                      IN THE COURT OF APPEALS
                            AT KNOXVILLE

                                                           FILED
                                                           January 31, 2000

                                                        Cecil Crowson, Jr.
                                                       Appellate Court Clerk

                              E1999-02558-COA-R3-CV
STATE FARM MUTUAL AUTOMOBILE        )    BLOUNT COUNTY
INSURANCE COMPANY                   )    03A01-9905-CV-00179
                                    )
     Plaintiff-Appellee             )
                                    )
                                    )
v.                                  )    HON. W. DALE YOUNG,
                                    )    JUDGE
                                    )
BRIAN HOWARD, BARBARA CRESSE,       )
AND CHARLES TOLFA, PERSONAL         )
REPRESENTATIVE OF THE ESTATE OF     )
SHEILA K. TOLFA, THE ESTATE OF      )
BRIDGETT WINGO, AND TERRY MORTON    )
                                    )
     Defendants-Appellants          )    VACATED AND REMANDED




LOUIS A. MCELROY, II AND TOBY R. CARPENTER OF KNOXVILLE FOR
APPELLANT BARBARA CRESSE
CHARLES DUNGAN OF MARYVILLE FOR APPELLANT TERRY MORTON
PAUL E. DUNN AND STEVE ERDELY, IV OF KNOXVILLE FOR APPELLEE




                           O P I N I O N



                                           Goddard, P.J.


           This is an appeal from the Circuit Court’s grant of
summary judgment in favor of State Farm Mutual Automobile

Insurance Company (hereinafter “State Farm”).    Barbara Cresse,

Defendant-Appellant, raises the following issue, which we

restate:

           Whether the trial court erred by granting summary
           judgment on the grounds that Brian Howard was a
           resident of Sheila Tolfa’s household at the time of the
           automobile accident?
            On June 18, 1994, Brian Howard was driving Sheila

Tolfa’s 1993 Chevrolet Camaro when an accident occurred.      Sheila

Tolfa and her daughter, Bridgett Wingo, died from their injuries
sustained in the accident.    At the time of the accident, Brian

Howard had an insurance policy in effect with State Farm.



            A statement by Brian Howard was taken on November 3,

1994.   Mr. Howard stated that he stayed at Mrs. Tolfa’s apartment

five or six nights a week immediately prior to the accident.       Mr.
Howard stated that he spent the majority of his spare time at

Mrs. Tolfa’s apartment for three and a half months prior to the

accident.    He did not pay any rent, but the telephone bill was in

his name and he paid the bill.    Mr. Howard stated that Mrs. Tolfa

usually paid the utility bill, but he had given Mrs. Tolfa money

for the two months prior to the accident for the utility bill.

He paid for groceries occasionally and for gas and oil changes

for Mrs. Tolfa’s car.    Mr. Howard possessed a key to Mrs. Tolfa’s

apartment and a key to her automobile.    Some of Mr. Howard’s
clothes and personal care items were kept at Mrs. Tolfa’s
apartment.    The remainder of his possessions were kept at his

mother’s house.


            On August 13, 1997, Mr. Howard testified at his

deposition.    He affirmed his prior recorded statement.   Mr.
Howard testified that his bedroom furniture, weapons, dog and
snake remained at his mother’s house.    He did not pay rent or any

other expenses at his mother’s house.    He received most of his

mail at his mother’s house, except for Mrs. Tolfa’s telephone

bill.   The telephone bill, which was registered in Mr. Howard’s

name, was sent to Mrs. Tolfa’s apartment.    Mr. Howard testified

that he and Mrs. Tolfa both drove Mrs. Tolfa’s automobile.       He

occasionally drove her car alone for oil changes and other
errands.    Mr. Howard testified that he would ask for Mrs. Tolfa’s

permission to drive her car.



            Barbara Cresse, Mrs. Tolfa’s mother, testified at her

deposition regarding the living arrangements of Mr. Howard and

Mrs. Tolfa.    Mrs. Cresse testified that Mrs. Tolfa lived in a
two-bedroom apartment with her daughter, Bridgett Wingo.      The

apartment was leased in Mrs. Tolfa’s name for a year.

Approximately one month prior to the accident, Mrs. Tolfa made
statements which led Mrs. Cresse to believe that Mr. Howard was

spending the weekends at Mrs. Tolfa’s apartment.    Mrs. Cresse

testified that she did not think Mr. Howard spent any week nights

at Mrs. Tolfa’s apartment.    After the accident, Mrs. Cresse

removed all items from Mrs. Tolfa’s apartment.    Mrs. Cresse found

some of Mr. Howard’s clothes in Mrs. Tolfa’s apartment.



            Lucy Bowser, Mr. Howard’s mother, testified by

deposition that Mr. Howard had a bedroom and a storage room at
her home.    According to Mrs. Bowser, Mr. Howard performed
property maintenance and lawn care for her instead of paying

rent.


            On February 8, 1995, State Farm filed a complaint for

declaratory relief asserting that Brian Howard was precluded from
coverage for the accident.    Pursuant to the insurance contract,
Brian Howard’s coverage extended to “non-owned” cars.    The

pertinent definition of a non-owned car is “a car not owned,

registered or leased by . . . any other person residing in the

same household as you.”    State Farm contended that Brian Howard

and Sheila Tolfa resided in the same household at the time of the

accident.    On December 3, 1998, State Farm filed a motion for




                                 3
summary judgment.    The Circuit Court found that Mr. Howard was a

resident of Mrs. Tolfa’s household and granted State Farm’s

motion for summary judgment.    Mrs. Cresse and Terry Morton
pursued this appeal.



             Our standard of review for a trial court’s action on a
summary judgment motion is de novo without a presumption of

correctness because our inquiry is purely a question of law.

Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).      An
evaluation of a summary judgment motion must address these

questions: “(1) whether a factual dispute exists; (2) whether the

disputed fact is material to the outcome of the case; and (3)

whether the disputed fact creates a genuine issue for trial."

Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993).      The Tennessee

Supreme Court stated that the “test for a ‘genuine issue’ is

whether a reasonable jury could legitimately resolve the fact in

favor of one side or the other.”       Byrd, 847 S.W.2d at 215.   In a

motion for summary judgment, the evidence must be viewed in a
light most favorable to the nonmoving party, and all reasonable
inferences must be made in the nonmoving party’s favor.       Byrd,

847 S.W.2d at 210.    Summary judgment is appropriate if both the
facts and conclusions to be drawn from the facts permit a
reasonable person to reach only one conclusion.       See Guiliano v.

Cleo, Inc., 995 S.W.2d 88, 94 (Tenn. 1999).


           The Appellants claim the Circuit Court erred in

granting summary judgment because there are material facts in

dispute.   The material facts disputed by the Appellants are the

frequency with which Brian Howard stayed at Sheila Tolfa’s

apartment and whether the relationship was “headed toward

marriage.”    Both of these facts are important elements in

determining whether Mr. Howard was a resident of the same


                                   4
household as Sheila Tolfa.   Additionally, the Appellants dispute

the conclusion that Mr. Howard was a resident of Sheila Tolfa’s

household.   Reviewing the evidence in the record, we find the
record does not establish that only one conclusion can be drawn

from the facts adduced.   Because there are material disputed

facts which create a genuine issue for trial, the trial court
inappropriately granted summary judgment in favor of State Farm.



          For the foregoing reasons the judgment of the Circuit
Court is vacated and the cause remanded for further proceedings

consistent with this opinion.   Costs of appeal are adjudged

against State Farm.




                                    Houston M. Goddard, P.J.


CONCUR:



Herschel P. Franks, J.




D. Michael Swiney, J.




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