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SHELTER MUTUAL INSURANCE CO. v. AMERICAN HALLMARK INSURANCE CO.2014 OK CIV APP 66Case Number: 111649Decided: 06/11/2014Mandate Issued: 08/01/2014DIVISION IIITHE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IIICite as: 2014 OK CIV APP 66, __ P.3d __
SHELTER MUTUAL INSURANCE COMPANY, 
Plaintiff/Appellant,v.AMERICAN HALLMARK INSURANCE COMPANY OF TEXAS, 
d/b/a HALLMARK INSURANCE, and LIBERTY MUTUAL INSURANCE COMPANY, 
Defendants/Appellees.
APPEAL FROM THE DISTRICT COURT OF CARTER COUNTY, OKLAHOMA
HONORABLE DENNIS MORRIS, JUDGE
AFFIRMED
Stephen L. Olson, Daniel J. Card, PIERCE COUCH HENDRICKSON BAYSINGER & 
GREEN, Oklahoma City, Oklahoma, for Plaintiff/Appellant,Albert L. Tait, Jr., 
J. Mark McAlester, Sterling E. Pratt, FENTON FENTON SMITH RENEAU & MOON, 
Oklahoma City, Oklahoma, for Defendants/Appellees.
Bay Mitchell, Judge:
¶1 Plaintiff/Appellant Shelter Mutual Insurance Company ("Shelter") brought 
suit against Defendant American Hallmark Insurance Company d/b/a Hallmark 
Insurance ("Hallmark") and Defendant/Appellee Liberty Mutual Insurance Company 
("Liberty Mutual") seeking pro rata contribution for insurance claims 
submitted to Shelter resulting from an automobile accident involving one of 
Shelter's insureds.1 Shelter appeals a summary judgment awarded to Liberty 
Mutual.
¶2 On September 28, 2010, Brendan Faulkner, a minor ("Faulkner"), was 
involved in an automobile accident in Ardmore, Oklahoma. Faulkner, who was 
sixteen (16) years old at the time, was permissively driving a vehicle owned by 
Claudia Herweck ("Herweck") and insured by Shelter. Herweck is the grandmother 
of one of Faulkner's friends, and Faulkner had been living with his friend and 
Herweck for some time prior to the accident.2 The accident was caused by Faulkner's negligence, and 
Shelter received claims from third parties for property damage and personal 
injuries allegedly sustained as a result of the accident. Shelter's policy with 
Herweck contained an "other insurance clause" which Shelter claimed entitled it 
to pro rata contribution from other insurers whose policies also covered 
Faulkner. Specifically, Shelter claimed Faulkner was covered by a Liberty Mutual 
auto policy held by Faulkner's great-grandmother, Zaylon Boyd ("Boyd").
¶3 At the time of Faulkner's accident, Boyd lived with her granddaughter who 
is Faulkner's mother, Christina Cottrell ("Cottrell").3 Boyd maintained auto 
insurance with Liberty Mutual on a 2008 Honda Civic. The Liberty Mutual policy 
stated it would provide liability coverage for "non-owned auto[s]"4 for any "family member." 
"Family member" was defined as "a person related to [the named insured] by 
blood, marriage or adoption who is a resident of [the named insured's] 
household. This includes a ward or foster child."
¶4 Liberty Mutual filed a summary judgment motion arguing it had no policy in 
effect which provided coverage to Faulkner. Specifically, Liberty Mutual 
conceded Faulkner was a blood relative of Boyd, the named insured, but argued 
Faulkner was not a resident of Boyd's household such that he fell within the 
definition of "family member." Liberty Mutual argued Faulkner was a member of 
Herweck's household because he paid rent, did not receive support from Cottrell, 
and was not staying overnight at Cottrell's house during the time of the 
accident. Shelter disputed Liberty Mutual's assertion Faulker was not a member 
of Boyd's household because Faulkner was an unemancipated minor incapable of 
establishing a residence separate and apart from his parents, and if anything, 
had dual residency with both Herweck and Cottrell. Shelter maintained that Boyd 
lived with Cottrell, and all three family members, Boyd, Cottrell, and Faulkner, 
were members of the same household. Shelter stated Faulkner returned to 
Cottrell's home prior to the accident to eat meals and returned to her home 
after the accident, stayed overnight for a period of time, and was living with 
Cottrell during the time of the lawsuit.
