IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-20396

STATE FARM FIRE AND CASUALTY COMPANY,

Plaintiff–Appellee

v.

MATTHEW LANGE,

Defendant–Appellant

DAWN MORGAN; MARY ELIZABETH RUBIO, LINDA MILLER,

Individually and as Personal Representative of the Estate of Stephen Rubio,

Deceased,

Intervenors–Appellants

DAWN MORGAN, as Next Friend of K.R., a Minor; MARY ELIZABETH

RUBIO, as Next Friend of K.R., a Minor,

Plaintiffs–Appellants

v.

STATE FARM FIRE AND CASUALTY COMPANY

Defendant–Appellee

United States Court of Appeals

Fifth Circuit

F I L E D

July 3, 2012

Lyle W. Cayce

Clerk

Case: 11-20396 Document: 00511908820 Page: 1 Date Filed: 07/03/2012
No. 11-20396

Appeals from the United States District Court 

for the Southern District of Texas

USDC No. 4:09-CV-2011

Before JONES, Chief Judge, PRADO and SOUTHWICK, Circuit Judges.

PER CURIAM:*

This case arises from a dispute regarding coverage under a Personal

Liability Umbrella Policy issued by Appellee State Farm Fire and Casualty

Company (“State Farm”). The sole issue decided by the district court was

whether Appellant Matthew Lange qualified as an “insured” under the policy,

an issue that hinges upon whether Lange primarily resided with his parents, the

policyholders. The district court determined that Lange’s primary residence was

an apartment, not his parents’ home, and thus concluded that he did not qualify

as an insured under the policy. The district court accordingly granted State

Farm’s motion for summary judgment. Lange and the Intervenors–Appellants

appeal. For the reasons stated below, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

On February 5, 2009, Lange was the driver of an automobile involved in

an accident in which two of Lange’s passengers were killed. At the time of the

accident, Lange’s parents owned a Personal Liability Umbrella Policy insured

by State Farm. Under the terms of the policy, State Farm agreed to provide a

defense to the insured in the event of a lawsuit stemming from a covered loss

and also agreed to pay any damages resulting from a covered loss. The policy

defined “insured” to mean “you [the named insureds, Stephen and Marilyn

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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Lange] and your relatives whose primary residence is your household.” The

policy listed Lange’s parents’ address as being in Meyersville, Texas.

Lange had lived at the Meyersville address with his parents while

attending grade school and high school. Lange graduated from high school in

2004, and at some time in 2005 he began working full time in Victoria, Texas,

which is approximately 45 miles from Meyersville. In April 2005, Lange moved

out of his parents’ home and moved into an apartment with friends. In July

2005, Lange and some friends moved into a house on Gottfried Road in Victoria. 

Lange lived at this house until October 2007, when he moved into his own

apartment in Victoria (the “Victoria apartment”). On the rental application for

the Victoria apartment, Lange listed the house on Gottfried Road as his “current

home address” and listed his father, Stephen Lange, as an emergency contact

with whom he would not be living. Lange stated in his deposition that he moved

to the Victoria apartment in order to be closer to work and to school, where he

was taking night classes in pursuit of a welding certificate. The initial term of

the lease on the Victoria apartment was six months. Lange twice extended the

term of the lease, with the second extension set to expire on June 30, 2009.

The Victoria apartment was furnished with a bed, two couches, a

television, and a plastic tool box used as a television stand, furnishings which 

Lange described as “basic things just to get by the day with.” Lange slept in the

Victoria apartment during the week, but on many weekends he returned to the

Meyersville home. Lange stated that in any given month, he stayed at the

Meyersville home at least two weekends, but often stayed there three weekends

and sometimes as many as four. On these weekends, Lange typically arrived at

the Meyersville home on Friday evening and returned to the Victoria apartment

on Sunday evening, but occasionally he did not arrive in Meyersville until

Saturday. Lange’s childhood bedroom in the Meyersville home had been

maintained as such, and he slept in his bedroom when he spent the weekends

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there. He kept what he characterized as his “prize possessions” in the

Meyersville home: his firearms, good clothes, trophies, photographs, a fourwheeler vehicle, and his two dogs. Lange explained that he kept these expensive

items at the Meyersville home to protect them from being stolen. Lange had a

key to the Meyersville home and could come and go as he pleased and could

make free use of the resources in the home. 

Several documents identified the Victoria apartment as Lange’s address. 

The utilities for the Victoria apartment were in Lange’s name and the bills came

to the apartment. While living at the Victoria apartment, Lange purchased a

truck, listing the Victoria apartment as his address on the sales contract and the

certificate of title. Lange filled out a credit application in connection with the

purchase, listing the Victoria apartment as his current address and the

Meyersville home as his previous address. Lange financed the truck with a loan

from Texas Dow Employees Credit Union. He listed the Victoria apartment as

his address on the loan application and the statements for the loan were mailed

to the Victoria apartment. Lange applied for a second loan from Texas Dow on

January 21, 2009, again listing the Victoria apartment as his present address.

