               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0117n.06

                                          No. 13-3424                                  FILED
                                                                                 Feb 10, 2014
                          UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

AMANDA MCGINNIS FLYNN,                              )
                                                    )
       Plaintiff – Appellant                        )       ON APPEAL FROM THE
                                                    )       UNITED STATES DISTRICT
                                                    )       COURT FOR THE SOUTHERN
       v.                                           )       DISTRICT OF OHIO
                                                    )
STATE FARM MUTUAL AUTOMOBILE,                       )                             OPINION
INSURANCE COMPANY                                   )
                                                    )
       Defendant – Appellee                         )

Before: David W. McKeague, Jane B. Stranch, Circuit Judges and Curtis L. Collier,
District Judge.*

       McKeague, Circuit Judge. Amanda McGinnis Flynn sued her boyfriend (and now

husband) Scott Flynn and Defendant State Farm Mutual Automobile Insurance Company

seeking to recover for Scott Flynn’s alleged negligence arising out of a January 20, 2010

automobile accident when Amanda’s car rear-ended a semi-tractor trailer. Amanda also asserted

claims for declaratory judgment and bad faith against State Farm, alleging that Scott Flynn was

entitled to coverage for the accident under policies issued by State Farm to Scott’s mother and

father. The parties filed cross-motions for summary judgment on the issue of whether the State

Farm policies provide coverage for the accident to Scott Flynn. The district court issued an order

granting State Farm’s Motion for Summary Judgment and denying Amanda Flynn’s Cross-




*
 The Honorable Curtis L. Collier from the U.S. District Court for the Eastern District of
Tennessee, sitting by designation.

                                                1
Motion for Summary Judgment, finding that Scott Flynn was not entitled to coverage for the

accident. For the reasons stated below, we AFFIRM.

                                                 I.

       On January 20, 2010, Amanda Flynn (“Amanda”) was a passenger in her own

automobile, which was being driven by her then-boyfriend (and now husband) Scott Flynn

(“Scott”) to an apartment in Lebanon, Ohio that she and Scott shared with his mother, Sallie

Flynn (“Sallie”). They were traveling southbound on 1-75 in Dayton, Ohio when Scott glanced

down at his cell phone and failed to see that the traffic ahead had stopped. Scott was unable to

stop Amanda’s car in time and the car collided with the rear of the semi-tractor trailer. Scott and

Amanda were injured as a result of the accident.

       Amanda filed suit against Scott and State Farm on July 8, 2011 in the Hamilton Court of

Common Pleas, alleging claims against Scott in negligence and negligence per se, as a result of

the accident. Amanda also asserted claims for declaratory judgment and bad faith against State

Farm, claiming that Scott was entitled to coverage for the accident under the State Farm policies

issued to Scott’s mother, Sallie, and to Scott and his father, Stephen Flynn.

       In November 2011, the parties reached a partial settlement with Amanda’s insurer,

Nationwide Insurance, and Amanda dismissed her claims against Scott with prejudice. With the

dismissal of Scott, the parties were diverse and State Farm removed the case to the United States

District Court for the Southern District of Ohio on December 19, 2011 pursuant to 28 U.S.C. §

1332. The parties then consented to jurisdiction by the magistrate judge assigned to the case. The

parties agreed that there was no genuine dispute as to any material facts and filed cross motions

for summary judgment. On March 12, 2013, the magistrate judge granted State Farm’s Motion

for Summary Judgment and denied Amanda’s Motion for Summary Judgment. The magistrate



                                                   2
judge found that Amanda was not covered under either State Farm policy as her car was not a

“non-owned car.”

                                                II.

    A. Standard of Review

       We review de novo a district court’s grant of summary judgment. Williams v. Mehra, 186

F.3d 685, 689 (6th Cir. 1999). Summary judgment is proper when “the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.”1 Fed. R. Civ. P. 56(a). When reviewing a grant of summary judgment, we must view the

evidence and draw all reasonable inferences in favor of the non-moving party. See Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). For cross-motions for

summary judgment, the court must review each motion on its own merits and view all facts and

inferences in the light most favorable to the non-moving party. Beck v. City of Cleveland, 390

F.3d 912, 917 (6th Cir. 2004). This Court has recognized that the filing of cross-motions for

summary judgment does not necessarily mean that the award of summary judgment is

appropriate. Id.

