                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-1408



MATTHEW GODWIN; ANTHONY WILLIAM BURBANO,

                                            Plaintiffs - Appellants,

           versus


FARMERS NEW CENTURY INSURANCE COMPANY,

                                               Defendant - Appellee,

           and

ZURICH INSURANCE COMPANY,

                                                            Defendant.


Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CA-03-119-AW))


Argued:   December 2, 2004               Decided:    February 18, 2005


Before WILKINSON, Circuit Judge, W. Craig BROADWATER, United States
District Judge for the Northern District of West Virginia, sitting
by designation, and Norman K. MOON, United States District Judge
for the Western District of Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


Michael J. Schreyer, DONAHUE, SEIDMAN & SCHREYER, L.L.C., Waldorf,
Maryland, for Appellants.    Andrew Janquitto, MUDD, HARRISON &
BURCH, Towson, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

     Dolores Burbano lives in Lusby, Maryland.                Her husband,

William Burbano, has two children from his previous marriage to

Laurie Burbano.     One of these children, Anthony Burbano, spends

most of his time with Laurie, his legal custodian, in her Waldorf,

Maryland residence.          One night, Anthony was involved in a car

accident after finishing work in nearby LaPlata, Maryland. In this

diversity     action,   we    must   determine    whether   Dolores’s   auto

insurance policy covers this accident.           We find that it does not.

We therefore affirm the judgment of the district court granting

summary judgment to the insurance company that issued the policy.



                                      I.

     William and Laurie Burbano had two children, Anthony and Kyle.

After the couple separated in 1994, the youngsters stayed with

their mother in the family home in Waldorf.          In late 1994, William

moved in with Dolores and her two children in Lusby.

     A separation agreement, executed by William and Laurie in

February 1995, provided that Laurie would continue to have physical

custody of Anthony and Kyle.          The parents agreed to share legal

custody, however, and they determined that the children would spend

sixty-three days a year with their father.            A divorce decree in

1996 recognized the award of primary physical custody to Laurie




                                       3
but, following the separation agreement, granted William joint

legal custody with visitation rights.

     For several years, Anthony and his younger brother Kyle

visited    their   father’s   abode   every       other   weekend.      Anthony

testified that he also spent a week each summer, and another week

at Christmas or Easter, with William and Dolores.              In March 2001,

fourteen    year-old   Kyle   moved   in   with    his    father.     Anthony’s

visitation practices also changed at this point.                     Unlike his

brother, however, Anthony began to spend less time with his father.

At trial, Laurie stated that from March to October 2001 Anthony

visited William and Dolores “a minimum of once a month, a maximum

of twice a month.”       After testifying that his stays diminished

after March 2001, Anthony contradictorily claimed to have visited

his father a “[c]ouple times a month” during this period.               Anthony

then added confusingly that these visits were “[n]ot every other

weekend.”    William, for his part, could recall “[p]ossibly on[e]”

overnight stay from March to October 2001.

     On October 19, 2001, Anthony was involved in a car accident

while driving a friend’s vehicle.             Another companion, Matthew

Godwin, suffered serious injuries in the collision, which led to

the amputation of his leg.      The insurer of the car offered to pay

$300,000 to Godwin. Laurie’s auto insurance company also agreed to

pay him $100,000.      In this action, Godwin is seeking proceeds from

a third policy –- one that Dolores secured from Farmers New Century


                                      4
Insurance Company (“Farmers”) in September 2001.                 This policy

covers, inter alia, any “person related to [Dolores and William] by

blood,    marriage    or   adoption    who   is   a   resident   of   [their]

household.” Godwin sued for a declaratory judgment in state court,

seeking payment for his injuries from Farmers.           Farmers removed to

district court, which ordered Anthony realigned as a plaintiff.*

After discovery, the district court granted summary judgment to the

insurance company.      The district court found that Anthony was not

a “resident” of Dolores and William’s household at the time of the

accident, as the policy required. Godwin could not therefore claim

any payment from Farmers for the injuries he suffered while Anthony

was driving.    Godwin now seeks review of that decision.



                                      II.