There were also several documents on which Lange listed the Meyersville

home as his address. Lange listed the Meyersville home as his address in the

application for his own automobile liability insurance with State Farm, the

vehicle registration for his four-wheeler, and his tax returns. He was registered

to vote in Meyersville. His credit card statements, cell phone bills, and 401(k)

statements were all sent to the Meyersville home. Lange explained that he had

most of his important bills and paperwork mailed to the Meyersville home

because he “never checked [his] mail” at the Victoria apartment and his parents

would tell him when important mail came. The Meyersville home was also listed

as his address on his driver’s license, though this license was issued when Lange

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was sixteen (and living in the Meyersville home full time) and was not renewed

before the accident in February 2009.

After the accident, Lange was interviewed by Diana Osterhout, a State

Farm employee. Lange told her that on the date of the accident he lived at the

Victoria apartment and had been living there for about a year. In response to

her question as to whether he considered the move to the Victoria apartment

temporary or permanent, Lange stated that he considered it temporary because

he was “planning on . . . settling down in a house but . . . wound up staying [in

the Victoria apartment] a little bit longer than [he] thought [he] was going to.” 

When she asked Lange whether he considered himself to be residing mainly in

the Victoria apartment or in the Meyersville home, Lange responded “both.” 

Lange also signed a statement saying: “At the time of the motor vehicle accident

on February 5, 2009, my primary residence was my apartment in Victoria,

Texas.” However, in his deposition taken over a year later, Lange stated that if

he had been asked at the time of the accident, he would have said that his

“primary residence was the Meyersville address and the apartment was

temporary.”

Osterhout also interviewed Lange’s mother, who said that she considered

Lange to have been residing at the Victoria apartment on the date of his

accident. Lange’s mother also said that she considered his move to the Victoria

apartment to be a permanent move and that she did not consider him to be a

resident of her home on the date of the accident. Lange’s father stated in his

deposition that he would have said Lange was living at the Victoria apartment

if he had been asked on the date of the accident. Lange’s father also said,

however, that he considered the Victoria apartment to be a temporary address

for Lange and considered the Meyersville home to be Lange’s permanent

residence.

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After investigating the facts surrounding the accident, State Farm filed

suit against Lange, seeking a declaration that Lange’s primary residence at the

time of the accident was the Victoria apartment and that therefore he did not

qualify as an “insured” under the policy. The families of the two passengers

killed in Lange’s accident intervened in the suit, aligned in interest with Lange. 

State Farm and the Intervenors filed cross-motions for summary judgment. The

district court concluded that Lange’s primary residence was the Victoria

apartment and that he was not an insured under the policy, and therefore

granted summary judgment in favor of State Farm and denied the Intervenors’

motion. Lange and the Intervenors timely appealed.

II. JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction under 28 U.S.C. § 1332. This court has

jurisdiction pursuant to 28 U.S.C. § 1291. “We review a district court’s grant of

summary judgment de novo, applying the same legal standards that the district

court applied, and we view the evidence in the light most favorable to the

nonmoving party.” Gilbane Bldg. Co. v. Admiral Ins. Co., 664 F.3d 589, 593 (5th

Cir. 2011). Summary judgment is appropriate if “there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). 

In a diversity case, “[o]ur primary obligation is to make an Erie guess as

to how the Texas Supreme Court would decide the question before us.” Gilbane,

664 F.3d at 593. In making an Erie guess, we look to “decisions and dicta of the

Texas Supreme Court” as well as “decisions of the intermediate appellate courts

in determining how the Texas Supreme Court would decide the issue.” Id. at

594.

III. DISCUSSION

Texas courts construe insurance policies using the same rules of

construction applicable to contracts generally. Pendergest-Holt v. Certain

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Underwriters at Lloyd’s of London, 600 F.3d 562, 569 (5th Cir. 2010) (citing

Don’s Bldg. Supply, Inc. v. OneBeacon Ins. Co., 267 S.W.3d 20, 23 (Tex. 2008)). 

Whether contractual terms are ambiguous is determined as a matter of law. 

Cicciarella v. Amica Mut. Ins. Co., 66 F.3d 764, 768 (5th Cir. 1995) (citing Yancey

v. Floyd W. & Co., 755 S.W.2d 914, 918 (Tex. App.—Fort Worth 1988, writ

denied)). “If a contract as written can be given a clear and definite legal

meaning, then it is not ambiguous as a matter of law.” Am. Home Assurance Co.

v. Cat Tech LLC, 660 F.3d 216, 220 (5th Cir. 2011) (per curiam) (quoting Gilbert

Tex. Constr., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118, 133 (Tex.

