                     IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2003-CA-01796-SCT

GLORIA MERCER

v.

PROGRESSIVE GULF INSURANCE COMPANY


DATE OF JUDGMENT:                           6/13/2003
TRIAL JUDGE:                                HON. ANDREW K. HOWORTH
COURT FROM WHICH APPEALED:                  TIPPAH COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                    B. SEAN AKINS
                                            BART ADAMS
ATTORNEY FOR APPELLEE:                      MARTHA BOST STEGALL
NATURE OF THE CASE:                         CIVIL - INSURANCE
DISPOSITION:                                AFFIRMED - 07/29/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE SMITH, C.J., EASLEY AND RANDOLPH, JJ.

       EASLEY, JUSTICE, FOR THE COURT:

                              STATEMENT OF THE CASE

¶1.    In this insurance coverage dispute this Court is requested to determine if a trial court

correctly granted a summary judgment for an insurer on the issue of whether Gloria Mercer

(Mercer) was a member of her father's household for uninsured motorist insurance purposes.

On November 14, 2001, Mercer was injured in an automobile accident. At the time of the

accident, Mercer was driving her 1992 Oldsmobile, not insured by her father's policy, and was

hit by an uninsured motorist. Mercer’s father, John Paul Jones (Jones), had an automobile

insurance policy with Progressive Gulf Insurance Company (Progressive). Following her
accident, Mercer made a claim under her father’s policy claiming that she was a resident of

her father’s household and thus an insured pursuant to the policy. Progressive denied the

claim and sued Mercer in the Circuit Court of Tippah County seeking a declaratory judgment

of no coverage.

¶2.    Following a hearing the circuit court granted summary judgment for Progressive

stating:

       THIS CAUSE came before this Court on Petitioner Progressive Gulf Insurance
       Company's Motion for Summary Judgment and the Court, viewing the facts
       in a light most favorable to the non-moving party, and considering all
       arguments of counsel, both in the briefs and in oral argument for Summary
       Judgment, finds that said motion is well taken, as no genuine issue of material
       facts exists.

       Gloria Mercer is not entitled to any benefits under the subject policy for any
       injuries and damages she may have suffered in a motor vehicle accident that
       occurred on November 14, 2001, and there is not a sufficient nexus between
       her residence and her father’s residence as to treat them as parts of a common
       household.

Following this ruling, Mercer appealed to this Court.

                             STATEMENT OF THE FACTS

¶3.    Mercer admitted all the allegations set forth in Progressive's complaint for declaratory

judgment with the one exception of Paragraph 8 which alleged that she was "not entitled to

recover any benefits under the subject policy because she was not a resident of the household

of Jones, the named insured, and did not otherwise meet any definition of an insured under

the policy." Mercer similarly admitted the allegations in Progressive's motion for summary

judgment again with the exception that she denied that she was not entitled to recover




                                              2
benefits because she was not a resident of the household of the insured (her father) at the time

of the accident.

¶4.    On the date of the accident, November 14, 2001, Mercer, age 28, was living at 360

County Road 203 with her two children. Since the accident, Mercer moved to a different

house less than a mile away from her parents. Mercer’s father owned the house where she

and the children lived on November 14, 2001. John Paul Jones is Mercer’s father, and he

lives at 330A County Road 203. The house that Mercer lived in on the date of the accident

had previously been occupied by her grandmother. Mercer stated in her deposition, response

to complaint for declaratory judgment and response to Progressive's motion for summary

judgment that the house that she lived in on the date of the accident and her father’s home

had separate mailboxes. Both houses were served by separate utility meters. In her two

responses, Mercer admitted that there was a distance of over 100 yards between her residence

and her father’s residence. While Mercer could not recall exactly, she believed that the

electricity bill for her house was in her father’s name, the water bill was in either her name

or her father’s name, and the cable bill was in her name. Both Mercer and her father paid the

bills. The cable services were separate for each house. The home insurance was in Jones’s

name, and he paid the insurance bill for the house. Mercer did not pay her father any rent

while she lived in the house. The two houses have separate driveways. In addition, Mercer

and her children kept clothing, personal items and toys at the 360 County Road 203 house.

In this house were a stove and microwave, refrigerator, freezer and food. Mercer cooked

meals at this house approximately 3-4 times a week. Mercer and the children went to her

father’s home everyday to visit, eat and sometimes they stayed the night at his house. They

                                               3
would walk or drive to her father’s house. Mercer used the 360 County Road address to fill

out information sheets for her children for school. She also received mail at a separate mail

box. After the accident Mercer moved back to her parents' home until about February, 2002.

