PUBLISHED OPINION
Case No.: 96‑0138
For Complete Title †Petition
to review Filed
of Case, see attached opinion
†Petition
to review filed by Defendant
Submitted on Briefs
August 20, 1996
JUDGES: Cane,
P.J., LaRocque Myse, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS For the plaintiffs-appellants the cause was submitted on
the briefs of Catherine R. Quiggle of Rodli, Beskar, Boles &
Krueger, S.C. of River Falls.
Respondent
ATTORNEYS For the defendant-respondent the cause was submitted on
the brief of Patrick E. Mahoney of Mahoney, Dougherty and Mahoney,
P.A. of Minneapolis.
COURT OF APPEALS DECISION DATED AND RELEASED September 4, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0138
STATE
OF WISCONSIN IN
COURT OF APPEALS
ROBERT N. ROSS, A
MINOR BY HIS
GUARDIAN AD LITEM,
KEITH RODLI
AND ROBERT J. ROSS,
Plaintiffs-Appellants,
v.
TOMMY MARTINI, A
MINOR,
Defendant,
FARMERS HOME GROUP
INSURANCE COMPANY,
†Defendant-Respondent.
APPEAL from a judgment of
the circuit court for Pierce County:
ROBERT W. WING, Judge. Reversed
and cause remanded.
Before Cane, P.J.,
LaRocque and Myse, JJ.
MYSE, J. This is an appeal from a summary
judgment in favor of Farmers Home Group Insurance Company holding that as a matter
of law Tommy Martini was not a resident of his father's household and,
subsequently, is not covered by his father's homeowner's insurance policy. Because we hold that his father's on-going
legal custody and intent to regain physical placement are sufficient to make
Tommy Martini a resident of his father's household, we reverse and remand the
judgment.
The facts in this case
are undisputed. Tommy Martini's father,
Thomas Martini, Sr., and mother, Sandra Hansen, were divorced in 1979. Originally, Hansen was awarded legal custody
of Tommy. Within a year, however, Tommy
went to live with his father in Minnesota and the court, with Hansen's
agreement, transferred legal custody of Tommy to his father. Tommy lived with his father until August
1992 when, after being disciplined, Tommy fled to his mother's house in
Wisconsin. Martini sought to return
Tommy to Minnesota. Alleging that he
was a victim of abuse, Tommy sought and obtained a Wisconsin injunction
prohibiting his father from having contact with him for one year. Tommy claims he intends to live with his
mother permanently. Martini, however,
claims he intends to regain physical placement at the end of the injunction. While living with his mother, Tommy Martini
accidently shot another minor, Robert Ross.
This incident forms the basis of Ross' negligence action against Tommy
and his father's insurer. The father's
insurance policy provides coverage to the insured and members of his
household. The trial court granted
summary judgment based on the conclusion that Tommy was not a member of his
father's household.
Ross contends on appeal
that the trial court erred in determining as a matter of law that Tommy Martini
was not a resident of his father's household at the time of the shooting. We agree.
Because the facts are undisputed and the issue involves the construction
of an insurance policy, we review this claim as a question of law under a de
novo standard of review. Fidelity
& Deposit Co. v. Verzal, 121 Wis.2d 517, 529, 361 N.W.2d 290, 295
(Ct. App. 1984).
The pertinent language
from Martini's insurance policy defines "insured" as "residents
of your household who are: a. your relatives; or b. other persons under
the age of 21 and in the care of any person named above." The parties agree that Minnesota law governs
the interpretation of this policy.
Wisconsin and Minnesota are generally in agreement regarding the test to
be used in determining residency. Fireman's
Ins. Co. v. Viktora, 318 N.W.2d 704 (Minn. 1982); A.G. v. Travelers Ins. Co., 112
Wis.2d 18, 331 N.W.2d 643 (Ct. App. 1983).
The oft quoted test in determining residency depends on whether the
person and the named insurer are:
(1)
Living under the same roof; (2) in a close, intimate and informal relationship;
and (3) where the intended duration is likely to be substantial, where it is
consistent with the informality of the relationship, and from which it is
reasonable to conclude that the parties would consider the relationship
"... in contracting about such matters as insurance or in their conduct in
reliance thereon."
Fireman's, 318
N.W.2d at 706 (citations omitted). The
determination of residency is fact specific to each case and requires a
thorough examination of all relevant facts.
Schoer v. West Bend Mut. Ins. Co., 473 N.W.2d 73, 76 (Ct.
App. Minn. 1991).
In this case, Tommy
Martini had lived with his father for over twelve years. After claiming abuse by his father, Tommy
obtained an injunction preventing contact by his father for one year. Although Tommy intended to live with his
mother thereafter, his father, who continued to have legal custody, intended
for Tommy to return to Minnesota to live with him. Ultimately, whether Tommy would return to live with his father in
Minnesota is a question for the courts.
As long as his father maintained sole legal custody, Tommy could be
required to live with his father after the temporary injunction expired. For purposes of determining residency,
Tommy's intention, as with other non-minor children, is a factor to consider in
determining residency but is not controlling.
Pamperin v. Milwaukee Mutual Ins. Co., 55 Wis.2d 27,
34-35, 197 N.W.2d 783, 787-88 (1972).
Because Tommy could not choose his residence, his intention as to where
he would live is given little weight.
Generally, residency and custody are inexorably linked.
Turning to the
application of the three-prong analysis, the mere listing of the three factors
"does not result in a mandatory threefold test." Londre v. Continental Western Ins. Co.,
117 Wis.2d 54, 57-58, 343 N.W.2d 128, 131 (Ct. App. 1983). No single factor controls or determines
whether a person is a resident of a household.
Id.
Members of a household
are not required to live under the same roof to be considered part of the same
household. Doern v. Crawford,
30 Wis.2d 206, 213, 140 N.W.2d 193, 196 (1966); Schoer, 473
N.W.2d at 76. It is also recognized
that a person may be a resident of more than one household. Londre, 117 Wis.2d at 58, 343
N.W.2d at 131. Therefore, simply
because Tommy did not live under the same roof as his father at the time the
claim arose is no bar to his being a resident of his father's household. The
trial court placed great emphasis on the one-year injunction in granting
summary judgment. The injunction was
temporary and ran for only a year. This
time period is not sufficient to rule as a matter of law that Tommy was not a
resident of his father's household in light of the rule that residents do not
have to live in the same house. See
Doern, 30 Wis.2d at 213, 140 N.W.2d at 196; see also Schoer,
473 N.W.2d at 75-76.
The record discloses
that Tommy and his father had lived together for over twelve years and that
this relationship was important to each of them. It is apparent that this relationship was in a state of
transition at the time of the shooting, but Tommy's father intended to maintain
a substantial relationship with his son.
In fact, Tommy visited with his father even before the one-year
injunction had expired and has subsequently spent additional time at his
father's residence.
After considering all
the factors in the record, this court concludes that Tommy Martini was, as a
matter of law, a resident of both his mother's and father's households. At the time of the incident, Martini still
had legal custody of Tommy and was intending that Tommy return to live with
him. This court concludes that legal
custody, coupled with a parent's intent to continue a long established living
situation with the minor, to be sufficient to establish residency in a
household in this case, even though the child may be temporarily absent from
the household. Because this court
concludes that Tommy was a resident in his father's household, the judgment is
reversed and remanded.
By the Court.—Judgment
reversed and cause remanded.