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SECOND DIVISION
December 9, 2003
(NUNC PRO TUNC September 30, 2003)

JUSTICE CAHILL delivered the opinion of the court:

We consider whether the trial court's finding that defendant was entitled to underinsuredmotorists coverage under plaintiff's automobile insurance policy is against the manifest weight of theevidence. We find that it is and reverse.

Susan Spelman was killed in a car accident on August 7, 1991, in Illinois. On the date of theaccident, Susan was living in an apartment she had leased in Elmhurst and had a full-time job inLombard. Susan's parents, William and Betty Spelman, were insured under an automobile insurancepolicy issued by plaintiff Farmers Automobile Insurance Association (Farmers). The Spelmans livedin Wisconsin. The Farmers policy was in effect on August 7, 1991. The policy provided primary,uninsured and underinsured coverage. The underinsured coverage section read:

"We will pay damages which an 'insured' is legally entitled to recover from theowner or operator of an 'underinsured motor vehicle' because of bodily injury:

***

'Insured' as used in this part means:

1. You or any 'family member.' "

"Family member" is defined as "a person related to you by blood, marriage, or adoption who is aresident of your household. This includes a ward or foster child."

The Spelmans received $100,000 from the other driver in the accident, then made a claim for$200,000 in underinsured motorists coverage on behalf of Susan's estate. Farmers denied the claimand filed a complaint for declaratory judgment. Farmers sought a declaration that Susan was not aresident of her parents' Wisconsin home for purposes of coverage. Defendant, the administrator ofSusan's estate, filed a counterclaim for coverage. Defendant also filed a third-party complaint againstMiles and Finch Insurance Agency, through which the Farmers policy was procured. Defendantalleged that, even if Susan was not a resident of her parents' Wisconsin home, a binding contract ofinsurance existed between the agency and the Spelmans, entitling Susan to coverage.

The parties filed cross-motions for summary judgment on the residency issue. The trial courtdenied the motions. The trial court also ruled that Farmers was not estopped from raising theresidency requirement at trial. The following evidence was then taken at trial.

Susan moved to Chicago on graduating from college in May 1990. Susan's boyfriend ScottArney and her brother Steve lived in Chicago. Susan first lived with Steve, later moving in with afriend when Steve moved to California. Susan then executed a one-year lease for an apartment inMay 1991. Susan shared the apartment with her cousin. The apartment was in Elmhurst and closeto Susan's full-time job in Lombard. Susan used the Elmhurst apartment as her permanent address. Susan used her boyfriend's mother's address before moving to Elmhurst.

Susan had her own checking account from which she paid her rent. Susan's parents did nottransfer money to her. Susan furnished her apartment with items from her family's home. She and hercousin also purchased new furniture.

Susan regularly visited her family in Wisconsin. The evidence was contradictory as to howmuch time Susan spent in Wisconsin. Susan had a room in her parents' house in which she kept herbed, dresser, some clothing and other personal belongings. Susan received mail from friends inWisconsin, but all financial documents were sent to her Elmhurst address.

The evidence also showed that the Spelmans began procuring insurance through the Miles andFinch Insurance Agency (Miles and Finch) in 1984. Miles and Finch obtained all homeowners andautomobile insurance as needed by the Spelmans. The Spelmans, who had just moved to Wisconsin,obtained the Farmers policy in July 1991 when Miles and Finch told the Spelmans that their presentcarrier did not write insurance in Wisconsin.

Miles and Finch spoke with Betty Spelman to complete an application for insurance withFarmers. Betty testified that she told Miles and Finch that Susan would be living in Wisconsin. Bettyalso said that Susan would be in school. Betty did not tell Miles and Finch about Susan's Elmhurstapartment or that she would be working in Illinois. The application was forwarded to Farmers onJuly 13, 1991. The application listed Susan as a Wisconsin resident and included the statement thatshe would be in school with an insured vehicle. Farmers did not independently verify the informationprovided, relying instead on Miles and Finch to ensure accuracy.

Miles and Finch had authority to sign insurance applications on the Spelmans' behalf. Milesand Finch also paid premiums for the Spelmans, billing them later. Miles and Finch were authorizedto bind coverage from 20 different insurers. The extent of this binding authority is determined by theunderwriting guidelines of the insurer. Miles and Finch cannot bind more coverage than is offeredby a policy. The insurer decides whether to issue the policy.

