then please the court my name is bernard failing and i'm pleased to represent the parents of taylor burns jamie and robin burns in this declaratory judgment matter philip sam age sixteen killed tyler burns using a semiautomatic pistol taken from his mother's home days after he ran away and was then residing with his father at a separate residence philli sam his mother and her resident boyfriend have been sued by tyler's parents for wrongful death based upon philip's intentional act and the negligent storage of the firearm by the mother and her boyfriend her insurer or american national carpeting casualty insurance company has denied coverage based upon an exclusion for criminal acts of a resident a relative of do relative because the person quote me have two residences without acknowledging the ambiguity of the term resident relative contained in the policy in the policy where there is clear evidence that doris son was not a resident of dora's household at the time of the alleged incident the question is was philip sam the resident relative in the household of the insured at the time of the occurrence in the light of the ambiguity of the term resident relative and viewing the evidence  favorable to the not moving party in this summary judgment proceeding it is clear that phillip sam was not a resident relative coinsurance of door sam's household and the exclusion for with another custodial parent but still has visitation at another parent's house is not a resident we have well we have additional facts in this case which is joint custody of the divorce decree the divorce decree says that the son could reside with the father when the father was in town i mean doesn't that suggest that it was contemplated that the son would have dual residency was when the father was out of town the son what reside with the mother and when the father was in town so he has had with the mother or the father he does have alternate residences based upon the circumstances at the time but the case the question in this case is apply the good the question is in this case was he a resident relative at the time of the occurrence not was he or could he have been a resident relative at some other time this is has to do with insurance coverage at the time of the occurrence i mean he still had a room at her house that's undisputed isn't it  she used a room in her house he didn't want to but he did right because he's a kid he had that he had to have a room of his moderate so did it on so you say he used a room was there or room in the house that everybody understood was his room he had a room and the pictures of that room are in the record he had another room at his father's residence which he says he wanted to live at and he said now to the police when he was arrested i don't want to be at my mother's home because of the boyfriend and when he was arrested he told the police where what his residence was and the booking she chose that he said i live one thousand and seventy six county road to nineteen which is the residence the household of his father so let me ask you this to you and you've seen a case that takes the opposite where someone is trying to say my son is a resident of my home i'm sure this policy so i that i have there may be one i just don't know about right now the the question in this case with regard to the issue of resident relative expressed his wish to live with his father the boyfriend but that sort of begs the question as to who cares what he wants and what his wishes were well it does have relevance in that the question of residence is the person's intent where does he intend to have a residence well to that point i mean it's just to clarify and i when i do want to get into your ambiguity conversation just to clarify it why isn't it easily true why isn't it true that the question of residence turns on the facts on the ground other words for a minor in particular if his parents say you live in this house you know and they provide a place for him to live if he goes and he goes out in the street and tell everybody you know i don't want to live that house i don't live in that house how does that change the fact that the facts on the ground establish that the place where he lay he will lie has had you know plays had down is at his parents house is mother's house this case we have a divorce decree which says that there is joint custody primary residence with the mother and when the father is in town children's with the father of his residence and that that was the situation at the time of this occurrence is ok he was residing with his father not his mother ok so you aren't really moving away from i mean the district court did find it you could have to have it says right and you're not you're not really disputing the concept that you can have two residences and in fact that's what the divorce  what you're disputing is that at the time of the event the residence that he had was the residence of the mother the residence at the time of the shooting in the residence that he had and was at was the residen proposition that he was not a resident relative in the facts it would just give me the salient facts are the ones that you think are most important in that regard not limiting you but just which ones you think are sort of the not my intent i left i rid of way she says she ran away he was with his father at the time of the occurrence how does a young how does the also having to do with the intent of the person who is deemed by the shirt company to be an insured resident insured he was not a resident insured because he did not have the intent to be at the place he had run away from he left to go to the other place that he was entitled to be under the divorce decre he asked for permission or he called his mother and said i'm going into the house after i'm with my father and letting him know i'm going in asking permission to go into a house that is an inference that he was not a resident of that house the physical condition of his two rooms that  he use the one that he had at his father showed a neat carefully maintained room with his turtle on his posters the other one's a complete mess he's forced to be there so up he leaves yeah and says i don't want to be there he tells the police i am not resident with my mother i'm resident with my father and we're talking about insurance coverage in that's probably an overstatement of the doctor and don't write don't take that as a pronouncement of the law but you know just the way i view it you look at it in that light most favorable coverage and so then so you say ok so who is covered and you look over at the insured paragraph and you probably construe it to the mother certainly and if you're probably considering it it would put the son in the category of someone who's going to be insured under this policy then you flip over to the exclusions which exclude any actor any personal injury arising out of any criminal act committed by or at the direction of an insurance so you have to construe it to provide coverage as