                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 28 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    NEIL HORN,

                Plaintiff-Appellant,

    v.                                                   No. 03-6043
                                                    (D.C. No. 02-CV-58-C)
    GOVERNMENT EMPLOYEES                                 (W.D. Okla.)
    INSURANCE COMPANY,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before MURPHY , BARRETT , and McCONNELL , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Appellant Neil Horn (sometimes known as James Neil Horn) appeals from

the grant of summary judgment in favor of Appellee Government Employees

Insurance Company (GEICO) on his claims alleging breach of an insurance

contract and bad faith. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

      The basic facts are undisputed. While driving on an Oklahoma highway on

August 29, 1999, Appellant’s car was rear-ended by another car driven by Brenda

Miller. Appellant’s car was pushed across the highway into oncoming traffic–a

large group of motorcyclists. Two motorcycles struck Appellant’s car, which

threw the drivers and passengers into the air and onto Appellant’s car. Three of

those four people were killed. After the accident, Appellant got out of his car and

examined the motorcyclists. They all were severely injured and one of them was

partially decapitated. When police and paramedics arrived, Appellant was placed

in an ambulance along with the decapitated motorcyclist and taken to a hospital.

Appellant’s injuries were described as minor, and resulted in bills of $841.00 and

$654.00 for two visits.

      Miller was underinsured at the time and Appellant had declined uninsured

motorist coverage on his own policy. His brother-in-law, John Pitts, however,

had a GEICO policy that included uninsured motorist coverage for “   relatives of

[the insured] if residents of his household.” Aplt. App., Vol. I at 185 (Section IV,

paragraph 2(b)). Appellant retained counsel and filed a claim under Mr. Pitt’s


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policy, asserting that he was living with Mr. Pitts at the time of the accident.

Appellee reserved its right to dispute coverage on the ground that either Appellant

or his vehicle were not insured,    id. at 174, but offered to settle first for $3500.00

and then for $4000.00. Appellant refused the first offer and did not respond to

the second. On January 15, 2002, he filed this suit.

         On cross-motions for summary judgment, the district court determined that

Appellant failed to produce any evidence that he was a resident of Mr. Pitts’

household at the time of the accident or for long enough to be an insured under

Mr. Pitts’ insurance policy. The court further determined that Appellant had

failed to produce evidence to support his assertion that Appellee did not

adequately investigate his insurance claim, and that Oklahoma law prohibiting

“low-ball” offers did not apply to his disputed claim or prove Appellee’s bad

faith.

         We review the grant of summary judgment de novo, applying the same legal

standard as the district court.    Byers v. City of Albuquerque , 150 F.3d 1271, 1274

(10th Cir. 1998). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

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.”

Fed. R. Civ. P. 56(c).


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       Appellant argues on appeal that: (1) because he resided with his

brother-in-law at the time of the accident, he was an insured under his

brother-in-law’s uninsured motorist policy and his motion for partial summary

judgment should have been granted; and (2) he produced sufficient evidence to

warrant a jury trial on the issue of Appellee’s bad faith.

       Appellant bears the burden to prove that he was a resident with Mr. Pitts at

the time of the accident, and was therefore an insured within the meaning of

Mr. Pitt’s insurance policy. As the district court pointed out, the Supreme Court

of Oklahoma has relied on a dictionary definition for the term “resident”:

       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. Residence usually implies more or less
       permanence of abode but is often distinguished from inhabitant as
       not implying as great fixity or permanency of abode.

Henderson v. Eaves , 516 P.2d 270, 274 (Okla. 1973) (quotation omitted).

Appellant himself acknowledges that Appellee’s policy explained that “the term

resident . . . does require more than mere temporary physical presence in the

named insured’s household.” Aplt. App., Vol. II at 361.

       In Anderson v. Liberty Lobby, Inc.     , 477 U.S. 242 (1986), the Supreme

Court discussed the quantum of evidence necessary to withstand summary

judgment. Since the evidence of the nonmoving party is deemed true and all

“justifiable” inferences are drawn in his favor,   id. at 255, he “need only present


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evidence from which a jury might return a verdict in his favor,”        id. at 257.

“Credibility determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts are jury functions, not those of a judge.”         Id.

at 255. Thus, when a trial judge decides a motion for summary judgment based

on the lack of proof of a material fact, the judge must ask whether a “fair-minded

jury” could return a verdict for the plaintiff on the evidence presented.         Id. at 252.

