17 Fla. L. Weekly Supp. 1208a

Online Reference: FLWSUPP 1712HIGDInsurance — Homeowners — Coverage — Exclusions — Resident relative — In wrongful death action by mother as representative of estate of deceased child against father who allowed child to ride helmetless on back of ATV driven by intoxicated person while at father’s home, father’s homeowners insurer seeks declaration that child is excluded from coverage as resident relative — Where undisputed facts establish that, although parents had shared parental responsibility, mother was child’s primary caregiver, child attended school in mother’s home county, child’s life centered around mother’s home, and child did not have own room at father’s home, child was resident of mother’s home and is covered under father’s homeowners policy — No merit to argument that term “resident” is sufficiently ambiguous to be interpreted to find that child had dual residency at both father’s and mother’s homes — Insurance exclusions must be narrowly construed and any ambiguity must be construed against insurer that drafted policy

JOSIE L. HIGDON, as Personal Representative of the Estate of WILLIAM BLANE COBURN, a minor, deceased, Plaintiff, vs. JASON A. COBURN, Defendant. Circuit Court, 8th Judicial Circuit in and for Baker County. Case No. 2009-CA-225. September 7, 2010. Honorable Phyllis M. Rosier, Judge. Counsel: Curry Gary Pajcic, Pajcic & Pajcic, P.A., Jacksonville, for Plaintiff. Anne C. Sullivan, Gaebe Mullen Antonelli & Dimatteo, Coral Gables, for Citizens. Michael L. Glass, The Glass Law Firm, Jacksonville, for Defendant Jason Coburn.

ORDER ON CROSS MOTIONS FOR SUMMARY FINAL JUDGMENT CONCERNING ENTITLEMENT TO INSURANCE COVERAGE

This matter, having come to be heard by Stipulation of all interested parties (Plaintiff, Defendant, and Citizens Property Insurance Corporation, the insurance carrier for Defendant), upon Citizens Property Insurance Corporation’s Motion for Final Summary Judgment on the Issue of Insurance Coverage, and Plaintiff’s Motion for Summary Final Judgment on Entitlement to the same, and the Court having reviewed the pleadings, exhibits, sworn affidavits and deposition testimony, benefitted from argument of counsel on August 23, 2010, and being otherwise fully advised in the premises herein, it is hereby ORDERED and ADJUDGED:

On June 22, 2008, eight-year-old Blane Coburn was killed while under the “care” of his father, Jason A. Coburn, when the elder Coburn willfully allowed Blane to ride helmetless on the back of a single-seater ATV piloted by an intoxicated adult named Nathaniel Ryan. As a result, Ryan was convicted of DUI Manslaughter and Defendant Jason Coburn was convicted of Culpable Negligence exposing another (Blane) to the harm.¹ Josie Higdon, Blane’s mother, then filed this wrongful death lawsuit against Defendant for the death of her son.

Defendant Jason Coburn’s insurance company, Citizens Property Insurance Corporation, then alleged an exclusion under Jason Coburn’s homeowner’s insurance policy (insuring Jason Coburn’s trailer at 7281 NW CR 229, in Starke, Bradford County, Florida) and denied coverage for Defendant’s actions, alleging a “resident” exclusion. Citizens alleged that, under the policy, Blane was a “resident” of Defendant’s Bradford County trailer and that, as such, any harm he suffered due Defendant’s negligence was excluded from coverage under the policy.

Citizens requested a declaratory judgment, and all parties concerned then entered into a Stipulation, whereby this Court would make “the final factual and legal determination of whether there is coverage for the alleged acts and damages alleged in the Complaint . . . under Jason Coburn’s insurance policy with Citizens Property Insurance Corporation[.]”

The policy purchased by Defendant Coburn from Citizens contains certain “exclusions” from coverage. Citizens alleges policy language that would exclude bodily injury to an “insured” from coverage; and the policy defines the term “insured” b as follows: “‘insured‘ means you and residents of your household who are a. your relatives[.]” (emphasis added). The term “resident” is not defined in the policy. The issue for the Court is whether the alleged “resident” exclusion excludes coverage under the facts of this case — applying the rules of policy construction when addressing an exclusion from coverage, whether Blane was a “resident” of his father’s trailer in Bradford County.