¶5 The trial court determined there was a disputed fact as to whose household 
Faulkner was a member but concluded this disputed fact was not material to the 
issue of whether Liberty Mutual's policy covered Faulkner. The trial court 
stated, when viewing the facts in the light most favorable to the nonmovant 
(Shelter), Faulkner was a resident of Cottrell's (his mother's) household. 
However, the trial court determined Faulkner was not also a resident of Boyd's 
(his great-grandmother's) household. Although Boyd had "moved in" with Cottrell, 
this did not "constitute the 'household' as Boyd's 'household'." The trial court 
granted summary judgment in Liberty Mutual's favor, and Shelter commenced this 
accelerated appeal in compliance with Oklahoma Supreme Court Rule 1.36.
¶6 Appellate courts review orders of summary judgment de novo, giving 
no deference to the trial court. Lowery v. Echostar Satellite Corp., 
2007 OK 38, ¶11, 160 P.3d 959. Like the trial court, we examine the 
pleadings and summary judgment evidentiary materials submitted by the parties to 
determine if a genuine issue of material fact is in dispute. Carmichael v. 
Beller, 1996 OK 
48, ¶2, 914 P.2d 
1051. In so doing, we view the facts and all reasonable inferences arising 
therefrom in the light most favorable to the nonmovant. Id. "[S]ummary 
judgment is improper if under the evidence, reasonable minds could reach 
different conclusions from the facts." Vasek v. Board of County Comm'rs of 
Noble County, 2008 OK 35, ¶29, 186 P.3d 928.
¶7 In its summary judgment motion, Liberty Mutual argued the express terms of 
its automobile policy with Boyd did not extend coverage to Faulkner because he 
was not a "resident" of Boyd's "household." The trial court agreed finding, even 
though Faulkner was a "resident" of Cottrell's "household," it was not also 
Boyd's "household." Thus, "resident" and "household" are the dispositive terms 
of the policy but neither was defined in the policy itself.
¶8 "Oklahoma law governing insurance coverage disputes is well-established. 
The foremost principle is that an insurance policy is a contract. Cranfill v. 
Aetna Life Ins. Co., 2002 OK 26, ¶5, 49 P.3d 703. "Parties may contract for risk coverage 
and will be bound by policy terms. When policy provisions are unambiguous and 
clear, the employed language is accorded its ordinary, plain meaning; and the 
contract is enforced carrying out the parties' intentions. The policy is read as 
a whole, giving the words and terms their ordinary meaning, enforcing each part 
thereof. This Court may not rewrite an insurance contract to benefit either 
party. . . . We will not impose coverage where the policy language clearly does 
not intend that a particular individual or risk should be covered." BP 
America, Inc. v. State Auto Property and Casualty Ins. Co., 2005 OK 65, ¶6, 148 P.3d 832. (Footnotes omitted). "The construction of 
a policy should be natural and reasonable, viewed in the light of common sense. 
The result should not be absurd. The interpretation of an insurance contract and 
whether it is ambiguous is a matter of law that will be resolved by the court." 
Redcorn v. State Farm Fire & Casualty Co., 2002 OK 34, ¶4, 55 P.3d 1017. (Citation omitted). "An insurance 
contract is ambiguous only if it is susceptible to two constructions on its face 
from the standpoint of a reasonably prudent layperson, not from that of a 
lawyer." Haworth v. Jantzen, 2006 OK 35, ¶13, 172 P.3d 193. [T]his Court will not indulge in strained 
interpretation to create such an ambiguity. Id.