¶5.    On the date of the accident, Mercer owned her own vehicle which was insured in her

name by Farm Bureau. Mercer had settled her claim with Farm Bureau by the date of the

deposition.

¶6.    Jones's automobile insurance policy with Progressive stated in part:

       INSURING AGREEMENT - UNINSURED MOTORIST BODILY INJURY
       COVERAGE

              Subject to the Limits of Liability, if you pay a premium for
              Unisured/Underinsured Motorist Coverage, we will pay for
              damages, other that punitive ore exemplary damages, which an
              insured person is entitled to recover from the owner or operator
              of an uninsured motor vehicle because of bodily injury:

                     1.
                     sustained by and insured person;
                     2.
                     caused by accident; and
                     3.
                     arising out of the ownership, maintenance,
                     or use of an uninsured motor vehicle.
                            *        *     *      *
       ADDITIONAL DEFINITIONS

       When used in this Part III:

       1.     “Insured person” and “insured persons” mean:
       a.     you or a relative;
       b.     any person occupying a covered vehicle; and
       c.     any person who is entitled to recover damages covered by this Part III
              because of bodily injury sustained by a person described in a or b
              above.

       GENERAL DEFINITIONS

       12.    “Relative” means a person residing in the same household as you, and
              related to you by blood, marriage, or adoption, including a ward,

                                             4
              stepchild, or foster child. Unmarried dependant children temporarily
              away from home will be considered residents if:
                     a.      they are under the age of twenty-five (25) years; and
                     b.      they intend to continue to reside in your household.

                                           ****
       16.    “You” and “Your” mean the persons shown as the named insured on
              the Declarations Page, and that person’s spouse if residing in the same
              household.

The policy listed Jones as the insured and he and his wife Ruby were the listed drivers of

their two vehicles. Mercer's 1992 Oldsmobile was not a listed vehicle on her father's

automobile insurance policy.

¶7.    This Court finds that the trial court did not err by granting summary judgment in favor

of Progressive finding that Mercer was not a member of her father’s household. The trial

court was correct in finding that there was no genuine issue as to any material fact and that

Progressive, therefore, was entitled to a judgment as a matter of law.

                                      DISCUSSION

       Whether the trial court erred in granting a summary judgment to an
       uninsured motorist insurance carrier.

¶8.    Mercer argues that the trial court erred in granting summary judgment because there

is a question of material fact to be determined by the jury, that being whether she was a

member of her father’s household at the time of her accident.

¶9.    This Court applies a de novo standard of review on appeal from a grant of summary

judgment by the trial court. Russell v. Orr, 700 So.2d 619, 622 (Miss. 1997); Richmond v.

Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss. 1997); Merrimack Mut. Fire Ins. Co.,

v. McDill, 674 So.2d 4, 7 (Miss. 1996); Northern Elec. Co. v. Phillips, 660 So.2d 1278,


                                              5
1281 (Miss. 1995). Rule 56(c) of the Mississippi Rules of Civil Procedure provides that

summary judgment shall be granted by a court if "the pleadings, depositions, answers to

interrogatories and admissions on file, together with affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as

a matter of law. M.R.C.P. 56(c) (emphasis added). The moving party has the burden of

demonstrating that there is no genuine issue of material fact in existence, while the non-

moving party should be given the benefit of every reasonable doubt. Tucker v. Hinds

County, 558 So.2d 869, 872 (Miss. 1990). “Issues of fact sufficient to require denial of a

motion for summary judgment obviously are present where one party swears to one version

of the matter in issue and another says the opposite.” Id.

¶10.   Of importance here is the language of the rule authorizing summary judgment "where

there is no genuine issue of material fact."

       The presence of fact issues in the record does not per se entitle a party to avoid
       summary judgment. The court must be convinced that the factual issue is a
       material one, one that matters in an outcome determinative sense...the
       existence of a hundred contested issues of fact will not thwart summary
       judgment where there is no genuine dispute regarding the material issues of
       fact.