The undisputed facts are as follows. Blane was born on July 14, 1999, to Josie Higdon (“mother”) and Defendant Jason Coburn (“father”), Blane’s natural born parents. Josie Higdon, Blane’s mother, was married to Defendant Jason Coburn from 1998 until July 2003 when the couple divorced. Together, the couple had two children: Walker Briton Coburn (“Briton”) (age 9), and William Blane Coburn (“Blane”) who was killed in the crash underlying this litigation. From approximately 1999, until the time of the divorce, the family resided together at 312 Higdon Road in Clay County, Florida. The Higdon Road address is essentially on the border between Clay Hill, Clay County, and Maxville, Duval County, just on the Clay County side.

A few months prior to the divorce, Mr. Coburn moved out of the family residence to Nassau County, Florida, where he lived from 2003-2006. When the couple divorced in 2003, the Dissolution Judgment provided for shared parental responsibility for Blane and Briton, with Mr. Coburn rotating with timesharing. This agreement provided: “The children will be spending an equal amount of time with both the Wife and the Husband, so there will not be child support awarded to either party.”

It is undisputed, however, that in fact Blane spent the vast majority of his time at the 312 Higdon Road home, with his mother, in the Clay Hill area of Clay County, Florida. The undisputed evidence — and the only sworn testimony before this Court — is that Blane lived and resided with his mother at the Higdon Road address in Clay County, Florida, from the date of his birth until the day of his untimely death on June 23, 2008.²

Blane enrolled in Clay County District schools in 2004, and continuously attended Clay County public schools, from 2004 until his death in 2008. Blane went to kindergarten (’04-’05 school year), first grade (’05-’06 school year), second grade (’06-’07 school year), and third grade (’07-’08 school year) at Clay Hill Elementary, the local Clay County public school for his Higdon Road home.

In 2006, the father moved from Nassau County, to Bradford County, Florida — where the father moved into a trailer with his new wife and her two children, located at 7281 NW County Road 229 in Bradford County, Florida. However, Blane and Britton continued to live with their Mom on Higdon Road in Clay County and continuously attended Clay Hill Elementary. Blane never moved. Blane never attended schools in Nassau or Bradford County. Blane always attended Clay County schools.

As evidence of where Blane truly resided, on August 8, 2006, the father himself filled out Blane’s 2006-2007 “Emergency & Medical Information” for Clay County District Schools, and wrote down Blane’s address as 312 Higdon Road. Furthermore, there is a section on that same form that asks as follows: “CHILD LIVES WITH: (Circle) Both Parents – Mother – Father – Guardian – Other (explain)________” –and the father circled “Mother” only.³

The undisputed facts further establish that Josie was Blane’s primary care giver, she was always the person who attended parent-teacher conferences for Blane at school, and that Blane always maintained the same pediatrician from 1999-2008 on Jacksonville’s westside.

It is undisputed that Blane’s life centered around the Higdon Road home. The Higdon Road home is on the northern edge of Clay County, just across the Duval County line from the Maxville area of Jacksonville. Blane played sports at the Maxville Athletic Association, most of Blane’s best friends lived in the neighborhood around the Higdon Road home, and he always attended the neighborhood school — Clay Hill Elementary.

Blane, however, would also spend time with the father. Blane and Briton would spend every other weekend and Wednesday nights with the father at the Bradford County trailer. When Blane and Briton stayed with the father, they would sleep in their step-brother’s (Trey’s) room — a room that Trey lived in full time. Blane did have personal toys and clothes that were kept in the room he and Briton shared with Trey.

Faced with the facts set forth above, Citizens conceded at the hearing that Blane was clearly a resident of 312 Higdon Road in Clay County with his mother. The Court agrees and holds as a matter of law that Blane was a resident of his mother’s home, and therefore holds that there is coverage under the Citizens insurance policy. The analysis stops there and Citizens fails on the critical issue it must prove (that Blane was a resident of his father’s trailer in Bradford County).

