[Cite as Lowe v. Farmers Ins. of Columbus, Inc., 2017-Ohio-8406.]



                    Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105558



                                           SUE LOWE
                                                          PLAINTIFF-APPELLEE

                                                    vs.

                           FARMERS INSURANCE OF
                            COLUMBUS, INC., ET AL.
                                                          DEFENDANTS-APPELLANTS




                               JUDGMENT:
                           AFFIRMED IN PART,
                     REVERSED IN PART AND REMANDED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-16-859307

             BEFORE: Blackmon, J., Keough, A.J., and Boyle, J.
             RELEASED AND JOURNALIZED: November 2, 2017
ATTORNEY FOR APPELLANTS

Craig S. Cobb
Law Offices of Craig S. Cobb
P.O. Box 258829
Oklahoma City, OK 73125


ATTORNEY FOR APPELLEE

Dean Nieding
Richard C. Alkire
Alkire & Nieding, L.L.C.
200 Spectrum Building
6060 Rockside Woods Blvd.
Independence, OH 44131


Also Listed:

A & M Floors

James E. Featherstone
Law Office of Gary L. Grubler, Esq.
585 South Front Street, Suite 210
Columbus, OH 43215

State Farm Mutual Automobile Insurance Co.

Sean M. Kenneally
Terrence J. Kenneally
Terrence J. Kenneally & Associates Company
River Terrace Building
19111 Detroit Road, Suite 200
Rocky River, OH 44116



PATRICIA ANN BLACKMON, J.:
      {¶1} Farmers Insurance of Columbus, Inc. (“Farmers”) appeals the trial court’s

denying its motion for summary judgment and granting Sue Lowe’s (“Sue”) motion for

summary judgment and declaratory judgment in this personal injury case involving the

scope of uninsured/underinsured motorists (“UIM”) coverage.       Farmers assigns the

following error for our review:

      I. Whether the trial court erred in denying Farmers Insurance of
      Columbus, Inc.’s motion for summary judgment and granting summary
      judgment in plaintiff’s favor after determining that she qualified for UIM
      coverage under her son’s automobile policy when the undisputed evidence
      showed that he was temporarily living in her home when she was injured.

      {¶2} Having reviewed the record and pertinent law, we affirm the trial court’s

denying Farmers’ motion for summary judgment and reverse the court’s granting

summary and declaratory judgment in favor of Sue. The apposite facts follow.

      {¶3} On June 14, 2015, William Lowe (“William”), his wife Heather, and their

two children moved into William’s mother Sue’s house located at 1591 St. Charles

Avenue in Lakewood, while William and his family awaited construction of their new

home. According to Sue, she told William that he and his family could live with her

while their new house was being built. On July 23, 2015, Sue was hit by a car while she

was walking across Warren Road in Lakewood. Sue sustained injuries resulting in

medical bills over $250,000.

      {¶4} In February 2016, Sue filed a complaint alleging negligence against Grange

Indemnity Insurance Company, who insures the tortfeasor; UIM coverage against State

Farm Mutual Automobile Insurance Company, who insures Sue; and UIM coverage
against Farmers, who insures William.1 Sue eventually settled with Grange and State

Farm for policy limits.

       {¶5} On February 2, 2017, the court denied Farmers’ motion for summary

judgment and granted Sue’s motion for summary judgment and declaratory judgment,

concluding as follows:

       William Lowe is Farmers’ named insured.           Plaintiff Sue Lowe is his

       mother. There is no genuine issue of material fact, on the evidentiary record

       in this case, about where William Lowe’s household was as of July 23,

       2015: 1591 St. Charles, Lakewood. That address was also Sue Lowe’s

       household, thus Sue Lowe is covered under William Lowe’s UM/UIM

       coverage with Farmers as a family member residing in his household.

       {¶6} Additionally, on February 13, 2017, the court entered a stipulated damages

award in favor of Sue and against Farmers in the amount of $150,000.

       {¶7} It is from these orders that Farmers appeals.

                               Standard of Review
                    Summary Judgment and Declaratory Judgment

       {¶8} Appellate review of granting summary judgment is de novo. Pursuant to

Civ.R. 56(C), the party seeking summary judgment must prove that (1) there is no

genuine issue of material fact; (2) they are entitled to judgment as a matter of law; and (3)


       1
        The named insureds under the Farmers’ automobile insurance policy at issue are William
Lowe and Heather Lowe, and the listed household drivers are William Lowe, Heather Lowe, and
William’s brother Daniel Lowe.
reasonable minds can come to but one conclusion and that conclusion is adverse to the

nonmoving party. Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).