1
  Amanda claims that one of the reasons summary judgment is not appropriate in this matter is
because Ohio courts have held that the term “residency in the same household” constitutes an
issue of fact, which must be determined by the jury. Amanda cites Wood v. McQueen for this
proposition. No. 68472, 1995 Ohio App. LEXIS 4071, *17 (Ohio Ct. App. Sept. 21, 1995). In
Wood v. McQueen, the appeals court stated that when a party’s sworn statements are inconsistent
with later deposition testimony, summary judgment is improper because there exists a question
of credibility which can be resolved only by the trier of fact. Id. In Wood, there was a genuine
issue of material fact regarding whether someone was a “resident” based on contradicting
evidence. Id. Accordingly, the court denied summary judgment as to this issue. Id. at *18–19.
However, the court in Wood never stated that determining whether an individual is “residing in
the same household” is a question of fact for the jury. Rather, the court in Wood merely found
the evidence to be contradicting, which precluded the court from entering summary judgment.
Accordingly, this Court will follow existing Ohio law holding that the term “residing in the same
household” is a legal question, for the court, if the term has a clear and unambiguous meaning.
See Inland Refuse Transfer Co. v. Browning-Ferris Indus. of Ohio, Inc., 15 Ohio St.3d 321, 322
(1984).

                                                3
    B. State Farm Policies at Issue

         As the only issue for this Court to review is the interpretation of the two insurance

policies at issue, we will begin by addressing the specific language of the State Farm policies2 at

issue.

         The State Farm insurance policy at issue is an automobile policy issued to Sallie Flynn

(the “policy”). The policy provides $100,000 per person of bodily injury or property damage

liability. The “Liability Coverage” section of the policy provides that State Farm will:

         1. pay damages which an insured becomes legally liable to pay because of:
            a. bodily injury to others, and
            b. damage to or destruction of property including loss of its use,
         caused by accident resulting from the ownership, maintenance or use of your car . . . .


R. 13-1, Sallie Flynn Policy at 12, PageID # 112. The policy provides that the “liability coverage

extends to the use, by an insured, of a newly acquired car, a temporary substitute car or a non-

owned car.” Id. The policy defines a “non-owned car” as follows:

         Non-Owned Car—means a car not owned by, registered to or leased to:
         ...
         any other person residing in the same household as you, your spouse or any
         relative; . . . .

Id. at 8, PageID # 108.



2
 There are two policies at issue in this case: Sallie Flynn’s policy and Scott and Steven Flynn’s
policy. However, the language at issue in the policies is identical and the issue is identical:
Whether Amanda’s vehicle qualifies as a “non-owned car” under the policy. Accordingly, we
will only describe the details of Sallie Flynn’s policy, as Amanda can collect under either policy
only if her car is a “non-owned car.” As we hold that Amanda’s car does not qualify as a “non-
owned car,” we find no reason to go into further interpretive questions involved with the State
Farm Policy issued to Scott and Steven Flynn. See R. 22, Dist. Court. Op. at 11–14, PageID #
1478–81.

                                                  4
          When a “non-owned car” is referenced in the policy, the policy specifically defines an

“insured” to mean:

          1.   the first person named in the declarations;
          2.   his or her spouse;
          3.   their relatives;3 and
          4.   any person or organization which does not own or hire the car but is liable for its use
               by one of the above persons.

Id. at 12, PageID # 112.

          In order for this Court to determine whether Amanda’s car qualifies as a “non-owned”

car, we must interpret whether Amanda was a “person residing in the same household” as Scott

and Sallie Flynn. R. 13-1, Sallie Flynn Policy at 8, PageID # 108. If Amanda was “residing in the

same household” as Scott and Sallie, then Amanda’s car will not be considered a “non-owned

car” under either policy and State Farm will not be liable to indemnify Scott for damages owed

to Amanda.