Nonetheless, in an effort to fit Blane into the “resident” exclusion, Citizens has argued that the exclusionary term “resident” could have more than one reasonable interpretation, and suggests that it could also be reasonably interpreted to find that Blane was also a “resident” of the father’s trailer in Bradford County. Accordingly, Citizens argues that under this alternative interpretation, Blane could be a resident of the father’s trailer as well, and thus be excluded from coverage.

However, by making this very argument — that the exclusionary term “resident” can have more than one reasonable interpretation — Citizens admits that the exclusionary term “resident” is ambiguous when applied to these facts:

If the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and another limiting coverage, the insurance policy is considered ambiguous. Ambiguous policy provisions are interpreted liberally in favor of the insured and strictly against the drafter who prepared the policy. Likewise, ambiguous insurance policy exclusions are construed against the drafter and in favor of the insured. In fact, exclusionary clauses are construed even more strictly against the insurer than coverage clauses.

Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000) [25 Fla. L. Weekly S211a] (emphasis added) (citations omitted).

Furthermore, when there are two reasonable alternative interpretations of the same exclusionary clause, the Court, “must accept the interpretation which would favor the insured [extending coverage].” Progressive Ins. Co. v. Estate of Wesley, 702 So. 2d 513, 515 (Fla. 2d DCA 1997) [22 Fla. L. Weekly D2277c]. Therefore, assuming arguendo that Citizens is correct — that (a) Blane is a resident of the mother’s house; but that (b) it would not be unreasonable for one to determine that Blane was also a part-time “resident” of the father’s trailer — this Court must, and does, accept the interpretation which would favor the insured, and find as a matter of law that Blane was a resident of the mother’s home, and thus coverage exists under the policy. See Wesley, 702 So. 2d at 515 (“Either determination of Taylor’s residency would be reasonable. [Court] must accept the interpretation which would favor the insured.”) (citations omitted).

Progressive Ins. Co. v. Estate of Wesley, 702 So. 2d 513 (Fla. 2d DCA 1997) [22 Fla. L. Weekly D2277c], is the most factually analogous decision in the state of Florida. Following the divorce of his parents, Taylor Wesley, a minor child, was killed in an automobile collision while riding in a vehicle driven by his mother. See id. at 514. His father, as personal representative of his estate, made a demand for payment under his former wife’s insurance policy. That policy, however, contained an exclusion from coverage for bodily injury to the named insured or a relative, and defined relative as “a person living in your household and related to you by blood, marriage or adoption[.]” Id. Thus, the issue in the case was whether Taylor was a resident living in his mother’s household.

The facts of where Taylor lived are outlined in the opinion, as follows:

At the time of the accident, Stephen and Elizabeth Wesley were divorced and Stephen had been awarded primary residential custody of Taylor. However, both parents had shared parental responsibility. Taylor stayed at his mother’s house for three consecutive nights (from Friday afternoon until school began on Monday morning) every other week [and several hours every Wednesday]. It is undisputed that Mrs. Wesley kept a room for Taylor in her home, and the room contained toys, clothing and other personal items belonging to Taylor.

Id. at 514, 515.

Based upon these facts, in interpreting an exclusionary clause of an insurance policy, the trial court granted summary judgment against the insurance company, and the court of appeal affirmed. The appellate opinion, authored by now Justice Peggy Quince, held:

[F]or purposes of determining where Taylor was living, it would be reasonable to say that Taylor lived with his father since he spent more time at the father’s residence. However, it would not be unreasonable for one to determine that Taylor lived with both his mother and father since he spent time at both residences, he had a room and personal items at each place, and his parents had shared parental responsibility.

Either determination of Taylor’s residency would be reasonable. We must accept the interpretation which would favor the insured. It is the insurer who drafted the policy, and, if coverage is excluded under these circumstances, the policy should so state in clear and unmistakable language.

Id. at 515 (citations omitted) (emphasis added).