     We review grants of summary judgment de novo, construing the

evidence in the light most favorable to the appellant.                 While

reviewing summary judgment in a diversity case, we must apply the

law of the district court’s forum state, as announced by its

highest court.       Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313

U.S. 487, 496 (1941); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79

(1938).   Where the state’s highest court has yet to decide a legal



     *
      Because Farmers is not a Maryland corporation and both Godwin
and Anthony are Maryland citizens, this realignment created
complete diversity of citizenship, supporting subject matter
jurisdiction under 28 U.S.C. § 1332 (2000).

                                       5
question, we may look to its lower courts for instruction. Private

Mortgage Inv. Servs., Inc. v. Hotel & Club Assocs., Inc., 296 F.3d

308, 312 (4th Cir. 2002).



                                  A.

      Appellant’s first ground for appeal is that the district court

misapplied Maryland law.

      The parties agree that, for insurance purposes, the residency

of children like Anthony is an issue the Maryland Court of Appeals

has yet to decide.    The parties also agree that the court would

likely adopt a totality of the circumstances test were it faced

with this issue.   The district court expressly concluded as much

and   considered   several    circumstances   bearing   on   Anthony’s

residency.   It noted that Anthony’s visits to his father’s abode

had become sporadic by the time the accident occurred.       The court

also observed that Anthony had no exclusively assigned sleeping

place in William and Dolores’s house and the possessions he kept

there had dwindled to a shelf of clothes and assorted recreational

equipment.   Further, William did not claim Anthony as a dependent

on his 2001 tax return, and Anthony himself listed his mother’s

address on his driver’s license and other official forms.          The

district court acknowledged that parents such as William who

maintain “close relationships” with their children after a divorce

“are to be commended.”       But, applying the totality test to the


                                   6
foregoing facts, the district court found that Anthony was not a

resident of his father’s household at the time of the accident.

     Appellant does not claim that the district court relied on

erroneous facts or inadvertently ignored evidence in reaching this

finding.   Nor does Godwin claim that any of the considerations

informing this finding were legally irrelevant to the residency

issue at hand.    Instead, appellant asks us to reexamine the

totality of the circumstances and overturn the conclusion that,

based on these circumstances, Anthony was not residing in his

father’s household when the accident occurred.

     To this end, appellant cites several cases which, applying the

totality test to similar facts, find residency for insurance

purposes where the district court found none.   But in some of these

cases, the policy holder and the party claiming coverage maintained

closer ties than Anthony and his father.   In Countryside Casualty

Company v. McCormick, 722 S.W.2d 655 (Mo. Ct. App. 1987), for

instance, a child was deemed a resident of her non-custodial

parent’s household.   But the court made this determination only

after finding that the child visited the parent’s house according

to a regular schedule and that the child spent “as much or more”

time there than at her custodial parent’s house.    Id. at 658.   The

child also maintained a bedroom in both abodes.    Id.   None of these

circumstances is present here.   Rather, Anthony spent the lion’s

share of his time at his mother’s house, visited his father


                                 7
sporadically, and had no exclusively assigned living space in

William and Dolores’s home.

     In other cases that appellant cites, the contract at issue

varied from that which Dolores signed with Farmers.    In Forbes v.

Harleysville Mutual Insurance Company, 589 A.2d 944 (Md. 1991), for

instance, the court found that a woman was still a resident of the

family home that she had departed after marital problems.    But the

woman was named as an operator on the policy document at issue and,

as such, the court found an intention to secure joint coverage when

the couple took out the contract.   Id. at 952.   Here, by contrast,

Dolores recorded only herself and William when asked to list

“residents & dependents (licensed or not) and regular operators” on

the insurance application. Further, the court in Forbes took pains

to emphasize that separation following marital difficulties is

often temporary and warned that it would be “unreasonable” to

conclude   that   departing   spouse   in   every    such   instance

“automatically becomes uninsured.” Id. at 951. Here, by contrast,

nobody pretends that Anthony was on a temporary sojourn from his

father’s household when the accident occurred.    The child remained

with his mother when his father left to establish a new homestead,

and the filial ties only weakened thereafter.