      C. Interpretation of the State Farm Policy

          1. Contract Interpretation Principles in Ohio

          Under Ohio law, an insurance policy must be interpreted in accordance with the rules of

construction applicable to other contracts.4 Hybud Equip. Corp. v. Sphere Drake Ins. Co., 596

N.E.2d 1096, 1102 (Ohio 1992). The Supreme Court of Ohio has stated that “when words used

in a policy of insurance have a plain and ordinary meaning, it is neither necessary nor
3
    The policy defines “relative” as follows:

          Relative—means a person related to you or your spouse by blood, marriage or
          adoption who resides primarily with you. It includes your unmarried and
          unemancipated child away at school.

R. 13-1, Sallie Flynn Policy at 9, PageID # 109.
4
  As this matter was before the district court pursuant to diversity jurisdiction, this Court is
bound to apply the substantive law of the State of Ohio. See Klaxon Co. v. Stentor Elec. Mfg.,
Co., 313 U.S. 487, 496 (1941).

                                                    5
permissible to resort to construction unless the plain meaning would lead to an absurd result.”

Travelers Indemnity Co. v. Reddick, 308 N.E.2d 454, 456 (Ohio 1974). When the terms of an

insurance policy are clear and unambiguous, the interpretation becomes a matter of law. See

Inland Refuse Transfer Co. v. Browning-Ferris Indus. of Ohio, Inc., 1474 N.E.2d 271, 272 (Ohio

1984). However, when an insurance policy is ambiguous, a contract of insurance should be

construed liberally in favor of coverage and strictly against the insurer when the meaning of the

language is uncertain. Entenman v. Auto-Owners Ins. Co., 737 N.E.2d 119, 123–24 (Ohio Ct.

App. 2000) (noting the “well settled legal principle establishing that ambiguous words in an

insurance contract must be construed in favor of the claimant seeking coverage”).

       1. Definition of “Residing in the Same Household”

       Both parties agree that the term “residing in the same household” is not defined in State

Farm’s policies, but they dispute the proper interpretation of that term. State Farm contends that

Amanda’s car does not qualify as a “non-owned car” because Amanda was “residing in the same

household” with Sallie and Scott at the time of and preceding the accident. In support, State

Farm cites testimony from Amanda and Scott describing their living situation, specifically

showing that Amanda was living in an apartment in Lebanon, Ohio with Sallie and Scott from

August 2009 to January 2010. State Farm argues that Amanda’s living arrangement with Sallie

demonstrates that she was a “resident” of the household and not a temporary or transient visitor.

       Amanda counters State Farm’s interpretation by asserting that “household” is an

undefined term in State Farm’s policy and therefore is ambiguous. Amanda argues that the

district court erred in not relying on “intent” as the primary factor in determining whether

someone is “residing in a household.” Amanda claims that she was only temporarily living in




                                                6
Sallie’s home and she never intended to stay in Sallie’s apartment beyond a brief period of time.

Accordingly, she asserts that the district court should be reversed.

       In claiming that the term “household” is ambiguous and capable of multiple meanings,

Pet.’s Br. at 13–19, Amanda overlooks the well-developed Ohio caselaw on this issue. The

Supreme Court of Ohio has held that, in determining whether an individual is “residing in the

same household,” the term “household” is defined as “[t]hose who dwell under the same roof and

compose a family: a social unit comprised of those living together in the same dwelling place.”

Shear v. West American Ins. Co., 464 N.E.2d 545, 548 (Ohio 1984) (citing Webster’s Third New

International Dictionary). Accordingly, the term “residing in the same household” has been

defined as “one who lives in the home of the named insured for a period of some duration or

regularity, although not necessarily there permanently, but excludes a temporary or transient

visitor.” Farmers Insurance of Columbus, Inc. v. Taylor, 528 N.E.2d 968, 969 (Ohio Ct. App.

