STATE FARM FIRE AND CASUALTY COMPANY, APPELLANT,
v.
JEFFREY BLASBAND, ETC., ET AL., APPELLEES

Fla. 5th DCA | 1988-12-08
No. 88-600
ORFINGER and COBB, JJ., concur.
534 So. 2d 901 Florida District Court of Appeal, Fifth District (1988) Positive Treatment
Cited by 2 cases

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Synopsis

State Farm appealed a judgment finding that a minor stepson was covered under his stepmother's homeowners insurance policy despite an exclusion for injuries to resident relatives. The court reversed, holding that the question of residency was properly submitted to the jury and the trial judge erred in directing a judgment notwithstanding the verdict based on alleged policy ambiguity.


Holding

The court reversed the directed verdict and judgment notwithstanding the verdict, holding that the question of residency was properly submitted to the jury as a mixed question of law and fact, and that the jury's determination based on competent and substantial evidence should have been upheld. The term 'resident' did not create an ambiguity requiring judicial interpretation.


Headnotes

[1] Whether an individual is a resident of a household for purposes of insurance policy coverage is a mixed question of law and fact.

[2] Residence is determined by a combination of fact and intention, including the place of abode and the present intention regarding removal.

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Key Quotes

“Whether an individual is a resident of a household for purposes of determining coverage or non-coverage under an insurance policy is generally a mixed question of law and fact.”

Establishes that residency is not purely a legal question but involves factual determination appropriate for jury consideration.

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Facts & Procedural History

Jeffrey Blasband, a minor, was accidentally shot by a rifle at his stepmother's and father's home. Jeffrey had been living there for approximately 2¾ …

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Opinion of the Court
SHARP, Chief Judge.

SHARP, Chief Judge.

State Farm Fire and Casualty Company appeals from a final judgment which held that Jeffrey Blasband was covered under his stepmother’s (Sylvia Blasband’s) homeowners insurance policy. The policy excluded coverage for personal injuries to insureds and their relatives who are residents of the household.1 Jeffrey was a minor at the time he was accidently shot by a rifle in his stepmother’s and father’s home. The jury determined that Jeffrey was a “resident” of the household where the accident occurred. The trial judge entered a JNOV for the Blasbands because the term “resident” as used in the exclusion is ambiguous, and because in a divorce decree entered some years before, custody of Jeffrey was granted to his mother, Barbara. We reverse.

It appears to us that the question of residence was properly submitted to the jury. Whether an individual is a resident of a household for purposes of determining coverage or non-coverage under an insurance policy is generally a mixed question of law and fact. Row v. United Services Automobile Association, 474 So. 2d 348 (Fla. 1st DCA 1985). Some of the factors to be considered by the jury in considering residency have been set forth in Kiplinger v. Kiplinger, 147 Fla. 243, 2 So. 2d 870, 873-874 (1941), in which the Florida Supreme Court stated:

The residence of a party consists of fact and intention. Warren v. Warren, 73 Fla. 764, 75 So. 35 L.R.A. 1917E, 490. Residence indicates place of abode, whether permanent or temporary. Minick v. Minick, 111 Fla. 469, 149 So. 483. A resident is one who lives at a place with no present intention of removing therefrom. Tracy v. Tracy, 62 N.J.Eq. 807, 48 Atl. 533. Whether or not a party is a resident is a question of law and fact to be settled or determined from the facts of each particular case.

In this case, the evidence established that Jeffrey had been living in his stepmother’s and father’s home together with a stepbrother and a half-brother, for 2¾⅞ years before the accident. In the divorce decree, custody was awarded to Barbara Blasfield, Jeffrey’s mother. However, by mutual agreement, Jeffrey was living with his father and attending high school in Citrus County. Every other weekend he visited his mother in Tampa.

We do not think the use of the word “resident” in the insurance policy created an ambiguity. In any event, no testimony was offered to aid the court or trier of fact in construing the meaning of the policy. Rather, the question of “residence” was properly submitted to the jury, and it made a determination, based on competent and substantial evidence. There was no justification for directing a verdict or entering a JNOV in this case. Reams v. Vaughn, 435 So. 2d 879 (Fla. 5th DCA 1983); McDonald v. McGowan, 402 So. 2d 1197 (Fla. 5th DCA), rev. dismissed, 411 So. 2d 380 (Fla.1981). Accordingly, we reverse and remand this case with directions to enter a judgment based on the jury verdict.

REVERSED AND REMANDED.

ORFINGER and COBB, JJ., concur. . ‘Insureds” were defined by the policy as (a) your relatives; (b) any other person who is under the age of 21 who is in the care of any person named above.


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Citator

Cited By

  • Prudential Prop. & Cas. Ins. Co. v. Bonnema, 601 So. 2d 269 (Fla. 5th DCA 1992)
    …uits between family members. Reid, at 1173. In one case considered by this court, the definition of “insured” to include relatives was almost identical to the definition of “insured” in the instant appeal. State Farm Fire & Casualty Co. v. Blasband, 534 So. 2d 901 (Fla. 5th DCA 1988), review denied, 542 So. 2d 1332 (Fla.1989). We note the absence of any allegation in the record that the form used by Prudential was neither submitted to nor approved by the Department of Insurance as required by section 627.410,…

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