     Case: 11-20396   Document: 00511908820   Page: 1   Date Filed: 07/03/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                                  July 3, 2012

                                 No. 11-20396                   Lyle W. Cayce
                                                                     Clerk

STATE FARM FIRE AND CASUALTY COMPANY,

                                          Plaintiff–Appellee
v.

MATTHEW LANGE,

                                          Defendant–Appellant

DAWN MORGAN; MARY ELIZABETH RUBIO, LINDA MILLER,
Individually and as Personal Representative of the Estate of Stephen Rubio,
Deceased,

                                          Intervenors–Appellants


DAWN MORGAN, as Next Friend of K.R., a Minor; MARY ELIZABETH
RUBIO, as Next Friend of K.R., a Minor,

                                          Plaintiffs–Appellants

v.

STATE FARM FIRE AND CASUALTY COMPANY

                                          Defendant–Appellee
   Case: 11-20396       Document: 00511908820         Page: 2     Date Filed: 07/03/2012



                                       No. 11-20396


                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 4:09-CV-2011


Before JONES, Chief Judge, PRADO and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       This case arises from a dispute regarding coverage under a Personal
Liability Umbrella Policy issued by Appellee State Farm Fire and Casualty
Company (“State Farm”). The sole issue decided by the district court was
whether Appellant Matthew Lange qualified as an “insured” under the policy,
an issue that hinges upon whether Lange primarily resided with his parents, the
policyholders. The district court determined that Lange’s primary residence was
an apartment, not his parents’ home, and thus concluded that he did not qualify
as an insured under the policy. The district court accordingly granted State
Farm’s motion for summary judgment. Lange and the Intervenors–Appellants
appeal. For the reasons stated below, we AFFIRM.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       On February 5, 2009, Lange was the driver of an automobile involved in
an accident in which two of Lange’s passengers were killed. At the time of the
accident, Lange’s parents owned a Personal Liability Umbrella Policy insured
by State Farm. Under the terms of the policy, State Farm agreed to provide a
defense to the insured in the event of a lawsuit stemming from a covered loss
and also agreed to pay any damages resulting from a covered loss. The policy
defined “insured” to mean “you [the named insureds, Stephen and Marilyn




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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                                 No. 11-20396

Lange] and your relatives whose primary residence is your household.” The
policy listed Lange’s parents’ address as being in Meyersville, Texas.
      Lange had lived at the Meyersville address with his parents while
attending grade school and high school. Lange graduated from high school in
2004, and at some time in 2005 he began working full time in Victoria, Texas,
which is approximately 45 miles from Meyersville. In April 2005, Lange moved
out of his parents’ home and moved into an apartment with friends. In July
2005, Lange and some friends moved into a house on Gottfried Road in Victoria.
Lange lived at this house until October 2007, when he moved into his own
apartment in Victoria (the “Victoria apartment”). On the rental application for
the Victoria apartment, Lange listed the house on Gottfried Road as his “current
home address” and listed his father, Stephen Lange, as an emergency contact
with whom he would not be living. Lange stated in his deposition that he moved
to the Victoria apartment in order to be closer to work and to school, where he
was taking night classes in pursuit of a welding certificate. The initial term of
the lease on the Victoria apartment was six months. Lange twice extended the
term of the lease, with the second extension set to expire on June 30, 2009.
      The Victoria apartment was furnished with a bed, two couches, a
television, and a plastic tool box used as a television stand, furnishings which
Lange described as “basic things just to get by the day with.” Lange slept in the
Victoria apartment during the week, but on many weekends he returned to the
Meyersville home. Lange stated that in any given month, he stayed at the
Meyersville home at least two weekends, but often stayed there three weekends
and sometimes as many as four. On these weekends, Lange typically arrived at
the Meyersville home on Friday evening and returned to the Victoria apartment
on Sunday evening, but occasionally he did not arrive in Meyersville until
Saturday.   Lange’s childhood bedroom in the Meyersville home had been
maintained as such, and he slept in his bedroom when he spent the weekends

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there.     He kept what he characterized as his “prize possessions” in the
Meyersville home: his firearms, good clothes, trophies, photographs, a four-
wheeler vehicle, and his two dogs. Lange explained that he kept these expensive
items at the Meyersville home to protect them from being stolen. Lange had a
key to the Meyersville home and could come and go as he pleased and could
make free use of the resources in the home.
         Several documents identified the Victoria apartment as Lange’s address.
The utilities for the Victoria apartment were in Lange’s name and the bills came
to the apartment. While living at the Victoria apartment, Lange purchased a
truck, listing the Victoria apartment as his address on the sales contract and the
certificate of title. Lange filled out a credit application in connection with the
purchase, listing the Victoria apartment as his current address and the
Meyersville home as his previous address. Lange financed the truck with a loan
from Texas Dow Employees Credit Union. He listed the Victoria apartment as
his address on the loan application and the statements for the loan were mailed
to the Victoria apartment. Lange applied for a second loan from Texas Dow on
January 21, 2009, again listing the Victoria apartment as his present address.
         There were also several documents on which Lange listed the Meyersville
home as his address. Lange listed the Meyersville home as his address in the
application for his own automobile liability insurance with State Farm, the
vehicle registration for his four-wheeler, and his tax returns. He was registered
to vote in Meyersville. His credit card statements, cell phone bills, and 401(k)
statements were all sent to the Meyersville home. Lange explained that he had
most of his important bills and paperwork mailed to the Meyersville home
because he “never checked [his] mail” at the Victoria apartment and his parents
would tell him when important mail came. The Meyersville home was also listed
as his address on his driver’s license, though this license was issued when Lange



