Opinion
C.A. No: 02C-11-010 (RBY).
Submitted: March 3, 2006.
Decided: March 23, 2006.
Upon Consideration of Plaintiff's Motion for Summary Judgment. GRANTED.
George T. Lees, III, Esq., Bifferato, Gentilotti, Biden Balick, Wilmington, Delaware for Plaintiff.
Mary E. Sherlock, Esq., Dover, Delaware for Defendant Coggle.
Craig A. Karsnitz, Esq., Young, Conaway, Stargatt Taylor, Georgetown, Delaware for Defendants Melvin and Fox.
OPINION
ISSUE
The issue before the Court is whether Defendant Stephanie Coggle is a resident of the home of defendants Melvin and Gloria Fox as a matter of law, or whether that question is one for the determination of a trier of fact. If the former is true, then the parties agree that Old Guard Insurance Group, the provider of homeowners insurance to Melvin and Gloria Fox, has no obligation to provide coverage relative to the claims of Stephanie Coggle("Defendant Coggle") in C.A. No. 02C-07-037, the wrongful death action pitting Coggle against her mother and step-father, Gloria and Melvin Fox (" Defendants Fox").
If the latter is the case, then this would go to trial. However, by and large, the trial evidence is before this Court on this motion, at least to the extent of discovery depositions of the people who have relevant testimony regarding the issue herein.
FACTS
As of June 26, 2000, effective through July 26, 2000 and onward, Defendants Fox had a policy with Old Guard Insurance Group ("Plaintiff"), providing homeowners' coverage relative to the property known as and located at RD 4, Box 174 (16791 Hudson Road), Milton, Delaware 19968 (Defendants' Exhibit A).
On July 26, 2000, while on said premises, the son of Defendant Coggle and grandson/step-grandson of Defendants Fox climbed over a fence into a swimming pool, and drowned. As a result of that tragic incident, Defendant Coggle has sued Defendants Fox for wrongful death claims in Kent County Superior Court, C.A. No. 02C-07-037 JTV (filed July 24, 2002).
In so far as this issue is concerned, the Old Guard policy specifically excludes, in terms admitted by all parties to be clear and unambiguous, liability coverage for "You" (i.e. the named insureds: Melvin Fox and his spouse, Gloria Fox) or an "Insured". An "Insured" is, inter alia, "a resident of your household", who is a relative. Defendant Coggle's being the daughter of Gloria Fox, the question is whether she was, at the time of the death of her son, a "resident" of the Fox household at 16791 Hudson Road, Milton, Delaware.
The Old Guard policy does not specifically define "resident" or "residents of your household." That is to be decided as a matter of law, if appropriate, or, if not, presented as a question of fact.
The said Hudson Road home was the residence of Defendants Fox and also Defendant Coggle until Coggle was 18 years of age. The event occurred when Coggle was 28 years old. In the intervening approximately ten years preceding June 1, 2000 (about two months prior to this incident), Coggle had moved "in and out" of the Fox residence "quite a bit." Leading up to June 1, 2000, Coggle had lived for a period with her husband in Dover and — after their separation on May 1, 2000 — her sister, Christine Jackson, in Dover for the month of May, 2000.
Defendant Coggle's Response 4.
Id.
Id.
Then, on June 1, 2000, Coggle and the child Zachary "moved in with Melvin and Gloria Fox." Coggle maintained a post office box for her mail. She did not immediately change her driver's license address — either to the Hudson Road or from the former marital address in Dover — although, within the month of the incident, Coggle did have her license corrected declaring the Hudson Road address.
Id.
With the June 1, 2000 move to the Hudson Road address, Coggle needed to place her belongings. As the season was late spring, nearly summer, Coggle asserts that she put all of her winter clothing in storage. All of her summer clothes, all of Zachary's summer clothes, Zachary's toys and bed and dresser were moved to Hudson Road.
Id.
Coggle claims that her plan was to stay at the Hudson Road residence no more than three months. Notably, she did nothing "to promote or facilitate the commission" of any such plan; although she had procured (and, as of the day of the incident, had begun) employment in the interim. Moreover, the concern is where her residence was at the time of this July 26, 2000 incident. Coggle, by her admission, had no other residence. Relative to her intentions, Old Guard points out that Coggle listed the Hudson Road address for medical providers to send Zachary's records. Additionally, she advised Health and Social Services, on an intake form, six days prior to this incident, that her "address" was the Hudson Road address.
Id. at 5.
Id.
Plaintiffs' Motion 8.
Id. At 10.
On a different tack, Coggle was asked why she stayed at the Hudson Road address for 2½ years after the incident, if she considered the residence to be only temporary. Coggle responded that the incident so affected her, that she couldn't function properly. Further, counsel for Coggle argues that the intent at the time of the incident controls, not circumstances past that date. While the responses of both Coggle and her counsel are understandable, at the very least, that information does nothing to weigh against Coggle's residing at Hudson Road.
Defendant Coggle's Response 6.
Defendant Coggle's Answering Brief 10.
