                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                             Assigned on Briefs August 28, 2001

   TENNESSEE FARMERS MUTUAL INSURANCE COMPANY v. SA W.
                      JEONG, ET AL.

                       Appeal from the Circuit Court for Bradley County
                         No. V-99-510    Lawrence H. Puckett, Judge

                                   FILED OCTOBER 23, 2001

                                  No. E2001-00246-COA-R3-CV


Tennessee Farmers Mutual Insurance Company (“Tennessee Farmers”) brought a declaratory
judgment action against Sa W. Jeong (“the injured party”); her daughter, Hyunlan Lee; and her son-
in-law, Jack Sung K. Lee (the defendants Lee are referred to herein collectively as “the Lees”),
asking the trial court to “declare whether or not Tennessee Farmers is obligated to afford liability
coverage to [the Lees] in connection with the lawsuit filed against them by [the injured party].” At
the conclusion of a bench trial, the trial judge ruled in favor of the defendants, finding that the word
“reside” and its derivatives “resident” and “residing,” particularly as the latter two words are used
in the policy language excluding coverage of a claim by a “covered person” or one “residing in the
same household,” are ambiguous, and that the language of the policy should be construed against
Tennessee Farmers as the drafter of the policy. The court ordered Tennessee Farmers to provide
liability coverage to the Lees with respect to the subject lawsuit. Tennessee Farmers appeals, raising
issues as to whether the trial court correctly ruled that the policy is ambiguous, and whether the trial
court was correct in finding that the word “resident” was susceptible to a reasonable meaning that
would exclude the injured party from the ambit of the subject exclusionary language in the policy.
We find that the subject policy provision is not ambiguous; however, we conclude that the injured
party was not “residing in [the Lees’] household” as that language has been construed by applicable
case law. Accordingly, we affirm.

            Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                 Affirmed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and D. MICHAEL SWINEY, J., joined.

Michael E. Callaway, Cleveland, Tennessee, for the appellant, Tennessee Farmers Mutual Insurance
Company.

Jimmy W. Bilbo, Cleveland, Tennessee, for the appellees, Sa W. Jeong, Jack Sung K. Lee, and
Hyunlan Lee.
                                             OPINION

                                                  I.

        On June 5, 1998, the injured party was a passenger in her daughter’s vehicle. She was
injured when her daughter lost control of her vehicle and hit a telephone pole. At the time of the
accident, the Lees were insured under an automobile liability policy issued by Tennessee Farmers.
Following the accident, the injured party made a claim against the Lees for medical expenses, and
a separate claim for bodily injury under the liability feature of the Lees’ policy. Tennessee Farmers
paid the injured party’s medical expenses under the medical payments section of the policy, but
refused to pay her for damages under the Lees’ liability coverage, asserting that the injured party was
a resident of the Lees’ household. The injured party then sued the Lees in the Bradley County
General Sessions Court to recover for her injuries. On June 15, 1999, Tennessee Farmers filed a
declaratory judgment action against their insureds and the injured party, maintaining that it did not
provide liability coverage to the Lees for the claim asserted against them by the injured party
because, under the theory of Tennessee Farmers, the injured party was a resident of the Lees’
household at the time of the accident, and, according to the terms of the policy, Tennessee Farmers
does not provide liability coverage for bodily injury to a resident of the Lees’ household.

        Following a bench trial, the court below concluded that the subject liability insurance policy
provides coverage to the Lees for the personal injury action filed by the injured party. Tennessee
Farmers appeals. It raises two issues on appeal. First, the company questions the trial court’s ruling
that the insurance policy is ambiguous. Second, the insurance company contends that the injured
party was a “resident of [the Lees’] household” and, as a consequence of this fact, an action by her
against the Lees is excluded from the liability coverage of the policy.

                                                  II.

        In this non-jury case, our review is de novo upon the record, with a presumption of
correctness as to the trial court’s factual determinations, unless the evidence preponderates
otherwise. Tenn. R. App. P. 13(d); Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995);
Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). The trial court’s conclusions
of law, however, are accorded no such presumption. Campbell v. Florida Steel Corp., 919 S.W.2d
26, 35 (Tenn. 1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993).

      The interpretation of a written contract is a question of law for the court. Realty Shop, Inc.
v. RR Westminster Holding, Inc., 7 S.W.3d 581, 597 (Tenn. Ct. App. 1999), perm. app. denied
October 25, 1999.

                                                 III.

