# FILED
November 24, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

______________________________________________ STATE FARM FIRE AND C ASUALTY COMPANY, Plaintiff-Appellee, Shelby Law No. 85194 Vs. C.A. No. 02A01-9802-CV-00044 JOHN E. WHITE, LIZANNE WH ITE, And JOHN AUSTIN WHITE, A Minor, Defendants-Ap

pellants.

________________________________________________________ ____________________ FROM THE SHELBY COUN TY CIRCUIT COURT THE HONORABLE GEORGE H. BROWN, JR., JUDGE

Robert L. Moore, John H. Dotson; Thomason, Hendrix, Harvey, Johnson &

Mitchell of Memphis For Appellee R. Sadler Bailey, C. Philip M. Campbell; Law Offices

of Bailey & Clarke o

f Memphis For Appellants

AFFIRMED AND REMANDED Opinion filed:

W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.

CONCUR: ALAN E. HIGHERS, JUDGE DAVID R. FARMER,

JUDGE This case concerns a cov erage dispute un der a homeowner

s insurance polic

y. Appellants , John E. White (Father), Lisanne White (Mother), andJohn Austin White, a minor, (Austin),1 Mother filed for divorce on or about July

17, 1996. The divor

ce became fina

l on July 1, 1997.

2 At this time, there was no court order that granted custody to one parent or the other. 2 appeal from

the trial court’s order granting summary judgment to Appellee, State Farm Fire and Casualty Company (State

Farm), motion for summary judgment and denying their cross-motion for summary judgme

nt. Father and Mother

were married in November of 1988. In 1991, the couple moved into their marital home at

11260 Four Winds Drive in Eads, Tennessee. At such time, the couple’s homeowner’s insurance was changed to State Farm. Both Father and Mother were the named insureds under the homeown er’s insurance

policy and both of th

eir names were on the

titleand mortgage to the house. In March 1996, the couple separated 1 at which time Mother moved into an apar

tment in Cordova, Tennessee where she resided until April 1997. Father remained at

the house in Eads. The couple had one child together, Austin, who was born on May 27, 1992. By

informal agreement

between the couple, Austin went to live with Mother in the Cordova apartment at the time of the separatio

n. The couple

furth er agreed that Fa

ther would have c

ustody of Austin every other weekend and ev ery We dnesday. In addition, Austin would stay with Father on Saturdays when Mother had to work and any other time that was beneficial for Austin. On October 5, 1996, Austin, while staying with Father, 2 was seriously injured in a lawn

mower accident at the house in Eads. Father was cutting grass with a riding lawn mower when Austin ran up to the lawn mower and slipped causing his foot to go under the mower

severing part of his foot. At the time of the accident, State Farm had in effect , as previously mentioned, a homeowner’s insurance policy covering the pro

perty in Eads. Whi

le the homeowner’s policy providedliability coverage, the policy did not provide coverage for “bodily injury to you or any insured within the meaning of part a. or b. of the definition of insured .” As for what constituted an “insured” under the policy, the policy contained the following definition:

“ insured ” means you and, if residents of your household:

a. your relatives; and b. any other person under the age of 21 who is in the car e of a person described above.3 After State Farm filed its complaint in circuit court but before Mother and Austin had

been served with process, they filed their own complaint for declaratory judgment in chancery court against State Farm alleging tha t State Farm was obligated to provide coverage for the accident. The chancery court case was dismissed by consent beca use Stat e Farm’s action in circuit court ha

d been filed firs

t. 3 Subsequently

after the acci

dent, a claim

was made against

Father on behalf

of Austin for the injuries and damages sustained. After the claim was made, State Farm filed a complaint for declaratory judgment in order to determine its rights, duties and ob ligation s under the policy. State Farmalleged that there was no coverage under the policy because of the aforementioned exclusion set forth in the policy. 3 StateFarm moved for

summary judgment,

and Mother and Austin subsequently filed a cross-motion for summary judgme nt. The trial cour

t granted State

Farm’s motion while denying Appellants’ cross-motion for summary judgment thus prompting this appeal. The only issue for review is whethe

r the trial court e

rred in granting St

ateFarm’s motion for summary judgment and denying their

cross-motion for s

ummary judgment. A motion for summary judgment should be granted when the movant demonstrates that there are no genuine issues of material fact and that the moving party is entitled to a judgment

as a matter of

law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997). On a motionfor summary judgment, the court must take thestrongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that

party, and discard all countervailing evidence. Id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993), our Supreme Court stated:

