* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4. UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 01-60022

(Summary Calendar)

_________________

RONNIE E. YOUNG, and Wife; PATRICIA YOUNG, Individually

and as Mother and Next Friend of; LESLEY YOUNG, a Minor,

Plaintiffs - Appellants,

versus

STAT E FARM MUTUAL AUTOMOBILE INSURANCE CO.;

STATE FARM FIRE AND CASUALTY COMPANY,

Defendants - Appellees.

Appeal from the United States District Court

For the Northern District of Mississippi

2:97-CV-24-B-B

December 4, 2001

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM: *

Ronnie E. Young and his wife, Patricia Young (collect ively, “the Youngs”) appeal a jury

verdict in favor of State Farm Mutual Automobile Insurance Company and Stat e Farm Fire and-2-

Casualty Company (collectively, “State Farm”). The Youngs filed this case in federal court pursuant

to 28 U.S.C. § 1332, alleging that State Farm breached their insurance contract by denying their

claims arising out of an accident invo lving their daughter, Lesley Young (“Lesley”). We GRANT the

Appellant’s motion to amend the record excerpts to include a verbatim transcript recording of the

district court’s jury instruct io n. We AFFIRM, holding that the district court correctly found that

substantial evidence supported the jury’s verdict. We also conclude that t he trial court did not

incorrectly place the burden of proof on the issue of Lesley’s emancipation on the Youngs.

I.

This appeal arises out of an accident in New Orleans, Louisiana, on February 23, 1996. An

unidentified driver struck and injured Lesley. She was twenty years old at the time of the accident.

Lesley lived with her parents in Hernando, Mississippi, until July 1994, at which time she left

home after an argument with her father. She traveled throughout the country for six months,

maint aining only minimal contact with and receiving no financial assistance from her parents. Lesley

returned to Hernando and enrolled in Memphis State University in the Spring of 1995. Aft er

completing the semester, she again left home for the open road. From May 1995 until the accident

in February, Lesley traveled the country by jumping freight trains and hitchhiking.

On her departure, her parents gave her one thousand dollars, a phone card, and prescription

medication for her fa ce. The Youngs did not attempt to prevent her from leaving, nor did they

provide her with any further support for the next six months while she was traveling. They admit that

they had no means of locating or communicating with their daughter.

On the date of the accident, Ronnie Young possessed several automobile insurance policies

and a Personal Liabilit

y Umbrella Policy (PLUP) with State Farm. T hese policies included-3-

substantially equivalent uninsured motorist (UM) provisions, which appl y t o accidents with other

motorists not carrying insurance or to situations in which the identity of the other motorist cannot be

ascertained. These auto policies provide coverage for the named insured, his or her spouse, and their

relatives who were residents of the insured’s household. Thus, in order to recover under the policy,

the Youngs had to establish that Lesley remained a r esident of t heir household at the time of the

accident.

The Young family submitted claims under these policies to State Farm, alleging that the UM

provisions of their various policies covered Lesley’s injuries. State Farm, concluding that Lesley was

not a “resident relative” of the named insured, denied the family’s claims. The Youngs then filed a

claim for breach of contract, breach of fiduciary duties, and fraud in the United States District Court

for the Northern District of Mississippi based on diversity jurisdiction. At trial, a jury determined that

Lesley was not a “resident,” as defined by the insurance provisions, of her parents household at the

time of the accident and denied the Youngs’ claims under the policies.

The district court then rejecte d t he Youngs’ motion for a judgment notwithstanding the

verdict, refusing to overturn the jury’s findings of fact. In their post-judgment motion, the Youngs

also challenged the trial court’s jury instructions, arguing it improperly placed the burden of proof

on them to prove the affirmative defense of emancipation. The district court refused to reconsider

its jury instruction. The Youngs now appeal these decisions.

II.

The judgment in this case became final when the district court denied the Youngs’ motions

for a judgment notwithstanding the verdict or a new trial. On appeal, the Youngs essentially contend

that there was insufficient evidence presented at trial to support the jury's findings that their daughter-4-

was not a resident in their home and therefore not covered by the State Farm UM policy. In these

circumstances, we consider such insufficiency arguments as an appeal from the trial court's denial of

a motion for judgment notwithstanding the verdict. S ee Melear v. Spears

, 862 F.2d 1177, 1182 (5 th

Cir. 1989).

