Interinsurance Exchange v. Barrientos
Filed 9/10/13 Interinsurance Exchange v. Barrientos CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
COURT OF APPEAL,
FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB,
Plaintiff
and Respondent,
v.
ADOLFO BARRIENTOS et al.,
Defendants
and Appellants.
D062173
(Super. Ct. No.
37-2010-00060729-CU-MC-NC)
APPEAL
from a judgment of the Superior Court
of
County, Robert P. Dahlquist, Judge. Affirmed.
Ford,
Walker, Haggerty & Behar, Donna Rogers Kirby for the Defendants and
Appellants.
Graham
Hollis APC, Graham S.P. Hollis and Brian R. Short for the Plaintiff and
Respondent.
Adolfo Barrientos and Maria
Enriquette Barrientos (together, Barrientos) appeal a judgment entered against
them in a declaratory relief action
brought by the Interinsurance Exchange of the Automobile Club (the
Exchange). Barrientos argues the trial
court erred in interpreting and applying an insurance contract issued by the
Exchange. As we will explain, we
conclude that Barrientos's appellate arguments lack merit. Accordingly, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
In
June 2008, Michael Norton's grandparents loaned him their car to drive to
work. At about 4:30 a.m., Norton fell asleep at the wheel and drifted
into the opposing lane of traffic. He
collided with a vehicle driven by Adolfo Barrientos, who was seriously injured
in the accident.
The
parties settled the original lawsuit brought by Barrientos against Norton and
his grandparents, Peter and Linda Norton (grandparents). Pursuant to the settlement agreement,
Barrientos was entitled to the policy limits of the two automobile insurance
policies carried by Norton and his grandparents. The parties also agreed that the Exchange
would file a declaratory relief action to determine whether Norton was an
insured party under an umbrella excess policy issued by the Exchange to his
grandparents. If the court determined
the policy provides coverage to Norton, Barrientos would also be entitled to
the policy limits of that policy.
Under
the umbrella policy, the Exchange agreed to "pay damages for which an
of bodily injury, property damage or
applies." (Italics in
original.) The policy defines an insured
person as including, among others, "a household
member." (Italics in
original.) A "household member," in turn, is defined as "any person who
is actually residing in your household and who is: [¶]
a. related to you by blood, marriage, adoption, or domestic
partnership registered under California
law." The parties agree that the
policy applies to provide coverage for Norton's liability arising from his
collision with Barrientos if Norton is found to have been "actually
residing" with his grandparents at the time of the occurrence.
After
the Exchange filed its complaint for declaratory relief, the case proceeded to
a bench trial. The parties submitted
trial briefs supported by the deposition transcripts of Norton and his
grandparents. No live testimony was
presented.
The
material facts discussed in the deposition transcripts are not in dispute. At the time of the accident, Norton had no
single residence; rather, he split his time between several houses. Norton spent most nights at a friend's house
in Encinitas, where he had his own bedroom.
He also occasionally slept at another friend's apartment. Although he did not regularly stay with his
father, who lived in Cardiff-by-the-Sea, all of his mail was sent to his
father's address. Likewise, his driver's
license listed his father's address as his own.
In
late May or early June 2008, Costco offered Norton a part-time position
stocking shelves in its Carlsbad store.
The job was temporary; Norton planned to work only until he reported to
Navy boot camp in November 2008.
Norton's
own car was not running properly and could not make the drive to Carlsbad. Norton planned on getting a ride to work from
friends, but ultimately asked his grandparents, who lived in Fallbrook, if he
could borrow one of their two cars to drive to work. His grandfather agreed, so long as Norton
used the car only to drive to work and returned the car immediately after work.
Norton's
typical work shift began at 4:00 a.m.
Given the early hour and his grandfather's requirement that he use the
car only to commute to work, Norton stayed at his grandparents' house the
nights before he worked. He slept at
their house two or three nights a week.
He never spent the night if he was not working the next day. Altogether, his grandfather estimated that
Norton borrowed the car six or seven times before the accident.
Norton
did not pay rent to his grandparents. He
explained that he stayed in a "guest room" at his grandparents'
house. He had no key to the house and
used the garage-door opener in the car to enter the house through the
garage. He was never at the house when
his grandparents were not also home.
Norton kept no clothes or other belongings at the house, but rather
brought a change of clothes and a toothbrush in his backpack. On at least one occasion, Norton's
grandmother washed some of his clothes at the house. Occasionally, Norton ate meals with his grandparents
at their house, but he never cooked food there.