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                                 No. 11-20396

was sixteen (and living in the Meyersville home full time) and was not renewed
before the accident in February 2009.
      After the accident, Lange was interviewed by Diana Osterhout, a State
Farm employee. Lange told her that on the date of the accident he lived at the
Victoria apartment and had been living there for about a year. In response to
her question as to whether he considered the move to the Victoria apartment
temporary or permanent, Lange stated that he considered it temporary because
he was “planning on . . . settling down in a house but . . . wound up staying [in
the Victoria apartment] a little bit longer than [he] thought [he] was going to.”
When she asked Lange whether he considered himself to be residing mainly in
the Victoria apartment or in the Meyersville home, Lange responded “both.”
Lange also signed a statement saying: “At the time of the motor vehicle accident
on February 5, 2009, my primary residence was my apartment in Victoria,
Texas.” However, in his deposition taken over a year later, Lange stated that if
he had been asked at the time of the accident, he would have said that his
“primary residence was the Meyersville address and the apartment was
temporary.”
      Osterhout also interviewed Lange’s mother, who said that she considered
Lange to have been residing at the Victoria apartment on the date of his
accident. Lange’s mother also said that she considered his move to the Victoria
apartment to be a permanent move and that she did not consider him to be a
resident of her home on the date of the accident. Lange’s father stated in his
deposition that he would have said Lange was living at the Victoria apartment
if he had been asked on the date of the accident. Lange’s father also said,
however, that he considered the Victoria apartment to be a temporary address
for Lange and considered the Meyersville home to be Lange’s permanent
residence.



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                                  No. 11-20396

       After investigating the facts surrounding the accident, State Farm filed
suit against Lange, seeking a declaration that Lange’s primary residence at the
time of the accident was the Victoria apartment and that therefore he did not
qualify as an “insured” under the policy. The families of the two passengers
killed in Lange’s accident intervened in the suit, aligned in interest with Lange.
State Farm and the Intervenors filed cross-motions for summary judgment. The
district court concluded that Lange’s primary residence was the Victoria
apartment and that he was not an insured under the policy, and therefore
granted summary judgment in favor of State Farm and denied the Intervenors’
motion. Lange and the Intervenors timely appealed.
            II. JURISDICTION AND STANDARD OF REVIEW
       The district court had jurisdiction under 28 U.S.C. § 1332. This court has
jurisdiction pursuant to 28 U.S.C. § 1291. “We review a district court’s grant of
summary judgment de novo, applying the same legal standards that the district
court applied, and we view the evidence in the light most favorable to the
nonmoving party.” Gilbane Bldg. Co. v. Admiral Ins. Co., 664 F.3d 589, 593 (5th
Cir. 2011). Summary judgment is appropriate if “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
       In a diversity case, “[o]ur primary obligation is to make an Erie guess as
to how the Texas Supreme Court would decide the question before us.” Gilbane,
664 F.3d at 593. In making an Erie guess, we look to “decisions and dicta of the
Texas Supreme Court” as well as “decisions of the intermediate appellate courts
in determining how the Texas Supreme Court would decide the issue.” Id. at
594.
                               III. DISCUSSION
       Texas courts construe insurance policies using the same rules of
construction applicable to contracts generally.      Pendergest-Holt v. Certain

