Thomas v. Vigilant Insurance

156 Mich. App. 280 (1986) 401 N.W.2d 351

THOMAS
v.
VIGILANT INSURANCE COMPANY

Docket No. 86186.

Michigan Court of Appeals.

Decided November 17, 1986.

Sloan, Benefiel, Farrer, Newton & Glista (by Gary C. Newton), for plaintiff.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. (by Robert G. Kamenec), for defendant.

Before: HOOD, P.J., and D.E. HOLBROOK, JR., and W.R. PETERSON,^[*] JJ.

PER CURIAM.

Plaintiff appeals as of right from a June 27, 1985, opinion and order entered by the Kalamazoo Circuit Court granting summary disposition in favor of defendant. The trial court found that plaintiff, as an assignee of Elvictor Taylor, was not entitled to personal injury protection coverage under a homeowner's policy of insurance issued by defendant to the parents of Elvictor Taylor. The policy in question extends coverage to the named insureds and to "residents of the named insureds' household." The trial court found that Elvictor was not an insured under the homeowner's policy. We agree and affirm.

On June 15, 1982, plaintiff filed suit against Elvictor for damages arising out of the latter's negligence in discharging a firearm on September 27, 1981, at the home where Elvictor resided with his wife and family, 821 Porter Street, Kalamazoo. The home was owned and insured by Elvictor's parents. Elvictor failed to appear or otherwise defend and a default was entered on August 19, 1982. Defendant was notified that a default judgment had been entered and that it would be voluntarily set aside if defendant undertook a defense. Defendant refused to so defend, claiming that Elvictor was not an insured under the policy issued to Victor and Madge Taylor. Thereafter, default judgment was entered against Elvictor in the amount of $200,000. Plaintiff then procured an assignment of rights from Elvictor and brought the present action against defendant.

The homeowner's policy at issue defines insured as follows:

(1) the Named Insured stated in the Declarations of this policy;

(2) if residents of the Named Insured's household, his spouse, the relatives of either, and any other person under the age of twenty-one in the care of any insured.

Madge and Victor Taylor are listed as named insureds in the declarations section of the policy. Plaintiff contends that even though Madge and Victor had their own house on Cobb Street in Kalamazoo, they nevertheless had a household at 821 Porter Street, where Elvictor lived, and therefore Elvictor was an insured under the above definition. Hence, plaintiff contends, the trial court erred in granting summary disposition on the basis that Elvictor was not an insured under the homeowner's policy and that defendant had no duty to defend him. We disagree with plaintiff's argument.

Insurance contracts are to be interpreted according to the commonly understood meaning of the words of the contract. Parrish v The Paul Revere Life Ins Co, 103 Mich. App. 95, 97; 302 NW2d 332 (1981). The terms of the policy must be construed in accordance with the ordinary and popular sense of the language used so as to avoid strained interpretations. Mich Mutual Ins Co v Sunstrum, 111 Mich. App. 98, 102; 315 NW2d 154 (1981), lv den 414 Mich. 890 (1982). Black's Law Dictionary (rev 4th ed), p 873, defines "household" as: "a family living together ... [t]hose who dwell under the same roof and compose a family." Webster's Third New International Dictionary (1971) defines "household" as: "[t]hose who dwell under the same roof and compose a family; a domestic establishment; specifically, a social unit comprised of those living together in the same dwelling place." The American Heritage Dictionary of the English Language (1976) defines "household" as: "[a] domestic establishment including the members of a family and others living under the same roof." The commonly understood meaning of the word "household" is a family unit living under the same roof.

Defendant points to Hernandez v Comco Ins Co, 357 S2d 1368 (La App, 1978), which involved a factual situation similar to that herein. In Hernandez, "insured" was defined in the insurance policy by language identical to that in the policy at issue here. The claimant in Hernandez resided in a second separate house built by the named insured on the same property with the named insured's house. The claimant and his family paid their own utilities, purchased their own groceries, cooked their own meals, and did their own laundry. Citing the Webster's New World Dictionary definition of "household" the Louisiana Appellate Court ruled that the two families involved, i.e., the insured and the claimant, were two distinct separate and independent family units and, therefore, the claimant was not a resident of the insured's household.

In the instant case, although Madge and Victor Taylor owned both the home on Porter Street in which Elvictor lived and their own residence on Cobb Street, they established only one household on Cobb Street. Elvictor Taylor and his family comprised a separate and distinct household in a separate dwelling on Porter Street. Elvictor Taylor paid his own utilities and purchased his own groceries. Rent was paid to Madge and Victor in the form of keeping the house in good repair. We conclude, therefore, that Elvictor was not a resident of the insureds' household since the insureds' household was at a different address under a separate roof.

The facts of the within case are distinguishable from those in Montgomery v Hawkeye Security Ins Co, 52 Mich. App. 457; 217 NW2d 449 (1974), lv den 392 Mich. 769 (1974), which plaintiff cites in support of his argument that Elvictor was a resident of the named insureds' household. In Montgomery the claimant was a full-time college student supported by his parents. He lived with his parents except when in the service or away at school. A panel of this Court found that the student was a resident of the named insured's household. In the within case, Elvictor, a forty-two-year-old man with a wife and family, had neither lived with nor been supported by his parents since 1961 when he moved out to join the service. He maintained a separate household completely independent from that of his parents. Hence, unlike the claimant in Montgomery, he was not a resident of the named insured's household.

The facts are not disputed with respect to the separate and distinct households established by Elvictor and his parents. Plaintiff has failed to show the existence of a factual dispute, by opposing affidavits, testimony, depositions, admissions or other documentary evidence, concerning whether Madge and Victor Taylor had an established household and lived together as a family with Elvictor at the Porter Street address. Therefore, the trial court was correct in concluding that there was no genuine issue of material fact and that defendant was entitled to judgment as a matter of law. Pauley v Hall, 124 Mich. App. 255, 262; 335 NW2d 197 (1983), lv den 418 Mich. 870 (1983); Stadelmann v Glen Falls Ins Co of Glen Falls, 5 Mich. App. 536, 541; 147 NW2d 460 (1967).

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.