In
its statement of decision, the trial court did not find the term "actually
residing" contained in the insurance policy's definition of
"insured" to be ambiguous. The
court applied the ordinary meaning of "actually residing" to the
undisputed facts to conclude that Norton was not "actually residing"
at his grandparents' house. The court
reasoned that Norton's stays at the grandparents' house was a "matter of
convenience" that related to borrowing the grandfather's car. The court entered judgment declaring the
Exchange's umbrella policy does not provide coverage to Norton for the claims
brought by Barrientos.
II
DISCUSSION
The
sole issue on appeal is whether Norton was "actually residing" at his
grandparents' house within the definition of "insured persons" in the
grandparents' Exchange policy. Both
parties contend the language in the policy is unambiguous and can be applied
based on the plain meaning of the words used, but differ in their assertions of
whether the undisputed facts are sufficient to establish whether Norton was
"actually residing" at his grandparents' house. As we will explain, we agree with the
Exchange that Norton's connections to his grandparents' house were insufficient
to establish that he was "actually residing" at their house.
A. Standard
of Review
When
reviewing the application of an insurance policy to undisputed facts, "we
begin from the established rule that since the underlying facts are not in
dispute ' "it
is the duty of the appellate court . . . to make its own independent
determination of the meaning of the language used in the instrument[s] under
consideration." ' " (State
Farm Mut. Auto Ins. Co. v. Partridge (1973) 10 Cal.3d 94, 100.) More specifically, "[a]ppellate courts
apply an independent standard of review to decisions interpreting,
constructing, and applying insurance policies to determine the scope of actual
or potential coverage." (
Exchange (2008) 169 Cal.App.4th 976, 984-985; see also California Casualty Indemnity Exchange v. Frerichs (1999) 74
Cal.App.4th 1446, 1450 (Frerichs)
["where the only question concerns a facial application of the (written)
policy in the absence of a material triable issue of fact, the matter is within
the purview of the appellate court"].)
B. Interpretation
of the Phrase "Actually Residing" in the Umbrella Insurance Policy
As
with all contracts, insurance policies "must be so interpreted so as to
give effect to the mutual intention of the parties as it existed at the time of
contracting, so far as the same is ascertainable and lawful." (Civ. Code, § 1636; State of California v. Continental Ins. Co. (2012) 55 Cal.4th 186,
194-195.) Unless the parties attach a
special or technical meaning to the words in a contract, those words are to be
understood "in their 'ordinary and popular sense' " rather than according to their
strict legal meaning. (55 Cal.4th at
p. 195.) Coverage clauses are
interpreted broadly so as to afford the greatest possible protection to the
insured, but the interpretation must be reasonable and not strained. (Reserve
Ins. Co. v. Pisciotta (1982) 30 Cal.3d 800, 807, 808.)
The
parties have not cited, and we have not found, any published California case
that has considered the meaning of "actually residing" in the context
of an insurance policy. Thus, we look to
the common meaning of these words.
"Reside" is defined as "to dwell permanently or
continuously" or to "have a settled abode for a time." (Webster's 3d New Internat. Dict. (2002)
p. 1931, col. 2.)
"Actually" is defined as meaning "in act or in fact"
or "at the present moment." (
interpret the phrase "actually residing" to mean presently dwelling
in an abode with some degree of permanence.
This
interpretation is consistent with case law interpreting the related terms
"resident" or "residence" in insurance policies to define
the persons insured by the policy.
Applying an interpretation that has since been adopted by several
courts, our Supreme Court held that " 'residence' connotes any factual place of abode
of some permanency, more than a mere temporary sojourn." (Smith
v. Smith (1955) 45 Cal.2d 235, 238 (Smith);
see also Hardware Mutual Casualty Co. v.
Home Indemnity Co. (1966) 241 Cal.App.2d 303, 311 ["We think that a
resident of the same household is one, other than a temporary or transient
visitor, who lives together with others in the same house for a period of some
duration, although he may not intend to remain there permanently"].)
Reliable indicia of "residence" include: (1) the length of the stay;
(2) keeping personal possessions at the house; (3) receiving mail and
using the house address as an official location for a driver's license and bank
account; (4) eating meals at the house; and (5) having a room reserved
for the person's use. (See, e.g.,
Cal.App.4th 53, 62-63 (Kibbee);
Cal.App.4th 815, 818-819, 823 (Utley).)
Barrientos
contends that the term "actually residing" should be applied more
broadly than the terms "resident" or "residence." We disagree.
In
part, Barrientos suggests the two terms should be applied differently simply
because "residing" is a verb and "resident" is a noun. As far as this case is concerned, however,
this is a distinction without a difference.
Both words derive from the same root word, namely, "reside,"
and it is the meaning of that root word that matters here.