Citizens relies heavily upon New Hampshire Indemnity Co., Inc. v. Reid, 2007 WL 473677 (M.D. Fla. 2007) (not reported in F.Supp.2d), and General Guaranty Ins. Co. v. Broxsie, 239 So. 2d 595 (Fla. 1st DCA 1970), for support of its position that Blane could also be deemed a “resident” of the father’s trailer and that, thus, the exclusion should apply. However, the Reid and Broxsie courts were concerned with policies which provided coverage to family members who were residents of the insured’s household. The Reid and Broxsie courts were addressing a grant of coverage and thus read the term broadly to grant coverage — they were not addressing an exclusion from coverage. It is well established Florida law that, when dealing with grantsof coverage the courts interpret the policy language broadly in favor of the existence of insurance — but when dealing with limitations or exclusions thepolicy language must be interpreted narrowly against the insurer who drafted the policy, and in favor of the insured to extend coverage. See, e.g., Progressive Ins. Co. v. Estate of Wesley, 702 So. 2d 513, 515 (Fla. 2d DCA 1997). In accordance with Florida jurisprudence, the Reid and Broxsie Courts interpreted the policy term “resident” broadly because it was not an exclusionary term in those cases.

Unlike the situations in Reid and in Broxsie, this Court is dealing with a limitation on coverage; thus, the term resident must be interpreted narrowly here. In the instant case, this Court’s narrow construction of the instant policy provision parallels that of both the Wesley Court, and that of a California appellate court that the Wesley Court cited with approval, National Auto. & Cas. Ins. Co. v. Underwood, 9 Cal.App.4th 31, 11 Cal.Rptr.2d 316 (1992).

The Underwood facts are instructive. In Underwood, the children lived most of the year with their father, but were staying with their mother at the time of the crash, and the mother had joint custody at the time of the accident at issue. The policy exclusion applied to bodily injury to an insured, and “insured” was defined to include “any resident of the same household” as the named insured. Recognizing that there were at least three reasonable constructions of the children’s “residency,” the appellate court explained:

One reasonable construction is that the children have a single residence and that is with their father, Bruce. It is undisputed the children spend far more time with Bruce than with Lorrie. . . . The children also attended school while maintaining their residency at Bruce’s household. In fact, Lorrie lived in a different county at the time of the accident. . . . We believe a layperson, knowing all these undisputed facts, could reasonably deem the children to be residents of Bruce’s household. And if one had to choose a single residence for the children, Bruce’s household would be the logical choice.

On the other hand, one could reasonably read “resident” in a more literal sense to mean where these children were physically residing at the time of the accident, which was with Lorrie. . . .

Another reasonable construction would be that the children, at the time of the accident, had dual residences with Bruce and Lorrie. This construction would exclude coverage to the same extent as if the family had remained intact under one roof.

Id. at 40-41 (citations omitted) (emphasis added).

Given its conclusion that any of the three interpretations of “resident” would be reasonable, the Underwood Court adopted “the interpretation that the children were not residents of Lorrie’s household at the time of the accident [and thus entitled to coverage under the policy]” explaining:

If children of a divorced insured are to be excluded under the policy in the same fashion as children of an intact family under one roof, the insurer should make that clear in its policy. The fact is this case exemplifies a common joint custody arrangement of school-age children who spend vastly different amounts of time at each parent’s house. Lacking a more explicit definition of “resident,” an insurer must accept liability under any reasonable interpretation of the words it uses.

Id. at 41 (emphasis added). Compare Progressive Ins. Co. v. Estate of Wesley, 702 So. 2d 513, 516 (Fla. 2d DCA 1997) [22 Fla. L. Weekly D2277c] (“Because we find the term relative as used in Mrs. Wesley’s insurance policy is ambiguous, we affirm the trial court’s ultimate determination that Taylor Wesley was not excluded from coverage under his mother’s insurance policy with Progressive.”). See also Indiana Farmers Mut. Ins. Co. v. Imel, 817 N.E. 2d 299, 300-305 (Ind. Ct. App. 2004) (eight-year-old child injured during visit to her grandparents’ farm; child stayed with grandparent at least two weekends a month since the age of three; property insurance carrier alleged exclusion of resident relative; court found child not a “resident” for purpose of exclusionary clause, because: (i) the child lived and attended elementary school with mother in another town; (ii) the grandparents testified that the mother was child’s primary caretaker; and, (iii) during his visits child sleeps in the guest bedroom, which is used by all the [grandparents] children and grandchildren, not exclusively by child).