2010) (internal quotation mark omitted)).

The term “primary residence” is not defined in the policy. The parties

have not identified nor have we found any Texas case interpreting the phrase

“primary residence” in the insurance context. The district court determined that

“primary residence” was unambiguous as a matter of law and relied upon several

dictionaries to determine its plain meaning. Neither party argues that the term

is ambiguous and neither party argues that the district court erred in

determining its meaning.

We agree with the district court that the Texas Supreme Court would

conclude that the phrase “primary residence” is unambiguous. Several state

courts have found similar phrases to be unambiguous. See, e.g., State Farm Mut.

Auto. Ins. Co. v. Harris, 882 So. 2d 849, 853–54 (Ala. 2003) (holding that the

phrase “lives primarily with you” is unambiguous); Wallace v. State Farm Mut.

Ins. Co., No. F-07-012, 2007 WL 4216132, at *3 (Ohio App. Nov. 30, 2007)

(holding that “insurance policy language limiting . . . coverage to only those

persons who ‘primarily reside with you’ [is] unambiguous”); Bauer v. USAA Cas.

Ins. Co., 720 N.W.2d 187, 190 (Wis. App. 2006) (“The modifier ‘primarily’ makes

the phrase ‘resides primarily with you’ unambiguous . . . .”). We believe that the

Texas Supreme Court would reason similarly to these other state courts and

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would conclude that “primary residence” is unambiguous. “Primary” means

“first or highest in rank or importance,” “chief,” or “principal.” Random House

Webster’s Unabridged Dictionary 1537 (2d ed. 2001); cf. Harris Cnty. Appraisal

Dist. v. Wilkinson, 317 S.W.3d 763, 767 (Tex. App.—Houston [1st Dist.] 2010,

pet. denied) (relying upon dictionary to determine common meaning of “principal

residence”). We thus agree with the district court that a primary residence is

one’s chief, principal, and most important residence.

“Under Texas law, . . . interpreting an unambiguous contract [is a]

question[] of law.” Interstate Contracting Corp. v. City of Dall., Tex., 407 F.3d

708, 712 (5th Cir. 2005). When the terms of a contract are unambiguous and the

facts underlying a contract claim are undisputed, whether coverage exists under

the contract is a question of law. Fidelity & Cas. Co. of N.Y. v. Lott, 273 F.2d

500, 502 (5th Cir. 1960); cf. Hernandez v. LaBella, No. 14-08-00327, 2010 WL

431253, at *3 (Tex. App.—Houston [14th Dist.] Feb. 9, 2010, no pet. h.). 

Although Lange argues that genuine issues of material fact exist, he has failed

to identify any material disputed fact. Because the term “primary residence” is

unambiguous and the facts material to this issue are not in dispute, coverage

under the policy may be decided as a matter of law. See also Wilkinson, 317

S.W.3d at 767 (concluding, in the context of a homestead tax exemption, that

“the facts found by the district court do not support a legal conclusion that the

mobile home ever was the [plaintiffs’] main or primary residence” (emphasis

added)). 

Taking all of the uncontroverted evidence into account and viewing that

evidence in the light most favorable to Lange, we agree with the district court

that the Victoria apartment was Lange’s primary residence. At the time of his

accident, Lange was an adult who had graduated from high school almost five

years beforehand and had moved out of his parents’ home almost four years

beforehand. Lange worked full time and lived in an apartment 45 miles away

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from his parents’ home, and he slept in this apartment the majority of evenings. 

While Lange stresses that he returned to his parents’ home on the weekends, he

testified that he generally spent one weekend a month at the Victoria

apartment, and occasionally he would spend two weekends in a month at his

apartment. Based upon the time spent in each location, the nature of Lange’s

weekends at the Meyersville home appears to be that of a frequent guest rather

than someone who was principally residing there. Although Lange kept several

important possessions at the Meyersville home, he did this out of a fear that the

items would be stolen. That he stored prized items for protection in his parents’

home does little to support the conclusion that he primarily lived with his

parents.

There is evidence, both in the nature of documents bearing Lange’s

address and in statements made by Lange and his parents, supporting each

location as Lange’s primary residence. Nevertheless, viewing all of this evidence

in the light most favorable to Lange, it is insufficient to overcome the other

objective evidence indicating that the Victoria apartment was Lange’s primary

residence.

IV. CONCLUSION

The term “primary residence” is unambiguous and it means one’s

principal, chief, or most important residence. Based on all of the evidence

presented, we conclude that Lange’s primary residence was the Victoria

apartment. Because Lange did not primarily reside in his parents’ Meyersville

home, he is not an “insured” under their policy, and summary judgment for State

Farm was proper. AFFIRMED.

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