Rebecca White v. Erie Insurance Property and Casualty Co. ( 2016 )


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  •                           STATE OF WEST VIRGINIA
    SUPREME COURT OF APPEALS
    Rebecca White,                                                                FILED
    Petitioner                                                                 June 3, 2016
    released at 3:00 p.m.
    vs) No. 15-0521 (Fayette County 14-C-218)                                  RORY L. PERRY II, CLERK
    SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    Erie Insurance Property and Casualty Company,
    Respondent
    MEMORANDUM DECISION
    Petitioner Rebecca White, by counsel Lonnie C. Simmons, appeals the order of the
    Circuit Court of Fayette County, entered on April 27, 2015, granting summary judgment
    in favor of Respondent Erie Insurance Property and Casualty Company (“Erie”) and
    concluding that the insurance policy at issue does not provide coverage for Ms. White.
    Erie, by counsel Laurie C. Barbe, Amy M. Smith, and Katherine M. Mullins, filed a
    response.
    This Court has considered the parties’ briefs, their oral arguments, and the record
    on appeal. Upon consideration of the standard of review, the briefs, oral argument, and
    the record presented, the Court finds no substantial question of law and no prejudicial
    error. For these reasons, a memorandum decision affirming the circuit court’s order is
    appropriate under Rule 21 of the Rules of Appellate Procedure.
    At the time of the events giving rise to this case, Ms. White was a twenty-three­
    year-old unmarried, unemancipated student, living with her mother, Ann Brennan, in
    Texas. Ms. White’s father, Jerry White, divorced Ms. Brennan more than fifteen years
    ago, and he has lived in West Virginia since 2008.
    On May 19, 2013, Ms. White was involved in a motorcycle accident in Texas. She
    was a guest passenger on a motorcycle operated by Alexander Polanco-Lopez. A motor
    vehicle operated by Kristina Elena Gonzalez struck the motorcycle in the rear, and Ms.
    White sustained severe bodily injuries as a result.
    Ms. White recovered the available insurance policy limits from the carrier
    providing coverage for the vehicle operated by Ms. Gonzalez. There was no available
    automobile insurance coverage in effect providing coverage for Mr. Polanco-Lopez or the
    1
    motorcycle operated by him. Ms. White filed a claim under Jerry White’s insurance for
    underinsured motorist (“UIM”) coverage.
    Mr. White had purchased a Family Auto Insurance Policy from Erie which was
    effective August 1, 2012 through August 1, 2013. The policy provided UIM bodily injury
    coverage in the amount of $100,000 per person, $300,000 per accident, and UIM
    property damage coverage in the amount of $10,000 per accident. The policy provided
    UIM coverage as follows:
    “[W]e” will pay damages for bodily injury and property damage that the
    law entitles “anyone we protect” . . . from the owner or operator of an
    “underinsured motor vehicle.”
    Damages must result from a motor vehicle accident . . . and involve:
    1. bodily injury to “anyone we protect.” Bodily injury means
    physical harm, sickness disease or resultant death to a person.
    (Emphasis omitted). The policy defines “anyone we protect” as “‘you’1 or any ‘relative.’”
    (Emphasis omitted) (footnote added). The policy further provides, “‘Relative’ means a
    “resident of ‘your’ household who is a . . . [p]erson related to ‘you’ by blood, marriage or
    adoption.” (Emphasis omitted). “‘Resident’ means a person who physically lives with
    ‘you’ in ‘your’ household on a regular basis. ‘Your’ unmarried, unemancipated children
    attending school full time, living away from home, will be considered ‘residents’ of
    ‘your’ household.” (Emphasis omitted).
    Erie denied Ms. White’s claim. Erie also filed a Complaint for Declaratory Relief
    against Ms. White and Mr. White seeking a declaratory judgment regarding the existence
    or nonexistence of coverage for Rebecca White’s claim under Mr. White’s policy. With
    her answer to the complaint, Ms. White filed a counterclaim against Erie seeking a
    declaration that the UIM provision in Mr. White’s policy does provide coverage for her
    injuries.
    Mr. White was subsequently dismissed from the action in an Amended Consent
    Judgment and Partial Dismissal Order entered on October 17, 2014.2 According to the
    order,
    1
    The policy indicates that “you” and “your” both refer to the person listed on the
    declarations page of the policy. Here, the only person listed on the declarations page is
    Jerry White.
    2
    The circuit court entered a Consent Judgment and Partial Dismissal Order on
    September 12, 2014, but the parties disputed language regarding coverage, prompting the
    court to enter an amended order.
    2
    Defendant Jerry L. White acknowledges that his daughter, Defendant
    Rebecca White, lives with her mother and is a resident of Dripping Springs,
    Texas. Mr. White further acknowledges that although Ms. White was
    attending college at the time of the accident, she had not visited him for at
    least a year and had no clothing or personal items at his home in Smithers,
    West Virginia. Thus, Mr. White concedes that his daughter, Rebecca
    White, is not a resident of his household, as defined by the Erie Policy.
    Additionally, Mr. White acknowledges that when he purchased the Erie
    Policy, it was not his intent that Rebecca White be covered under it.
