Insured’s in Grand Prairie, Irving, Garland, Mesquite, Dallas, Carrollton, Richardson, Duncanville, De Soto, and other places in Dallas County might have a hard time believing some of the reasons an insurance company will use for denying a claim. Here is one they tried but it did not work regarding the child of divorced parents.
The case was decided by the Texarkana Court of Appeals in 1978. The style of the case is, Hartford Casualty Insurance Company v. Barbara Smith Phillips, Individually and as Personal Representative of the Estate of Jerry Glenn Phillips.
This case involves the question of coverage under the uninsured motorist provisions of a policy of automobile liability insurance. Barbara Phillips was the named insured and sought recovery of damages for bodily injuries sustained by her son, Jerry Glenn Phillips, as a result of an accident caused by an uninsured motorist. At trial, the jury found that Jerry was a “resident of the same household” as Barbara. Hartford contended that Jerry was not such a resident as a matter of law; that there is no evidence to support the jury finding; that there was insufficient evidence to support such finding; and that such finding was so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.
It should be noted that at the time of his death, Jerry Glenn Phillips was only fourteen years old.
Barbara was Jerry’s mother. His father was Jerry Leon Phillips. The parents had divorced in 1964 and custody was placed with Barbara. However, in 1965, without a change in the custody order, Jerry Glenn, through an agreement by his parents, went to live with his father. It appears that Barbara had only a one bedroom apartment and the father had a two story home with ample space for a separate bedroom for Jerry Glenn, such home being located within twelve blocks of the school that Jerry Glenn attended. Barbara’s apartment was not within the school district and the home address of Jerry Glenn for school purposes was that of his father. He had his meals and kept his clothes at his father’s house except when visiting his mother. He also kept extra clothes at his mother’s apartment. The father claimed Jerry Glenn as a dependent on his income tax returns. The school directory listed his address as that of his father. The medical, hospital, physician records and police report reflected that he resided with his father. His mother bought all of his clothing and provided his food when he was at her apartment. His father testified that he stayed with both him and his mother. The jury found as a fact that Jerry Glenn was a resident of his mother’s household and the court entered a judgment reflecting that finding.
From a legal stand point, it should be noted that Barbara was the legal custodian of the child, that the child was only fourteen years of age and that a person, particularly a child, can have more than one “residence” as distinguished from a “domicile.” A person may, and many do, have more than one residence. This is particularly true of a minor child of divorced or estranged parents.
In ruling for Barbara the court stated:
“It is quite evident that a finding by the court or jury that Jerry Glenn was a “resident” of his father’s household would be adequately supported by the evidence. However, such a finding would not necessarily foreclose and prevent a finding that he was also a “resident” of his mother’s household. The mother remained his legal custodian, contributed to his support, he regularly spent time with her in her apartment and kept some clothes there. Barbara as his legal custodian, had she so desired, could legally have required him to remain under her roof full time. The fact that for what apparently she and his father jointly felt would be for his best interest, would not within itself as a matter of law prevent him from being a “resident” of her household.”
Updated: