            IN THE UNITED STATES COURT OF APPEALS

                              FOR THE FIFTH CIRCUIT
                                          _______________

                                            m 99-60586
                                          Summary Calendar
                                          _______________



              RONNIE E. YOUNG AND PATRICIA YOUNG, INDIVIDUALLY,
           AND AS MOTHER AND NEXT FRIEND OF LESLEY YOUNG, A MINOR,

                                                              Plaintiffs-Appellants,
                                               VERSUS

                STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
                   AND STATE FARM FIRE AND CASUALTY COMPANY,

                                                              Defendants-Appellees.
                                    _________________________

                            Appeal from the United States District Court
                              for the Northern District of Mississippi
                                  _________________________

                                            March 29, 2000

Before SMITH, BARKSDALE and PARKER,                      Plaintiffs’s daughter, Lesley Young, was
  Circuit Judges.                                     struck by a car in February 1996 and suffered
                                                      substantial injuries. The driver of the car left
JERRY E. SMITH, Circuit Judge:*                       the scene and has not been found or identified.
                                                      Lesley was twenty years old and had been on
   Ronnie and Patricia Young appeal a                 the road, away from her parents home, since
summary judgment in favor of State Farm               May 1995. She recently had dropped out of
Mutual Automobile Insurance Company and               college and received only minimal financial
State Farm Fire and Casualty Company (“State          support from her parents.1
Farm”). Concluding that there are fact issues
tht preclude summary judgment, we reverse                On the date of the accident, Ronnie Young
and remand.

                       I.                                 1
                                                            Although Lesley did receive approximately
                                                      $1,000 from her father before leaving home,
                                                      neither side seriously contends that this amount
   *
      Pursuant to 5TH CIR. R. 47.5, the court has     could qualify as material financial support for the
determined that this opinion should not be            lengthy time she was gone. Indeed, while there is
published and is not precedent except under the       a dearth of evidence as to how Lesley supported
limited circumstances set forth in 5TH CIR. R.        herself, it is beyond dispute that the large part of
47.5.4.                                               her support came from some other source(s).
had a health insurance policy with State Farm,            declaratory judgment denying Lesley the rights
on which Lesley was a named insured, and                  of the insured.
several automobile insurance policies and
umbrella policies issued by State Farm that                  Following removal to federal court, State
provided for uninsured motorist coverage.                 Farm moved for summary judgment. The
The automobile policies defined insureds for              court struck certain evidence submitted by
purposes of uninsured motorist coverage to                plaintiffs in response to the motion and entered
include “a person related to [the named                   summary judgment.            Then, in denying
insured]” “who lives with [the named                      plaintiffs’ motion to reconsider, the court
insured].” Similarly, the umbrella policy                 refused to consider a newly-submitted affidavit
defined an insured to include “the following              of Lesley’s, ruling that it was untimely.
residents of the named insured’s household:               Plaintiffs appeal the summary judgment and
(1) the named insured’s relatives, and (2)                the exclusion of certain “expert” testimony and
anyone under the age of 21 under the care of              of the affidavit.
the person named above.” Thus, both policies
required that Lesley “live[] with” or “reside[]”                                  II.
with Ronnie Young to qualify as an insured.                   Plaintiffs contend that the undisputed facts
                                                          establish that Lesley was a resident of her
   Ronnie Young initially filed a claim only on           parents’ home and that her absence from it
the health insurance policy. Although there               was merely a “sojourn” undertaken with intent
was no question that Lesley was covered by it,            to return. They argue that, at a minimum, they
and although Ronnie Young stated that he was              have submitted enough evidence to create a
not making a claim for uninsured motorist                 material issue of fact as to whether Lesley
coverage, State Farm’s health insurance                   Young still resided at home.
division notified the automobile insurance
division about the potential application of                  There is no dispute with respect to the
uninsured motorist and medical payments                   underlying historical facts, but only as to the
coverage under the automobile policies. State             consequences of Lesley’s extended absence
Farm also began an investigation into the facts           from home and whether, as a matter of law,
surrounding the accident and Lesley’s status as           she can qualify as a “resident.” This is an issue
a member of the household. The investigation              that is proper for summary judgment. See
delayed the payment under the health                      Johnson v. Preferred Risk Auto. Ins. Co.,
insurance policy.                                         659 So. 2d 866, 870 (Miss. 1995).