In reviewing a denial of a motion for judgment notwithstanding the verdict, we consider all

of the evidence and all reasonable inferences in the light most favorable to the prevailing party. S ee

Rideau v. Parkem Indus. Servs., Inc.

, 917 F.2d 892 (5 th Cir. 1990). In making this determination,

we are continually cognizant of the principle that “it is the function of the jury as the traditional finder

of fact , and not the Court, to weigh conflicting evidence.” Treadaw ay v. Societe Anonyme

Louis-Dreyfus

, 894 F.2d 161, 164 (5 th Cir. 1990) (Internal citations omitted). Thus, the jury verdict

is sustained unless “the fa ct s and inferences point so strongly in favor of one party that the court

believes that reasonable men could not arrive at a contrary verdict.” Boeing Co. v. Shipman

, 411 F.2d

365, 374 (5 th Cir. 1969) (en banc).

The Youngs first contend that the district court erred in not overturning the jury’s conclusion

that Lesley was no longer a resident of their home. They argue that the jury’s findings conflicted with

the overwhelming weight o f evidence presented at trial that Lesley did, in fact, reside in their

household. The Youngs’ argument on this point is without merit.

To recover uninsured motorist benefits provided by the State Farm policies, the Youngs must

prove that Lesle y was an “insured” person under either the terms of those policies or under the

Mississippi UM statute. S ee M ISS C OD E A NN § 83-11-101 et seq. (Supp. 1993); State Farm Mut.1 M ISS

. C ODE A NN

. § 83-11-101, provides in relevant part:

(1) No automobile liabilit

y insurance policy or contract shall be issued or delivered after

January 1,

1967, unless it contains an endorsement or provisions undertaking to pay the insured

all sums which he shall be legally entitled to recover as damages for bodily injury or

death from the owner or operator of an uninsured m otor vehicle, within limit s which

shall be no less than those set forth in the Mississippi Motor Vehicle Safety

Responsibility Law, as amended, under provisions approved by the commissioner of

insurance; however, at the option of the insured, the uninsured motorist limit s may

be increased to l

imit s no t t o exceed those provided in the policy of bodily injury

liabilit y insurance of the insured or such le sser limits as the insured elects to carry

over the minimum requirement set forth by this section.

-5- Auto. Ins. Co. v. Davis

, 613 So.2d 1179, 1180 (Miss.1992). 1 The UM statute establishes a minimum

required amount of coverage under Mississippi law. S ee Johnson v. Preferred Risk Auto. Ins. Co.

,

659 So.2d 866, 872 (Miss. 1993). Therefore, if the terms of an individual policy are more narrow

than those provided by the statute, the statutory definition governs. The language of the policies and

the UM statute should be read in conjunction with each other an d “must be co nstrued liberally to

provide coverage and strictly to avoid or preclude exc ept ions or exemptions from coverage.”

Johnson , 659 at 871 (citing Williams , 623 So.2d at 1008).

The UM statute provides the following definition for the term “insured”: “The term “insured”

shall mean the named insured and, while r esident of the same household

, the spouse of a ny such

named insured and relatives of either. . ..” M ISS

. C ODE A NN

. § 83-11-103 (Supp.1993). The State

Farm automobile policies define “insured” as including “[a] person related to you or your spouse by

blood, marriage or adopti on who lives with you .” Supp. R.

, p

. 240 (emphasis added). The policy

language could arguably be read as requiring actual physical presence in the household of the named

insured in order to be a relative of the insured. Construed liberally in order to favor a recovery, it

merely requires that Lesley reside with her parents at the time of the accident in order for her to-6-

recover. Even assuming this reading is implausible, because the language of the State Farm policies

would be more narrow than the UM statute, we would neverthele ss utilize the UM statutory

definition of “insured” person.

A finding of residency under the statute hinges on the degree of one’s attachm ent to a

particular place. Aetna Cas. & Sur. Co. v. Williams , 623 So.2d 1005, 1010 (5 th Cir. 1993). While

actual presen ce is a factor under Mississippi law, it is the intent of the party claiming residency to

remain for some time at the particular place in question that is primarily determinative. J ohnson

, 659

So.2d at 871.

