This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C8-99-1099

Lori Rosa, et al.,
Respondents,

vs.

James Chapeau, et al.,
Respondents,

Illinois Farmers Insurance Company,
Appellant.

Filed January 18, 2000
Reversed
Willis, Judge

Washington County District Court
File No. C4984079

Katherine A. Brown Holmen, Dudley and Smith, P.A., 2602 Firstar Center, 101 East Fifth Street, Saint Paul, MN 55101 (for respondents Rosa)

Bruce L. Beck, James Marks, Beck & Marks, P.L.L.P., 2785 White Bear Avenue North, Suite 404, Maplewood, MN 55109 (for respondents Chapeau)

Paul W. Godfrey, Votel, Anderson & McEachron, 444 Cedar Street, Suite 1250, Saint Paul, MN 55101 (for appellant)

Considered and decided by Short, Presiding Judge, Willis, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant Illinois Farmers Insurance Company (Illinois Farmers) challenges the district courtís grant of summary judgment for respondents Anthony and Lori Rosa. Lori Rosa was injured when she fell on the sidewalk of a home owned by her parents, James and Diane Chapeau. The Rosas rented an upstairs apartment from Lori Rosaís parents, who were insured under a homeownerís policy issued by Illinois Farmers. The district court concluded that Lori Rosa was not a "resident of the residence premises," as the term is used in a bodily injury exclusion in the policy. The district court also concluded that the policy provided coverage for bodily injury to renters. We reverse.

FACTS

Respondents James and Diane Chapeau own a duplex in Mahtomedi. The Chapeaus rented the upstairs apartment of their duplex to their daughter, respondent Lori Rosa (Rosa), and her family. On February 2, 1998, Rosa slipped and fell on the sidewalk of the Chapeausí property while walking to her upstairs apartment from her car, which she had parked in the driveway. Rosa sustained a broken leg that required surgery.

Appellant Illinois Farmers denied coverage for Rosaís injury, claiming that she was a "resident of the residence premises" and was therefore excluded from coverage under the Chapeausí policy. Rosa and her husband commenced a declaratory-judgment action against the Chapeaus and Illinois Farmers, seeking an order declaring that the policy covered her injury.

After limited discovery, the following facts were established: (1) the Chapeaus converted their property into a duplex in 1991 so they could rent the upstairs as an apartment; (2) the property contained two distinct living units, separated by a locked door; (3) the Chapeaus and the Rosas did not share bedrooms, bathrooms, a living room, dining room, kitchen, or telephone line; and (4) the Chapeaus did not modify their homeownerís insurance policy with Illinois Farmers after they separated the property into two living units.

The parties filed cross-motions for summary judgment on the issue of coverage. The district court granted the Rosasí motion for summary judgment, concluding that Rosa was not a resident of the Chapeausí household and was therefore covered under the policy. Additionally, the district court found that a clause in the policy providing coverage for "that part of a residence * * * which is rented or available for rent" also provided coverage for Rosaís injury. Illinois Farmers appeals.

D E C I S I O N

On appeal from summary judgment, this court asks whether there are genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The interpretation and construction of an insurance contract is a question of law, which this court reviews de novo. St. Paul Fire & Marine Ins. Co. v. Seagate Tech., Inc., 570 N.W.2d 503, 505 (Minn. App. 1997).

I.

We must first determine whether Rosa was a "resident of the residence premises" so as to exclude coverage for her injuries. The bodily injury exclusion in the Chapeausí policy reads, in pertinent part, "[w]e do not cover * * * [b]odily injury to any resident of the residence premises * * * ."

We recently addressed the meaning of "resident of residence premises" in Illinois Farmers Ins. Co. v. Neumann, 596 N.W.2d 685 (Minn. App. 1999), review denied (Minn. Sept. 14, 1999). In Neumann, Katina Neumann rented half of a duplex and sublet a room to Barbara Brenny, who was injured when Neumannís dog bit her. Neumann submitted a claim under her renterís insurance policy, and Illinois Farmers brought a declaratory-judgment action, seeking a determination that the policy did not provide coverage. Id. at 686. In affirming the district courtís grant of summary judgment to Illinois Farmers, this court concluded that the policy language "resident of residence premises" is broader than "resident of a household" and is intended to cover unrelated persons who live together. Id. at 687.