In Indiana Farmers Mut. Ins. Co. v. Imel, the court rejected the insurer’s “dual residency” argument, explaining: “Although we have previously held that ‘at least for some purposes a person may have more than one residence,’ we are mindful that the case at bar involves an exclusion provision, and accordingly, the term resident should be constructed narrowly.” Id. at 305 (emphasis added) (citations omitted).

Another Florida case finding coverage as a matter of law is First Floridian Auto and Home Ins. Co. v. Thompson, 763 So. 2d 407 (Fla. 2d DCA 2000) [25 Fla. L. Weekly D1276c]. In Thompson, anadult child living in Minnesota moved into her parents’ home in Florida for several months when she began having marital problems. The mother testified that her adult daughter was “visiting, had come to see her father, who was in a nursing home, and was trying to get her life back in order and make some money.” Id. at 408. While staying with her mother, the daughter was injured while a passenger in her mother’s automobile. The trial court held that the term “resident” in the mother’s policy exclusion was ambiguous and accordingly entered summary judgment in favor of the daughter. The Second District affirmed the trial court’s ruling, summarizing the case and the applicable law as follows:

The insurer denied [daughter’s] claim under [mother’s] policy, asserting that she was a “resident” of [parents] household, which barred her from coverage under the exclusionary clause. However, the trial judge, on undisputed facts, construed the ambiguous term “resident” in favor of coverage and held that [daughter] was not a “resident” of [parent’s] household. Because . . . the trial court correctly construed the exclusionary clause so as to provide coverage, we conclude that the trial court correctly found that coverage existed. Accordingly, the court did not err in entering summary final judgment in favor of [plaintiff].

Id. at 409 (emphasis added).

The undisputed evidence is that Blane resided on Higdon Road, Clay County Florida, with his Mother, Josie Higdon, from the day he was born until the day he died. It is undisputed that Blane’s young life revolved around his Higdon Road address in Clay County, where he went to school, played sports, maintained his friendships, and where he lived with his brother Briton and his “primary caretaker”/mother, Josie Higdon.

Reading the term “resident” in light of the fact that it is an exclusionary provision in Jason Coburn’s homeowner’s policy, and must be construed narrowly against the insurance company that drafted it, and in favor of the insured and in favor of coverage, the Court finds that Blane was a resident of his mother’s home at all times material to this case — and he should not be deemed a “resident” of Jason Coburn’s Bradford County trailer for purposes of the exclusion at issue. In the face of the overwhelming facts in this case, Citizens even conceded at the hearing that Blane was a resident of his mother’s home in Clay County.

Furthermore, even if this Court accepts Citizens’ argument that the exclusionary term “resident” is sufficiently ambiguous as to reasonably be construed to find that Blane was also a resident of his father’s trailer, Plaintiff is still entitled to summary judgment because this Court is required to accept the interpretation that would favor extending coverage to the insured. Compare, Progressive Ins. Co. v. Estate of Wesley, 702 So. 2d 513 (Fla. 2d DCA 1997) [22 Fla. L. Weekly D2277c] (finding insurance coverage as a matter of law on similar facts); National Auto. & Cas. Ins. Co. v. Underwood, 9 Cal. App. 4th 31 (Cal. Ct. App. 1992); Indiana Farmers Mut. Ins. Co. v. Imel, 817 N.E. 2d 299, 305 (Ind. Ct. App. 2004).

Accordingly, it is hereby ORDERED and ADJUDGED that Blane was not a resident of the father’s household for the purposes of the exclusionary clause in the policy, and that there is coverage for the harm suffered by Blane under the insurance policy with Citizens. Plaintiff’s Motion for Final Summary Judgment is GRANTED, and Citizens’ Motion for Final Summary Judgment is DENIED.

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¹Baker County Case number 02-2008-MM-000979-A.

²See Birth Certificate, Clay County District Schools records, Josie Higdon Affidavit, Deposition of Jason Coburn, Pediatrician records, Medical Examiner’s Report & Death Certificate.

³For each and every one of Blane’s information forms with Clay County District Schools, from 2004 though 2008, Higdon Road is listed as Blane’s address, and in response to “CHILD LIVES WITH”, only Mother is circled.