COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 98-2972 |
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Complete Title of Case: |
†Petition for Review filed. |
Charlene
A. Seichter, and James D. Johnson,
Plaintiffs-Respondents, v. Joseph
L. McDonald,
Defendant-Respondent, Darlington
Mutual Insurance Company, Intervening
Defendant- Appellant.† |
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Opinion Filed: June 17, 1999 Submitted on Briefs: May 6, 1999 |
JUDGES: Dykman, P.J., Eich and Deininger, JJ. Concurred: Dissented: |
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Appellant ATTORNEYS: On
behalf of the intervening defendant-appellant, the cause was submitted on the
briefs of Arnold P. Anderson of Mohr & Anderson of
Madison. Respondent ATTORNEYS: On
behalf of the plaintiffs-respondents, the cause was submitted on the brief of
Patrick K. McDonald of McDonald & Gustafson, S.C. of
Janesville. |
COURT OF APPEALS DECISION DATED AND FILED |
NOTICE |
June 17, 1999 |
This opinion is subject to further
editing. If published, the official version will appear in the bound volume
of the Official Reports. |
Marilyn L. Graves Clerk, Court of Appeals of Wisconsin |
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, Stats. |
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STATE OF WISCONSIN |
IN COURT OF
APPEALS |
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Charlene
A. Seichter, and James D. Johnson,
Plaintiffs-Respondents, v. Joseph
L. McDonald,
Defendant-Respondent, Darlington
Mutual Insurance Company, Intervening
Defendant- Appellant. |
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APPEAL from a judgment and an order of the circuit court for Rock County: james p. daley, Judge. Affirmed.
Before Dykman, P.J., Eich and Deininger, JJ.
EICH, J. Charlene Seichter’s and James
Johnson’s daughter was killed when an all-terrain vehicle on which she was a
passenger crashed. They sued the driver
of the vehicle, Joseph McDonald, and Darlington Mutual Insurance Company, who
had issued a homeowners’ policy to McDonald’s parents. Under its terms, the policy would cover
McDonald as an insured if, at the time of the accident, he was a resident of
his parents’ household. That was the
sole issue at trial, and the jury determined that he was. Darlington moved to change the jury’s
answers, for judgment notwithstanding the verdict, and for a new trial. The circuit court denied the motions and
entered judgment on the verdict.
Darlington
appeals, arguing that: (1) as a matter of law, McDonald was not a resident
of his parents’ household at the time of the accident, and therefore was not
covered under his parents’ policy; and (2) the jury instruction on
residency misstated the law. We reject
the arguments and affirm the judgment and order.
McDonald
was twenty-two years old when the accident occurred. He had graduated from high school four years earlier and lived on
his parents’ farm near Gratiot while attending college. He left school after one semester and
remained at home, working on the farm, for nine or ten months. In the fall of 1993, McDonald began working
full-time near Madison, still living at home.
In December 1994, he began sharing an apartment in Madison with several
other people and began attending school part-time at the Madison Area Technical
College. In the fall of 1995, McDonald
quit his job and began attending MATC full time; and this was his situation on
June 29, 1996, the time of the accident.
Other facts will be discussed below.
We
will uphold a jury verdict unless, “considering all credible evidence and
reasonable inferences therefrom in the light most favorable [to the verdict],
there is no credible evidence to sustain [it].” Rule 805.14(1), Stats.; Watts v. Watts,
152 Wis.2d 370, 380, 448 N.W.2d 292, 296 (Ct. App. 1989). And we give special weight to the jury’s finding where, as here, it has the
specific approval of the trial court. Nieuwendorp
v. American Family Ins. Co., 191 Wis.2d 462, 472, 529 N.W.2d 594, 598
(1995).
Darlington’s
challenge, however, does not go to the jury’s assessment of the facts, but to
the legal propriety of the verdict. It
argues that the verdict was contrary to established law, and it bases that
argument solely on Doern v. Crawford, 30 Wis.2d 206, 140 N.W.2d
193 (1966). As here, the issue in Doern
was whether the driver of a vehicle involved in an accident was residing in the
same household as the insured. The
driver was the insured’s stepson and he, his mother and the insured had lived
together until a few days prior to the accident when the insured sued his wife
for divorce and moved into a hotel. The
trial court granted summary judgment declaring that the stepson was covered by
the policy. On appeal, the supreme
court concluded that there was a dispute of material fact as to whether the
insured’s departure from the household “was intended by him to be permanent or
temporary,” and sent the case back to the circuit court for trial. Id. at 214, 140 N.W.2d at
196. The court stated at one point in
its discussion that “physical absence coupled with intent not to return is
sufficient to sever the absent person’s membership in the household,” id.
at 213, 140 N.W.2d at 196,[1]
and Darlington seizes upon this statement as the cornerstone of its
argument. Pointing to the fact that
McDonald (a) had moved out of his parents’ farm approximately one and
one-half years prior to the accident, and (b) had apparently expressed his
intent not to become a farmer or to return to live permanently with his
parents, Darlington argues that the import of Doern is that, as a
matter of law, McDonald was not a member of his parents’ household on the date
of the accident.