The trial court concluded that Susan was entitled to underinsured motorists coverage basedon a finding that Farmers was estopped from asserting the residency requirement. The trial courtreasoned that Miles and Finch acted as Farmers' agent when it procured insurance for the Spelmans. The agency relationship imputed Miles and Finch's oral representation that the entire family wascovered under the automobile policy to Farmers, estopping Farmers from relying on the residencyrequirement to deny underinsured motorists coverage. The trial court also made an alternative findingthat, estoppel aside, Susan could be considered a "family member" or "resident of [the Spelman]household" based on evidence that she spent "up to" 50% of her time at her parents' Wisconsin home. Farmers argues on appeal that the trial court erred in finding that it was estopped fromasserting the residency requirement based on an agency relationship. Farmers also challenges the trialcourt's alternative finding that Susan was a resident of her parents' household. Last, Farmerscontends that it was improperly required to bear the burden of proof at trial.

We will not reverse a trial court's judgment unless it is against the manifest weight of theevidence. 1350 Lakeshore Associates v. Mazur-Berg, 339 Ill. App. 3d 618, 628, 791 N.E.2d 60(2003). "Against the manifest weight of the evidence" means that the opposite conclusion is "clearlyevident" or the finding is "unreasonable, arbitrary or not based on the evidence." 1350 Lakeshore,339 Ill. App. 3d at 628-29, citing Brody v. Finch University of Health Services/The Chicago MedicalSchool, 298 Ill. App. 3d 146, 153, 698 N.E.2d 257 (1998). The trial court's ruling finding coveragehere is against the manifest weight of the evidence where the record does not support the trial court'sagency/estoppel analysis. The alternative residency finding overlooked critical evidence of Susan'sintent in favor of the belief that she spent up to 50% of her time in Wisconsin. But the record wascontradictory at best as to how much time Susan spent in Wisconsin. Susan's boyfriend estimatedshe spent 20% of her time in Wisconsin. Susan's father estimated 25% and her mother guessed 25%to 50%. Susan's cousin, with whom she shared the Elmhurst apartment, testified that Susan visitedher parents only four times in the three months she and Susan lived together. We note that thecontrolling factor in determining residency is intent. Cincinnati Insurance Co. v. Argubright, 151 Ill.App. 3d 324, 330, 502 N.E.2d 868 (1986). The amount of time Susan spent in Wisconsin is notdispositive, but one of many factors that must be considered in determining Susan's intent.

Miles and Finch did not act as Farmers' agent when it bound coverage for the Spelmans. Aninsurance broker generally acts as an agent of the insured instead of the insurer. State SecurityInsurance Co. v. Burgos, 145 Ill. 2d 423, 431, 583 N.E.2d 547 (1991). But a broker can act as anagent of the insurer or as the agent of both the insured and insurer under certain circumstances. StateSecurity, 145 Ill. 2d at 431. Conduct, not title, determines the relationship between the independentinsurance agent, the insured and the insurer. A&B Freight Line, Inc. v. Ryan, 216 Ill. App. 3d 1093,1097, 576 N.E.2d 563 (1991). Our analysis involves four factors: (1) who first set the agent inmotion; (2) who controlled the agent's action; (3) who paid the agent; and (4) whose interests theagent was protecting. A&B, 216 Ill. App. 3d at 1097. The determination of whether a person isacting as an agent or broker governs to whom a duty is owed. Zannini v. Reliance Insurance Co. ofIllinois, Inc., 147 Ill. 2d 437, 451, 590 N.E.2d 457 (1992). A broker owes a duty to the insured; anagent owes a duty to the insurer. Zannini, 147 Ill. 2d at 451.

Applying these four factors here, we find that the Spelmans set Miles and Finch in motion. Evidence presented at trial demonstrated a long-existing relationship between the Spelmans and Milesand Finch. The Spelmans used Miles and Finch to fulfill all their insurance needs. In furtherance ofthis relationship, Miles and Finch routinely completed insurance applications and paid premiums onthe Spelmans' behalf. Miles and Finch procured the Farmers policy at issue here to supply theSpelmans with the automobile insurance they requested.

As to the second and third factors, there is testimony that Miles and Finch entered into awritten agreement with Farmers under which Miles and Finch was authorized to bind coverage. Buta copy of the agreement was not introduced as evidence. A Miles and Finch employee testified thatthe authority to bind coverage was limited by the type of coverage provided under the policy beingissued. To this extent, Farmers controlled Miles and Finch. But this control was minimal insofar asMiles and Finch was authorized to bind coverage for up to 20 different insurers. It is reasonable toinfer that Farmers paid commissions to Miles and Finch. But we accord this factor little weight underthese facts. Miles and Finch was an independent agency that solicited sales of insurance policies froma variety of insurers. Miles and Finch had no fixed or permanent relationship with Farmers. See, e.g.,Economy Fire & Casualty Co v. Bassett, 170 Ill. App. 3d 765, 525 N.E.2d 539 (1988) (independentagency soliciting sales of policies from several insurers found to be agent of insured).