Once it is s hown by the moving party that there is no genuine issue of material fact, the nonmoving party must then demonstrate, by affidavits or discovery m ater ials, that there is a genuine, material fact dispute to warrant a trial. In thi s rega rd, Rule 56.05 provides that the nonmoving party cannot simpl y rely upon his pleadings butmust set forth specific facts showing that there is a genuine

issue of material

fact for trial. Id. at 211 (citations omitted) (emphasis in original). Summary judgment is only appr opriate when the facts and the legal conclusions drawn from the facts reasonably permit only one conclusion. Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). Since only questions of law are involv ed, there is no pre

sumption of corre

ctness4

regarding a trial court's grant of summary judgment. Bain , 936 S.W.2d at 622. Therefore, our review of the trial court’s grant of summaryjudgment is de novo on the record be fore this Court. Warren v. Estate of Ki

rk , 954 S.W.2d 722, 723 (Tenn. 1997). StateFarm asserts that Austin is an insuredunder the homeowner’s policy covering the house in Eads. Thus,

under the terms of the policy as stated above, co verage is not aff

orded to Austin’s injuries and State Farm does not owe Father a duty to defen d an y lawsuit arising out of the accident nor to pr

ovide indemnity to

Father. State Farm contends that the exclusion in the homeowner’s policy precludes coverage for Austin’s injuries for two reasons. First, coverage is excluded becau

se Austin was a resident of Father’s household, and thus was an insured falling within the exclusion fro

m coverage. Sec

ond, Mother was a named insured under the homeowner’s policy, and Austin w as a resident in

her household

thus precluding coverage under the terms of the exclusion in the policy. Appellants

assert that Mother and A ustin ceas ed to be residents at the house in Eads when they moved out of the home in March of 199 6. They argue that the exclusion from coveragedoes not apply because after leaving the residence both Mothe r and Austin ceased being insureds under the homeowner’s policy. An insurance policy

must be construed i

n a reasonable a

nd logical manner

to effectuate the intention of the parties. Setters v. Permane nt Gen. Assurance Corp. , 937 S.W.2d 950, 953 (Tenn. App. 1996). The parties to an insurance policy are free to contract as they see fit as long

as the parties remain within the bounds of the law, including public policy. Id. The courts in Tennessee have consistently held family member

exclusions in

liability insuranc

e policies to

be valid and binding and not contrary to public policy. See, e.g., Holt v. State Farm Mut. Auto. Ins. Co. , 486 S.W.2d 734, 735 (Tenn. 1972); Omaha Property & Cas. Ins. Co. v. Johnson , 866 S.W.2d 539, 541 (Te

nn. App. 1993); Beef

N’ Bird of Am., Inc. v. Continental Cas. Co. , 803 S.W.2d 234, 237 (Tenn. Ap p. 1990); Dressler v. State Fa rm Mut. Auto. Ins. Co. , 52 Tenn. App. 514, 376 S.W.2d 700, 702 (1963). Ambiguous provisions in an insuranc e policy are to be construed against the insurer. Setters , 937 S.W.2d at 954. However, in the absence of any ambiguity, it is our duty “‘to take the ordinary meaning of the words used, favoring nei ther party in their construction.’” Id. (quoting Omaha Prop erty & Cas. Ins. Co. , 866 S.W.2d at 541). “So long as an exclusionary5

clause merely limits

coverage and does not totally emasculate a previously stated

coverage, this Courtdoes not conceive a clearly worde

d exclusion to be re

pugnant to

a previous general statement of coverage.” Beef N’ Bird , 803 S.W.2d at 237. It is a we ll-settled principle of law that a person may have more than one residence. “One may have but

