1300. The fact at issue was whether James
Wright told the insurance agent who would actually live in the house that was covered in the
homeowner's insurance policy. Id.
¶17. In Johnson v. Preferred Risk Auto. Ins. Co., 659 So.2d 866, 867 (Miss. 1995), a
couple left their home in Tennessee and temporarily moved in with their respective parents
until such time as they could move to Arkansas to begin a new job. The married couple were
in an automobile accident, and both sets of parents had automobile insurance policies with
Preferred Risk. Id. This Court determined that the married couple, injured in the automobile
accident, were considered "residents" under the uninsured motorists insurance policies. Id.8
at 875. This Court determined that the sole question was whether the couple were defined
as "residents" within the meaning of the insureds' policies. Id. at 870. This Court found that
this issue was a question of law because there were no undisputed facts and no question of
fact such as how long the couple stayed at their parents' homes or if they planned to stay at
the homes indefinitely. Id.
¶18. Mercer argues that her case is similar to Merrimack. She argues that the son in
Merrimack lived in a garage apartment, a separate structure on the parents property and not
under a contiguous roofline, was employed and self supporting, whereas Mercer also lives
in a separate structure on her father’s property and she is dependant on her father for support.
In addition, Mercer argues that the intent of the parties and not the physical location of an
individual determines who is considered a member of a household. Merrimack, 674 So.2d
at 8. Further, Mercer claims that the term “household” is not defined in the policy of the
uninsured motorist statute and that insurance policies are to be construed against the insurer
and in favor of a policyholder. Mut. Ben. Health & Acc. Ass'n v. Blaylock, 163 Miss. 567,
573, 143 So. 406 (1932). See also J&W Foods Corp. v. State Farm Mut. Auto. Ins. Co.,
723 So.2d 550, 552 (Miss. 1998).
¶19. Progressive argues that Mercer never contended that she intended to live with her
father. In addition, Progressive contends that Merrimack does not support Mercer’s position.
Progressive claims that the circumstances in Mercer’s case were more tenuous than those in
Merrimack. We agree.
¶20. Progressive also cites to a Florida case which, while not controlling on this Court, is
nevertheless instructive. In American Sec. Ins Co. v. Van Hoose, 416 So.2d 1273 (Fla. Dist.
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Ct. App. 1982), a Florida court appellate reversed and remanded a lower court ruling. The
court held that a mother and her daughters were not “residents of household” because there
was no intent that the father and the daughter and granddaughters intended to live together.
Id. at 1275. The daughter and her children lived in a house across the street from the father;
received support from the father such as rent, utilities and food; on occasion they all ate and
slept at the father’s home; the father frequently drove the daughter to work; and the daughter
used her home address for job applications and tax purposes. Id. at 1274.
¶21. We find that the trial court correctly granted the summary judgment motion in favor
of Progressive. Mercer does not dispute that she and her children lived in a house that was
approximately 100 yards from her father’s residence. In addition, each house had a separate
address, mailbox, driveway, utility meters and cable services. Mercer and her children kept
clothing, personal items and toys at the 360 County Road 203 residence. This residence also
had its own stove, microwave, refrigerator, freezer and food. Mercer cooked a number of
meals at this home each week. Further, Mercer used the 360 County Road 203 residence to
fill out information sheets for her children’s school. Mercer also received mail in her
separate mailbox. On the other hand, Mercer’s father assisted in paying some bills for her,
and it is unclear as to which bills, but it appears that both Mercer and her father had different
bills in each of their names. None of this information is in dispute.
¶22. As this Court in Merrimack held “[t]he key in determining the intent of the parties
is whether they created and maintained a household, and not the existence of a contiguous
roof.” Merrimack, 674 So.2d at 8. We find that Mercer did not intend to live with her father,
instead all the facts, which are not in dispute, demonstrate that Mercer maintained a separate
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household. Mercer lived in a separate structure, approximately 100 yards away from her
father, with a separate address, mailbox, utilities and cable. The house had all the necessities
such as a stove, refrigerator, microwave, food, clothing and toys. While Mercer went to her
father’s home daily and ate some meals and occasionally slept at his house, she nevertheless
cooked meals in her house 3-4 days a week.
¶23. Mercer’s case is distinguishable from Merrimack. In Merrimack, the son lived in a
garage apartment, ate many of his meals at his parents house, received his mail at his parents
house, had specific guidelines to follow while living in the garage and the father wanted to
move his office from the garage to the house to alleviate stress on his back. Here, Mercer
lived in a house that in the very least had a separate address, mailbox, utility meters and cable
service. She either drove or walked over 100 yards to her father’s home, but she had lived
in this structure for approximately two months prior to her accident. Indeed, this Court finds
that the facts in Mercer’s case are more similar to the facts in Van Hoose, 416 So.2d 1273.
Further, this Court in Merrimack reversed and remanded for a jury trial on this issue of
Brown’s household resident status. Despite the ruling in Merrimack, this Court also held
in Johnson that where there exists no genuine issues of material fact as to whether a person
is considered a “resident” pursuant to an insurance policy, summary judgment is proper.
Johnson, 659 So.2d at 870.
¶24. This Court finds that there were no material facts in dispute; therefore the trial court
did not err in granting the motion for summary judgment in favor of Progressive.
CONCLUSION
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¶25. There were no issues of material fact in dispute. The trial court did not err by granting
the motion for summary judgment in favor of Progressive. Accordingly, the judgment of the
Circuit Court of Tippah County is affirmed.
¶26. AFFIRMED.
SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, GRAVES,
DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.
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