We
disagree. In its discussion of the
issue, the Doern court recognized that determining the existence
of a household relationship involves consideration of all of the relevant circumstances,
as do all of the cases the court discussed in its analysis. Id., 30 Wis.2d at 212-13, 140
N.W.2d at 195. And nowhere in the Doern
opinion does the court state that expression of an intent not to return is
anything other than one of several factors to be considered. Indeed, only a few sentences later, the
court states quite plainly that a statement in the insured’s affidavit that he
had left the family household with intent not to return was “[not] conclusive
on th[e] issue.” Id. at
214, 140 N.W.2d at 196. Finally, we
note that, in a subsequent case, the supreme court, after discussing Doern
and a variety of other cases, stated that “previous decisions of this court
indicate that no one factor is controlling [on the question of household membership]
but that all of the elements must combine to a greater or lesser degree in
order to establish the relationship.” Pamperin
v. Milwaukee Mut. Ins. Co., 55
Wis.2d 27,
37,
197
N.W.2d 783,
789
(1972). Specifically, the court stated in Pamperin
that, with respect to one who has absented himself or herself from the
household, “the subjective or declared intent of the individual, while a fact
to be considered, is not controlling,” and that whether the absence is
permanent “oftentimes must be determined only after a thorough examination of
all of the relevant facts and circumstances.…”
Id. at 35, 197 N.W.2d at 788.
Under
the cases, then, the household-residency determination depends upon the
particular factual circumstances in each case.
It is a fact-intensive inquiry which considers whether the person and
the named insurer are:
(1) living under the same roof;[2] (2) in a close, intimate and informal
relationship; and (3) where the intended duration of the relationship 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.
Pamperin, 55 Wis.2d at 37, 197 N.W.2d at 788. In a Minnesota case, Schoer v. West Bend Mutual Ins., Co., 473 N.W.2d 73 (Minn. App. 1991)—which we cited with approval in Ross v. Martini, 204 Wis.2d 354, 358, 555 N.W.2d 381, 383 (Ct. App. 1996)—the court, after quoting the Pamperin three-factor test, went on to state that, in applying the test:
The fact finder considers:
(1) age of the person;
(2) whether a separate residence is established;
(3) self-sufficiency of the person;
(4) frequency and the duration of the stay in the family home; and
(5) intent to return.
Personal possessions remaining in the home and that the home continues to be the mailing address may be considered but are not dispositive. A determination of residency in a household is fact specific to each case.
Schoer, 473 N.W.2d at 76.
Applying
these principles to the facts of this case, the trial testimony established
that although McDonald lived in various apartments in Madison after December
1994, he maintained strong ties with his parents and the farm—staying overnight
on a regular basis and helping with field work three to four times a week
during planting and harvest seasons. He
had free access to the home and was welcome to bring friends whether his
parents were present or not. There were
no restrictions on his use of family goods, equipment, vehicles, and
gasoline. He kept clothing in the
bedroom his parents maintained for him in the family home, and one of the two
vehicles he owned was kept at the farm at all times. Both his cars were insured through his parents’ State Farm
policy. His driver’s license, hunting
license and credit cards listed the farm’s address as his place of
residence. He voted and banked in
Gratiot, and his 1995 tax returns and W-2 forms listed the farm as his address.
We
believe a jury could reasonably find on this evidence that, at the time of the
accident, McDonald was a resident of his parents’ household.
Finally,
we reject Darlington’s argument that the trial court misinstructed the jury on
residency. In essence, the instruction
given by the court informed the jury that: (a) a person may be a resident
of more than one household for insurance purposes; (b) members of a
household are not required to live under the same roof to be considered part of
the same household; and (c) in determining residency, the jurors should
consider the three Pamperin factors we have discussed above. There is no question that the instruction is
legally sound in light of the cases we have discussed above. Darlington argues, however, that the
instruction did not fairly inform the jury of the applicable law because it did
not tell them that “absence from the McDonald home coupled with an intent not
to return meant that Joseph was not a resident of his parents’ household.” As we have held above, we do not consider
that statement to be legally accurate. See
our discussion of Doern v. Crawford, supra.
A trial court possesses broad
discretion to choose the language and emphasis of jury instructions as long as
they fully and fairly inform the jury of the rules of law applicable to the
case. State v. McCoy, 143
Wis.2d 274, 289, 421 N.W.2d 107, 112 (1988); State v. Boshcka,
178 Wis.2d 628, 636, 496 N.W.2d 627, 629 (Ct. App. 1992). And if
the court’s instructions “adequately cover the law” and “fairly inform the jury
of the law applicable to the particular case,” that discretion is properly
exercised. Peplinski v. Fobe’s
Roofing, Inc., 193 Wis.2d 6, 24, 531 N.W.2d 597, 604 (1995); State
v. Lohmeier, 196 Wis.2d 432, 441, 538 N.W.2d 821, 824 (Ct. App. 1995), rev’d
on other grounds, 205 Wis.2d 183, 556 N.W.2d 90 (1996). We see no error in the instruction.
By
the Court.—Judgment and order affirmed.
[1] In a later case, Belling v. Harn, 65 Wis.2d 108, 221 N.W.2d 888 (1974), the court stated that Doern v. Crawford, 30 Wis.2d 206, 140 N.W.2d 193 (1966), should not be read to hold that “removal from a household following commencement of divorce proceedings and during the pendency of the action can be a factor to be given weight in determining residency in a family household.…” Belling at 116, 221 N.W.2d at 893. We do not see Belling as defeating Darlington’s argument on that basis, however, as the Belling court’s overruling of Doern appears to be limited to the context of divorce proceedings.
[2] See, however, Londre v. Continental Western Ins. Co., 117 Wis.2d 54, 58, 343 N.W.2d 128, 130 (Ct. App. 1983), where, quoting from Doern, we recognized that “members of a family need not actually reside under a common roof in order to be deemed part of the same household.” We also noted that “a person … may have more than one household.” Id. at 58, 343 N.W.2d at 131.