Here, the district court applied a three-factor test used to determine residency in an insuredís household and concluded that Rosa was not a "resident of the residence premises" and that her injuries were therefore covered under the policy. See generally Firemenís Ins. Co. v. Viktora, 318 N.W.2d 704, 706-07 (Minn. 1982) (determining residency in the insuredís household depends upon (1) whether the person lives under the same roof as the insured; (2) whether the relationship was "close, intimate and informal"; and (3) whether the intended duration of the relationship was substantial such that it would be "reasonable to conclude that the parties would consider the relationship" when contracting for insurance). But when the district court granted summary judgment for the Rosas, Neumann had not yet been decided.[1] And absent special circumstances or a pronouncement by the court that a decision is to be applied prospectively only, the decision is to be given retroactive effect. Hoff v. Kempton, 317 N.W.2d 361, 363 (Minn. 1982); Summers v. R & D Agency, Inc., 593 N.W.2d 241, 245 (Minn. App. 1999). Because this case does not present special circumstances and because the court in Neumann did not announce that the decision was to be applied prospectively only, we must analyze this case under Neumann.

Neumann makes clear that the policy language "resident of residence premises" is broader than "resident of a household" and that a person who is not a "resident of a household" could very well be a "resident of residence premises." Neumann, 596 N.W.2d at 687. In Neumann, we concluded that "intent to live in a residence and physical presence there are of primary importance in determining whether a person is a resident of a residence premises." Id. at 688. The determination of residence is a question of fact. Id. at 687; Auto-Owners Ins. Co. v. Harris by Harris, 374 N.W.2d 795, 797 (Minn. App. 1985).

At the time of Rosaís injury, she had lived at 419 Mahtomedi for almost two years and was paying $600 per month to rent the upstairs apartment where she lived with her husband and two children. There is no evidence in the record that Rosa resided anywhere else. Thus, the record establishes that Rosa intended to live at 419 Mahtomedi and that she was physically present there.

The Chapeausí insurance policy defines "residence premises" as

the one or two family dwelling and separate structure or that part of any other building where you reside * * * Under Section II Ė Liability, residence premises includes the grounds on which the dwelling and separate structures are located.

The upstairs apartment at 419 Mahtomedi is part of the "residence premises" as defined by the Chapeausí insurance policy. And the record establishes that Rosa was a resident of the apartment and was not a resident of any other place. Therefore, Rosa was a resident of the residence premises, as the term is used in the bodily injury exclusion of the policy, and her injuries are not covered under the policy.

II.

Illinois Farmers also argues that the district court erred in concluding that Section II in the Chapeausí insurance policy specifically allows coverage for bodily injury to renters of the property. Section II, relating to exclusions, provides

We do not cover bodily injury or property damage which:
1. arises from or during the course of business pursuits of an insured.
But we do cover:
a. that part of a residence of yours which is rented or available for rent:
(1) on an occasional basis for sole use as a residence.
(2) to no more than two roomers or boarders for sole use as a residence.

This court interpreted this same section and same language in the Illinois Farmersí insurance policy at issue in Neumann. We concluded that "[s]ubsection 1a clearly contemplates that the owner of the renterís insurance policy may sublet part of the premises covered by the policy and that part of the premises will have property damage coverage, but the language cannot be read to provide coverage for bodily injury for a sublessee." Neumann, 596 N.W.2d at 688. Likewise, here the policy language cannot be construed to provide coverage for Rosaís bodily injury.

Reversed.

[1] This court's decision in Neumann was issued on July 20, 1999. The district court's order for summary judgment was issued on May 12, 1999.