¶9 Under Oklahoma law, the definitions of "resident" and "household" are 
somewhat intertwined. In Indemnity Ins. Co. of North America v. Sanders, 
1934 OK 494, ¶¶16-17, 
36 P.2d 271, the Oklahoma Supreme 
Court cited several definitions of "household", including one stating "persons 
who dwell together as a family constitute a 'household'," and a definition from 
Webster's New International Dictionary stating a household consists of "those 
who dwell under the same roof and compose a family." Sanders, ¶¶16-17 
(internal quotations and citations omitted).5 A more recent Oklahoma case cited with approval a 
definition of a "resident of a household" as "one who is a member of a family 
who lives together under the same roof; that residence emphasizes membership in 
a group rather than an attachment to a building." Henderson v. Eaves, 
1973 OK 139, ¶24, 516 P.2d 270 (citing American States Ins. Co. v. 
Walker, 486 P.2d 1042 (Utah 1971)). Henderson, ¶25, also cited a 
definition of "resident" found in Webster's Dictionary: "Dwelling, or having an 
abode for a continued length of time; . . . one who resides in a place; one who 
dwells in a place for a period of more or less duration." While these 
descriptions are not exactly the same, the terms "resident" and "household" are 
not ambiguous terms. Their meanings are clear to a layperson, and being mindful 
of these previous cases, the definition found in Henderson, ¶24, is the 
most succinct: "resident of a household is one who is a member of a family who 
lives under the same roof."6
¶10 The trial court supported its decision to grant summary judgment in 
Liberty Mutual's favor by concluding Faulkner was a resident of Cottrell's 
household, but not Boyd's "household" even though Boyd and Cottrell resided 
together in the same home. Under these circumstances and understanding that a 
"household" is ordinarily a family group managed by one head, whether Boyd had 
her own "household" or was a member of Cottrell's "household" are questions we 
need not decide. Regardless of the answers to those questions, all members of a 
"household" must reside together under one roof. E.g. Henderson, 
1973 OK 139, ¶24. The partial 
transcripts of the depositions of Faulkner, Boyd, and Cottrell provided in the 
record all agree Faulkner was not staying overnight at Cottrell's home.7 For his part, Faulkner 
stated he was paying rent to Herweck and living with her and her grandson. Boyd 
stated Faulkner was not "staying at our place" at the time of the accident, and 
Cottrell confirmed Faulkner sometimes returned to eat meals with her but was not 
staying overnight. Contrary to the trial court's determination, we do not find 
there to be a disputed fact as to whether Faulkner was a resident of Cottrell's 
household. And because Boyd was living with Cottrell, neither was Faulkner a 
member of Boyd's household at the time of the accident. Faulkner was not 
residing under the same roof with either Cottrell or Boyd, which is an essential 
element to establishing he was a member of either's "household." Our de 
novo review of the record shows there was no dispute that Faulkner was not a 
member of Boyd's household because he did not reside under the same roof as Boyd 
at the time of the accident.8
¶11 Shelter also relied on the theory that Faulkner, as an unemancipated 
minor, could not establish a residency separate from his parents, particularly 
his mother, Cottrell. We find no statutory provision or Oklahoma case law 
supporting this position. Rather, Shelter relied on the fact Cottrell's divorce 
decree granted joint custody of Faulkner to her and a case decided by the 
Oklahoma Supreme Court discussing the residency of a minor in the context of 
public school education. Shelter cited 43 O.S. 2011 §551-106 which states, in relevant 
part, that a child custody determination "is conclusive as to all decided issues 
of law and fact except to the extent the determination is modified." Shelter 
relied on this statute and a definition of "custody" which included "judicial or 
penal safekeeping," Joshua C. By and Through Denise L. v. Western Heights 
Ind. School Dist. of Okla. County, 1995 OK CIV APP 73, ¶10, 898 P.2d 1324,9 to show Cottrell's legal custody of Faulkner also meant 
he was a member of her household. While we agree Cottrell had legal custody of 
Faulkner, the term "custody" is not synonymous with the terms "resident" of a 
"household" as used in the Liberty Mutual policy. Oklahoma law requires family 
members to live together to be considered part of the same "household" for 
insurance purposes, and the undisputed fact remains all three of the family 
members supposedly comprising the "household" at issue -- Faulkner, Cottrell, 
and Boyd -- maintained Faulkner was not living under the same roof as the latter 
two family members.
