Fonvielle v. South Carolina Ins. Co. , 244 S.E.2d 736 ( 1978 )

244 S.E.2d 736 (1978)

Lloyd M. FONVIELLE and wife, Barbara B. Fonvielle
v.
SOUTH CAROLINA INSURANCE CO., Roger Benton and Delores Benton.

No. 778SC546.

Court of Appeals of North Carolina.

June 6, 1978. Certiorari Allowed July 14, 1978.

Freeman, Edwards & Vinson by James A. Vinson, III, Goldsboro, for plaintiffs-appellees.

Taylor, Warren, Kerr & Walker by Robert D. Walker, Jr., Goldsboro, for defendants-appellants.

Certiorari Allowed by Supreme Court July 14, 1978.

CLARK, Judge.

Under the terms of the automobile liability policy issued by defendant South Carolina Insurance Company to the named insured, Roger Benton, Sr., the operator of the automobile, Delores Benton, owned by her brother, Roger Benton, Jr., at the time of the collision on 22 December 1974, was an insured if (1) Delores Benton was a resident of the same household of the named insured, and (2) Roger Benton, Jr. was not a resident of the same household of the named insured.

The term "resident" is not defined in the insurance policy. Such term, if not defined, is capable of more than one definition and is to be construed in favor of coverage. Insurance Co. v. Insurance Co., 266 N.C. 430, 146 S.E.2d 410 (1966), has made this rule of construction clear:

"When an insurance company, in drafting its policy of insurance, uses a ``slippery' word to mark out and designate those who are insured by the policy, it is not the function of the court to sprinkle sand upon the ice by strict construction of the term. All who may, by any reasonable construction of the word, be included within the coverage afforded by the policy should be given its protection. If, in the application of this principle of construction, the limits of coverage slide across the slippery area and the company falls into a coverage somewhat more extensive than it contemplated, the fault lies in its own selection of the words by which it chose to be bound." 266 N.C. at 437-8, 146 S.E.2d at 416.

But a rule of construction cannot supply a material element even in the case of a "slippery" term as long as the term has some meaning. Jamestown considered "resident" a slippery term but was able to give some definition to its material elements. Intent to remain at a place seems determinative, although not intent to remain permanently. It is clear that the intent necessary to show residence is not that necessary to show domicile. Jamestown, supra; Newcomb v. Insurance Co., 260 N.C. 402, 133 S.E.2d 3 (1963). Jamestown, supra, citing 17A Am.Jur., Domicile, § 9, has it:

"``"Residence" has many shades of meaning — from mere temporary presence to the most permanent abode. Generally, however, it is used to denote something more than mere physical presence, in which event intent is material. "Residence," as a legal term, is something more than the mere actual presence in a locality, even where it is not equivalent to domicile.

* * * * * *

``Any place or abode or dwelling place constitutes a residence, however temporary it may be, while the term "domicile" relates rather to the legal residence of a person or his home in contemplation of law.'" [Emphasis added.] 266 N.C. at 437, 146 S.E.2d at 415. Also see 25 Am. Jur.2d, Domicil, § 4.

In Jamestown, supra, an adult son, staying at his father's house until he found a place more suitable for his new job, was deemed a resident of his father's house. Newcomb, supra, emphasizing that residency is determinable on the basis of conditions existing at the time the accident occurs, considered a husband and wife, staying with the wife's mother until one of the adult sons returned, residents of the mother's household even though the couple had a cottage-home elsewhere.

The evidence relating to the residency of defendant Delores Benton was conflicting. But in light of the foregoing decisions we find the evidence sufficient to support the finding of the trial court that Delores Benton was a resident relative of the household of the named insured, her father Roger Benton, Sr.

But the only evidence which speaks to the issue of whether Roger Benton, Jr., was a resident of the household was Delores Benton's testimony that her brother lived in Brooklyn, New York, and disappeared after the accident, and his mother's testimony listing the children living in the household at the time of the collision, which list did not include either Delores or Roger, Jr. The trial court made no finding of fact on the issue of whether Roger Benton, Jr., was a resident of the household of his father, the named insured. Since there was no such finding, there was no support for the conclusion that Delores Benton was an insured under the policy.

Plaintiffs make the argument that the burden of proof was on defendants to show that Roger Benton, Jr., was a resident of the household of the named insured, because the "non-owned automobile" provision requiring that the owner of the automobile involved in the accident be a nonresident was an exclusion. In an action on an automobile liability policy, the burden is upon insured to show coverage, and, if insured relies upon a clause excluding coverage, the burden is on the insurer to establish the exclusion. Insurance Co v. McAbee, 268 N.C. 326, 150 S.E.2d 496 (1966); 7 Strong's N.C. Index 3d, Insurance, § 108. But although the "non-owned automobile" provision, if not met, does exclude coverage, it is not itself an exclusionary provision. Unless a plaintiff alleges and proves facts sufficient to demonstrate the provision is met, he or she cannot be held to have made out a prima facie case for coverage, which case plaintiff must make before the burden to show non-coverage or exclusion is switched to defendant-Insurance Company. McAbee, supra.

The evidence of Roger Benton, Jr.'s, nonresidency may have been sufficient to support a finding of nonresidency by the trial court, though the evidence from which Roger Benton, Jr.'s, intent could be inferred was sparse. Jamestown, supra, quotes with approval from a Washington case, American Universal Insurance Company v. Thompson, 62 Wash.2d 595, 384 P.2d 367 (1963) to support the seemingly anomalous result in the application of the rule of construction mentioned earlier that construction of the term "resident" in favor of coverage might cause a court to define very broadly in one case and very narrowly in another. In a situation such as the one sub judice, the rule could lead to a narrow definition of "resident" so as to exclude Delores's brother and permit his car to be a proper "non-owned automobile" while also leading to a broad definition of "resident" so as to include Delores as a covered relative operating a "non-owned automobile."

For error in the failure of the trial court to make proper findings of fact on the issue of the residency of Roger Benton, Jr., the conclusion that Delores Benton was an insured under the automobile liability policy was not supported by the findings of fact. The judgment is reversed and the cause remanded for a new trial on all issues consistent with this opinion.

Reversed and remanded.

BRITT and ERWIN, JJ., concur.