This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1057

 

Metropolitan Property & Casualty Insurance Company,
f/k/a St. Paul Guardian Insurance Company,
Respondent,

vs.

Judith J. Armada,

personal representative for the estate of James Armada, et al.,
Defendants,

Karen Pahl,

trustee for the heirs and next-of-kin of Kelly Jo Carriere,

Appellant.

 

Filed March 21, 2006

Affirmed

Wright, Judge

 

Scott County District Court

File No. C-04-14945

 

 

Kermit N. Fruechte, Richard L. Carlson, Hunegs, Stone, LeNeave, Kvas, & Thornton, P.A., 1650 International Centre, 900 Second Avenue South, Minneapolis, MN  55402 (for appellant)

 

Nicholas L. Klehr, LaBore, Giuliani, Cosgriff & Viltoft, Ltd., 10285 Yellow Circle Drive, P.O. Box 70, Hopkins, MN  55343-0070 (for respondent)

 

 

            Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Worke, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Appellant challenges the district court’s determination that the tortfeasor in the underlying wrongful-death action was not covered by his parents’ homeowner’s-insurance policy because he was not permanently living with his parents at the time of the accident.  Appellant argues that the district court erred by granting summary judgment without applying a multi-factor residency test.  We affirm. 

FACTS

 

On September 28, 2001, Robert Young was driving a four-wheel ATV when he struck an automobile that Savage police had stopped.  His passenger, Kelly Jo Carriere, was thrown from the ATV and died from the injuries she sustained.   

Appellant Karen Pahl, trustee for the heirs and next-of-kin of Carriere, brought a wrongful-death action against Young, the City of Savage, the driver of the stopped vehicle, and a bar that had served alcohol to Young before the accident.  Pahl settled with Young’s primary insurance provider for his liability policy limits while retaining any claim against Young in excess of that amount. 

            Young’s mother and stepfather, Judith and James Armada (the Armadas), held a homeowner’s-insurance policy with respondent Metropolitan Property & Casualty Insurance Company (MetLife).  The Armadas notified MetLife that Young was living with them at their family home in Lakeville on the date of the accident.  MetLife concluded from its investigation that Young’s residence on the date of the accident was in New Market.  Consequently, MetLife brought a declaratory-judgment action against Young, the Armadas, and Pahl, seeking a determination that it had no obligation to defend or indemnify Young for claims arising from the accident because Young was not covered under the MetLife policy.  

            MetLife moved for summary judgment.  The district court concluded that Young was not permanently living with the Armadas as required by the MetLife policy and granted summary judgment in favor of MetLife.  This appeal followed.[1]           

D E C I S I O N

 

On appeal from summary judgment, we consider whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  Kvidera v. Rotation Eng’g & Mfg. Co., 705 N.W.2d 416, 420 (Minn. App. 2005).  In doing so, we view the evidence in the light most favorable to the nonmoving party and resolve any doubts on the existence of material fact issues against the moving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

Pahl asserts that, because Young was a resident of the Armadas’ household at the time of the accident, the MetLife policy covered Young.  “[T]he interpretation of insurance contract language is a question of law as applied to the facts presented.”  Meister v. W. Nat’l Mut. Ins. Co., 479 N.W.2d 372, 376 (Minn. 1992).  At issue here is the interpretation of the MetLife policy as applied to the facts of Young’s residency.  Because there is no dispute of material fact, we review de novo the district court’s interpretation of the insurance contract.  Nat’l City Bank v. St. Paul Fire & Marine Ins. Co., 447 N.W.2d 171, 175 (Minn. 1989). 

We apply general principles of contract construction when we interpret insurance policies.  Lobeck v. State Farm Mut. Auto. Ins. Co., 582 N.W.2d 246, 249 (Minn. 1998).  In doing so, we give the terms used in the insurance policy “their plain, ordinary, and popular meaning, so as to effect the intent of the parties.”  Ostendorf v. Arrow Ins. Co., 288 Minn. 491, 495, 182 N.W.2d 190, 192 (Minn. 1970).  We will not redraft an insurance policy to provide coverage when the plain language of the policy establishes that coverage does not exist.  Id. at 495-96, 182 N.W.2d at 192.