one domicile or legal residence, but he may have two or more residences.” McDonough v. State Farm Mut. Auto. Ins. Co. , 755 S.W.2d 57, 65 (Tenn. App. 1988) (citing Denny v. Sumner County , 134 Tenn. 468, 184 S.W. 14 (1916). The parties have

not cited nor has ou

r research re

vealed a Tennes see case dealin g with the precise question concerning the re sident of a minor c hild under the cir

cumstances of thi

s case, However, a survey of case law from other jurisdictions rev eals that a minor child of divorcedparents may be a res ident of both households. In Miller v. United States Fidelity & Guar. Co. , 127 N.J. Super. 37, 316 A.2d 51 (1974), the mother had legal custody of the minor child while the father had liberal visitation which occurred almost every weekend. Even though the minor child was a r

esident of his mother’s household, the court determined that it was not precluded from finding that the child was also a resident of the father’s household. Id. at 55. In Mutual Serv. Cas. Ins. Co. v. Olson , 402 N.W.2d 621 (Minn. App. 1987), the court

was presented with a situation where t h e mother was initia

lly awarded cust

ody of the parties ’ child but custody was later changed to the father. While spending the weekend with his mother, the child w as involved i n an accident at her house. In determining whether coverage existed under a homeowner’s insurance policy, the court stated: “We see no reason why a person who meets the criteria for

being considered a resident of an insured’s household should be precluded from coverage solely because he is also a resident of another household.” Id. at 624. This principle of law was reiterated in Pellegrino v. State Farm Ins. Co. , 639 N.Y.S.2d 668 (N.Y. Sup. Ct. 1996). In Pellegrino , the court held that the parties’ minor son was covered under the father’s hom

eowner’s insu

rance policy as a resident of his father’s household even though the son’s principal residence was with his mother who had custody. The court noted that the son’s principal residence with his mother stemmed from the divorce of his parents and the impossibility

of living with both parents full time, rather thanfrom any intent on the son’s part to abandon his residence with his father. The court stated:

Ina smuch as th e law recognizes the ability of an individual6 to retain residenc

y at more than one l

ocation for purpo

ses o f insurance coverage , it would be wholly ina ppropriate to impu

te any intention by [the so

n] to abandon the home of his father, the non-custodial parent, following a divorce where [the son] and his father m anaged to sustain precisely the type of regular and meaningful contact

that is the hope and goal of every court which issues a divorce decree which includes provision for visitation. Id. at 670 (citation omitted). In Hartford Cas. Ins. Co. v. Phillips , 575 S.W.2d 62 (Tex. Civ. App. 1978), the court noted that “a person, particularly a child, can have more than one ‘residence’” and that “[t]his

seems particularly true of a minor child of divorced or estranged paren ts.” Id. at 63. Finding that the minor child was a resident of his father’s household, the court concluded that s uch a finding would not necessarily prevent and foreclose a finding that he was also a reside

nt of his mother’s household. Id. at 64. Along these same lines is Aetna Cas. & Sur. Co. v. Wil liams , 623 So.2 d 1005 (Mis s. 1993). In Williams , the court stated that a person may simulta

neously have multip

le residences, that a dwelling place need not be fixed or permanen t to qualify as a re sidence, and tha

t a temporary and transient habitation can qualify as such. Id. at 1010. Concluding that the minor child was a resident

of both his father’s household and his mother’s household, the court stated: A non-custodial par

ent is just as much a “

parent” as a custodial parent and the child is still a member of the no ncustodial parent’s family. Consequently, the c

hild is still a “resident” in the household of the non-custodial parent. We hold, therefore, that a child is a resident of both parents’ households until he or she reaches the age of majority or b ecomes fully emancipated. Id. at 1011. Furthermore, in Alava v. Allstate Ins. Co. , 497 So.2d 1286 (Fla . Dist. Ct. App. 1986),

a minor child who spent we

ekdays with his mothe

r and weekends w

ith his father was held to be

a resident of both of

his divorced pare

nts’ households. Th

e court stated tha

t “[d]espite thei

r divorce, [the divorced parents] clearly intended that [the minor child] maintain re lationship s with bothparents” which was manifested by the regularity with which the child visited his father. Id. at 1288. The court found the absence of a formal custody order