1987). All twelve of Ohio’s appellate districts have adopted this definition of “residing in the

same household.”5 The fact that the individuals may be fully-emancipated is irrelevant in the




5
  Clifton v. Martin, No. C-950376, 1996 Ohio App. LEXIS 256, at *4–5 (Ohio Ct. App. 1st Dist.
Jan. 31, 1996); McDaniel v. Daly, No. 22453, 2008 Ohio App. LEXIS 1757, ¶ 68 (Ohio Ct. App.
2nd Dist. May 2, 2008); Carpenter v. United Ohio Ins. Co., No. 3-96-16, 1997 Ohio App. LEXIS
2012, at *12 (Ohio Ct. App. 3rd Dist. May 9, 1997); Comisford v. Erie Insurance Property Cas.
Co., No. 10CA3, 2011 Ohio App LEXIS 1208, ¶ 37 (Ohio Ct. App. 4th Dist. Feb. 11, 2011);
Keith v. State Farm Ins. Co., No. 06 CA 9, 2007 Ohio App. LEXIS 1695, ¶ 37 (Ohio Ct. App.
5th Dist. Apr. 20, 2007); Entenman v. Auto-Owners Ins. Co., 136 Ohio App.3d 541, 547 (Ohio
Ct. App. 6th Dist. 2000); Hill v. Cundiff, No. 05 CA 824, 2006 Ohio App. LEXIS 5259, ¶ 27
(Ohio Ct. App. 7th Dist. Sept. 28, 2006); Motorists Mut. Ins. Co. v. Henderson, No. 85557, 2005
Ohio App. LEXIS 4663, ¶ 27 (Ohio Ct. App. 8th Dist. Sept. 29, 2005); Grange Mutual Cas. Co.
v. Norton, No. 10CA0105-M, 2011 Ohio App. LEXIS 5074, ¶ 8 (Ohio Ct. App. 9th Dist. Dec. 5,
2011); Grange Insurance Company v. Stubbs, No. 11AP-163, 2011 Ohio App. LEXIS 4598, ¶ 17
(Ohio Ct. App. 10th Dist. Nov. 1, 2011); Allstate Indemn. Co. v. Collister, No. 2006-T-0112,
2007 Ohio App. LEXIS 4601, ¶ 19 (Ohio Ct. App. 11th Dist. Sept. 28, 2007); Parker v. Patrick,
No. CA2011-12-027, 2012 Ohio App. LEXIS 2915, ¶ 38 (Ohio Ct. App. 12th Dist. July 23,
2012).

                                                 7
analysis of whether someone resides in a household, absent evidence demonstrating an “arm’s-

length living arrangement.” Shear, 464 N.E.2d at 549.

         While Amanda argues that the term “residing in the same household” is open to multiple

interpretations,6 this Court is unpersuaded. This Court has recognized that “the mere absence of a

definition in an insurance contract does not make the meaning of the term ambiguous.” State

Farm Fire & Cas. Co. v. Wilson, 153 F. App’x 952, 956 (6th Cir. 2005) (unpublished) (citing

Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 652 N.E.2d 684, 686 (Ohio 1995)). The

fact that the State Farm policies do not expressly define the term does not make the term

ambiguous, as Ohio courts have expressly adopted a definition of “residing in the same

household.” Several Ohio courts have even stated that the definitions of “household” and

“residing in the same household” are well established. See, e.g., Grange Ins. Co. v. Stubbs, No.

11AP-163, 2011 Ohio App. LEXIS 4598, at ¶ 17–18 (Ohio Ct. App. Nov. 1, 2011); Rock v.

Mich. Mut. Ins., Co., No. 80742, 2002 Ohio App. LEXIS 5123, ¶ 18 (Ohio Ct. App. Sept. 26,

2002).