        The following language of the Lees’ insurance policy is relevant to the issues before us:


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               What is Not Covered

               We do not provide liability coverage under this Part A and B:

                                             *   *     *

               12.     for any person or entity for bodily injury or property damage
                       to any covered person or any person residing in the same
                       household;

                                             *   *     *

                                       PART A AND B
                                   LIABILITY COVERAGE

                                             *   *     *

               Definitions of words and terms as used in this Part A and B

               1.      Covered person means:

                       a.     you or any family member for the maintenance or
                              use of any auto or trailer;

                                             *   *     *

                                         DEFINITIONS

               The words and terms defined below are used throughout this policy
               as they are defined here.

                                             *   *     *

               Family member means a person who is a resident of your household
               and who is either:

               1.      related to you by blood, marriage or adoption;...

(Bold and Capitalization in Original). Based on these provisions, Tennessee Farmers’ liability
coverage extends to the Lees and any “resident” of their “household” who is also related by “blood,
marriage, or adoption.” A person who fits the latter definition is a “covered person” whose liability

                                                 -3-
is insured under the policy; but a claim by such a person is excluded from coverage under the above-
referenced exclusionary provision of the policy.

         Because the phrases “resident of your household” and “residing in the same household”1 are
not defined in the policy, we must determine the meaning of what is essentially the same concept.
If the injured party is found to have been “residing in [the Lees’] household,” there is no liability
coverage running to the Lees for the personal injury claim asserted in the subject lawsuit.

                                                             IV.

       In ruling in favor of the Lees, the trial court, at the conclusion of the trial, stated the
following:

                   You know, I – I think I know what “reside” means. I think it means
                   to live with somebody. That’s what I would say the ordinary meaning
                   of “reside” is, is to – is to be living in the household. This language
                   says in the policy that “any person residing in the household.” But it
                   is an exclusion.

                                                         *    *    *

                   You know, I don’t think it’s ambiguous in my mind; but, when I read
                   this case, it looks ambiguous to me, to the Court, this language in
                   McDonough,2 if it can mean to dwell permanently for a length of
                   time, to dwell permanently for a considerable time, to dwell
                   permanently for any length of time.

                                                         *    *    *

         1
            There is an interplay in the Lees’ policy between these two phrases. Under the definition section of the policy,
the phrase “resident of your household” is important because it is a component of the definition of “family member”
which in turn is a part of the definition of “covered person” u nder the liab ility coverage o f the policy. Furth ermore, a
claim by a “covered person” or a claim by an individual “residing in the same household” is not covered under the
liability feature of the Lees’ policy. Since the injur ed party in this ca se is related to the Lees – to o ne by bloo d and to
the other by marriage – the critical determination in this case is the concept embodied in “resident of your household”
and “residing in the same household.” As indicated in the body of our opinion, we find these phrases to be differen t ways
of saying the same thing.

         2
           The trial court was referring to the case of McDonough v. State Farm Mut. Auto. Ins. Company, 755 S.W.2d
57 (Tenn. Ct. App. 1 988). McDonough deals with a po licy provision affording co verage to one “who live s with you.”
Id. at 58. That case found that “the nearest equivalent of the words ‘living with’ would be ‘residing with’ or ‘having
residence with.’” Id. at 67. The Court of Appeals in McDonough then stated that “[s]uch words are not of precise legal
definition.” Id. We find the trial court in the instant case erred in relying on McDonough, which deals with a much
narrower concept than the one embodied in the language, “residing in the same household,” and its companion language,
in the subject policy. We find that the instant case is co ntrolled by Gredig v. Tennessee Farmers Mut. Ins. Co., 891
S.W.2d 909 (T enn. Ct. App. 1994).

                                                             -4-
               So whereas, I believe I understand that, what “residing” means, I
               wouldn’t think it would be ambiguous; but if the court says all these
               meanings can attach to it, then it is ambiguous, and it has to be
               construed against the drafter if it’s ambiguous.

               I’m going to – I believe, because I believe it’s ambiguous, I have to
               find that there’s coverage. I can’t apply this against the insured. I
               have to apply it against the person who wrote the policy....

                                                  V.