In providing coverage to family members, the MetLife policy applies to “any relative permanently living with our insured.”  The language of the MetLife policy is clear and unambiguous.  Thus, we consider whether Young was “permanently living” with the Armadas at the time of the accident.

For the limited purpose of the motion for summary judgment, the district court determined that Young was “living with” the Armadas as a resident of their household on the date of the accident.  Young lived at the Armada residence in Lakeville until 1999 when he moved to New Market and shared the residence of a friend, Nate Anderson.   Affidavit testimony of Young and Judith Armada establish that, in June 2001, Young resumed living with the Armadas.  He moved most of his possessions from Anderson’s residence to the Armadas’ residence and slept there on most evenings. 

Viewing the facts in the light most favorable to Pahl’s argument, we conclude that Young was indeed “living with” the Armadas as a resident of their household.  Such a conclusion does not require us to determine whether Young was exclusively a resident of the Armada household.  “As a general rule, while a person can have only one domicile, he can have more than one residence.”  Mut. Serv. Cas. Ins. Co. v. Olson, 402 N.W.2d 621, 624 (Minn. App. 1987), review denied (May 20, 1987). 

But our analysis of the MetLife policy language does not end at this juncture.  Rather, we must determine whether Young was “permanently living” in the Armada household.  The term “permanent” is not ambiguous in this context.  Permanent is defined as “lasting or remaining without essential change; not expected to change in status, condition, or place.”  The American Heritage Dictionary 1348 (3d ed. 1992).  A permanent resident, therefore, is someone who expects to remain at a particular residence without any anticipated change of residence. 

The record, even when viewed most favorably for Pahl, does not establish that Young was “permanently living” with the Armadas.  By his uncontroverted testimony, Young had moved out of Anderson’s residence and into the Armada residence to save money for the construction of his new residence.  In February 2001, Young signed an agreement to purchase a lot in New Market, where he planned to build a house with the assistance of a contractor.  Young broke ground on his new residence in June or July 2001 and worked on the house continuously over the months that he was living with the Armadas.  Young moved into his new house on October 31, 2001.  Because Young’s undisputed testimony establishes that he was living temporarily with his parents while constructing his new home, he was not “permanently living” with the Armadas as required under the MetLife policy. 

Pahl contends that we should apply the multi-factor, relative-residency test that the Minnesota Supreme Court adopted in Firemen’s Ins. Co. v. Viktora, 318 N.W.2d 704 (Minn. 1982).  That test provides three factors that a court must consider in determining whether an individual is a “resident” in the named-insured’s household: 

 (1) Living 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.”

 

Id. at 706 (quoting Pamperin v. Milwaukee Mut. Ins. Co., 197 N.W.2d 783, 789 (1972)).

Application of the Viktora test is unnecessary here because we have assumed, as did the district court, that Young was a resident of the Armada household.  Moreover, Viktora is inapplicable to the facts in this case because the MetLife policy language is distinguishable from the policy language in Viktora.  The policy at issue in Viktora defined an “insured,” in part, as “residents of the Named Insured’s household, his spouse, the relatives of either, and any other person under the age of twenty-one in the care of the insured.”  Id.  The MetLife policy provides coverage for relatives “permanently living” with the insured.  Pahl’s argument is one of residence, but residence is not in dispute.  By asking us to apply Viktora and find coverage, Pahl invites us to ignore the plain and unambiguous language of the MetLife policy.  We decline to do so.

Because the terms of the policy extend coverage only to relatives “permanently living” with the insureds and because the evidence establishes that at the time of the accident Young was living with the Armadas temporarily, Young was not covered by the Armadas’ MetLife policy.  Accordingly, the district court properly granted summary judgment in favor of MetLife. 

            Affirmed.



[1] Pahl did not order a transcript of the summary-judgment hearing for our review.  A special-term panel of this court referred to us the issue of whether the record is adequate to consider the appeal on the merits.  When a transcript is not provided on appeal, our task is “limited to determining whether the trial court’s findings of fact support its conclusions of law.”  Am. Family Life Ins. Co. v. Noruk, 528 N.W.2d 921, 925 (Minn. App. 1995), review denied (Minn. Apr. 27, 1995).  Because the district court viewed the facts in the light most favorable to Pahl, we review the application of the law to undisputed facts.  Accordingly, the record, as provided, is adequate for our review of the legal issues.