The fourth factor weighs in favor of finding that Miles and Finch acted as the Spelmans' agent. The Spelmans were longtime Miles and Finch clients. Miles and Finch's conduct in paying premiumsand signing applications on the Spelmans' behalf demonstrates the insurance broker's desire to fosterits business relationship with the Spelmans. Miles and Finch acted to protect the Spelmans' interests. Farmers' grant of limited authority and presumed payment of commission to Miles and Finch areinsufficient to overcome our conclusion that Miles and Finch acted as the Spelmans' agent in thistransaction. We need not address whether Farmers was estopped from relying on the residencyrequirement in light of our conclusion that Miles and Finch did not act as Farmers' agent. Were weto agree with the Spelmans that they were misled by Miles and Finch as to the scope of coverageafforded them under the policy, the alleged misrepresentations are not imputed to Farmers. SeeAllstate Insurance Co. v. Tucker, 178 Ill. App. 3d 809, 811, 533 N.E.2d 1004 (1989) (estoppelrequires, inter alia, proof that the insured was misled by acts or statements of the insurer or itsagent). The trial court erred in finding coverage based on an agency relationship between Farmersand Miles and Finch. The alternative finding that Susan was a resident of her parents' household isalso unsupported by the manifest weight of the evidence.

"Resident of the household" has no fixed meaning. Farmers Automobile Insurance Ass'n v.Williams, 321 Ill. App. 3d 310, 746 N.E.2d 1279 (2001). The reasonable interpretation of the phraserequires a case-specific analysis of intent, physical presence and permanency of abode. Coriasco v.Hutchcraft, 245 Ill. App. 3d 969, 971, 615 N.E.2d 64 (1993). But the controlling factor is the intent,as evinced by the acts of the person whose residency is questioned. Argubright, 151 Ill. App. 3d at330.

With regard to Susan's residency, the trial court said:

"[T]he Court must make the finding that the testimony at trial was [that]Susan spent from 20% - 50% of her time at her parents' residence. Under thesecircumstances, even if the Court was basing its ruling on the residency issue ratherthan the estoppel issue, Susan could be considered to be a 'family member' or'resident of [the Spelmans'] household' under the language contained in Farmers'policy."

The trial court's ruling overlooks the key factor in determining residence--intent. Theevidence here demonstrates Susan's intent to establish and maintain a residence in Illinois. Susan,an adult with a college degree, rented an apartment and worked a full-time job in the Chicago area. Susan used her apartment as her permanent address and paid her rent from a checking account shehad opened at a Chicago-area bank. There was also evidence suggesting that Susan planned to marryher boyfriend Scott and remain in the Chicago area.

Susan's visits to her parents' Wisconsin home, although regular, were temporary. Susanreceived some mail at the Wisconsin address, but all of her financial documents and bills were sentto her Chicago-area address. The amount of time Susan spent visiting her parents' Wisconsin homeis less than persuasive as an element of intent when considered in light of the facts set out above, allof which establish a young adult's intent to build an independent life in the Chicago area. The trialcourt's finding, which relies exclusively on the amount of time Susan spent in Wisconsin, was againstthe manifest weight of the evidence. The cases cited by the Spelmans are inapposite.

In Coriasco v. Hutchcraft, 245 Ill. App. 3d 969, 615 N.E.2d 64 (1993), we found that a minorchild of divorced parents had two residences for purposes of coverage. Coriasco, 245 Ill. App. 3dat 972. We reasoned that both parents' homes had an element of permanency, at least during thechild's minority, insofar as the child's visits to each home were governed by a court-ordered custodyarrangement. Coriasco, 245 Ill. App. 3d at 972. Our reasoning in that case is inapplicable here,where the residency of an adult is at issue.