But “[t]he mere existence of a scintilla of evidence in support of the plaintiff’s

position will be insufficient; there must be evidence on which the jury could

reasonably find for the plaintiff.”   Id.

       In light of this standard, we agree with the district court that Appellant’s

evidence is insufficient to support a reasonable inference that he resided with

Mr. Pitts, the policyholder, at the time of the accident or long enough to qualify

as an insured under Mr. Pitts’ policy. Under       Liberty Lobby , Appellant must not

only produce evidence of residence with his brother-in-law at the time of the

accident, but the evidence must be of a nature or quality from which a reasonable

jury could infer that fact.

       Appellant submitted none of the standard documentary proof of residence,

such as drivers license, credit card mailings, tax returns, voting registration, or

the like. Indeed, on the police report for the accident, Appellant stated his

address to be 5603 S.W. Lee, Oklahoma City. Aplt. App., Vol. I at 164. Other


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documents within his medical record in connection with the accident, but dated

prior to the accident, show the same address.    Id. at 140. Other medical reports

and a collection letter, dated from September through November 1999, show his

address to be either in Norman or Yukon rather than Oklahoma City.         Id. at 129,

143, 151, 157, 158, 161, 162, 173.

         In support of his argument, Appellant points first to evidence that a GEICO

investigator initially concluded that he was covered by Mr. Pitts’ policy, based on

Mr. Pitts’ representation to the company that Appellant was living with him at the

time of the accident.   See id. , Vol. II at 321, 322, 327 (Hughes Depo., pages 8, 9,

115, 116), 383 (GEICO Daily Alog Transactions). Although the log in which the

statement appears may be admissible in evidence as a business record, the

statement recorded in it–that Mr. Pitts said that Appellant was living with him–is

inadmissible hearsay.    See United States v. McIntyre , 997 F.2d 687, 699-700

(10th Cir. 1993). Such inadmissible evidence cannot be used on summary

judgment to prove that Appellant was living with his brother-in-law on the date of

the accident. See Wells v. Boston Ave. Realty , 125 F.3d 1335, 1340 (10th Cir.

1997).

         Appellant also points to an emergency room report dated August 29, 1999,

the date of the accident, showing his address as 5409 S.W. Lee Ave., Oklahoma

City–the Pitts’ residence.   Id. , Vol. I at 135. It is not clear, however, whether this


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means anything more than that he was staying with his sister and brother-in-law at

the time, and contains no information about whether his stay was intended to be

anything other than temporary.

      Appellant relies most heavily on deposition testimony of his brother-in-law,

Mr. Pitts. Mr. Pitts testified that at some unspecified period of time, Appellant

stayed with him for more than one and less than four months, sleeping either on a

living room couch or in a back bedroom; Mr. Pitts changed his account from one

to the other. Id. at 258 (Pitts Depo. at 13-14). Mr. Pitts did not state whether or

not the accident took place during this period. Seven pages later in his

deposition, Mr. Pitts was asked: “Do you know if he was living at your house at

the time this wreck occurred out there on Highway 9?” Mr. Pitts answered: “I

believe that he was,” and then promptly clarified: “I can’t remember 100 percent

beyond the shadow of a doubt. But I believe that he was.”    Id. at 260 (Pitts Depo.

at 21-22). Mr. Pitts also testified that he had no lease agreement with Appellant,

that Appellant paid no rent (though he would sometimes “throw in some cash”

toward the groceries), never took out utilities in his name, did not move his

furniture into the house, had no fixed period for staying there, and was not a

permanent resident. Id. at 258-60 (Pitts Depo. 14-22).

      This evidence is insufficient to create a genuine issue of material fact. At

most, it shows his brother-in-law’s “belief” that Appellant was “living” at his


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house at the time of the accident.   See id. at 260 (Pitts Depo. at 21-22). This falls

short of proof of residence in the sense of “more or less permanence of abode,”

which is the legal standard under Oklahoma law.      Henderson , 516 P.2d at 274. A

temporary house guest is not a “resident” for purposes of obtaining coverage on

the householder’s automobile insurance policy.

       Because we affirm the district court’s holding that Appellant was not an

insured as defined by Appellee’s insurance policy, we need not address his

bad-faith claim.

       The judgment of the district court is AFFIRMED.



                                                      Entered for the Court



                                                      Michael W. McConnell
                                                      Circuit Judge




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