   The plaintiffs sued in state court seeking                 Under Mississippi law, “residence” requires
coverage for Lesley under the uninsured                   (1) presence and (2) an intent to remain for
motorist provisions of Ronnie Young’s                     some time. Id. at 872. This does not require
automobile and umbrella policies. Plaintiffs              that Lesley remain at her parents’ home the
asserted breach of contract and the                       entire year, however, and the analysis of
independent tort of bad faith breach of                   residency under Mississippi law recognizes a
contract.2 State Farm counterclaimed for a                flexible, case-by-case approach, which includes
                                                          a balancing of all of the facts. Id. (“‘Resident’
                                                          has no technical or fixed meaning; the term is
  2                                                       ‘flexible, elastic, slippery, and somewhat
    Plaintiffs also included an opaque assertion of       ambiguous.’”).
fraud related to State Farm’s handling of their
claims. They have not, however, presented any
evidence of bad faith or fraud. Instead, the
evidence shows that State Farm had a legitimate
reason to delay in paying on the health insurance         (...continued)
policy, even though they were ultimately liable           this charge, and because plaintiffs do not seriously
under it. Because there is no evidence supporting         defend it on appeal, we disregard this portion of the
                           (continued...)                 complaint.

                                                      2
   Plaintiffs frame the issue as whether Lesley               Nothing about this behavior is inconsistent
was emancipated. They correctly observe that              with plaintiffs’ argument that Lesley planned
if she was not, she must be considered a                  to return home. Thus, the ultimate issue is
resident of Ronnie Young’s household,                     who bears the burden of proof to establish or
because “[a] minor is legally unable to                   deny residency. Because only an “insured” is
establish a residence separate and apart from             covered by the policies, plaintiffs bear the
his or her parents.” Aetna Cas. and Sur. Co.              initial burden to show that Lesley resided with
v. Williams, 623 So. 2d 1005, 1010 (Miss.                 Ronnie Young. They met that burden when
1993). Although the district court analyzed               they proved that she was a minorSSi.e., under
the issue as one requiring interpretation of              twenty-one years oldSSbecause minors legally
State Farm’s policies and the definition of               reside with their parents. See Aetna.
insured, it is plain under Mississippi law that
the term “resident” in an uninsured motorist
provision must be construed broadly “to avoid
or preclude exception or exemptions from
coverage.” Id. at 1008.

   The district court did not abuse its
discretion in excluding Lesley Young’s
untimely-submitted affidavit, and, as a result,
plaintiffs cannot establish a material fact as to
whether she intended to return home following
her travels.3 The only other statements
supporting this assertion were stricken from
Patricia Young’s affidavit, and plaintiffs do not
challenge that ruling.

   Nevertheless, State Farm has not presented
sufficient evidence that Lesley or her parents
intended that she be emancipated. This is not
a case like Rennie v. Rennie, 718 So. 2d 1091,
1094 (Miss. 1998) in which “[s]ince [the child]
voluntarily chose emancipation, she may not
now revoke her irresponsible launch into
adulthood.” Rather, here there is no properly
submitted evidence at all with respect to
Lesley’s intentions, but only inferences that
can be drawn from her decision to travel for
over nine months with minimal contact with
her parents, apparently supporting herself in
large part on her own.


     3
       Likewise, the district court did not err in
striking Dale C. Crawford as an expert witness.
Though he worked in the insurance industry for
over 30 years, he could not be called on to testify
to the legal question of who is a “resident” under
Mississippi law. See Matthews v. Ashland Chem.
Co., 770 F.2d 1303, 1311 (5th Cir. 1985); Owen
v. Kerr-McGhee Corp., 698 F.2d 236, 240 (5th
Cir. 1983).

                                                      3
    At this point, the burden shifted to State
Farm to rebut plaintiffs’ showing by proving
that Lesley was not a minor because she had
been emancipated. The evidence of her
travels, combined with the limited contact and
financial support from her parents, is
insufficient, without more, to establish such
emancipation as a matter of law for purposes
of summary judgment. This is particularly true
given the undisputed facts properly submitted
by plaintiffs: that Lesley’s voter registration
remained in her parents’ county, that during
her travels she had not taken a full-time job to
support herself, that she never rented or
owned any property, that she left most of her
clothing at home with her parents, that they
had not sought a judicial emancipation, and
that she was given a phone card by her parents
to call while she traveled. As further
indication that they did not intend that Leslie
be emancipated, plaintiffs emphasize that
Ronnie Young maintained health insurance on
Lesley.

   We do not decide the issue here, but only
determine that the question of intent is for a
fact finder and is not appropriate for summary
judgment.        Accordingly, the summary
judgment is REVERSED and REMANDED
for further proceedings.4




   4
    State Farm's motion to dismiss the claims of
Ronnie and Patricia Young for lack of standing is
DENIED.

                                                    4
