This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Jessica Greene,





Illinois Farmers Insurance Company,

an Illinois Corporation,



Mutual Service Insurance Company,




Filed December 6, 2005

Reversed and remanded

Hudson, Judge

Dissenting, Kalitowski, Judge


Hennepin County District Court

File No. PI 04-1394


Randall G. Spence, P.O. Box 007, 1494 Golfview Drive, River Falls, WI 54022; and


Robert E. Wilson, Robert Wilson & Associates, 404 Third Avenue North, #201, Minneapolis, MN 55421 (for respondent)


Daniel R. Mitchell, Votel, Anderson, McEachron & Godfrey, 444 Cedar Street, Suite 1250, St. Paul, MN 55101 (for appellant)


            Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


Respondent Jessica Greene brought an action for declaratory judgment to determine whether appellant Illinois Farmers Insurance Company was responsible for securing respondent’s basic economic loss benefits.  Respondent’s claim against appellant was based on her status as a resident relative insured under her mother’s policy with appellant.  The parties filed cross motions for summary judgment and the district court granted summary judgment for respondent.  Because a genuine issue of material fact exists concerning respondent’s status as a resident relative insured of the home she shared with her mother, we reverse the district court’s grant of summary judgment and remand for trial.



In August 1995, when respondent Jessica Greene was 19 years old, she and her mother purchased a town house in Maple Grove, Minnesota.  Respondent and her mother owned the property as joint tenants and both of them were listed on the mortgage.  Over the next two years, respondent lived in the town house with her mother and her siblings.  Employed full time as a nursing assistant, respondent contributed toward the monthly mortgage payment, though the amount she paid did not cover her portion of the mortgage payment.  Respondent purchased her own groceries but did not contribute toward any utility bills at the town house.

In late July 1997, her mother discovered that respondent had resumed drinking after respondent had completed an alcohol treatment program months earlier.  In response, respondent’s mother asked her to leave the town house.  When respondent left, she took her clothes and piggy bank, leaving her other personal belongings behind at the town house.  Respondent did not officially change her address and continued to receive mail at the town house.  She returned to the town house periodically to pick up her mail and wash her clothes.  After she left, respondent stayed with her cousin’s grandfather.  Respondent described this arrangement as “a place to crash” and “a temporary thing” because she would not be able to stay after her cousin returned to college.  Respondent stated that she would have returned to the town house if she had not found another place to live.  In a later affidavit, respondent explained that at the time of the accident, she had been staying at her cousin’s grandfather’s home while “waiting to move into [her] ap[artment].” 

On August 16, 1997, two to three weeks after she left the town house, respondent fell out of the back of a truck owned by Jesse Benson.  She sustained injuries including a subdural hematoma, fractured skull, torn tendons in her right ankle, and road rash.  She spent three weeks in the hospital.  Her medical expenses exceeded $20,000. 

At the time of the accident, respondent owned a vehicle, but the insurance coverage had lapsed.  Mutual Service Insurance Company (MSI) insured Benson’s truck.  On September 29, 1997, respondent presented MSI with a claim for no fault basic economic loss benefits.  MSI denied her claim.  Because respondent listed the town house address on her application for benefits, MSI maintained that she should submit her medical bills to her mother’s insurance company. 

On April 7, 1999, respondent presented a claim for no fault basic economic loss benefits to appellant Illinois Farmers Insurance Company, the company that insured her mother’s car.  Appellant also denied her claim.  On May 6, 1999, respondent settled her claim against Benson with his insurer, MSI.  In exchange for payment, appellant signed a release form discharging her claims against Benson and MSI.  Almost two years later, respondent wrote to MSI and appellant again, asking them to agree as to which one of them would pay her economic loss benefits.  MSI maintained that she had waived all claims against it by signing the release in 1999. 

On January 27, 2004, respondent filed a declaratory judgment action against MSI and appellant to determine which party was responsible for providing her basic economic loss benefits.  All three parties moved for summary judgment.  The district court granted respondent’s motion for summary judgment against appellant, finding that respondent was a resident relative insured under appellant’s policy.  Accordingly, the court found appellant responsible for all economic loss benefits due to respondent arising from the injuries she received in the accident as well as accrued interest penalties.  The court granted MSI’s summary judgment motion because respondent waived any further claims against MSI by signing the release form.  This appeal follows.