    The parties submitted a Stipulation of Facts dated February 23, 2015, to the circuit
    court. In the Stipulation of Facts, the parties agreed that while “Rebecca White visited
    Jerry White in West Virginia,” “Jerry White’s home and residence in West Virginia was
    never Rebecca White’s home.” Further, they agreed that “[a]t the time of the accident,
    Rebecca White was an unmarried, unemancipated child of Jerry White, who was
    attending school in Texas” and that Ms. White “did not identify Jerry L. White’s address
    as her own for school records.”
    Only days after filing the Stipulation of Facts, Erie filed a motion for summary
    judgment. In response, Ms. White filed a cross motion for summary judgment. She
    attached to her motion, among other things, a notarized letter dated February 25, 2015,
    submitted by her mother, Ms. Brennan. In the letter, Ms. Brennan wrote:
    Rebecca visited Jerry each Christmas after he moved to West Virginia. He
    paid for [her] plane tickets each year. [She] enjoyed visiting him because
    [she] also [got] to see his mother ([her] grandmother), and his brother and
    brother’s kids. It’s a family visit with Jerry’s family. [Her] last Christmas
    visit with him was Christmas 2012.
    Aside from Christmas visits, the letter does not allege any other instances of Ms. White
    visiting with Mr. White in West Virginia.
    By order dated April 27, 2015, the circuit court granted Erie’s motion for
    summary judgment, determining that there were no genuine issues of material fact with
    respect to Erie’s summary judgment motion. The court concluded:
    Rebecca White does not satisfy the clear and unambiguous definition
    of “anyone we protect” as that term is defined by the Erie Policy. While
    Ms. White is Jerry White’s adopted daughter, Ms. White was not a resident
    of Jerry White’s household on May 19, 2013. Furthermore, Ms. White did
    not and does not physically live in Jerry White’s home on any basis, let
    alone on a regular basis.
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    . . . Applying the undisputed facts to the clear and unambiguous
    terms of the Family Auto Insurance Policy purchased by Jerry L. White
    from Erie, policy number Q08 5111202 W, effective August 1, 2012,
    through August 1, 2013, the [c]ourt concludes that said policy of insurance
    does not provide underinsured motorist coverage for bodily injuries
    sustained by Rebecca White in the May 19, 2013 motorcycle accident.
    (Emphasis added).
    Ms. White now appeals the circuit court’s decision to this Court, arguing in her
    sole assignment of error that as a child of divorced parents, she should be considered as
    living with both parents, which she contends “is consistent with contemporary realities of
    family living.” This Court reviews a circuit court’s entry of summary judgment de novo.
    Syl. pt. 1, Painter v. Peavy, 
    192 W. Va. 189
    , 
    451 S.E.2d 755
    (1994). Pursuant to Rule
    56(c) of the West Virginia Rules of Civil Procedure, a motion for summary judgment
    may only be granted when “the pleadings, depositions, answers to interrogatories, and
    admissions on file, together with the 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.” See also syl. pt. 2, Painter, 
    192 W. Va. 189
    , 
    451 S.E.2d 775
    (“‘“A motion for
    summary judgment should be granted only when it is clear that there is no genuine issue
    of fact to be tried and inquiry concerning the facts is not desirable to clarify the
    application of the law.” Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal
    Insurance Co. of New York, 148 W.Va. 160, 
    133 S.E.2d 770
    (1963).’ Syllabus Point 1,
    Andrick v. Town of Buckhannon, 187 W.Va. 706, 
    421 S.E.2d 247
    (1992).”).
    Whether Ms. White is covered by Mr. White’s policy turns on whether she is a
    “resident” within the meaning of the policy. As we observed above, the policy defines a
    resident as “a person who physically lives with ‘you’ in ‘your’ household on a regular
    basis. ‘Your’ unmarried, unemancipated children attending school full time, living away
    from home, will be considered ‘residents’ of ‘your’ household.” (Emphasis omitted). Ms.
    White’s first argument is that, at the time of her accident, she “live[d] with” Mr. White
    and that therefore, she should be covered by his Erie policy. Erie disagrees, asserting that
    “lives with” in the policy is not ambiguous language and that Ms. White did not live with
    Mr. White.
    We have held that “[l]anguage in an insurance policy should be given its plain,
    ordinary meaning.” Syl. pt. 1, Mylan Labs. Inc. v. Am. Motorists Ins. Co., 
    226 W. Va. 307
    , 
    700 S.E.2d 518
    (2010) (quoting syl. pt. 1, Soliva v. Shand, Morahan & Co., Inc.,
    
    176 W. Va. 430
    , 
    345 S.E.2d 33
    (1986), overruled, in part, on other grounds by Nat’l
    Mut. Ins. Co. v. McMahon & Sons, 
    177 W. Va. 734
    , 
    356 S.E.2d 488
    (1987)). “Where the
    provisions of an insurance policy contract are clear and unambiguous they are not subject
    to judicial construction or interpretation, but full effect will be given to the plain meaning
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    intended.” Syl., Keffer v. Prudential Ins. Co. of Am., 
    153 W. Va. 813
    , 
    172 S.E.2d 714
    (1970).