In Argubright, we found that an adult son was a resident of his parents' house despiteevidence that the son spent part of his time at an apartment located above a family-owned-and-operated restaurant. Argubright, 151 Ill. App. 3d 330-31. Critical to our conclusion was evidencethat the entire family initially lived in the apartment above the restaurant. The parents bought a homesome years later and began using the home as their primary residence. Argubright, 151 Ill. App. 3dat 327. But the family still used the apartment above the restaurant, staying there on work nights. Argubright, 151 Ill. App. 3d at 327. The son used both the house and the apartment, keeping clothesand personal belongings in both places. We reasoned that the family's regular and continued use ofthe apartment, coupled with the son's regular presence at his parents' home, demonstrated the son'sintent to remain part of his parents' household for purposes of coverage:

"[W]e believe that the defendant, his brother, and his parents created ahousehold. In this somewhat unorthodox situation, the family had two dwellingsbecause of the nature of the family business, yet that does not prevent them frombeing a household. Household connotes membership in a family group, notattachment to a building. [The defendant's parents] along with defendant and hisbrother composed a single domestic establishment and shared in the privileges andduties of their common dwellings in Ottawa and Oglesby. Each member of thefamily unit shared in the duties of running a family business and in turn, enjoyedthe privilege of having a home that they could share on non-working days." Argubright, 151 Ill. App. 3d at 331.

The unique family living arrangements that led to our conclusion in Argubright are absenthere. The living arrangements in Argubright were centered around the operation of a family-owned business. The apartment was the family's sole residence while they started operating therestaurant. The family then used the later-purchased home, staying at the apartment asnecessitated by the business. Unlike here, there was no evidence in Argubright that the sonintended to establish an independent residence for himself. By contrast, the evidence here showsthat Susan was establishing herself in the Chicago area independent of her parents' residence inWisconsin. Susan's regular visits to Wisconsin cannot be equated with the son's presence at hisparents' house in Argubright.

At issue in Williams was whether an adult son attending an out-of-state college was aresident of his mother's Illinois household. The trial court found that he was and grantedsummary judgment for the insured. We reversed and found that summary judgment wasimproper: "In sum, William's intent, the controlling issue in this case, is completely unclear.Defendants' 'right to judgment is not free from doubt, and *** any motion for summary judgmentshould have been denied ***.' " Williams, 321 Ill. App. 3d at 317.

We made no finding in Williams that would guide our analysis of this case, which is onreview after a full trial.

Last, Farmers claims that the trial court erred in assigning it the burden of proof at trial. Farmers contends it was assigned the burden of proof "simply because it was the insurer." Wedisagree. Farmers bore the burden of proof because it was the plaintiff.

The burden of proof in a civil proceeding generally rests on the party requesting relief.People v. Orth, 124 Ill. 2d 326, 337, 530 N.E.2d 20 (1988). The plaintiff in a declaratoryjudgment action bears the burden of proof. Tepper v. County of Lake, 233 Ill. App. 3d 80, 82,598 N.E.2d 361 (1992). Our analysis in Tepper is instructive here.

Tepper involved a contract dispute over an unpaid water bill. The utility declined to filesuit, electing to place a lien on the property instead. The customer then filed a declaratoryjudgment action to remove the lien. We noted that the utility's choice not to file suit shifted theonus onto the customer to file suit and resolve the lien. As the party seeking relief, the customer,not the utility, bore the burden of proof. Tepper, 233 Ill. App. 3d at 82.

Here, Farmers denied coverage under its policy and filed suit, seeking a declaration thatunderinsured motorists coverage was unavailable to Susan. As in Tepper, Farmers' initiation ofthe declaratory judgment action required it to bear the burden of proof.

We are aware of two well-established tenets of insurance law: the insurer bears the burdenof establishing that a claim falls within a provision that limits or excludes coverage; and theinsured bears the burden to show that a claim falls within a policy. It bears noting that the insurerbore the burden when it was the plaintiff (see, e.g., Pekin Insurance Co. v. L.J. Shaw & Co., 291Ill. App. 3d 888, 664 N.E.2d 853 (1997); State Farm Fire & Casualty Co. v. Leverton, 314 Ill.App. 3d 1080, 732 N.E.2d 1094 (2000)), while the insured bore the burden when he was theplaintiff (see, e.g., Village of Hoffman Estates v. Cincinnati Insurance Co., 283 Ill. App. 3d 1011,670 N.E.2d 874 (1996); Muller v. Fireman's Fund Insurance Co., 289 Ill. App. 3d 719, 682N.E.2d 331 (1997)). This difference is consistent with the general proposition set out above thatthe plaintiff in a declaratory judgment action bears the burden of proof. The trial court properlyimposed the burden of proof here on Farmers.

We find that the trial court's finding that Farmers was estopped from asserting theresidency requirement based on an agency relationship was against the manifest weight of theevidence. The trial court's alternative finding that Susan was a resident of her parents' Wisconsinhome was also against the manifest weight of the evidence. Farmers properly bore the burden ofproof at trial.

The judgment of the trial court is reversed.

Reversed.

McBRIDE and GARCIA, JJ., concur.