broadly as possible so you put the sun in the category and then you come over here and it kicks him out because he got put in on the well that's that's what the insurance company is doing is keeping kicking him off and in doing that also trying to kick off the principal insured the named insured because of the any  insured language of the exclusion in it as in the light of a severability clause which is also in the insurance policy which provides insurance for each insured cases of well the mean for cases and to wyoming federal us is was young philip sham resident of his mother's house that's what it boils down to i don't think there's any dispute that the exclusion the any any injuries would apply to prevent this occasion clearly clearly established that he was mr fail one as in good in the trial court wants to rely upon evidence that really is not properly in the record well that's your failing it said it least as i'm said his argument here and i think in brief it's not a question of whether he was a resident of his mother's house generally as a question whether at the time of the event as a resident of his mother's court realizes that under wyoming while you can clearly be a resident at the same time in two different places and that's what we're dealing well at the same time meaning in the same moment in time because i mean if lease if the understanding is yes he's a resident theoretically at when his dad's out of town he's a resident of mother's house and dad in town is a resident das now why why can't that did the distance of those two mean that we need to focus on exactly the moment when the crime occurred the incident that would deny him coverage in other words why didn't read the link and connected to that moment in time i don't think it  four at three o five pm on october fifth i was russian dad even though i still maintained a residence at when mom tells you you can't split you well it makes it this no maybe there is some factual scenario where it will be difficult but here because the words to create eat you can pretty easily define when you would have been at one house or another run well was at his dad's house momentarily because his dad had just returned to town and he had actually been staying with his adoptive grandmother but he was where the divorce decree at that time said he would be which was with his dad and could correct there's no doubt about that that does not mean that he still was not a resident of his mother's house and i think that's the key to it you can't pick and choose  the key to that is what was your can time and for purposes of residency intent is completely irrelevant you look at the fact what was what was going on with that  the key factor both mom and dad testified in the records very clear on this that he was a resident of both houses what do you rely upon for the proposition that intent is relevant for residence and i don't know if they say it's not relevant but intent is not really into consideration and the real issue here is that we're dealing with a minor and the  holyfield well let's talk for a moment about the question of ambiguity i mean why isn't the t m case which i really revisited as recently as last night i mean why doesn't that suggest that that term is ambiguous i mean and if it is then big is why can't we construe it in favor of coverage well and and actually to construe it and turning in favor of coverage  would be to construe it in favor of coverage for all of the insurance which is just what we're saying he wasn't insured let's let's interpret it broadly mr philip sham and his mother and everybody else that live in the house that was relative his siblings we're not sure i understand that theory but the other theory would be covered really mean the bottom line what do you get to actually get coverage which would mean that we would have to construe it in a way that would cause him to avoid the exclusion rhein i'm sorry if you were considering in favor of coverage i think i understand your point that that that would mean it's more likely he would be lumped into the category resident in relative but what i'm saying is that term construed in favor of coverage at least as i've shared generally understood it means construed in favor of the bottom line which is whether you get coverage and the bottom line would mean you construing in a way th  i think i understand what you've asked wretch roams i don't know if i have an answer that is going to truly answer what you've asked whether two steps to it i mean one do you accept the premise that t m calls resident ambiguous and if you do i i may have already received your answer but if you do you think answer to that is yes then what is the implication of that for this case well and i am trying to recall focusing on the residency of the husband the abuser in other words i think it was sort of an it was analogous to this situation at least my recent memory of it is in the sense that what we're focusing on is  excluding coverage because the husband lived in the home i think that's what was going on and your honor you mean absolutely correct my recollection no no  because they were ordered by court placed with with that family whether there is a similarity to this case though in that we had a court order saying that when down soon town the kids being with deb absolutely and as i was even speaking drugs drugs told you about that i thought you know that is going to be in the next question then the difference being here is again if and say oh you know if my kid was to commit a crime it wouldn't exclude me from coverage because this is we're both treated separately well and i think if if we take a look at what the majority of seem term condition is going to apply to you it's just it's that it's an assurance was given by the insurance company that all insurance are going to be given the benefit of the of the terms and conditions of the policy and i'm pretty pretty confident that that is what the case law addressing the issue of severability clause is in that as is clearly the majority position on that issue there are a couple of policy neither of them would be covered he would be insured under both parents home but the unambiguous exclusion for criminal conduct of any insurer would apply to policy i think the same position would have to be taken because he was a russian of both parents homes so that both policies would be liable owner of this circumstance if there was no exclusion there why the exclusion even each of the policies would result in no coverage for either correct if they were the same policies in place of both residences which own crimes i think it is and that's why those those exclusions are in there i see i am just about out of time i would like to end with a hypothetical would there be coverage and negligence claim philip sam isn't insured absolutely there would be coverage for that negligence that's not what we're dealing with here we're dealing with an insurer who committed a crime that was specifically excluded from coverage thank you