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Underwriters at Lloyd’s of London, 600 F.3d 562, 569 (5th Cir. 2010) (citing
Don’s Bldg. Supply, Inc. v. OneBeacon Ins. Co., 267 S.W.3d 20, 23 (Tex. 2008)).
Whether contractual terms are ambiguous is determined as a matter of law.
Cicciarella v. Amica Mut. Ins. Co., 66 F.3d 764, 768 (5th Cir. 1995) (citing Yancey
v. Floyd W. & Co., 755 S.W.2d 914, 918 (Tex. App.—Fort Worth 1988, writ
denied)). “If a contract as written can be given a clear and definite legal
meaning, then it is not ambiguous as a matter of law.” Am. Home Assurance Co.
v. Cat Tech LLC, 660 F.3d 216, 220 (5th Cir. 2011) (per curiam) (quoting Gilbert
Tex. Constr., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118, 133 (Tex.
2010) (internal quotation mark omitted)).
      The term “primary residence” is not defined in the policy. The parties
have not identified nor have we found any Texas case interpreting the phrase
“primary residence” in the insurance context. The district court determined that
“primary residence” was unambiguous as a matter of law and relied upon several
dictionaries to determine its plain meaning. Neither party argues that the term
is ambiguous and neither party argues that the district court erred in
determining its meaning.
      We agree with the district court that the Texas Supreme Court would
conclude that the phrase “primary residence” is unambiguous. Several state
courts have found similar phrases to be unambiguous. See, e.g., State Farm Mut.
Auto. Ins. Co. v. Harris, 882 So. 2d 849, 853–54 (Ala. 2003) (holding that the
phrase “lives primarily with you” is unambiguous); Wallace v. State Farm Mut.
Ins. Co., No. F-07-012, 2007 WL 4216132, at *3 (Ohio App. Nov. 30, 2007)
(holding that “insurance policy language limiting . . . coverage to only those
persons who ‘primarily reside with you’ [is] unambiguous”); Bauer v. USAA Cas.
Ins. Co., 720 N.W.2d 187, 190 (Wis. App. 2006) (“The modifier ‘primarily’ makes
the phrase ‘resides primarily with you’ unambiguous . . . .”). We believe that the
Texas Supreme Court would reason similarly to these other state courts and

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would conclude that “primary residence” is unambiguous. “Primary” means
“first or highest in rank or importance,” “chief,” or “principal.” Random House
Webster’s Unabridged Dictionary 1537 (2d ed. 2001); cf. Harris Cnty. Appraisal
Dist. v. Wilkinson, 317 S.W.3d 763, 767 (Tex. App.—Houston [1st Dist.] 2010,
pet. denied) (relying upon dictionary to determine common meaning of “principal
residence”). We thus agree with the district court that a primary residence is
one’s chief, principal, and most important residence.
      “Under Texas law, . . . interpreting an unambiguous contract [is a]
question[] of law.” Interstate Contracting Corp. v. City of Dall., Tex., 407 F.3d
708, 712 (5th Cir. 2005). When the terms of a contract are unambiguous and the
facts underlying a contract claim are undisputed, whether coverage exists under
the contract is a question of law. Fidelity & Cas. Co. of N.Y. v. Lott, 273 F.2d
500, 502 (5th Cir. 1960); cf. Hernandez v. LaBella, No. 14-08-00327, 2010 WL
431253, at *3 (Tex. App.—Houston [14th Dist.] Feb. 9, 2010, no pet. h.).
Although Lange argues that genuine issues of material fact exist, he has failed
to identify any material disputed fact. Because the term “primary residence” is
unambiguous and the facts material to this issue are not in dispute, coverage
under the policy may be decided as a matter of law. See also Wilkinson, 317
S.W.3d at 767 (concluding, in the context of a homestead tax exemption, that
“the facts found by the district court do not support a legal conclusion that the
mobile home ever was the [plaintiffs’] main or primary residence” (emphasis
added)).
      Taking all of the uncontroverted evidence into account and viewing that
evidence in the light most favorable to Lange, we agree with the district court
that the Victoria apartment was Lange’s primary residence. At the time of his
accident, Lange was an adult who had graduated from high school almost five
years beforehand and had moved out of his parents’ home almost four years
beforehand. Lange worked full time and lived in an apartment 45 miles away

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                                 No. 11-20396

from his parents’ home, and he slept in this apartment the majority of evenings.
While Lange stresses that he returned to his parents’ home on the weekends, he
testified that he generally spent one weekend a month at the Victoria
apartment, and occasionally he would spend two weekends in a month at his
apartment. Based upon the time spent in each location, the nature of Lange’s
weekends at the Meyersville home appears to be that of a frequent guest rather
than someone who was principally residing there. Although Lange kept several
important possessions at the Meyersville home, he did this out of a fear that the
items would be stolen. That he stored prized items for protection in his parents’
home does little to support the conclusion that he primarily lived with his
parents.
      There is evidence, both in the nature of documents bearing Lange’s
address and in statements made by Lange and his parents, supporting each
location as Lange’s primary residence. Nevertheless, viewing all of this evidence
in the light most favorable to Lange, it is insufficient to overcome the other
objective evidence indicating that the Victoria apartment was Lange’s primary
residence.
                              IV. CONCLUSION
      The term “primary residence” is unambiguous and it means one’s
principal, chief, or most important residence. Based on all of the evidence
presented, we conclude that Lange’s primary residence was the Victoria
apartment. Because Lange did not primarily reside in his parents’ Meyersville
home, he is not an “insured” under their policy, and summary judgment for State
Farm was proper. AFFIRMED.




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