Dallas Fort Worth Insurance Lawyer Blog
Grand Prairie Insurance Attorneys and those in Fort Worth, Dallas, Carrollton, Farmers Branch, Richardson, Plano, Rowlett, Mesquite, and other places in the Dallas / Fort Worth area would want to be able to understand how insurance companies look at the members of a household when interpreting an insurance policy.
The Waco Court of Appeals issued an opinion in 1977, in the case, Southern Farm Bureau Casualty Insurance Company v. Kenneth C. Kimball et al. that is still good law. Here is some background:
Kenneth is the named insured in a family insurance automobile policy issued by Southern Farm Bureau. Kenneth’s wife, Connie, was killed in an automobile accident with an uninsured motorist when the policy was in force. At the time of her death, she and Kenneth were separated, living in separate residences, and a divorce action filed by her was pending. Southern Farm Bureau brought suit seeking a declaratory judgment as to its responsibilities under the policy for uninsured motorist protection.
In this case, Kenneth and Connie, a couple in their 20’s, were married in May, 1972. Their only child, a daughter, was born in September, 1973. Connie was killed on December 21, 1975. Before their separation, they resided in their mobile home in the City of Waco. Early in their marriage, they suffered substantial financial losses in the construction business. Thereafter, during the last two years of their marriage, Kenneth was a “long haul” truckdriver, based in Waco. He would be on the road three and four weeks at a time, with no longer than three days at home between trips. Sometimes he would get in at night and leave the next morning. On the trips, he virtually lived in his truck. It was arranged with his employer that Connie could draw on his earnings and pick up his paychecks. She cashed the checks, bought the family needs, and paid the bills, including payments on the mobile home and several department store accounts she maintained. Connie also held a job. During the day, she left their child with her mother who lives in the City of Lacy-Lakeview, near Waco. After work when Kenneth was gone, Connie would go home, clean up, carry her work clothes for the next day to her mother’s house, and she and the child would spend the night there. Connie filed suit for divorce on November 5, 1975. Later, she separated from Kenneth and moved into her mother’s house, taking all of her work clothes. After the separation, Connie still kept most of her things in the trailer home. One week before her death, Connie rented an apartment in the City of Bellmead, near Waco, and moved all of her belongings into it. She left a set of dishes in the mobile home for Kenneth. The divorce suit and the separation were precipitated by emotional stress suffered by Connie which was caused by Kenneth’s long absences from home and by the dunning of creditors of their defunct construction business. During the separation, Connie would either meet Kenneth at the truck depot in Waco when he returned from a trip, or she would have their car there for his use and he would go to her. They would go out together for supper when he was home, and would visit into the evening with each other and other trucker-couples at local night spots. Neither was romantically interested in another person. They continued with the arrangement for Connie drawing on his pay, cashing his checks, using the money as she saw fit, including her needs and those of the child, and paying the bills. He talked with her several times about a reconciliation, but she had not agreed to it at the time of her death. On December 5, 1975, Kenneth returned home to attend his father’s funeral. That night, he and Connie slept together in a room in his mother’s house. Their child was with them. On December 20th, the night before Connie died, she fixed supper for Kenneth in her apartment. Their daughter was with them. They discussed plans for the child’s Christmas. Kenneth had arranged his schedule to be home on Christmas.
The controlling test of whether persons are residents of the same household at a particular time, within the meaning of the policy in question, is not solely whether they are then residing together under one roof. The real test is whether the absence of the party of interest from the household of the alleged insured is intended to be permanent or only temporary i. e., whether there is physical absence coupled with an intent not to return. In American States Ins. Co. v. Walker, a Utah case, the court said that the residence in question “emphasizes membership in a group rather than an attachment to a building”; and that it is “a matter of intention and choice” rather than one of location. Under proper facts, it has been held that separations from the common roof by college students, by members of the military services, and by spouses (albeit with divorce actions pending) did not, per se, destroy their household membership with their families and spouses.
The evidence recited supported a determination by the jury that the separation of Kenneth and Connie was not irrevocably permanent at the time of Connie’s death. It is legally sufficient to support the finding that they were then residents of the same household. A review of the whole record convinced the court that the finding was not against the great weight and preponderance of the evidence.
These cases have to be looked at on individual basis in order to be able to determine the chances of success. The facts compared to the policy language is what is important.