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07/05/83 AMERICAN FAMILY MUTUAL INSURANCE COMPANY

July 5, 1983

AMERICAN FAMILY MUTUAL INSURANCE COMPANY, PLAINTIFF-APPELLANT,
v.
RICKY L. BROWN, LINDA DITTMER BROWN, MICHAEL R. QUIMBY AND LEO ENDEL, DEFENDANTS-RESPONDENTS.



From the Circuit Court of Johnson County; Civil Appeal; Judge William M. Kimberlin.

Motion for Rehearing Overruled, Transfer Denied August 30, 1983. Application Denied October 18, 1983.

Before Lowenstein, P.j., Wasserstrom, Manford, JJ.

The opinion of the court was delivered by: Wasserstrom

American Family Mutual Insurance Company ("American Family") filed this suit to obtain a declaratory judgment that it has no liability to defendant Ricky L. Brown ("Ricky") against claims for personal injuries to Michael R. Quimby and Leo Endel or for the wrongful death of Nancy C. Quimby. From an adverse ruling from the trial court, witting without a jury, American Family appeals.

On July 11, 1979, Ricky was driving a 1976 Pontiac Gran Prix owned by Linda Dittmer (Brown) ("Linda") and collided with a vehicle in which the Quimbys and Endel were occupants. Linda's Pontiac was covered by a policy issued by State Farm Mutual Insurance Company which has acknowledged liability to the limits of its policy. The insurance coverage question remaining pertains to the policy issued by American Family on a 1972 Chevrolet van owned by Ricky which was not operable on July 11, 1979, and which was not involved in the accident mentioned.

The American Family policy covered Ricky not only with respect to the Chevrolet van but also for his use of a "non-owned automobile" or "a temporary substitute automobile." Both of those quoted terms are defined in the policy to mean an automobile not owned by the named insured or any resident of the same household. American Family contends that the present case falls within that exclusion on the ground that Linda was a resident of the same household as Ricky. That contention presents the narrow issue to be decided.

The determination of that issue must start with an acknowledgment that "resident of the same household" is a phrase subject to variable interpretation depending on the facts of each particular case. As stated in Cobb v. State Security Insurance Co., 576 S.W.2d 726, 1.c. 738 (Mo.banc 1979): "'Household' is a chameleon like word. The definition depends on the facts of each case." And as stated in Giokaris v. Kincaid, 331 S.W.2d 633, 1.c. 641 (Mo. 1960): "The word 'family,' synonymous with 'household,' is of varied signification and may have a narrow or broad meaning."

Moreover, where this phrase appears in an exclUsionary clause, as here, the burden of proof is on the insurer and if reasonably possible the clause will be construed so as to afford coverage. As held in Giokaris v. Kincaid, (supra) , quoting from prior authority:

"n insurance policy, being a contract designated to furnish protection, will, if reasonably possible, be construed so as to accomplish that object and not to defeat it. Hence, if the terms are susceptible of two possible interpretations and there is room for construction, provisions limiting, cutting down, or avoiding liability on the coverage made in the policy are construed most strongly against the insurer."

The Giokaris decision went on to hold:

"Mindful that insurance policies are to be construed, if reasonably possible, to accomplish the designated protection, and provisions avoiding liability on the coverage afforded are construed most strictly against the insurer, we conclude the facts of record did not exclude garnishee's liability as a matter of law . . . . "

Subject to the foregoing qualifications, the Missouri courts have developed twin tests to be applied in the application of this insurance clause. One criterion looks at the length of time the parties intended to remain together and whether the arrangement is permanent or temporary. The other standard focuses on the functional character of the arrangement or whether the parties function as a family unit under one management. Cobb v. State Security Insurance Co., (supra) at 738, and cases there cited.

With these general principles in mind, we now turn to the evidence bearing on this issue which was taken at the original trial of this case held in June 1980. Linda testified that she and Ricky were married on October 6, 1979. The matter of marriage had not been discussed between them at all until about a month before it took place, when the decision to marry was reached. The two had known each other for about 10 years, and had started dating in 1976, at which time and in 1977, Linda was living in a farm home with her mother on Rural Route 3, Concordia, Missouri. Ricky, during those two years, rented a residence three miles south of Sweet Springs, Missouri, from Robin Deke. Linda, although occasionally staying overnight, did not reside there. Ricky lived in the Deke house seven days a week. In September, 1977, Linda purchased a mobile home and had it moved onto her mother's farm, which was rented from the mother's brother-in-law. Linda purchased a homeowner's policy on the mobile home, which sat vacant for two or three months until Linda could have concrete runners poured for it, and she moved into it in December, 1977. The mobile home had a separate LP gas source from her mother's home; the electricity, coming from the same pole, was paid for by her mother; but the cost of water was split between the two of them. The telephone was separate and was listed in Linda's name. Ricky started staying in the mobile home on December 25, 1977, and made and received telephone calls on Linda's individually listed telephone. Although he had his own furniture from the Deke residence, he did not move it into the mobile home but stored it elsewhere. At that time the two did not have any plans to marry, the situation was not then intended to be permanent, and Linda testified further that the subject of marriage was not brought up until about a month before the marriage, which was October 6, 1979.

After Ricky moved into Linda's mobile home his mail was delivered to the farm mailbox. He kept up the maintenance on the mobile home and paid one-half of the gas and phone bills. Each of the two kept up the expenses on their separately owned automobiles. The cost of groceries was split, the two shared cooking and dishwashing chores, and they entertained mutual friends in the home. Ricky kept his clothing in the mobile home but in a separate room from the bedroom. They shared the same bed in the one bedroom. No household items were then purchased by the pair--the household goods were owned by Linda. Each had separate checking accounts, and neither purchased clothing for the other.

At the time of the collision, Linda gave Ricky permission to drive the Gran Prix which was involved in the collision. Each paid for the gasoline, insurance and maintenance on their separate vehicles, and when Ricky borrowed hers, he put gasoline in it. Before the marriage, Ricky came and went as he wanted to, staying out at all hours, but afterward, he asked Linda if it was all right if he went out.

These further changes occurred after the couple married: The telephone listing was changed to Ricky's name. Their clothing was combined in the same bedroom closet. Ricky offered some of his furniture for sale after the marriage, and then brought some of it into the mobile home, replacing some of Linda's which was not in good shape. All clothing and other expenses were paid from joint checking account created after the marriage, and Ricky took more responsibility for helping in the household duties and chores.

Linda testified further: "Q I am referring to the period now up to the accident of July 11th. A Yes. Q Did you consider you and Rick's staying in the house, living together in the house, to be ...


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