No Coverage for Injury to a Resident Relative

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Residence is Established by Membership to a Group not a Place

Markeeta Tennie appealed from a judgment of the trial court granting defendant Louisiana Farm Bureau Mutual Insurance Company’s (Farm Bureau) motion for summary judgment and dismissing her claims against Farm Bureau. In Markeeta Tennie v. Farm Bureau Property Insurance Company D/B/A Louisiana Farm Bureau Insurance Company And Kristopher Carter, Number 2020 CA 1297, State Of Louisiana Court Of Appeal First Circuit (June 4, 2021) summary judgment for the insurer was granted by the trial court after proof that the decedent was a resident of the insured’s household.

FACTS

On November 29, 2016, Kristopher Carter picked up his four-year-old son, Marcel Tennie, from daycare at the request of Marcel’s mother, Markeeta Tennie. At some point in the night, Marcel suffered from a medical emergency while in the care of Mr. Carter, which resulted in his death. Marcel’s cause of death was classified as a homicide due to complications of multiple blunt force trauma.

On October 23, 2017, Ms. Tennie sued Louisiana Farm Bureau Mutual Insurance Company and Mr. Carter, alleging that the defendants were liable to her for the wrongful death of her son, Marcel, because Mr. Carter engaged in “horseplay” with Marcel, which caused injuries that ultimately led to his death when Mr. Carter failed to timely seek medical treatment for Marcel. As to Farm Bureau specifically, the petition alleged that Mr. Carter lived at his parents’ home, which was insured under a policy of liability insurance through Farm Bureau, and that the policy extended liability coverage to Mr. Carter, as a relative living in the household with the permission of his parents.

Farm Bureau denied liability, asserting that the policy contained two exclusions, namely, one which excludes coverage due to “intentional acts or directions by… any insured,” and another, which excludes coverage for bodily injury to any insured and defines “insured” as the named insured and any residents of the household who are also relatives of the named insured.

On appeal Ms. Tennie specifically contended that the evidence shows a “disputed issue of material fact” regarding:

  • Whether Mr. Carter voluntarily made contact with Marcel and caused his injuries;
  • Whether Mr. Carter had a duty to seek medical treatment for Marcel, and whether he breached that duty; and
  • Whether Marcel was a relative of the household, such that the “resident relative” exclusion of the Farm Bureau policy applied.

DISCUSSION

In deciding a summary judgment motion, it must first be determined whether the supporting documents presented by the mover are sufficient to resolve all material fact issues. The interpretation of an insurance policy usually involves a legal question that can be resolved properly in the framework of a motion for summary judgment. An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code.

As a general rule, when the term “relative” is used in insurance contracts, it is intended to include persons related by both marriage and blood. Whether or not a person is a resident of a particular place is a question of law and fact and is to be determined from all of the facts of each particular case. The concept of “residency” is different from that of domicile. While a person has only one domicile, he may have several residences.

In determining whether a person is a resident of a particular household with respect to insurance coverage, the emphasis is upon whether there remains membership in a group or a relationship with a person, rather than an attachment to a building; the issue is a matter of intention and choice, not one of location.

Farm Bureau argued that under the undisputed facts, the exclusions warranted summary judgment in its favor as a matter of law.

Ms. Tennie’s testimony reflects that although she and Mr. Carter never formally shared a home together, such that there was no common address where both of them would receive their mail and did not have the same address on their driver’s licenses, she and Marcel would would stay with Mr. Carter “one or two times a week maybe every two or three months whenever we were getting along.”

Melissa Hayes, Mr. Carter’s mother, also lived at the Wales Street residence and likewise testified that when things were “smooth” between Ms. Tennie and Mr. Carter, Marcel would stay with Mr. Carter on weekends and may have stayed at the residence as much as “two or three times a month.” She noted that Marcel had “[e]verything he needed” at the house. Terrill Hayes, Mr. Carter’s stepfather, also lived at the residence and similarly stated that Marcel would stay at the house along with Ms. Tennie if she came over on the weekends and would come “one or two times out of the month” if Ms. Tennie and Mr. Carter were communicating. Mr. and Mrs. Hayes both testified that Ms. Tennie also would sometimes bring Marcel to stay at their house when she had to work, although without an overnight stay on those particular occasions.

Farm Bureau met its initial burden of proving that the resident relative policy exclusion is applicable because the house where he died was owned by his grandparents and occupied by his father and grandparents.  Accordingly, because the term “relative” used in insurance contracts includes persons related by blood, Marcel is a relative of the household under the policy.

The parties all stated that Mr. Carter would sometimes pick Marcel up from daycare and Marcel usually would stay overnight at the house approximately one to three times a month, even though longer periods of time would sometimes pass before he would see Marcel if he and Ms. Tennie were not on “good terms.”

Because an unemancipated minor’s residency is “tied to that of his parents” and the emphasis is upon whether there is membership in a group, and not an attachment to a building, the court of appeal concluded that under the evidence presented, no genuine issue of material fact remains as to whether Farm Bureau established that the child meets the definition of a “resident relative” of the Wales Street house, within the meaning of the policy. As such, Farm Bureau met its burden.

ZALMA OPINION

Mr. Carter clearly failed in his duty as a father. Although the death of the child, Marcel, was determined to be a “homicide” (the death of a person at the hands of another) it was apparently not determined to be a crime and Carter was not convicted of a crime relating to the death. However, as his father residing at the house of his parents, he and his child were clearly residents of the household and, therefore, the exclusion for injury to a resident relative applied.


© 2021 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

Over the last 53 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

Go to the podcast Zalma On Insurance at https://anchor.fm/barry-zalma;  Follow Mr. Zalma on Twitter at https://twitter.com/bzalma; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims-library/ Read posts from Barry Zalma at https://parler.com/profile/Zalma/posts; and the last two issues of ZIFL at https://zalma.com/zalmas-insurance-fraud-letter-2/  podcast now available at https://podcasts.apple.com/us/podcast/zalma-on-insurance/id1509583809?uo=4

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