¶12 While other jurisdictions have recognized the possibility of dual 
residency for unemancipated minor children of divorced parents in the context of 
insurance coverage, this state has not done so. See Aetna Cas. & Sur. Co. 
v. Williams, 623 So.2d 1005 (Miss. 1993); Countryside Cas. Co. v. 
McCormick, 722 S.W.2d 655 (Mo. 1987); Ohio Cas. Ins. Co. v. Estate of 
Wittkopp, 741 A.2d 619 (N.J. 1999). Notably, each of these decisions 
determined whether the minor children could be residents of both the custodial 
parent and non-custodial parent's home when the child primarily resided with the 
custodial parent but the non-custodial parent exercised visitation. We do not 
foreclose the possibility that unemancipated minors with divorced parents may 
maintain a residence at both parents' homes under Oklahoma law, but that is not 
the issue before this Court. The issue here is whether Faulkner resided under 
the same roof as Boyd to be a part of her "household" for purposes of insurance 
coverage. The undisputed facts show he did not.
¶13 For the reasons set forth above, the decision of the trial court is 
AFFIRMED.
BELL, P.J., and GOREE, J., concur.
FOOTNOTES
1 Shelter and Hallmark 
reached a settlement agreement during the pendency of Liberty Mutual's summary 
judgment motion. Shelter filed a dismissal with prejudice as to Hallmark with 
the district court, and Hallmark is not a party to this appeal. 
2 In March 2010 Faulkner was sent to Thunderbird Youth 
Academy, a residential youth educational facility located in Pryor, Oklahoma. 
Faulkner graduated in July 2010 and moved in with his father, Christopher 
Faulkner, for approximately two weeks. Afterwards, he moved in with Herweck but 
would return to his mother's (Christina Cottrell) house to eat meals a few times 
per week. 
3 Faulkner's parents, Christina Cottrell and Christopher 
Faulkner, divorced in 1999. The parties' divorce decree granted joint custody of 
Brendan Faulkner to both the parents but established primary physical custody 
with Cottrell. 
4 The Liberty Mutual policy defined "non-owned auto" 
as:
1. Any private passenger auto, pickup, car or "trailer" not owned by or 
furnished or available for the regular use of you or any "family member" while 
in the custody of or being operated by you or any "family member," or; 
2. Any auto or "trailer" you do not own while used as a temporary substitute 
for "your covered auto" which is out of normal use because of its: (a) 
breakdown; (b) repair; (c) servicing; (d) loss; or (e) destruction. 
5 Sanders, ¶18 (citing Pearre v. Smith, 73 
A. 141 (Md. 1909), also cited the following definition: "A family is a 
collective body of persons living in one house, and under one manager. It 
consists of those who live with the pater familias. The word is often 
used interchangeably with 'household'." With the foregoing definitions in mind, 
the Tenth Circuit Court of Appeals approved a jury instruction for the 
definition of "household" in the context of insurance coverage under Oklahoma 
law stating "for a place to be the household of one there must be therein a 
dwelling together as a family and said household must be supported by and under 
a single head or management. In other words, persons who dwell together as a 
family constitute a household." Hardesty v. State Farm Mutual Auto. Ins. 
Co., 361 F.2d 176, 177 (10th Cir. 1966). 
6 Arguably, the Supreme Court provided a broader 
definition of "household" in Flitton v. Equity Fire and Cas. Co., 
1992 OK 2, ¶6, 824 P.2d 1132, stating "[c]lassification of those 
individuals coming within the definition of a 'family' or 'household' is not 
necessarily dependent upon the presence of a connection by affinity or 
consanguinity." However, Flitton addressed whether the insured's 
stepbrother, who undisputedly resided in the same household as the insured, was 
a "family member" within the meaning of the insurance policy where "family 
member" was defined as "a person related to [the insured] by blood, marriage or 
adoption who is a resident of [the insured's] household. This includes a ward or 
foster child." Here, there is no dispute Faulkner was related by consanguinity 
to the insured, Boyd, his maternal great-grandmother. 