        In Tata v. Nichols, 848 S.W.2d 649 (Tenn. 1993), the Supreme Court explained the analysis
to be applied when construing insurance policies:

               Insurance contracts...should be construed so as to give effect to the
               intention and express language of the parties. Words in an insurance
               policy are given their common and ordinary meaning. Where
               language in an insurance policy is susceptible of more than one
               reasonable interpretation, however, it is ambiguous. Where the
               ambiguous language limits the coverage of an insurance policy, that
               language must be construed against the insurance company and in
               favor of the insured.

Id. at 650 (citations and quotation marks omitted).

                                                 VI.

         The insurance company contends that the phrases “resident of your household” and “residing
in the same household” are clear and unambiguous according to the holding of Gredig v. Tennessee
Farmers Mut. Ins. Co., 891 S.W.2d 909 (Tenn. Ct. App. 1994). Secondly, the insurance company
argues that the injured party was a resident of the Lees’ household at the time of the accident because
her intent was to remain in the United States for at least six months, she was related to the Lees, and
she was living exclusively with the Lees. As a result, as applied to the facts of this case, the
insurance company contends that the policy would have provided liability coverage to her had she
been sued, and, as a corollary to that proposition, does not provide coverage to the Lees with respect
to her suit against them.

        On the other hand, the appellees – the injured party and the Lees – argue that the insurance
policy is ambiguous and should be construed against the insurance company. Additionally, the
appellees argue that the trial court correctly found that the injured party was not a resident of the
Lees’ household because she was only staying with the Lees temporarily, her presence in the
household was transient, she was not under the control of the Lees, she maintained a permanent
residence in Korea, and she always planned to return to Korea.


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        The issues now before us were addressed in the Gredig case. What we said in that case
applies with equal force to the facts of the instant case:

              As a threshold proposition, we examine whether “residing in your
              household” is ambiguous. In Boyd v. Peoples Protective Life
              Insurance Company, 345 S.W.2d 869 (Tenn. 1961), our Supreme
              Court had to determine if a juvenile who was shot and killed while
              attempting to escape from a state juvenile detention facility where he
              had been committed was insured under a life insurance policy issued
              to the juvenile's father. That policy insured the lives of “Eligible
              Family Members,” a concept which included children “under 19 years
              of age who live in his household.” The Court made an extensive
              comment about the California case of Island v. Fireman's Fund
              Indem. Co., 30 Cal.2d 541, 184 P.2d 153 (Cal. 1947), which involved
              an automobile insurance policy which contained a provision including
              the language “member of his household.” It is clear that our Supreme
              Court had the concept of ambiguity in its mind because it pointed out
              that the California court had commented “that if an insurance contract
              provision is capable of two meanings the one favorable to the insured
              must be adopted.” Boyd, 345 S.W.2d at 872. Immediately following
              this quote, and without any indication from the Court that it
              considered “member of his household” to be ambiguous, our
              Supreme Court said:

                      The great weight of authority seems to be to the effect
                      that a household means those living together under
                      one roof, under one head and under the common
                      control of one person.

              Id. In holding that the deceased juvenile was not included among
              those individuals defined as being “member[s] of his household” and
              thus not covered under the policy, the Court said:

                      ...if this insurance contract is not reasonably
                      susceptible of any other interpretation than that it
                      means a child living under the roof with its father,
                      then it is the duty of the Court to say so. This Court
                      is of the opinion that it is not reasonably susceptible
                      of any other interpretation.

              Id. at 874.




                                               -6-
The rationale of the decision in Boyd has been followed in at least
two unreported cases of this Court. Stacie A. James v. Fireman's
Fund Insurance Co., 13 TAM 20-4 (Tenn. App. W.S. 1988)
(“resident of the same household” and “resident of your household”
language in automobile liability policy); Permanent General
Assurance Corporation v. Trent T. Woods and Travelers Insurance
Company, 18 TAM 23-7 (Tenn. App. W.S. 1993) (“resident in your
household” language in automobile policy).

The appellate courts of this state have clearly held that language
similar to the “residing in your household” language of the instant
policy is susceptible to definition. To the extent that it can be and has
been defined by our appellate courts, the language is not ambiguous.
In effect, the definition of the language in question, in the absence of
a definition in the policy, has been supplied by case law. That has
been the case since at least 1961 when Boyd was decided.