       {¶9} We review declaratory judgment actions under an abuse of discretion

standard.    Mid-American Fire & Cas. Co. v. Heasley, 113 Ohio St.3d 133,

2007-Ohio-1248, 863 N.E.2d 142, ¶ 12-14.

       {¶10} Generally, “[t]he interpretation of an insurance contract involves a question

of law to be decided by a judge.” Leber v. Smith, 70 Ohio St.3d 548, 553, 639 N.E.2d

1159 (1994). However, under R.C. 2721.10, “[w]hen an action or proceeding in which

declaratory relief is sought under this chapter involves the determination of an issue of

fact, that issue may be tried and determined in the same manner as issues of fact are tried

and determined in other civil actions in the court in which the action or proceeding is

pending.”   Furthermore, “words and phrases used in an insurance policy must be given

their natural and commonly accepted meaning, to the end that a reasonable interpretation

of the insurance contract consistent with the apparent object and plain intent of the parties

may be determined.” Gomolka v. State Auto Mut. Ins. Co., 70 Ohio St.2d 166, 167-168,

436 N.E.2d 1347 (1982).




                               The Farmers Policy at Issue

       {¶11} William’s policy states that, for the purposes of UIM coverage, an “insured

person means: You or a family member.”       Under the policy, “you” and “your” mean the
named insured(s), which in this case are William and his wife, Heather.           “Family

member” is defined as “a person related to you by blood, marriage or adoption who is a

resident of your household * * *.” It is undisputed that Sue and William are related by

blood, but the question remains whether Sue was a resident of William’s household.

The words “resident” and “household” are not defined in the Farmers’ policy at issue.

         {¶12} The Ohio Supreme Court adopted an ordinary meaning of the word

“household” in Shear v. W. Am. Ins. Co., 11 Ohio St.3d 162, 166, 464 N.E.2d 545 (1984):

 “those who dwell under the same roof and compose a family; * * * a social unit

comprised of those living together in the same dwelling place * * *.”    In Shear, a father

and an adult son were found to be members of the same household under the following

facts:   the two lived together since the son’s birth, they each held separate jobs, had

separate cars and separate insurance policies, and the father was the exclusive owner of

the house.       Id.   “There is no evidence in the record * * * that this arrangement was

temporary in nature.” Id.

         {¶13}     Additionally, Ohio courts have approved the following definition of

“resident of your household”: “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 Ins. of Columbus, Inc. v. Taylor, 39

Ohio App.3d 86, 70, 528 N.E.2d 968 (10th Dist.1987).

         {¶14} Factors to consider in determining whether a person is a “resident” in an

insured’s household include “the amount of time the person spends at the household, the
person’s age, the person’s intent, and whether the insured is ‘legally obligated’ to the

person.”   Wood v. McQueen, 8th Dist. Cuyahoga No. 68472, 1995 Ohio App. LEXIS

4071 (Sept. 21, 1995).       In Wood, this court found that summary judgment was

improperly granted to the insurance company when “a genuine issue of material fact

exist[ed] concerning whether McQueen was still a ‘resident’ of his mother’s household at

the time of the accident.”

       {¶15} In Am. States Ins. Co. v. Guillermin, 108 Ohio App.3d 547, 554, 671 N.E.2d

317 (2d Dist.1995), the court held that “[a]lthough courts will consider other factors when

determining whether an individual is a resident of the insured’s household, including mail

delivery and storage of belongings, and the layout and use of the residential dwelling, the

primary consideration is the nontemporary nature or regularity of the living

arrangements.”    See also Napier v. Banks, 19 Ohio App.2d 152, 156, 250 N.E.2d 417

(12th Dist.1969) (an adult daughter moved back into her parents’ home while she was

looking for an apartment and was involved in an automobile accident one month later; the

court found that two separate “households” were living in one home and that the

“temporary nature of the arrangement * * * militate[s] against a finding that there was [a]

merger of the two families * * *”).

       {¶16} The facts of the case at hand are unique.   Most cases addressing this issue

analyze whether the person seeking coverage is a permanent or temporary resident of the

insured’s dwelling.   In other words, as applicable to the case before us, whether William

was a member of Sue’s household while he was living in her house. However, here, the
question is whether Sue was a member of William’s household while he was living in her

house.

         {¶17} In Motorists Mut. Ins. Co. v. Henderson, 8th Dist. Cuyahoga No. 85557,

2005-Ohio-5148, ¶ 22, this court held that “the issue of whether a person is a ‘resident’

for insurance coverage purposes is a question of fact to be determined by the fact finder.”

 In Henderson, a young child drowned at his father and paternal grandparents’ home.