         2. Significance of Familial Relationship to “Residing in the Same Household”

         Amanda largely relies on the case of Napier v. Banks, which held that the purpose of a

“non-owned car” provision was to “protect the insurer from a situation where an insured would

pay for but one policy and be covered while regularly driving other automobiles owned by

6
  Amanda relies on caselaw from West Virginia, Virginia, and New York to support her
argument that the term “residing in the same household” is ambiguous. See Drake v. Snider, 608
S.E.2d 191, 197 (W.Va. 2004) and Rohlin v. Nationwide Mut. Ins. Co., 809 N.Y.S.2d 374, 375
(N.Y. App. Div. 2006) and State Farm Mut. Auto Ins. Co. v. Smith, 142 S.E.2d 562, 566–67 (Va.
1965). This Court will not address these cases, as they are inapplicable to instant suit. The
definition of “household” is settled in Ohio, and therefore the decisions in these other
jurisdictions are not only inapplicable, but they are contrary to substantive Ohio law. See
Pennington v. State Farm Mut. Auto Ins. Co., 553 F.3d 447, 450 (6th Cir. 2009) (noting that the
substantive law of the forum state must be applied in diversity cases) (citing Erie R.R. v.
Tompkins, 304 U.S. 65, 78 (1938)).


                                                8
members of his family.” 250 N.E.2d 417, 419 (Ohio Ct. App. 1969).7 In Napier, the court held

that the term “household” was synonymous with “family.” Id. Accordingly, Amanda argues that

as the definition of “household” is tied to family, she cannot be considered a resident of Sallie’s

home. See also Pet. Rep. Br. at 3–4. Amanda also relies on Napier for the proposition that the

primary factor to consider in determining whether a person is a “resident” is his or her intent to

stay at a certain location. 250 N.E.2d at 418; see also American States Ins. Co. v. Guillermin, 671

N.E.2d 317, 321–22 (Ohio App. 1995).

       This Court is unpersuaded. While the Twelfth Appellate District in Napier stated that

“the ‘same household’ necessarily involves but one household, and, ordinarily, the word

‘household’ is synonymous with ‘family,’” this case must be taken in the context of Ohio’s

current jurisprudence. 250 N.E.2d at 419. As decided in Shear, the term “household” is now

given the “common, ordinary, usual meaning” of “those who dwell under the same roof and

compose a family: a social unit comprised of those living together in the same dwelling place.”

464 N.E.2d at 548. Admittedly, the definition of “household” set forth in Shear includes the

word “family,” but the definition does not end there. The definition of “household” is compound:

a “household” can compose a “family” and can also compose a “social unit” consisting of people

“living together in the same dwelling place.” Shear, 464 N.E.2d at 548.8 Accordingly, we cannot

agree with Amanda’s contention that the term “household” mandates a familial relationship.

7
  While the court in Napier mentioned the policy-reason behind “non-owned car” provisions in
insurance policies, the parties do not raise any arguments regarding the policy implications of the
interpretation of the phrase “residing in the same household” on appeal and therefore this Court
will not address this question.
8
  A brief overview of the contract at issue in Shear is also instructive. In Shear, the insurance
contract at issue provided that coverage was extended to “relatives living in your household.”
Shear, 464 N.E.2d at 548. However, the term “household” was not defined in the policy. Id. As
the policy at issue in Shear provided coverage for “relatives living in your household,” it is not
surprising that the definition of “household” the court chose to use included the term “family.”
However, the State Farm policy at issue in this case defines a non-owned car as a car not owned

                                                9
       3. Individual’s Subjective Intent to Reside

       Furthermore, Amanda’s claim that an individual’s subjective intent is the determinative

factor in deciding whether a person is a member of a “household” is without basis in law. Ohio

courts have certainly emphasized that a factor to consider when determining whether a person is

a member of a “household” is whether the living arrangement is “temporary” or “non-

temporary.” See Shear, 464 N.E.2d at 549 (considering whether individuals were a “household”

and stating that there was no evidence of the arrangement being “temporary in nature”);

Guillermin, 671 N.E.2d at 321 (citing Shear for the proposition that the non-temporary nature of

the domestic living arrangements is a factor in determining if relatives are members of the same

household); Napier, 250 N.E.2d at       419 (determining that the “relatively brief period of

occupancy preceding the accident and the temporary nature of the arrangement, when coupled

with all other circumstances,” warranted against finding that the parties were a “household”).