Simmons v. Thompson Mach. of Miss., Inc., 631 So.2d 798, 801 (Miss. 1994) (citing Shaw

v. Burchfield, 481 So.2d 247, 252 (Miss. 1985)). The evidence must be viewed in the light

most favorable to the non-moving party. See Russell, 700 So.2d at 622; Richmond, 692

So.2d at 61; Merrimack Mut. Fire Ins. Co., 674 So.2d at 7; Northern Electric Co., 660

So.2d at 1281; Simmons, 631 So.2d at 802; Tucker, 558 So.2d at 872.




                                               6
¶11.   To avoid summary judgment, the non-moving party must establish a genuine issue of

material fact within the means allowable under the Rule. Richmond, 692 So.2d at 61 (citing

Lyle v. Mladinich, 584 So.2d 397, 398 (Miss. 1991)). "If any triable issues of fact exist, the

lower court's decision to grant summary judgment will be reversed. Otherwise the decision

is affirmed.” Richmond, 692 So.2d at 61.

¶12.   In Merrimack Mut. Fire Ins. v. McDill, 674 So.2d 4 (Miss. 1996), this Court

determined whether Brown, a 28-year-old adult, was a member of a household for

homeowner insurance purposes. Brown shot and wounded McDill, his former girlfriend, and

shot and killed her fiancé. Id. at 6. Thereafter, McDill filed suit against Brown. Id. At the

time of the shootings, Brown was living in a garage apartment located in a separate building

on his parents' property. Id. at 8. The parents had a homeowners insurance policy with

Merrimack. Id. at 6. Brown’s parents notified Merrimack of the suit but Merrimack claimed

that it had no obligation to defend Brown because he was not an insured under the policy.

Id.

¶13.   Prior to litigation, Brown and McDill entered into an agreed judgment in the amount

of $100,000. Merrimack, 674 So.2d at 6. Thereafter, McDill obtained a writ of garnishment

against Merrimack. Id. Merrimack claimed that Brown was not insured under the policy. Id.

The trial court initially granted partial summary judgment determining that Brown was

insured under the policy. Id. at 7.

¶14.   This Court in Merrimack held that “[t]he key in determining the intent of the parties

is whether they created and maintained a household, and not the existence of a contiguous

roof.” Id. at 8. Merrimack is distinguishable because Brown received his mail at his parents'

                                              7
address, ate numerous meals in his parents' home, and his parents imposed specific guidelines

to living in the apartment. Id. at 8.

¶15.   This Court ultimately reversed and remanded for a jury trial on the issue of Brown’s

“household resident” status. Id. at 10. In reaching this decision, this Court determined that

there were material facts in dispute and, therefore, the lower court erred in granting summary

judgment. Id.

¶16.   In Wright v. Allstate Indem. Co., 618 So.2d 1296, 1300 (Miss. 1993), this Court

reversed a grant of summary judgment in favor of the insurer, Allstate. James Wright and

his wife bought a home insurance policy for a house that was occupied by their son. Id. at

1297. The son alleged that occupants of a passing car shot at him, but when he returned fire

the bullet killed a sleeping neighbor. Id. at 1297. The wrongful death beneficiaries filed suit

against the son and Allstate filed a complaint for declaratory judgment claiming that the son

was not a member of the household. Id. This Court held that a question of material fact

existed in regard to the insurance coverage. Id. at 1300. The fact at issue was whether James

Wright told the insurance agent who would actually live in the house that was covered in the

homeowner's insurance policy. Id.

¶17.   In Johnson v. Preferred Risk Auto. Ins. Co., 659 So.2d 866, 867 (Miss. 1995), a

couple left their home in Tennessee and temporarily moved in with their respective parents

until such time as they could move to Arkansas to begin a new job. The married couple were

in an automobile accident, and both sets of parents had automobile insurance policies with

Preferred Risk. Id. This Court determined that the married couple, injured in the automobile

accident, were considered "residents" under the uninsured motorists insurance policies. Id.

                                              8
at 875. This Court determined that the sole question was whether the couple were defined

as "residents" within the meaning of the insureds' policies. Id. at 870. This Court found that

this issue was a question of law because there were no undisputed facts and no question of

fact such as how long the couple stayed at their parents' homes or if they planned to stay at

the homes indefinitely. Id.

¶18.   Mercer argues that her case is similar to Merrimack. She argues that the son in

Merrimack lived in a garage apartment, a separate structure on the parents property and not

under a contiguous roofline, was employed and self supporting, whereas Mercer also lives

in a separate structure on her father’s property and she is dependant on her father for support.