Even under this expansive d efinit io n of residency, the jury had sufficient evidence so as to

conclude that Lesley had no intent to return to her parents house in Mississippi at the time of the

accident. Several witnesses described Lesley as a homeless runaway, living on the streets. Patricia

Young also instructed her brother not to give Lesley money because she was homeless. Additionally,

the Youngs had Lesley removed as a driver on their automobile insurance policy because she was no

longer in the household. After the accident, Lesley indicated that she was ho meless to hospital

personnel. Reading all inferences in favor of State Farm, the evidence is such that reasonable jurists

could conclude that Lesley had no intention of returning home at the time of the accident and was not

a resident of the Young household. Thus, the Youngs have failed to present sufficient evidence to

overturn the jury’s findings.

III.

In the alternative , t he Yo ungs contend that the Mississippi Supreme Court’s decision in

Williams establishes their daughter’s residency in their home as a matter of law. Specifically, they

focus on the Court’s conclusion that “a minor is legally unable to establish a residence separate and2 Mississippi Supreme Court jurisprudence has carefully and consistently maintained this clear

d ist inction between emancipated and unemancipated minors in other contexts as well, according

emancipated minors the legal status of adults. S ee e.g., Cumberland v. Cumberland

, 564 So.2d 839,

847 (Miss. 1990) (the obligation to pay child support terminates at the age of majority or when the

child is emancipated); Lancaster v. Lancaster

, 57 So.2d 302 (Miss. 1952) (emancipated minor may

sue his father in tort); Chapman v. Hughes , 61 Miss. 339 (1883) (emancipated minor may contract

as an adult).

-7- apart from his or her parents.” Id., 623 So.2d at 1010.

The Williams Court, however, expressly limit ed its decision to unemancipated minors. The

court commented: “The threshold issue on appeal is whether an u nemancipated minor

. . . is a

resident of the household of both parents for purposes of the Uninsured Motorist Act.” I d.

, at 1006.

Mississippi law clearly distinguishes between emancipated and unemancipated minors for the purpose

of determining residency. 2 In State Farm Mutual Automobile Insurance Company v. McGee , the

Court commented: “We hold . . . that a child is a resident of both parents’ households until he or she

reaches the age of majority or be comes fully emancipated . 759 So.2d 358, 362 (Miss. 2000)

(emphasis added). Under the reasoning of W illiams and McGee

, a minor may establish a separate

residence from his or her parents e it her when they reach the age of majority o r when they are

emancipated . In the later case, the minor essentially takes on most of the rights and obligations of

an adult, including the right to reside separately. Thus, even though Lesley was a minor at the time

of the accident, if the jury correctly concluded that she was e mancipat ed, it follows that they also

could have found that she no longer resided with her parents.

The Mississippi Supreme Court, in Caldwell v. Caldwell

, defined emancipation as follows:

“Emancipation

. . . means the freeing of a child for all the peri od of its minority from the care,

custody, control, and service of its parents.” 579 So.2d 543, 549 (Miss. 1991). Emancipation can

occur either through the actions of a parent or by the actions of the child. Rennie v. Rennie , 7183 The Mississippi legislature further elaborated on this definition, establishing a series of nonexclusive situations in which the courts could find emancipation. M I SS

. C ODE

. A NN

. § 93-5-23

provides, in relevant part:

The duty of support of a child terminates upon the emancipation of the child. The court

may determine that emancipation has occurred and no other support obligation exists

when the child:

(a) Attains the age of twenty-one (21) years, or

(b) Marries, or

(c) Discontinues full-t ime enrollment in school and obtains full-t ime employment

prior to attaining the age of twenty-one (21) years, or

(d) Voluntarily moves from the home of the c ust odial parent or guardian and

establishes independent living arrangements and obtains full-t ime employment prior

to attaining the age of twenty-one (21) years.

The Mississippi courts have held that the effective of § 95-5-2 3 has been to enlarge rather than

diminish the judicial definition of emancipation. See Rennie, 718 So.2d at 1093 (“Other situations,

not contemplated by the statute, may also establish emancipation.”). Because Lesley does not meet

any of these requirements, we will analyze whether she was emancipated solely under the standards

established in the case-law.