to be immaterial to determining the residency status of the minor child. Id. Finally, this principle of law was carried forward in Archer v. Nationwide Ins. Co. , No. 93AP-620, 1993 WL 318823 (Ohio App. Aug. 19, 1993). In Archer , the father was o riginally7

grantedvisitation with his minor children every other weekend at his residence. The decree was revisedgranting the father visitation with the children for three weeks per year at his

residence along with two weeks each summer and one week during Christmas. When the children stayed at their father’s residence, they would sleep in separate bedrooms which were conver ted to other

uses when the children were not pre s ent. The children also kept certain items at their father’s house throughout the year. In

consideration of the foregoing, the court, finding that the children hadregular and consistent residential contacts with their father, concluded that the children were residents of both parents’ households. Id. at *6. In Allstate Ins. Co. v. Summers , No. 01-A-01-9407-CV00361, 1994 WL 719839 (Tenn. App. M.S. Dec. 30, 1994), Tennesseejoined the several other jurisdictions which have held that

a minor child of divor ced pare nts may reside with both of them. In Summers , a minor child, whose parents were divorced, was involved in an automobile accident along with his stepmother in which both received fatal injuries. The child’s mother filed suit. Allstat e had issued an automobile

insurance policy, which

was in force when the accident occurred, to the child’s father and stepmother. The policy contained the following exclusion:

Th e liab ility insurance of this policy does not a

pply to bodily injuries or property

damage suffered by

the person named on the declarations page, or to anyonewho is a member of t he family of the person named on th

e declarations p

age and who lives w ith that person. Allstate asserted that the exclusion applied alleging that the minor child was a member of his fathe r’s family and lived with him. The child’s mother contended that the child w as a resident of her household in that she had liberal visitation with t h e child, that the c

hild would spend every weekend and the entire summer with her, and that the child w as living with

her at the time of the accident. After analyzing case law from other jurisdictions finding a minor child a re sident of both households, the Court stated:

We th ink it

is clear from this record that not only did [the mother’s] ex-husband have legal custody of their son, but the son also lived at least nine months of the year with his father. In her affidavit [the mother] states that

her son “always spent the entire summer with me.” The fact

that [the minor child] may have been a resident of her household f or six or seven weeks bef ore his death does not in any way

result in the conc

lusion th at h er son was not also a resident of his father’s household.8

Id. at *3. In denying coverage forthe minor child under the policy, the Court concluded by stating that “[t]he mere fact that [the minor child] resided with his mother for several weeks each

su mmer does not mean that he was not a member of his father’s household and did not resid e with his father as well.” Id. at *4. The Court in Summers reliedupon several of the aforementioned cases in reachi

ng its conclusion. One case relied upon by the Summ ers Court wa s Alava v. Allstate Ins. Co. Appellants

attempt to disting ui sh Alava, and ostensibly Summers , by relying on Progressive Ins. Co. v. Estate

of Wesley , 702 So.2d 513 (Fla. D ist. Ct. App. 1997). The Progressive Court distinguished Alava on grounds that the Alava Court was addressing a grant in coverage, not an exclusion from coverage. The court stated that the Alava Courtreached its conclusion finding dual resident status by interpreting the policy language broadly in favor of coverage. Id. at 515. The Progressive Court stated that when dealing with a limitation on covera ge, as was before them, the policy is to be interpreted narrowly. Id. We do not find Appellants assertions on this point to b e p ersuasive. While the Progressive Court limited Alava to situations involving grants of coverage, the Summers Court obviously did

not find this

distinction to be relevant to its decision in that the Summers Court used the rationale

in Alava and other cases to deny coverage based on an exclusion within the policy. Furthermore, the Progressive Court was dealing with ambiguous terms within the policy in determining the outcome of the issue before them. In the case sub jud ice, we are not faced withany ambiguous language within the insurance policy to wa rrant any in