While some Ohio appellate courts have considered a party’s intent in staying in a residence to

determine whether someone is a member of a household, none of the cases Amanda cites state

that the party’s intent is the determinative factor in establishing residency. Rather, courts can

consider the temporary or non-temporary nature of the living arrangement to determine whether

a person is a member of a “household,” along with the other factors the Supreme Court of Ohio

has outlined. There is no case law to suggest that the temporary nature of a person’s stay in a

household negates other factors indicative of the fact that a person is “residing in the same

household.” Accordingly, this Court finds that the phrase “residing in the same household” is

unambiguous and that Ohio courts have adopted a clear definition of the term.


by a “person . . . residing in the same household” as the policyholder. Accordingly, the fact that
the State Farm policy at issue here does not explicitly provide coverage to “relatives living in
your household” is an important factual distinction to explain the inclusion of the term “family”
in the Shear definition of “household.”

                                               10
    D. Application of “Residing in the Same Household” to the Instant Case

       The district court determined that the undisputed facts showed that Amanda was residing

in Sallie’s household at the time of the January 2010 accident. The district court noted that

Amanda “stayed at the household every night for five months from August 2009 to January

2010; received her mail there; and had no other dwelling.” R. 22, District Court Order at 9,

PageID # 1476. The district court observed that Amanda frequently ate meals with the Flynns,

which lent further support to the conclusion that she was residing in the Flynn household. Id. The

district court considered the fact that Amanda claimed that she was planning on moving out of

the Flynn household; however, the court held that “intent” was only one of several factors for the

court to consider. Id. at 10, PageID # 1477. The district court determined that the fact that

Amanda planned to move did not negate her status as a “resident” of Sallie’s household. Id.

Accordingly, the district court concluded that State Farm was entitled to summary judgment on

Amanda’s claims for declaratory relief.

       Viewing the undisputed facts in a light most favorable to Amanda, the record is clear that

Amanda was “residing in the same household” as Sallie and Scott. Amanda had been living with

Sallie and Scott for approximately five months, from August 2009 through January 2010. 9



9
  The case of Thompson v. Preferred Risk Mut. Ins. Co., 513 N.E.2d 733 (Ohio 1987) is
instructive. In this case, the Supreme Court of Ohio upheld the trial court’s conclusion that two
brothers who lived together for only five months were residents of the same household and not
separate, distinguishable households. Id. at 734–35. As the court of appeals stated:

       The brothers lived in the same single-family house, each had his own set of keys,
       and Richard had full use of his brother’s house, where he slept every night and
       shared meals with his brother and [a girlfriend of the brother’s]. There is no
       evidence in the record of an arms length arrangement, for although Richard
       helped with utility expenses and brought his own food, he did not pay a fixed
       amount of rent; nor did his brother expect him to do so. Richard testified he
       “helped out” with rent when necessary.


                                               11
Amanda did not pay rent or utilities at the apartment. Amanda had her own keys to the Flynn

residence and stayed there every night in a separate bedroom. Amanda also completed a “change

of address” form with the U.S. Postal Service to have all of her mail forwarded to Sallie’s

apartment. Amanda put all of her furniture and belongings, with the exception of her clothes, in a

storage facility in Lebanon, Ohio. Ultimately, Amanda had no place to live other than Sallie’s

apartment. While Amanda may have expressed an intention to move out of Sallie’s apartment in

the near future, she had not taken any action to sign a lease or make plans to move out of Sallie’s

apartment.10 There was no “arm’s-length” relationship between the parties. Shear, 464 N.E.2d at

549. Accordingly, Amanda was “residing in the same household” as Sallie, and Amanda’s car

does not qualify as a “non-owned car” under the State Farm policies.

                                               III.