Old Guard also demonstrates that Coggle filed a verified Complaint, stating under oath that "at all times pertinent herein . . . [she] has been . . . residing at 16791 Hudson Road, Milton, Delaware 19968." (Emphasis added) Further, as evidenced, by Zachary's death certificate, on that date, as Coggle advised the State and testified, the Hudson Road address was "the actual physical address that [she was] residing at at the time of his death." (Emphasis added.)
Plaintiffs' Motion 10.
STANDARD OF REVIEW
Summary judgment is appropriate if the record shows there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. The facts must be viewed in the light most favorable to the non-moving party. Summary judgment may not be granted if the record indicates a material fact is in dispute or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law to the circumstances. Only when the facts permit a reasonable person to draw but one inference does the question become one for decision as a matter of law.
Super. Ct. Civ. R. 56(c).
Guy v. Judicial Nominating Comm'n, 659 A.2d. 777, 780 (Del.Super.Ct., 1995).
Ebersole v. Lowengrub, 180 A.2d 467, 468-69 (Del. 1962).
Wooten v. Kiger, 226 A.2d 238, 239 (Del. 1967).
DISCUSSION
Is there, then, a genuine issue of material fact concerning the residence of Coggle at the Hudson Road address on July 26, 2000?The status of an individual as a resident of a household for purposes of determining coverage under a homeowners policy has been addressed by the Court in the Engerbretsen case. There, the court held that the term "resident", as used in insurance policies, is unambiguous on its face. It should, therefore, be given a plain and common meaning. That Court adopted the Norton case definition of "resident" as "one who dwells or has an abode under the same roof as the named insured for a duration of sufficient length so that the occupiers can be said to compose a family."
Engerbretsen v. Engerbretsen, 675 A.2d 13 (Del.Super. 1995). Aff'd, Engerbretsen v. USAA, 676 A 2d 902 (Del. 1996).
Amco Ins. Co. V. Norton, 500 N.W.2d 542 (Neb. 1993).
In the instant case, of course, the aspect of family is manifest: Coggle is the daughter of one defendant, the step-daughter of another, and the mother of the decedent.Norton, adopted by Engerbretsen, goes on, however. Describing how a variety of factors build to a definitive picture is to be considered, the Court refers to a non-exhaustive list, which can be considered.
The first is the intent of the occupier, Coggle. By her own recent declarations, her intent was not to reside at the Hudson Road address, but to use that merely as a temporary stop. "The subjective or declared intent, while a factor to be considered, is not controlling." Rather, a thorough examination of all circumstances must be assessed. This, then, will be addressed below.
Engerbretsen, 675 A.2d @ 19 (quoting Pamperin v. Milwaukee Mutual Ins. Co., 197 N.W. 2d 783, 788 (Wis. 1972).
Next is the formality of the relationship between the occupier and the policy holder. As mentioned, the family relationship is clear. In addition, the defendants had a monthly rent agreement. While (not surprisingly given Coggle's financial situation at that time) Coggle had paid only portions of that, the facts of both the agreement and its time frame suggest, at the least, a relationship of some formality.
Next is the permanence of Coggle's abiding there. With her moving in nearly two months prior to the incident, she brought clothing for the summer (which was to stretch out for some four months from the move-in) for both herself and her son; and "his toys" (inferring essentially all of his toys); and even some of her son's furniture. All of that connotes permanency.
Next is the absence of alternative places of lodging. The testimony of all of the Defendants points out that Coggle had no residence alternative to the Hudson Road address during the periods of time she lived there.
Finally, there is the "age and self-sufficiency" of the occupier. While Coggle was an adult who had lived independent of the Hudson Road address, the Defendants, in varying phraseology, describe the utter absence of Coggle's being self-sufficient. Short of homelessness, her only available living arrangement was at Hudson Road. Coggle was, at that time period from the June 1, 2000 move-in through well after this tragic incident, entirely not self-sufficient, particularly when considering the need to have housing for her son. This is undisputed by any of the Defendants.
Thus, we come to the totality of the circumstances; or the concept of residency; or the sufficiency of the abiding duration; or the factors establishing a relationship; or other phraseology evoking a similar analysis. Permanence is not required. Rather, the question is the presence of something more than mere transiency. That, it would appear quite clearly, exists here. Ultimately, Coggle lived at the Hudson Road address throughout the year 2000. While the time as of the event is the determining factor, everything has a context. Indeed,Engerbretsen, in the same vein, referred to "after-incident" time at the incident's address. Hence, as indicated, that information does nothing to bolster Defendant's position.
Moreover, as of the incident, Coggle and her son had lived at the Hudson Road address, without another location's being used or even being available, for nearly two months. That, in the absence of any alternative, is a substantial and significant period of time. As a matter of simple mathematical fact, it represents more than five percent (5%) of the child's life.
Coggle, at the time of the incident, had not applied for entrance to any other housing, including public housing. On the contrary, she applied for public assistance, using the Hudson Road address.
Other than Coggle's subjective declaration, which itself appears first to have emerged well after the original litigation was commenced, all factors indicate that Coggle's residence for all relevant purposes was the Hudson Road address. That declaration, therefore, does not rise to the level of creating a genuine issue of material fact.
Accordingly, Plaintiff Old Guard's Motion for Summary Judgment, determining the absence of coverage relative to the underlying tort incident, is GRANTED.
SO ORDERED.