terpretation of the policy beyond its pla

in terms. Appellants

also rely heavily

upon several cases for their proposition that Austin ceased to be a resident of Father’s household when he and Mother moved from the residence. See, e.g., Prudential Property & Cas. Ins. Co. v. Rinehart , 704 F. Supp. 960 (E.D. Mo. 1989); Allstate Ins. Co. v. Fulton , 345 So.2d 854 (Fla. A pp. 1977); Borne v. Jersey Ins. Co. , 98 So.2d 906 (La. App. 1957); Allstate Ins. Co. v. Barnes , 896 S.W.2 d 565 (Tenn. App. 1995); McDonough v. State Mut. Auto. Ins. C o. , 755 S.W.2d 57 (Tenn. App. 198 8); Farm Mut. Auto. Ins. Co. v. Thomas , 699 S.W.2d 156 (Ten n. App. 1983). Eac

h of these

cas es involved adults as distinguished from minor children. This Court does not think these cases involving adults to be necessarily determinative in the present case.9 With the foregoing, the conclusion fo llows that Austin was a resident of Mother’s household

and a resident of Father’s household. Austin is a very young child. At the time of the

a ccident, there was no divorce decree and there was no court ordered custody. The partie s informally

agreed on Austin’s custody schedule. Austin residedprimarily with Mothe r because the parents felt that was best for Austin since he is of such a young age. Father had custody of Austin every other weekend and every Wednesday, on Saturdays when Mother had to work, and any other time that was beneficial for Austin. From the record, it is clear that Austin and Father hada very close and

intimate relations

hip with each othe

r, and it was the intent of

the parties that the two maintain this relationship. Fur ther more, Father maintained Austin’s bedroom at the Eads residence, and Austin kept certain items, such as toys and clothes, at the Eads residence throughout the year. The parties admit that the house in Ea

ds was kept to give Austin a sense of belonging. In his deposition, when asked about the ite

ms left a t the E ads residence, Father stated that such was left to keep Austin “from feeling tot

ally relocated.” It appears from the record that a substantially integrated family relationship existed between Austin and Mother and between Austin and Father during the time that he live

d with each one. Mother and

Father clearly intended Austin to maintain a close relationship with each of them despite the separation. Thus, it is obvious from the record taken as a whole that Aus ti n w as a resident of both households. As such, the exclusion in the homeowner’s policy is applicable and coverage is excluded for theinjuries Austin sustained as a result of the law

n mower acciden

t. StateFarm also contends that Austin is excluded from coverage

because he res

ides with his mother, a

named insured in the policy, and is thus an insured. Although there are apparently

no Tennessee cases on point, Murphy v. Louisiana Farm Bureau Mut. Ins. Co. , 569 So.2d 637 (La. App. 1990) is quite persuasive. In Murphy, a mother of a minor ch ild brought suit for personal injuries against th e minor’s father

and his homeowner

’s in surer. The insurer filed a motion for summary judgment alleging that the policy excluded coverage. A t the time of the inception of the homeowner’s policy, the parents of the child resided together at the marital home. A t the time of t he accident, the parents were ju

dicially separa

ted and the minor c

hild residedwith his mother at a diffe rent residence

while the father remained at the former marital residence. Furthermore, at the time of the accident, both the mother’s and the father’s name were10

still on the homeowner’s insurance policy covering the marital home. The policy contained a section addressing numerous exclusions from coverage within the policy and also contained a definition section with almost identical language defining an “insured” under the policy as we have in the case

before us. The mother contended that the minor child was not an insured under the policy because he resided with her and not with hi s fathe r at the insured premises. The court stated that unambiguous and clear terms of an insurance policy, including exclusions, should beenforced. Id. at 639. The court then held that since the mother is a named insur ed with wh om the child resided, the child

is an insured within the terms of the policy provisions triggering the exclusions section. Id. In the case sub judice, Mother is a named insured on the homeowner’s insurance policy covering the marital residence. Austin resides with her at her new residence acquired after the separation. Under the plain terms of the policy, Austin is an insured within the meaning of the policy provisions thus excluding him from coverage under the homeowner’s insurance policy. Accordingly, the order of the t ri al court is affirmed, and the case is remanded for such further proceedings as necessary. Costs of appeal are assessed against the Appellants.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ DAVID R. FARMER,

JUDGE