-8- So.2d 1091, 1093 (Miss. 1998) (minor “voluntarily chose” emancipation). 3

The issue of whether a child has emancipated herself from the custody of his or her parents

is one of fact, for determination by the finder of fact. D ept. of Human Serv. v. Fillingane

, 761 So.2d

869, 871 (Miss. 2000). We give “great weight and deference to juries on findings of fact and will not

set aside a verdict unless it is against the overwhelming weight of the evidence and credible

testimony.” P arker v. Thornton

, 596 So.2 d 854, 858 (Miss.1992) (jury determination that the

defendant had not breached express or implied warranties). Therefore, we will uphold the jury’s

finding that Lesley was emancipated unless substantial evidence establishes that the Youngs had not

freed h er fro m t heir care, custody, and control at the time of the accident and that Lesley had not

abandoned this relationship herself through her actions.

Given this deferential standard of review, the evidence presented at trial supports the jury’s-9-

conclusion that Lesley was emancipated. Garnet West, Patricia Young’s brother, stated that his sister

had told him that Lesley had “run away from home” and that she “was living on the streets.” Mrs.

Young also told West “not to give [Lesley] any money; that she was living on the street and she

didn’t need any money from us.” Ronnie Young further co mment ed to West that Lesley was

“eighteen and she can do legally whatever she wants. ” Pat ricia Young’s sister testified that the

Youngs had no idea where Lesley was or whether she would come home. If she did come home “she

was not to bring a baby home in her arms; that she would not be welcome.” From these statements,

alone, the jury could have reasonably inferred that the Youngs had ceased to care for and control their

daughter.

In addition, the jury was presented with evidence of Lesley’s own intent to live independently

from her parents. Lesley testified that she did not receive any financial support from her parents while

she was traveling. Moreover, she testified that while traveling she was not subject to any rules or

control from her parents. From this evidence, the jury could have reasoned that Lesley had effectively

abandoned her home in Mississippi and was living on her own. The district court correctly found that

the Youngs have presented insufficient evid ence t o o verturn the jury’s finding that Lesley was

emancipated. Under Mississippi law, therefore, she could have established a separate residence from

her parents.

IV.

The Youngs also challenge the trial court’s jury instruction on the iss ue o f emancipation.

They maintain that the language of that instruction impermissibly placed the burden of proving that

their daughter was not emancipated on them. Again, this argument is without merit.

The Youngs, as part of their prima facie case, bear the burden of establishing that Lesley was-10-

insured under either the Mississippi statute or the State Farm policies. J ohnson

, 659 So.2d at 871

(“To recover UM benefits provided by an insurance policy, a claimant must first prove that he or she

is an “insured” under either the insurance policy and/or the UM statute.”). In order to establish that

Lesley was “insured,” they must establish by a preponderance of the evidence that she was a resident

of their household at the time of the accident. Because Lesley was a minor, a presumption arises that

she is a resident of her parent’s household because legally she cannot establish a separate residence.

See Williams

, 623 So.2d at 1010-11. State Farm, however, can rebut this presumption by

establishing that Lesley was emancipated and had assumed the status of an adult under Mississippi

law.

Thus, the trial court should have instructed the jury that if they found that Lesley was a minor,

the Youngs had established a prima facie case that she was a resident of their household at the time

of the accident. The Youngs should prevail, therefore, unless State Farm affirmatively establishes that

she was emancipated. The trial court instructed the jury:

In deciding [the issue of residency], you must first determine whether Lesley

Young was considered to be of the age of majority and if you decide that she is under

the age of majority, then you must decide whether Lesley Young was emancipated.

***

In the this case, if you find that Lesley Young was under the age of majority,

but was emancipated from the care, custody and control of her parents, then you’re

instructed that you should return a verdict in favor of State Farm.

State Farm argues that had the trial court improperly placed the burden on the Youngs, the

instruction would have required the jury to affirmat ively find that Lesley was not emancipated. Under

this erroneous instruction, the Youngs would pr evail only if the jury found that Lesley was both a

minor and was not emancipated. The t rial co urt’s jury instruction did not require the Youngs to

establish both these elements in order to prevail. The court’s inst ruct ion required the jury first to-11-

make a positive finding that Lesley was a minor child. Under the court’s instructions, the jury then

had to find affirmat ively conclude that Lesley was emancipated. This properly placed the burden of

proof on State Farm. If the jury failed to find emancipation, then the Youngs would prevail because

Lesley would be a resident of their household as a matter of law. S ee Williams

, 623 So.2d at 1006.

Thus, the trial cou rt ’s jury instruction appropriately allocated the burden of proof on the issue of

residency between the parties by requiring State Farm to prove Lesley’s emancipation.

For the above-mentioned reasons, the decision of the district court is AFFIRMED.