         Based on the facts in the record, we AFFIRM the district court’s grant of summary

judgment in favor of State Farm. Based on the definition of “residing in the same household”

adopted by the Supreme Court of Ohio and all Ohio appellate districts, the district court correctly

held that Scott was not entitled to coverage for the accident under the State Farm policies at

issue.



Thompson v. Preferred Risk. Mut. Ins. Co., No. CA85-09-073, 1986 Ohio App. LEXIS 6712 *8
(Ohio Ct. App. May 12, 1986).
10
   Amanda stated that her “intent” was to move out of the Flynns’ apartment, and that she even
searched for her own apartment prior to the accident. R. 15-1, Amanda Depo. at 57–58, PageID #
312–13. Amanda stated in a deposition that she planned to sign a lease for an apartment on
Friday, January 22, 2010. Id. However, the accident averted these plans. Regardless of what
Amanda’s stated intention was, it does not mean that she was not residing in Sallie’s household
leading up to the time of the accident. As described in section II.C, while some Ohio appellate
courts have considered a party’s intention to move out of a location in determining whether they
are a “resident,” this one factor is not determinative. The Supreme Court of Ohio has not
considered a party’s “intention” in determining whether a person is “residing in the same
household.”

                                                12
       Jane B. Stranch, dissenting. The undisputed facts show that Amanda Flynn, then

Amanda McGinnis, was injured in 2009 when a brick was thrown through her car window, and

she became afraid to drive herself or live alone. As a result, she accepted the hospitality of her

boyfriend’s mother while she recovered and looked for her own apartment. Amanda did not pay

rent, and she moved most of her personal belongings to a month-to-month storage facility.

Amanda stayed with her boyfriend’s mother for five months, until the day that her boyfriend

crashed her car. At the time of the accident, Amanda was scheduled to sign the lease on her own

apartment in two days, and she had removed some of her things from storage in preparation.

       Scott Flynn, then Amanda’s boyfriend, and his mother had insurance policies that

covered Scott as a driver of a “non-owned car” but excepted from that coverage cars owned by a

“person” who “resid[es] in the same household” as the insured person or his relatives. Ohio

courts have explained that the purpose of similar exclusions is “to protect the insurer from a

situation where an insured would pay for but one policy and be covered while regularly driving”

other cars owned by members of the same household. E.g., Napier v. Banks, 250 N.E. 2d 417,

419 (Ohio Ct. App. 1969).

       The question here is not whether Amanda “resided” in Sallie Flynn’s apartment, as the

majority suggests.   The question is whether Amanda was a member of Sallie’s or Scott’s

“household” during the time she accepted their hospitality. Under Ohio law, she was not.

       Ohio has defined “household” to mean “those who dwell under the same roof and

compose a family: a social unit comprised of those living together in the same dwelling place.”

Shear v. W. Am. Ins. Co., 464 N.E. 2d 545, 548 (Ohio 1984) (emphasis added). This language

plainly means that a “household” is not merely synonymous with “dwelling,” but requires

something more. How much more is less clear. It could mean that a household may only consist



                                               13
of relatives living under one roof, as Amanda contends, but the term “social unit” in the

explanatory second clause could suggest that the “family” could include non-relatives. Either

way, a “unit” is required. The majority divides the definition to hold that a household can be

composed of a family or a social unit, the latter requiring only a group of people who live

together. Not only does this reading ignore the colon that makes the second clause explanatory

of the first, but it also contradicts the analysis Ohio courts have laid out for resolving the

“household” question.

       Take Shear, for example. There, the question was whether a father was covered by the

insurance policy of his adult son who lived in the same dwelling. Under the insurance policy,

the father would be covered if he was “living in [the son’s] household.”1 464 N.E.2d at 548.