7 In the partial deposition of Christopher Faulkner 
(Faulkner's father) included with Shelter's response to the summary judgment 
motion, Mr. Faulkner was asked if he knew whether his son was living with 
Cottrell after moving out of Mr. Faulkner's home shortly after graduating from 
Thunderbird Youth Academy. Mr. Faulkner, who was remarried and maintained his 
own home, separate and apart from Cottrell, stated Faulkner would go back and 
forth between Cottrell's home and Herweck's home but that he did not know how 
often Faulkner would return to Cottrell's home. Considering that everyone who 
Shelter asserts lived together in the same household -- Cottrell, Boyd and 
Faulkner, -- stated Faulkner did not live with Cottrell and Boyd, Mr. Faulkner's 
statement lacks probative value and is insufficient to create a disputed fact. 
Copeland v. Lodge Enterprises, Inc., 2000 OK 36, ¶9, 4 P.3d 695. ("For an item of evidentiary material to 
be insufficient to defeat a motion for summary judgment, it must either facially 
lack probative value or be incapable of conversion at trial to admissible 
evidence.") 
8 We will not disturb a legally correct judgment on 
review even if it relied on "faulty reasoning, erroneous fact finding or 
consideration of an immaterial issue." Brashier v. Farmers Insurance Co., 
Inc., 1996 OK 
86, ¶15, 925 P.2d 
20. 
9 Shelter's reliance on Western Heights, ¶12, for 
the proposition "[p]hysical custody alone is not sufficient to change a child's 
'residency'. . ." is unpersuasive as that particular case relied heavily on 
specific terms used in the context of the Oklahoma School Code, 70 O.S. §§1-101, et seq. Additionally, the 
determination of the child's residency in that case was specifically limited 
"for purposes of school law" and has no application here. Western 
Heights, ¶¶1, 12. 

Citationizer© Summary of Documents Citing This DocumentCite
Name
Level
None Found.Citationizer: Table of AuthorityCite
Name
Level
Oklahoma Court of Civil Appeals Cases CiteNameLevel 1995 OK CIV APP 73, 898 P.2d 1324, 66 OBJ        2046, Joshua C. By and Through Denise L. v. Western Heights Independent School Dist. No. I-41 of Oklahoma CountyDiscussedOklahoma Supreme Court Cases CiteNameLevel 1992 OK 2, 824 P.2d 1132, 63 OBJ        278, Flitton v. Equity Fire and Cas. Co.Discussed 2002 OK 15, 55 P.3d 1017, 73 OBJ        890, REDCORN v. STATE FARM FIRE & CAS. CO.Cited 2002 OK 26, 49 P.3d 703, CRANFILL v. AETNA LIFE INS. CO.Discussed 2002 OK 34, 55 P.3d 1030, BITUMINOUS CASUALTY CORP. v. COWEN CONSTRUCTION, INC.Cited 1934 OK 494, 36 P.2d 271, 169 Okla. 378, INDEMNITY INS. CO. OF NORTH AMERICA v. SANDERSDiscussed 1973 OK 139, 516 P.2d 270, HENDERSON v. EAVESDiscussed at Length 2005 OK 65, 148 P.3d 832, BP AMERICA, INC. v. STATE AUTO PROPERTY & CASUALTY INSURANCE CO.Discussed 2006 OK 35, 172 P.3d 193, HAWORTH v. JANTZENDiscussed 1996 OK 48, 914 P.2d 1051, 67 OBJ        1173, Carmichael v. BellerDiscussed 2007 OK 38, 160 P.3d 959, LOWERY v. ECHOSTAR SATELLITE CORP.Discussed 1996 OK 86, 925 P.2d 20, 67 OBJ        2338, Brashier v. Farmers Insurance Co., Inc.,Discussed 2008 OK 35, 186 P.3d 928, VASEK v. BOARD OF COUNTY COMMISSIONERSDiscussed 2000 OK 36, 4 P.3d 695, 71 OBJ        1172, Copeland v. The Lodge Enterprises, Inc.DiscussedTitle 43. Marriage CiteNameLevel 43 O.S. 551-106, Effect of Child Custody DeterminationCitedTitle 70. Schools CiteNameLevel 70 O.S. 1-101, Short TitleCited