We
also see no reason to disregard authority interpreting the word
"resident" simply because the policy here uses the term "
the effect of the adverb "actually" to modify "residing,"
at least one out-of-state court interpreted "actually" as modifying
"residing" to distinguish actual, physical residence from "legal
residence" or domicile. (
South Carolina Dept. of Health and Human Services (2008) 377 S.C. 590, 597
[660 S.E.2d 303, 306].) This
interpretation of "actually residing" by the South Carolina court is
consistent with California case law interpreting the term "resident,"
which also distinguishes between residence and domicile. (See, e.g., Smith, supra,
location with which a person has the most permanent connection and intends to
remain, a person may have more than one residence. (Ibid.;
see also Utley, supra, 19 Cal.App.4th at
p. 822.)
Most importantly, Barrientos's
contention ignores the fact that, logically, the phrase "actually
residing" describes a narrower
subset of "residing." As the
trial court observed, "[a] person can be a 'resident' of a household even
if he is not currently 'actually residing' in the [insured's]
household." In other words, no
reasonable interpretation of the phrase would result in the conclusion that a
person was "actually residing" in a household, but not "residing"
in the household. Because, as we discuss
below, Norton was not "residing" with his grandparents, logic
dictates he was not "actually residing" with them either.
C. Application
of Interpretation of the Phrase "Actually Residing" to This Case
Applying the factors
demonstrating residence from the case law discussed above, we conclude the
trial court properly determined that Norton was not "actually
residing" at his grandparents' house.
Norton spent most nights at a friend's house and stayed only two or
three nights a week with his grandparents.
The arrangement was not permanent, but only a temporary solution for two
or three nights a week until he left for boot camp. Norton kept no possessions at the house and,
when he slept at his grandparents' house, brought only the clothes and
toiletries he would need for the next day.
Although Norton stayed in a room by himself, it was considered a
"guest room." Norton had no
key to the house and relied on his grandparents to unlock the front door or
used the garage door opener in the borrowed car to get inside their house. Norton was never in the house when his
grandparents were not already home. He
received no mail at the house but rather used his father's address as his
permanent address for mail and on his driver's license. On these facts, Norton was not
"residing," let alone "actually residing," at his
grandparents' house at the time of the accident with Barrientos. (See, e.g., Frerichs, supra, 74
Cal.App.4th at pp. 1448-1449, 1453; Kibbee,
supra, 69 Cal.App.4th at
pp. 62-63.)
Barrientos
invites us to follow two federal district court decisions and hold there is
coverage in this case. We decline to do
so, because neither decision is on point.
Barrientos
contends that Allstate Ins. Co. v.
Gassmann (C.D.Cal. Apr. 24, 2010, CV 08‑04833‑DSF‑PLAx)
2010 U.S. Dist. Lexis 40567 (Gassman)
considered the question of whether a person is a "resident" with
"a set of circumstances that are very similar to the facts here."
also involved a grandson living with his grandparents a few nights a week for
the purpose of getting to a new job, the court in Gassmann relied on other indicia of residency that are not present
here: the grandson in
as his home address and "had his own key and unfettered access; [his
grandparents' house] is where Gassmann had his own room and where he kept his
toiletries and many other personal items that he valued." (Gassmann,
*20-*21.)
Barrientos
also relies on State Farm v. Estate of
Lazio (N.D.Cal. 1993) 822 F.Supp. 660, where the court determined the son
of the policyholders was a resident of their household. (Id. at
p. 662.) The son had recently sold
his own house and asked his parents if he could live with them temporarily
until he found a new house. (
one night with his parents, he was involved in a motorcycle accident and
died. (Id. at pp. 660-661.)
The district court found the son was a resident of his parents'
household primarily on the ground that "he simply had no other possible
residence." (Id. at p. 662.) Here,
in contrast, Norton had multiple other residences.
Applying
the unambiguous language of the insurance policy to the undisputed facts, we
therefore conclude Norton was not "actually residing" at his
grandparents' house at the time of the accident. Norton cannot be considered to have been
"actually residing" in his grandparents' house because the undisputed
evidence demonstrates that his stays were temporary visits related to borrowing
his grandfather's car. (See
"more than a mere temporary sojourn"].)
DISPOSITION
The judgment is affirmed.
IRION,
J.
WE
CONCUR:
BENKE, Acting P. J.
McINTYRE, J.
name="_ftn1" title="">[1]
The evidence is unclear as to the
exact number of nights Norton spent at his grandparents' house. The trial court considered the differing
testimony of Norton and his grandparents and found that Norton spent
"approximately ten nights" in his grandparents' house. We do not consider the exact number of nights spent by Norton to be material to the issue
of whether Norton was "actually residing" at his grandparents' house.
name="_ftn2" title="">[2]
Although not binding, unpublished
federal district court cases are citable as persuasive authority. (Aleman
v. AirTouch Cellular (2012) 209 Cal.Appp.4th 556, 576, fn. 8.)