On appeal from summary judgment, this court determines:  (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  This court reviews the evidence in the light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  Summary judgment is a “blunt instrument” to be used only where it is clearly applicable; it is inappropriate when reasonable persons might draw different conclusions from the evidence presented.  See Donnay v. Boulware, 275 Minn. 37, 45, 144 N.W.2d 711, 716 (1966).  Whether an individual is a resident is generally a fact question.  Fruchtman v. State Farm Mut. Auto. Ins. Co., 274 Minn. 54, 55, 142 N.W.2d 299, 300 (1966); State Farm Fire & Cas. Co. v. Lawson, 406 N.W.2d 20, 22 (Minn. App. 1987), review denied (Minn. June 30, 1987).

Under Minnesota’s No-Fault Automobile Insurance Act (Act), “[b]asic economic loss benefits shall provide reimbursement for all loss suffered through injury arising out of the maintenance or use of a motor vehicle,” including “$20,000 for medical expense loss arising out of injury to any one person.”  Minn. Stat. § 65B.44, subd. 1(a)(1) (2004).  Where the injury resulted from neither business- nor employment-related use, “[t]he security for payment of basic economic loss benefits applicable to injury to an insured is the security under which the injured person is an insured.”  Minn. Stat. § 65B.47, subd. 4(a) (2004).  The Act defines “insured” to include relatives of the named insured that reside in the same household as the named insured.  Minn. Stat. § 65B.43, subd. 5 (2004).  The Act further states that, “[a] person resides in the same household with the named insured if that person’s home is usually in the same family unit, even though temporarily living elsewhere.”  Id. 

Here, the parties do not dispute that respondent’s injuries arose from the use of a motor vehicle or that she is eligible for economic loss benefits.  The issue is whether the district court erred by finding that no fact issue exists as to whether respondent falls under the definition of a resident relative insured in Minn. Stat. § 65B.43. 

            The test to determine residency in a household considers the following factors:

(1) [l]iving under the same roof; (2) in a close, intimate and informal relationship; and (3) where the intended duration is likely to be substantial, where it is consistent with the informality of the relationship, and from which it is reasonable to conclude that the parties would consider the relationship in contracting about such matters as insurance or in their conduct in reliance thereon.


Firemen’s Ins. Co. v. Viktora, 318 N.W.2d 704, 706 (Minn. 1982) (quoting Pamperin v. Milwaukee Mut. Ins. Co., 197 N.W.2d 783, 788 (Wis. 1972) (quotation omitted)).  This court further articulated the following factors to be taken into consideration:  “(1) age of the person; (2) whether a separate residence is established; (3) self-sufficiency of the person; (4) frequency and the duration of the stay in the family home; and (5) intent to return [to the family home].”  Wood v. Mut. Serv. Cas. Ins. Co.,415 N.W.2d 748, 750 (Minn. App. 1987), review denied (Minn. Feb. 12, 1988).  Although not dispositive, a court can also consider whether a person’s belongings remain in the home and whether the person still uses the home as his or her mailing address.  Id. at 751. 

            Respondent contends and the district court concluded that, as a matter of law, appellant was responsible for respondent’s basic economic loss benefits because respondent was a resident of the town house she shared with her mother.  We disagree. 

            In granting respondent’s motion for summary judgment, the district court described facts indicating that respondent was a resident relative insured of the town house she shared with her mother.  The order explained that respondent’s status as a co-owner of the town-house “speaks volumes to the court” about her intent to return to the house and her status as a resident.  Despite the fact that the parties’ cross-motions for summary judgment suggested that no material facts exist, the language of the district court’s order demonstrates that the court was weighing the evidence in coming to its decision.  But a court “must not weigh the evidence on a motion for summary judgment.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997). 

Not only did the district court impermissibly weigh the evidence, the record also shows that genuine issues of material fact exist to preclude a proper grant of summary judgment.  Although intent is only one factor in the residency analysis, the parties have focused their argument on respondent’s intent to return to the town house after she left.  Evidence in the record indicates that respondent intended to return to the town house.  She was part owner of the town house and left all of her belongings there after her mother forced her to leave.  She returned occasionally to pick up her mail and wash her clothes.  She never established a residence separate from the town house.  Yet, there is also evidence that respondent did not intend to return to the town house.  In an affidavit describing her state of mind at the time of the accident, respondent stated that she had been planning on moving into an apartment.  She said she would return to the town house “only if [she] couldn’t find another place to live.”  Thus, compelling evidence exists on both sides of the issue regarding respondent’s intent to return to the town house and the larger issue of respondent’s residency.  