In addition, Mercer argues that the intent of the parties and not the physical location of an

individual determines who is considered a member of a household. Merrimack, 674 So.2d

at 8. Further, Mercer claims that the term “household” is not defined in the policy of the

uninsured motorist statute and that insurance policies are to be construed against the insurer

and in favor of a policyholder. Mut. Ben. Health & Acc. Ass'n v. Blaylock, 163 Miss. 567,

573, 143 So. 406 (1932). See also J&W Foods Corp. v. State Farm Mut. Auto. Ins. Co.,

723 So.2d 550, 552 (Miss. 1998).

¶19.   Progressive argues that Mercer never contended that she intended to live with her

father. In addition, Progressive contends that Merrimack does not support Mercer’s position.

Progressive claims that the circumstances in Mercer’s case were more tenuous than those in

Merrimack. We agree.

¶20.   Progressive also cites to a Florida case which, while not controlling on this Court, is

nevertheless instructive. In American Sec. Ins Co. v. Van Hoose, 416 So.2d 1273 (Fla. Dist.

                                               9
Ct. App. 1982), a Florida court appellate reversed and remanded a lower court ruling. The

court held that a mother and her daughters were not “residents of household” because there

was no intent that the father and the daughter and granddaughters intended to live together.

Id. at 1275. The daughter and her children lived in a house across the street from the father;

received support from the father such as rent, utilities and food; on occasion they all ate and

slept at the father’s home; the father frequently drove the daughter to work; and the daughter

used her home address for job applications and tax purposes. Id. at 1274.

¶21.   We find that the trial court correctly granted the summary judgment motion in favor

of Progressive. Mercer does not dispute that she and her children lived in a house that was

approximately 100 yards from her father’s residence. In addition, each house had a separate

address, mailbox, driveway, utility meters and cable services. Mercer and her children kept

clothing, personal items and toys at the 360 County Road 203 residence. This residence also

had its own stove, microwave, refrigerator, freezer and food. Mercer cooked a number of

meals at this home each week. Further, Mercer used the 360 County Road 203 residence to

fill out information sheets for her children’s school. Mercer also received mail in her

separate mailbox. On the other hand, Mercer’s father assisted in paying some bills for her,

and it is unclear as to which bills, but it appears that both Mercer and her father had different

bills in each of their names. None of this information is in dispute.

¶22.   As this Court in Merrimack held “[t]he key in determining the intent of the parties

is whether they created and maintained a household, and not the existence of a contiguous

roof.” Merrimack, 674 So.2d at 8. We find that Mercer did not intend to live with her father,

instead all the facts, which are not in dispute, demonstrate that Mercer maintained a separate

                                               10
household. Mercer lived in a separate structure, approximately 100 yards away from her

father, with a separate address, mailbox, utilities and cable. The house had all the necessities

such as a stove, refrigerator, microwave, food, clothing and toys. While Mercer went to her

father’s home daily and ate some meals and occasionally slept at his house, she nevertheless

cooked meals in her house 3-4 days a week.

¶23.   Mercer’s case is distinguishable from Merrimack. In Merrimack, the son lived in a

garage apartment, ate many of his meals at his parents house, received his mail at his parents

house, had specific guidelines to follow while living in the garage and the father wanted to

move his office from the garage to the house to alleviate stress on his back. Here, Mercer

lived in a house that in the very least had a separate address, mailbox, utility meters and cable

service. She either drove or walked over 100 yards to her father’s home, but she had lived

in this structure for approximately two months prior to her accident. Indeed, this Court finds

that the facts in Mercer’s case are more similar to the facts in Van Hoose, 416 So.2d 1273.

Further, this Court in Merrimack reversed and remanded for a jury trial on this issue of

Brown’s household resident status. Despite the ruling in Merrimack, this Court also held

in Johnson that where there exists no genuine issues of material fact as to whether a person

is considered a “resident” pursuant to an insurance policy, summary judgment is proper.

Johnson, 659 So.2d at 870.

¶24.   This Court finds that there were no material facts in dispute; therefore the trial court

did not err in granting the motion for summary judgment in favor of Progressive.

                                       CONCLUSION




                                               11
¶25.   There were no issues of material fact in dispute. The trial court did not err by granting

the motion for summary judgment in favor of Progressive. Accordingly, the judgment of the

Circuit Court of Tippah County is affirmed.

¶26.   AFFIRMED.

    SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, GRAVES,
DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.




                                              12
