No. 91

-209 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

FARMERS UNION MUTUAL INSURANCE COMPANY, a Montana Corporation, Plaintiff and Appellant,
V. DOUGLAS BLAIR, DEBRA BLAIR, DAVID BLAIR, and TROY OSBURN, Defendants and Respondents.

APPEAL FROM: District Court of the Eleventh Judicial District, In and for the county of Flathead, The HonorableMichael H. Keedy,Judgepresiding.

COUNSEL OF RECORD: For Appellant: James M. Ramlow, Murray & Kaufman; Kalispell, Montana For Respondent: Jeffrey D. Ellingson, Ellingson Law Offices: Kalispell,Montana

Filed: Submitted on briefs: August 1, 1991 Decided: September 24, 1991Justice Fred J. Weber delivered the Opinion of the Court.

In a declaratory action, the District Court of the Eleventh Judicial District, Flathead County, determined that Farmers Union Mutual Insurance Company (Farmers Union) had a duty to defend and indemnify David Blair (Blair), the named insured's son, in an underlying negligence action between Blair and Troy Osburn

(Osburn),the injuredparty. FarmersUnion appeals thisdecision. We affirm. The issues raised for our review are restated as follows: 1. Was theDistrict Court correct in findingthatDavid Blair (Blair)was a resident of his parents' household? 2. Was the District Court correct in declaring that the policy's automobile exclusion did not apply to the underlying negligence action? The following facts are not in dispute. On March 6, 1989, Mitchell Klindt (Klindt) accidentally shotOsburnwith Blair's gun while attendinga party at a Kalispell residence. Thenight of the shooting, Blair drove Klindt and another friend from one house party to another in his employer's car. Blair had his loaded revolver in an unlocked compartment of the car. Prior to 

### the shooting, Blair and Klindt were asleep in the car outside the residence where the shooting occurred. Klindt awoke, removed Blair's gun from the car, placed the gun in his pants and went inside the residence. Once inside the house, Klindt accidentally shot Osburn while removing the revolver from his pants. In theunderlying negligenceaction, Osburn filed suit against

LBlair alleging that Blair proximately caused his injury by negligently providing Klindt access to alcohol and a loaded handgun. Farmers Union filed thisdeclaratory action to determine if they had a duty to defend and indemnify Blair in that action. In September 1987, David Blair's parents Douglas and Doris Blair purchased a homeowner's policy from Farmers Union. This policy was in effect on March 6, 1989,and contained the following provisions: Definitions "insured" means you and residents of your household who are 

## . 

# . . your relatives

# . . . * 

## * * 

## * * * * 

## *

Exclusions 

## * * * 

## * * * 

## * * Personal liability andmedical payments to othersdo not apply to bodily injury 

## . 

# . . arising out of the ownership, maintenance, use, loading or unloading of motor vehicles 

# . . . In this case Farmers Union contends that Blair's alleged negligence is not covered by the policy because Blair 

### is not a resident ofhisparents' household. Further they contendthat

### even if Blair is a member of the household, this accident arose out of the use, loading or unloading of a motor vehicle and is excluded from coverage under this policy. InMarch 1989, Blair was 19 years of age. Sometime prior to the shooting,he had vacated his apartment and moved back intohis parents' Kalispell residence. Three days per week, Blair worked
as a chauffeur in Darby, Montana, and stayed at his employer's home. The other four days per week Blair traveled back to Kalispell and stayed athisparents' home wherehe shared a bedroom

3with his younger brother. Blair kept his personal belongings at his parents' residence and used a suitcase to transport his personal effects from Kalispell to Darby. Blair received all of his mail at his parents' address, and consistently listed his parents' address as his residence. Although Blair did not eat or wash clothes at his parents' house, Blair's truck was registered in his father's name in Flathead County, he banked in Kalispell and occasionally gave his parents money to "help out" with expenses. I Was theDistrictCourt correct in findingthatDavid Blairwas a resident of his parents' household? Farmers Union contends that the term "resident of the named insured's household" is clear and must be strictly construed according to the terms of the insurance policy. Osburn contends that under these facts the language is ambiguous and should be interpreted in favor of coverage. In this case

### we do not conclude that the issue of ambiguity is controlling. In IowaNat'l Mutual Ins. Co. 

### v. Boatright, (Colo.App. 1973), 516 P.2d 439, the insurance carrier sought subrogation from the father of the named insured who negligently caused a fire at his daughter's home. The court examined a number of factors to determine if the insured's fatherwas a "residentof thehousehold" under the homeowner's policy. The court stated: In ascertaining the meaning of the term "residents of hishousehold, I' a number of factorshave been designated as being important. Among them are the following:

4The subjective or declared intent of the individual, Hardware Mutual Casualty Co. 