The record also shows that a fact issue exists regarding respondent’s self-sufficiency, another factor in the residency determination.  See Wood, 415 N.W.2d at 750.  As appellant points out, respondent was an adult at the time of her accident.  She worked full time, was part owner of a home, and helped to pay for its mortgage.  But she was not completely self-sufficient because her contributions did not cover her share of the mortgage or any utilities at the town house. 

            Residency is generally a question of fact.  Fruchtman,274 Minn. at 55, 142 N.W.2d at 300.  The district court’s function on a motion for summary judgment, however, is not to decide issues of fact, but to determine whether they exist.  Anderson v. Mikel Drilling Co., 257 Minn. 487, 494, 102 N.W.2d 293, 299 (1960).  Because the district court impermissibly weighed the evidence in ruling on this summary judgment motion and because genuine issues of material fact exist as to respondent’s residency, we conclude that the district court erred in granting summary judgment. 

            We reject appellant’s argument that respondent’s actions after the accident are relevant in determining her residency status.  “[D]etermination of residency is made as of the date the coverage becomes necessary.”  State Farm Fire & Cas. Co. v. Short, 459 N.W.2d 111, 114 (Minn. 1990).  Therefore, a determination of respondent’s residency should focus on her status as of the date of her accident, August 16, 1997. 

            Reversed and remanded.



KALITOWSKI, Judge (dissenting)


            I respectfully dissent.  In this declaratory judgment action, both parties filed cross-motions for summary judgment, thereby asserting that no genuine issues of material fact existed.  The district court properly granted appellant’s motion because no genuine issue of material fact exists regarding respondent’s status at the time of the accident as a resident relative insured of the home she owned with her mother. 

            The undisputed facts show that (1) respondent lived with her family her entire life except for a short period in 1995; (2) respondent owned a town house in joint tenancy with her mother; (3) respondent lived in the town house with her mother and siblings until two to three weeks before her accident; (4) respondent left the town house involuntarily after a disagreement with her mother; (5) respondent left all of her personal belongings at the town house except for her clothes and a piggy bank; (6) respondent kept her key to the town house and continued to use the town house as her mailing address; (7) respondent returned to the town house periodically to pick up her mail and wash her clothes; and (8) prior to the accident, respondent never established a residence separate from the town house, but temporarily “crashed” at her cousin’s grandfather’s home.

            Appellant’s argument relies primarily on respondent’s actions after the accident.  But those considerations are irrelevant because residency determinations must be made “as of the date coverage becomes necessary.”  State Farm Fire & Cas. Co. v. Short, 459 N.W.2d 111, 114 (Minn. 1990).  And to the extent appellant attempts to raise disputed facts regarding respondent’s intent at the time of the accident, intent is only one factor in a residency determination.  See Firemen’s Insur. Co. v. Viktora, 318 N.W.2d 704, 706 (Minn. 1982); Wood v. Mutual Serv. Cas. Ins. Co., 415 N.W.2d 748, 750 (Minn. App. 1987), review denied (Minn. Feb. 12, 1988).  Moreover, if doubt regarding an individual’s subjective intent were sufficient to defeat a motion for summary judgment, then summary judgment motions on residency status would never be granted.  Precedent indicates that this is not the case.  See Am. Family Mut. Ins. Co. v. Thiem, 503 N.W.2d 789, 790-91 (Minn. 1993).

            Summary judgment is “an integral part” of civil procedure, not “a disfavored procedural shortcut,” and is “designed to secure the just, speedy and inexpensive determination of every action.”  Dixon v. Depositors Ins. Co., 619 N.W.2d 752, 757 (Minn. App. 2000) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 2555 (1986)).  The supreme court has stated that there is no genuine issue of material fact “when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).

Here, the overwhelming weight of the evidence indicates that respondent was a resident relative in the house she owned with her mother.  Because appellant’s evidence does no more than create a speculative doubt as to respondent’s intent regarding her future plans, I would affirm the district court.