Obviously, the two were relatives. After reciting the definition of household discussed above,

the court considered the following facts: the two lived in the same house, the son was fully

emancipated and paid his own bills, and the son had lived with his father since birth. Id. at 548-

49. The court held that this did not establish separate households because (1) there was no

evidence of an arm’s length arrangement, and (2) there was no evidence that the arrangement

was temporary in nature. Id. at 549. “Rather, there is ample evidence to support the finding that

the Shears are part of a family unit and are members of the same household and have been so for

many years.” Id. If the majority were correct that the “social unit” at issue need only be a group

of people living together in one dwelling, all of the Shear court’s analysis after the first step of

establishing that the two lived in the same house would have been unnecessary. But the analysis

of what constitutes a “household” was necessary there and is applicable here.


1
 As the majority explains, the policy in Shear covered “[r]elatives living in [the insured’s]
household.” 464 N.E.2d at 548. That provision contained two defining terms: “relative” and
“household.” Here, the policy excludes cars owned by a “person residing in the same
household,” so we need only examine the meaning of the term “household.”

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       As another example, take Napier, a case cited by the majority. 250 N.E.2d 417. There,

an adult daughter had moved in with her father for approximately four to six months after her

divorce. The insurance policy was similar to the one at issue here: the policy would cover the

daughter as a driver of the father’s car unless the father was a “relative … who is a resident of

the same household.”2 Id. at 418. The court said that there was no reason to dwell on the

meaning of the term “resident” because the two plainly resided in the same physical structure.

Id. at 419. “[T]he word ‘household’ cannot reasonably be equated with the word ‘house.’ …

[O]rdinarily, the word ‘household’ is synonymous with ‘family.” Id. The court then said that

the relatively brief four to six month period of occupancy, the temporary nature of the

arrangement, and the fact that the daughter’s things were in storage showed that the daughter was

not a member of her father’s household. Id. at 419. “In fact, other than the relationship of the

parties, the record fails to reflect any of the usual characteristics associated with the same

household or a single family.” Id.

       Other than the fact that Amanda was a non-relative, a fact that does not support the

majority’s argument, I do not see any meaningful difference between Amanda’s circumstances

and the ones in Napier. Amanda stayed with her host for five months on a temporary basis while

her things were in storage and she looked for her own apartment. Other Ohio cases confirm that

a temporary arrangement does not create a shared household. In Thompson v. Preferred Risk

Mutual Insurance Co., the Ohio Supreme Court—after noting that where a person receives mail

was “hardly dispositive of the issue”—held that two brothers resided in the same household

because the home was the “permanent residence” of both. 513 N.E.2d 733, 735 (Ohio 1987).



2
  There is no indication that the term “relative” affected the court’s analysis of the term
“household” as the majority suggests in the context of Shear; rather, the term “household”
presented a separate definitional issue. 250 N.E.2d at 419.

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       Rather than acknowledging the distinction in Ohio law between the terms “reside” and

“household,” the majority appears to hold that Amanda was generally “residing in the same

household” as Sallie and Scott because she lived in the same apartment for five months, filled

out a change of address form, and ate meals with her host. This is said to show lack of an arm’s

length relationship under Shear, and, therefore, that Amanda was a member of her host’s

household.     The majority’s reliance on the arm’s length relationship analysis misses two

important points from Shear: first, the question of an arm’s length relationship was relevant

precisely because the person in question there was the son of the home owner, and second, the

temporary nature of a residency can also undermine the existence of a shared household. 464

N.E. at 549.

       The majority decision also ignores the purpose of these types of policy exclusions, which

is to protect insurers from those who would pay for but one policy when they should pay for two.

See Napier, 250 N.E.2d at 419. To hold that the policy excludes coverage for a car that is driven

by the insured but owned by a convalescent temporarily staying in the driver’s home exceeds the

purpose of the exclusion and goes beyond the reasonable expectation of the parties. For the

insured, it creates unanticipated gaps in coverage. It also transgresses traditional expectations of

hospitality by potentially exposing those who temporarily open their homes (for example,

someone who allows a friend to stay at his home to receive nearby medical treatment) to

unexpected liability.

       In sum, Ohio law supports the conclusion that Amanda was not a member of Sallie’s or

Scott’s household at the time of the accident. Because I think that the majority’s holding is

contrary to Ohio law, I respectfully dissent.




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