Id. at ¶ 2. The trial court denied summary judgment motions filed by the child’s mother

and the paternal grandparents’ insurance carrier, “finding a genuine issue of fact existed

as to whether [the child] was a resident of the [grandparents’] household * * *.” Id. at ¶

5.

         {¶18} This court affirmed the trial court’s decision to deny summary judgment

because a genuine issue of material fact existed.           “While the construction of an

insurance contract is, in the first instance, a matter of law for the court to determine, juries

are allowed to decide factual matters to determine whether a policy provides coverage.”

Id. at ¶ 20.

                        Deposition Testimony in the Case at Hand

Sue’s Testimony

         {¶19} Sue confirmed that William and his family moved into her house on St.

Charles Avenue in Lakewood while their new house was being built. Sue did not charge

William rent, William did not “make any financial payments” to Sue while he was living

there, the property was titled in Sue’s name only, all the utilities remained in Sue’s name,
and Sue did not call her insurance company, State Farm, to inform anyone that William

was living with her.

William’s Testimony

       {¶20} William testified that his Farmers’ policy that was in effect on the date of

Sue’s accident listed his address as 37868 Pebble Lake Trail in North Ridgeville, which

was the house he sold prior to moving in with Sue. When William moved into Sue’s

house, he put his furniture in storage on a month-to-month agreement with the storage

company. William did not recall informing Farmers that he was moving in with Sue,

and William testified that he was not “interested in” discussing renter’s insurance with his

agent. On June 12, 2015, William’s wife “put a change of address in with the post

office” to have their “mail forwarded to the St. Charles address from the Pebble Lake

Trail address.”

       {¶21} According to William, he did not pay any money “that was officially

designated towards household expenses,” although he “would bring food home.”

Additionally, William did not pay taxes to the city of Lakewood while he was living there

nor did he claim Sue as a dependent on his tax return.        Furthermore, William has no

ownership interest in the St. Charles property. Asked if his living arrangement with Sue

was temporary, William testified, “It was intended to be temporary, but we had no

guarantee of when we would be leaving.”

       {¶22} William further testified that on August 12, 2015, after Sue’s accident, he

contacted Farmers to get a “reprint” of his insurance policy, and it was at this time that his
address was changed to 1591 St. Charles Avenue in Lakewood. Asked why he waited

until after Sue’s accident, William testified, “Changing the address on the auto policy was

an oversight.” William and his family moved into their new house near the end of

September 2015.

Farmers’ Agent’s Testimony

       {¶23} Jim Kollman (“Kollman”) testified that he is a Farmers’ agent and he sold

William the automobile insurance policy at issue in this case. According to Kollman, in

June 2015, William discussed the sale of his Pebble Lake Trail home with him.

“[William] stated that he would be moving out of his home and into his mother’s home in

Lakewood temporarily until their new home is finished.” Asked if anything needed to be

done with William’s insurance as a result of his temporary move into Sue’s house,

Kollman replied, “No.”      Asked why nothing needed to be done, Kollman testified,

“Because it was a temporary, very temporary situation.”

       {¶24} Upon review, we find that the reasoning in Wood, 8th Dist. Cuyahoga No.

68472, 1995 Ohio App. LEXIS 4071, and Henderson, 8th Dist. Cuyahoga No. 85557,

2005-Ohio-5148, applies to the case at hand.    There is an issue of fact as to whether Sue

was residing in William’s household, and thus covered by his insurance, when she was

struck by a car.   Although the trial court concluded that there was no issue of fact about

where William’s household was on the date in question, we find issues of fact regarding

whether William’s stay in Sue’s house was permanent or temporary and whether Sue was

a resident of William’s household during his stay in her home.
       {¶25} There is inconsistent testimony about whether William reported a change of

address to Farmers prior to Sue’s injuries, which goes toward William’s intent. See

Wood. Furthermore, William and Kollman testified that William’s stay at Sue’s house

was temporary, which is the “primary consideration” in determining          residency of a

household for insurance coverage purposes.

       {¶26} Accordingly, we find that the trial court erred in granting Sue’s summary

judgment motion and the court abused its discretion in granting Sue’s declaratory

judgment motion. However, we find no error in the court’s denial of Farmers’ summary

judgment motion. Farmers’ sole assigned error is overruled in part and sustained in part.



       {¶27} Judgment in favor of Sue is affirmed in part, reversed in part, and

remanded to the trial court for further proceedings consistent with this opinion.   It   is

ordered that each party bear their own costs.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the Cuyahoga County Common Pleas

Court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, JUDGE

KATHLEEN ANN KEOUGH, A.J., and
MARY J. BOYLE, J., CONCUR