### v. Home Indemnity Co., 241 Cal.App.2d 303, 50 Cal.Rptr. 508; the formalitv or informality of 

### the relationship between the individual and the members of the household, Pamperin

### v. Milwaukee Mutual Insurance Co., 55 Wis.2d 27, 197 N.W.2d 783;the existence of another place of lodqinq by the alleged resident, State Farm Mutual Automobile Insurance Co. 

### v. Holloway, 423 F.2d 1281 (10th Cir.); and the relative -. permanence or transient nature of the individual's residence in thehousehold, HardwareMutual Casualtv Co. 

## - v. Home Indemnity Co., supra. No one factorby itself isdeterminative of theultimate issue. All mustbe considered in the light of the basic consideration of whether the parties to the insurance contract intended that coverage would extend to the alleged insured. [Emphasisadded.] Boatright, 516 P.2d at 440. We adopt the Boatriqht factors in this case and conclude that Blair was a resident of his parents' household. First, Blair's conduct is consistent with an intent to reside with his parents. He consistently listed his parents' address as his residence. Blair generally stayed at his parents' home four days per week, received his mail at that address, and kept his personal possessions there. Next Blair had an informal relationshipwith the members of his parents' household. Although he did not launder his clothes
or consistently eat meals with themembers of the household, they interacted as a family. Blair "helped out" with household expenses, and his truck was registered in his father's name. Further, Blair had no other place of lodging. Although, he stayed at his employer's home three days per week, Blair transported his possessions from Kalispell to Darby by suitcase. He conducted his banking in Kalispell, registered his truck in 5Kalispell, and resided in Darby only while working. Finally, Blair permanently resided at his parents' home. A fewmonths prior to the shooting, Blair had vacated his Kalispell apartment and moved 

### in with his parents. At the time of the shooting,he had no immediate plans to move and was in fact still residing with his parents in July 1990. Given the factspresented above,we conclude that theparties to the insurance contract intended that coverage would extend to Blair, the named insured's son. Although the lower court found that resident of thehousehold is an ambiguous term, we do not find it necessary or appropriate to analyze the term from that perspective. Under the Boatriuht analysis we hold that the District Court was correct in finding that Blair was a resident of his parents' household. I1 Was the District Court correct indeclaring that thepolicy's automobile exclusion did not apply to the underlying negligence action? Farmers Union contends thatOsburn'sshootingaroseoutof the
use of an automobile and they cite cases which denied homeowner coverage under automobile exclusions. InWyoming Farm Bureau Ins. Co. v. Mobile Ins. Co. (10th Cir. 1972), 467 F.2d 990, the court denied homeowner coverage when the passenger injured a pedestrian by throwing a bottle from a moving car. The court held that the injurywas incidentto theuse of thevehicle and that the accident
was excluded under the homeowner's policy. Wvomina Farm Bureau,

6467 F.2d at 995. In another case, as a passenger outside the vehicle was preparing to load,a rifle insidethevehicle discharged. Colorado Farm Bureau Mut. Ins. Co. v. West American Ins. Co., (Colo.App. 1975), 540 P.2d 1112, 1113. That court denied homeowner coverage for resulting injuries. It held that the accidentwould not have occurred but for the loading of the motor vehicle and therefore fell within the Bureau automobile exception 

### of the homeowner's policy. Colorado Farm Bureau, 540 P.2d at 1114. We find these casesdissimilar from thepresent case. In the present action, the accident occurred inside a house and during a party, after the passenger had left the car. Although Blair had the gun stored in the car prior to the shooting, we find no connection between the use of the car, the removal of the weapon from the car, and the shooting. Therefore,we conclude that the accident is not excluded from coverage under this homeowner's policy's automobile exclusion because it did not arise from the use, loading or unloading of the vehicle. We hold that the District Court correctly found that the automobile exclusion 

### in Blair's homeowner's policy did not apply to this shooting. Affirmed.

We Concur:

-

78

### September24, 

### 1991 CERTIFICATEOFSERVICE 

### Iherebycertifythat thefollowingorderwassentbyUnited Statesmail,prepaid, to the followingnamed:

JamesM.Ramlow MURRAY&KAUFMAN,P.C. P.O.Box

### I28 Kalispell,

### MT59903 Jeffrey

### D.Ellingson ELLINGSONLAWOFFICES 33SecondStreet East Kalispell,MT 59901 EDSMITH CLERKOF

### THESUPREME COURT