    We agree with Erie and determine that the phrase “lives with” is unambiguous.
    See, e.g., State Farm Mutual Auto Ins. Co. v. Quinn, 62 Fed. Appx. 425, 430 (3d Cir.
    2003) (determining that “lives with” in an insurance policy was unambiguous); Stoner v.
    State Farm Mut. Auto. Ins. Co., 
    780 F.2d 1414
    , 1417 (8th Cir. 1986) (“[T]he phrase ‘lives
    with you’ is susceptible of only one interpretation, i.e., actually living in fact . . . .”);
    Tokley v. State Farm Ins. Cos., 
    782 F. Supp. 1375
    , 1378 (D.S.D. 1992) (“[T]he State
    Farm policy language [‘lives with’] is not ambiguous . . . .”); Coley v. State Farm Mut.
    Auto. Ins. Co., 
    534 N.E.2d 220
    , 222 (Ill. Ct. App. 1989) (deciding that a policy
    containing the term “live with” does not present “ambiguity which would require us to
    construe the contract against defendant or go behind the contract to consider its
    underlying purpose.”); Moller v. State Farm Mut. Auto. Ins. Co., 
    566 N.W.2d 382
    , 386
    (Neb. 1997) (“[W]e also find as a matter of law that the phrase [‘lives with’] is not
    ambiguous.”); State Farm Mut. Auto. Ins. Co. v. Ruiz, 
    952 P.2d 157
    , 161 (Wash. 1998)
    (“[T]he term ‘lives with’ unambiguously means ‘living or dwelling in fact on a
    permanent or temporary basis.’”); but see Davis v. State Farm Mut. Auto. Ins. Co., 
    583 So. 2d 225
    , 230 (Ala. 1991) (“[W]e hold that the term ‘live with,’ as used in the policy in
    question, is an ‘ambiguous, elastic, or relative term, and includes a very temporary, as
    well as a permanent, abode.’”); Casolari v. Pipkins, 
    624 N.E.2d 429
    , 431 (Ill. App. Ct.
    1993) (“The term ‘lives with’ in the definition of relative as used in the State Farm policy
    is ambiguous.”).
    Under its plain and ordinary meaning, “lives with” is a broad and elastic term.
    
    Ruiz, 952 P.2d at 162
    . We agree with Ms. White and the Tokley court that the phrase
    “should reflect the contemporary realities of family living and should not be narrow and
    strait-jacketed to apply only to idealized notions of a pristine family unit, harmonious and
    integrated.” 
    Tokley, 782 F. Supp. at 1379
    . However, “the concept of living with someone
    contemplates, at a minimum, some consistent, personal contact with that person’s home.
    Occasional, sporadic, and temporary contacts are insufficient.” St. Paul Fire & Marine
    Ins. Co. v. Lewis, 
    935 F.2d 1428
    , 1431–32 (3d Cir. 1991); see also Rainey v. State Farm
    Mut. Auto. Ins. Co., 
    458 S.E.2d 411
    , 413 (Ga. Ct. App. 1995) (“More than mere physical
    presence and transient visitation is required to make a person a resident of a household.”).
    While “lives with” is an expansive phrase, “[t]here may be instances, for example, where
    a person’s stay with an insured relative is so brief and transitory that . . . it cannot be said
    that the person was in fact dwelling or living with the relative.” 
    Ruiz, 952 P.2d at 162
    .
    The record before the Court shows that at the time of Ms. White’s accident, she
    was the adult daughter of the insured; that she lived with her mother in Texas while
    attending school in Texas; that she kept no clothing or personal items at her father’s
    home; that she did not list her father’s home as her address in her school records; and that
    her only visits to her father’s home since he moved to West Virginia in 2008 occurred, at
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    most, once a year for Christmas. Under the specific facts of this case, we determine that
    Ms. White’s visits to her father’s home were so transitory as to preclude her from “living
    with” him within the meaning of the policy language.
    Ms. White also contends that she is covered under the policy as an unmarried,
    unemancipated child attending school full time and living away from home. The
    Stipulation of Facts included in the parties’ Joint Appendix establishes that Ms. White
    was living with her mother at the time of the accident, and that “Jerry White’s home and
    residence in West Virginia was never Rebecca White’s home.” Thus, Ms. White was not
    “living away from home”—either her mother’s home or her father’s home—within the
    meaning of the policy language.
    We conclude that Ms. White is not a resident under Mr. White’s policy because
    she neither lived with Mr. White nor was she living away from home when the accident
    occurred. Accordingly, Ms. White cannot be considered “anyone we protect” under the
    policy. For the foregoing reasons, we agree with the circuit court’s conclusion that Mr.
    White’s policy does not provide UIM coverage for the injuries Ms. White sustained in the
    May 19, 2013, motorcycle accident, and we affirm the court’s April 27, 2015, order.
    Affirmed.
    ISSUED: June 3, 2016
    CONCURRED IN BY:
    Chief Justice Menis E. Ketchum
    Justice Robin Jean Davis
    Justice Brent D. Benjamin
    Justice Margaret L. Workman
    Justice Allen H. Loughry II
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