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 Honorable Michael H. Keedy, Judge presiding. 

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, 1991 
Justice 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 injured party. Farmers Union appeals this decision. 

We affirm. 

The issues raised for our review are restated as follows: 

1. Was the District Court correct in finding that David 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 shot Osburn with Blair's gun 

while attending a party at a Kalispell residence. The night 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 the underlying negligence action, Osburn filed suit against 

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Blair alleging that Blair proximately caused his injury by 

negligently providing Klindt access to alcohol and a loaded 

handgun. Farmers Union filed this declaratory 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 and medical payments to others do 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 of his parents' household. Further they contend that 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. 

In March 1989, Blair was 19 years of age. Sometime prior to 

the shooting, he had vacated his apartment and moved back into his 

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 at his parents' home where he shared a bedroom 

3 
with 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 the District Court correct in finding that David Blair was 

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 Iowa Nat'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 father was a "resident of the household" 

under the homeowner's policy. The court stated: 

In ascertaining the meaning of the term "residents of 

his household, I' a number of factors have been designated 

as being important. Among them are the following: 

4 
The 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 the household, Hardware Mutual Casualtv - Co. 

v. Home Indemnity Co., supra. 

No one factor by itself is determinative of the ultimate 

issue. All must be 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. [Emphasis added.] 

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 relationship with the members of 

his parents' household. Although he did not launder his clothes 

or consistently eat meals with the members 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 

5 
Kalispell, and resided in Darby only while working. 

Finally, Blair permanently resided at his parents' home. A 

few months 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 facts presented above, we conclude that the parties 

to the insurance contract intended that coverage would extend to 

Blair, the named insured's son. 

Although the lower court found that resident of the household 

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 in declaring that the policy's 

automobile exclusion did not apply to the underlying negligence 

action? 

Farmers Union contends that Osburn's shooting arose out of the 

use of an automobile and they cite cases which denied homeowner 

coverage under automobile exclusions. In Wyoming 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 

injury was incident to the use of the vehicle and that the accident 

was excluded under the homeowner's policy. Wvomina Farm Bureau, 

6 
467 F.2d at 995. 

In another case, as a passenger outside the vehicle was 

preparing to load, a rifle inside the vehicle 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 accident would 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 cases dissimilar from the present 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: 

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8 
September 24, 1991 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

James M. Ramlow 

MURRAY & KAUFMAN, P.C. 

P.O. Box I28 

Kalispell, MT 59903 

Jeffrey D. Ellingson 

ELLINGSON LAW OFFICES 

33 Second Street East 

Kalispell, MT 59901 

ED SMITH 

CLERK OF THE SUPREME COURT