The Plaintiffs argue that our decision in State Farm Mut. Auto. Ins.
Co. v. Thomas, 699 S.W.2d 156 (Tenn. App. 1983), is to the
contrary. That case involved an automobile liability policy provision
which defined a relative as “any relative of the named insured who is
a resident of the same household.” It is true that the Thomas case
includes a comment by now-Senior Judge Clifford E. Sanders that the
subject language “is essentially ambiguous”; but Thomas was
decided under Virginia law. Furthermore, in Thomas, we set forth
the factors to be considered in determining whether one was a
“resident of the same household”:

        We think the factors to be considered in a case such as
        the one at bar were aptly expressed by the Colorado
        Court of Appeals in United Services Auto. Asso. v.
        Mione, 34 Colo.App. 448, 528 P.2d 420 (1974) where
        the court said the factors to be considered in
        determining whether or not a person is a resident of a
        household include: “(1) the subjective or declared
        intent of the individual, (2) the relative permanence or
        transient nature of the person's residence in the
        household, (3) the relationship between the individual
        and the members of the household, and (4) the
        existence of a second place of lodging.”

Whether one applies the definition of Boyd, which we think is
controlling here, or the factors of Thomas, or a combination of both,


                                  -7-
                   it is clear that the language at issue in the instant case – “residing in
                   your household” – as defined by our case law is not ambiguous.

Gredig, 891 S.W.2d at 913-914.

        We disagree with the trial court’s determination that the phrase “residing in the same
household” is ambiguous. Whether you apply the definition of “member of his household” in Boyd,
or use the factors set forth in Thomas to define “residing in the same household,” it is clear that the
language at issue in the instant case is capable of definition, and is not ambiguous.

        However, we agree with the ultimate decision of the trial court because we find that the
injured party was not a resident of the Lees’ household. Seventy-five year old Sa W. Jeong, the
injured party, is a citizen and resident of Seoul, Korea. She came to the United States on a six-month
visa on May 21, 1998. Her plan was to live with the Lees for approximately three months to help
care for her twin grandsons, in exchange for compensation by the Lees.3 She then planned to spend
her final three months with a relative in Canada. As a result of the accident on June 5, 1998, the
injured party actually remained with the Lees, in the United States, for one year.

        Applying the factors in Thomas, the injured party does not fit the definition of “residing in
the same household.” First, it was the injured party’s intent to leave the Lees’ residence after a short
stay and return to Korea. She did not intend to permanently remain with the Lees; nor was she living
there with the intent to remain there indefinitely. Second, the injured party was not a permanent
member of the Lee household; rather her stay there was transient in nature. Third, the injured party
left her home in Korea to visit her daughter and son-in-law for a limited time, and for the limited
purpose of caring for her grandchildren. At all times during the visit, the injured party had another
– permanent – place of residence in Korea. Furthermore, unlike a minor child, there is nothing in
the record to suggest that this 75-year old woman was “under the common control of [one or both
of the Lees].” Boyd, 345 S.W.2d at 872. Simply put, she was not “of [the Lees’] household.”

       Applying the rules established by case law, we find that the policy language is unambiguous,
and, hence, it must be construed as written, and not in favor of either party. We also find that, at the


         3
           Mr. Lee’s testimon y is the source of the information regarding the injured party’s plans with respect to her time
away from Ko rea. Ther e is a notarized statement in the re cord th at was purportedly signed by the injured party. It
reflects the following:

                   Purpose of V isiting U.S.A: (1) Sight Seeing (visiting relatives)
                   (Duration : one year)       (2) B aby sitting (con tract for 6 mo nth
                                                   [sic] $700 x 6 = 4,200)

The insurance company’s adjuster testified that Mrs. Lee “brought the statement...to me.” The company points out that
the statement reflec ts that the injured party was to b e in the United States for “one year.” W hile the statemen t is in
English, the signature on the statement is not. Presumably, it is in Korean. It should also be noted that the injured party
does not speak English. Even assuming that the injured party knowingly adopted this statement as her own, we do not
find the time frames expressed in the statement, even if true, to be contrary to our holding in this case.

                                                            -8-
time of the accident on June 5, 1998, the injured party was not a resident of the Lees’ household.
Therefore, Tennessee Farmers is obligated to provide liability coverage to the Lees in the case filed
against them by the injured party in the General Sessions Court for Bradley County, Tennessee.

                                                VII.

        The judgment of the trial court is affirmed for the reasons stated. This case is remanded for
enforcement of the trial court’s judgment and for collection of costs assessed below, all pursuant to
applicable law. Costs on appeal are taxed to the appellant, Tennessee Farmers Mutual Insurance
Company.


                                                       _______________________________
                                                       CHARLES D. SUSANO, JR., JUDGE




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