     These cases, and others that apply the totality test to find

residency where the district court found none, were distinguished

by the district court on the facts.    See Snedegar v. Midwestern


                                8
Indem. Co., 541 N.E.2d 90, 95 (Ohio Ct. App. 1998) (child stayed

with father “one to two days a week,” permanently stored belongings

there, and received correspondence and phone calls); Coriasco v.

Hutchcraft, 615 N.E.2d 64, 66 (Ill. App. Ct. 1993) (child made

“regularly scheduled visits” with non-custodial father); Davis v.

Maryland Cas. Co., 331 S.E.2d 744, 745 (N.C. Ct. App. 1985) (child

visited non-custodial father for several overnight stays each week

and stored extensive possessions with him).              Appellant’s continued

reliance on these precedents, in the face of such distinction, is

no more availing than it was below.          And the case Godwin says the

district court “overlooked” is not only distinguishable but also

reaches the opposite conclusion on the residency issue.               See Aetna

Life & Cas. Co. v. Carrera, 577 A.2d 980, 985-86 (R.I. 1990)

(denying   coverage    even     though       son    “generally        used   his

mother’s   [mailing]   address”      as    his   own).      Carrera   does   not

therefore alter the district court’s residency analysis.



                                      B.

     Appellant’s second ground for appeal is that, even if the

district court did not err in anticipating Maryland law, it did

disregard provisions of Dolores’s policy in reaching its residency

conclusion.

     Appellant   concedes     that    the    policy’s      “definitions”     and

“liability coverage” sections do not speak to residency beyond


                                      9
their description of a covered “family member” as “a resident” of

William and Dolores’s household who is “related to [them] by blood,

marriage or adoption.”        And appellant does not allege any other

textual basis for liability in the policy’s coverage provisions.

Instead,     appellant     argues   that    a   section   of    the   policy’s

“surcharge, discount and rate classification disclosure plan” for

Maryland implies that the contract was meant to cover accidents

such    as   this.       Maryland   law    requires   Farmers    to   disclose

information on rate classifications and surcharges to reveal the

company’s method for calculating premiums. See Md. Code Ann., Ins.

§ 11-214(a) (Michie 2003 Rep. Vol.) (requiring disclosure by auto

insurers     of   “the   policyholder’s    rate   classifications”     and   “a

summary” of the insurer’s state-approved “surcharge plan”).

       Godwin points in particular to a rate discount for “youthful

drivers” that is listed in the premium disclosure documentation.

This discount requires, inter alia, that the “youth must be living

at home unless attending and residing at a college or university,”

with two exceptions for independently insured youths, neither of

which is applicable here.       The disclosure documentation goes on to

note that

       [a] youthful driver attending school away from home is
       considered a member of the insured’s household unless the
       youth has established permanent residence elsewhere. A
       youthful driver attending school over 250 miles from
       home, without custody of the automobile, shall be
       considered a member of the insured’s household.



                                      10
Godwin asserts that the preceding rate provisions “[manifest] the

intention to include in the broad definition of an ‘insured,’

drivers who are ages 16-24 and not living at home.”           Stripped of

its vagueness, this argument reduces to a claim that, because a

rate discount is available to “youthful drivers” who are “away from

home,” disputes regarding the residency of youthful drivers should

generally be resolved in favor of coverage.              Quite apart from

whether rate information can vary a policy’s coverage in such a

manner, appellant’s argument simply misstates the gist of the

premium discount at issue.         To qualify for this discount, the

“youthful   driver”    who   is   not    independently   insured   must   be

“attending and residing at a college or university” or “living at

home.”   The latter possibility is foreclosed by our discussion of

residency above.      And Godwin never pretends that the 17 year-old

Anthony was “attending and residing at a college or university” at

the time of the accident.     We agree with appellant that a “contract

should not be interpreted in a manner that disregards a meaningful

part of the agreement.”      But a party must at least fall within the

“meaningful part[’s]” explicit terms before invoking it in the

course of a dispute.

     Godwin’s argument from the text of the policy is no more

meritorious than his argument from Maryland law.           Like the state

law argument, therefore, the textual contention cannot result in

recovery here.




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                         III.

The judgment of the district court is

                                        AFFIRMED.




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