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Dechert v. Me. Ins. Guaranty Auth., corrected 7-24-98


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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 127  
Docket:	Han-96-752
Submitted
on Briefs:	November 24, 1997
Decided:	May 28, 1998

Panel:WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ, and
SAUFLEY, JJ.

SUSAN DECHERT,
Individually and as Next Friend of
Candice Dechert

v.

MAINE INSURANCE GUARANTY ASSOCIATION

ROBERTS, J.

	[¶1]  Susan Dechert appeals from the summary judgment entered in
the Superior Court (Hancock County, Marsano, J.) in favor of Maine
Insurance Guaranty Association.  Dechert contends that the court erred in
its determination that Irving Farrin was not an "insured" under his father's
homeowner's policy with Maine Insurance and in its determination that the
term "household" is not ambiguous.  We vacate the judgment.  
	[¶2]  In 1980 Eugene Farrin, Irving's father, acquired a trailer home
located a few miles from his primary residence in Bar Harbor.  He
subsequently added the trailer home to his homeowner's insurance policy
with American Universal Insurance Company, Maine Insurance's
predecessor, for liability coverage as an "other insured location."{1}  In 1983
or 1984, Irving moved back into his parents' home in Bar Harbor.  At the
time, Irving had separated from his second wife and had fallen on bad times
financially.  After living with his parents for a few months, he moved into the
trailer home.  His decision to move out of his parents' home was influenced
by his desire to have his two sons, Craig and James, live with him during
their summer vacation.  His parents did not charge him rent to live in the
trailer home, but Irving was responsible for buying his own food and paying
for the utilities.  Although Irving was employed when he moved into the
trailer home, his parents still helped him financially by occasionally paying
for his utilities and helping him buy a car.  After August 1984 Irving
returned to his parents' home for a short time and then moved to an
apartment.  
	[¶3]  In August 1984 Irving and Dechert left his elder son, Craig, to
baby-sit his brother, James, and Dechert's daughter, Candice, in the trailer. 
As the children were playing in Irving's bedroom, Craig accidentally shot
Candice with a rifle that Irving had left in the bedroom.  In December 1994
Dechert sought a declaratory judgment that Maine Insurance was obligated
to settle her claims because the policy covered damages resulting from the
negligence of either Irving or Craig.  In March 1996 Maine Insurance filed a
motion for a summary judgment, contending that Dechert's complaint
should be denied because neither Irving nor Craig were insureds under the
policy.  The court granted the motion, holding that the term "household"
was not ambiguous and that Irving was not an insured under the policy.  This
appeal followed.  
	[¶4]  Whether the terms of a contract are ambiguous is a question of
law.  Peerless Ins. Co. v. Brennon, 564 A.2d 383, 384 (Me. 1989).  That
question, however, cannot be resolved in a vacuum.  To interpret the
meaning of words, a court needs to know what question it is asked to
answer.  See Cambridge Mut. Fire Ins. Co. v. Vallee, 687 A.2d 956, 957 (Me.
1996) ("residence" has different shades of meaning depending on the
context in which it is used); Workman v. Detroit Auto. Inter-Ins. Exch., 274
N.W.2d 373, 379 (Mich. 1979) ("resident of an insured's household" has no
absolute meaning and may vary according to circumstances).  
	[¶5]  There is no dispute that Irving is the son of Eugene and is a
relative of the policyholder.  Our focus therefore is on the question whether
Irving was a resident of Eugene's household.  Because we find the words
ambiguous in the circumstances of this case and because they are words of
inclusion of persons covered, we interpret the words liberally to the extent
they can reasonably provide coverage to Irving.  
	[¶6]  Usually, the term household refers to "a collection of persons as
a single group, with one head, living together, a unit of permanent and
domestic character, under one roof; a 'collective body of persons living
together, within one curtilage, subsisting in common and directing their
attention to a common object, the promotion of their mutual interest and
social happiness.'"  Leteff v. Maryland Cas. Co., 91 So. 2d 123, 130 (La. Ct.
App. 1956).  Not all of these elements are essential, however, in a given
case.  For example, a temporary absence may not terminate the status of
resident in the household, and much will depend on the subjective or
declared intent of the individual.  Nor is it essential that the household be
housed under a single roof or supported by a single head.  
	[¶7]  Two cases will illustrate the fact-specific nature of the
determination.  In Brown v. Trahan, 526 So. 2d 1216 (La. Ct. App. 1988),
the named insured acquired insurance on two houses he owned.  He resided
in one of the houses with his second wife.  His stepson resided in the other. 
His stepson paid nominal rent, paid his own utility bills, and brought his
own appliances and furnishings when he moved into the house.  When the
stepson became delinquent on several rental payments, the named insured,
however, did not seek eviction.  Brown, who was accidentally shot by the
stepson, brought an action to recover damages and medical expenses from
the stepfather's insurer.  The court stated that the fact that both houses
were insured under the same policy had no bearing on the status of the
stepson.  The court acknowledged that a determination of this issue did not
rest solely on whether the stepson lived under the same roof as his mother
and stepfather.  It instead focused on his attachment to them.  In holding
that he was not a member of his mother's household, the court noted that
he had no personal belongings at his mother's house, that he did not have a
key to her house, and that he was not "free to come and go therefrom as he
pleased."  Id. at 1219.
	[¶8]  In Row v. United Servs. Auto Ass'n, 474 So. 2d 348 (Fla. Ct. App.
1985), the court held that a son with a separate apartment in an apartment
complex owned by his father was a member of his father's household.  His
father resided in a different apartment in the complex.  The son suffered
from continued mental disturbances and did not pay rent or maintain utility
services in his apartment.  He would use his father's apartment for
"socializing, eating and cooking, using the telephone, doing laundry, and
bathing." Id. at 350.  The court noted that "[a]ll the evidence points to the
conclusion that [the father] continued to be responsible for [his son] both
financially and emotionally and to provide support normally accorded a
dependent member of his household."  Id. at 351.
	[¶9]  There is no question Irving was a resident in his parents'
household in the spring of 1984.  When, if ever, he ceased to be a resident
in the household depends on a factual determination influenced by such
questions as:  What was Irving's subjective or declared intent when he
moved to the trailer?  What was the nature of his tenancy?  What, if any,
belongings did Irving leave with his parents?  What was Irving's practice in
regard to returning home?  Did Irving retain a key?  What was the extent of
Irving's financial dependency on his parents?  "[N]o one factor is, in itself,
determinative; instead, each factor must be balanced and weighed with the
others."  Workman v. Detroit Auto. Inter-Ins. Exch., 274 N.W.2d at 379. 
Critical to the weighing process is the necessity of evaluating the credibility
of the witnesses.  See VanVoorhees v. Dodge, 679 A.2d 1077, 1080 (Me.
1996).  
	The entry is:  
				Judgment vacated.  Remanded for
				further proceedings consistent
				with this opinion.
                                                                                        
Attorneys for plaintiff:

William M. Avantaggio, Esq.
Howard & Bowie
P O Box 460
Damariscotta, ME 04543

John E. Harrington, Jr., Esq.
Samuel Nesbitt, Jr., Esq.
P O Box 160
Winterport, ME 04496

Attorneys for defendant:

James E. Fortin, Esq.
Martica S. Douglas, Esq.
Douglas, Denham & Rogers
P O Box 7108
Portland, ME 04112-7108