This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




North Star Mutual Insurance Company,



Colonial Penn Insurance Company,


Daniel P. Geyer, et al.,


Filed January 19, 1999


Shumaker, Judge

Stevens County District Court

File No. C79760

Marcus J. Christianson, Christianson, Stoneberg, Giles & Stroup, P.A., 300 O'Connell Street, Marshall, MN 56258-2638 (for respondent)

Paul R. Smith, Myles E. Flint, II, Abrams & Smith, P.A., 700 Northstar West, 625 Marquette Avenue, Minneapolis, MN 55402 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Shumaker, Judge, and Anderson, Judge.



In this appeal, an insurer challenges the district court's determination that there was no property damage coverage under another insurer's homeowner's insurance policy because the tortfeasor was not a resident of the insured dwelling. We affirm.


On March 19, 1995, Daniel Geyer, a 20-year-old college student on spring break, was visiting at a friend's home. During the visit, Geyer started a fire in the fireplace. Later, as he got ready to leave, he placed a log from the fireplace on a pile of firewood outside the house. The house caught on fire and burned down.

Appellant, as homeowner's insurer of the property, paid for the damage and brought a subrogation action against respondent, the homeowner's insurer for Geyer's parents, alleging that Geyer was a resident of his parents' home at the time of the fire and therefore was covered for negligence liability under their insurance policy.

In their cross-motions for summary judgment, the parties agreed that the facts were undisputed and that the dispositive issue centered on a determination of Geyer's residency at the time of the fire.

The undisputed facts reveal that Geyer's parents' insurance policy in effect at the time of the fire provided liability coverage for the named insureds and for their "relatives if residents of your household." The policy did not define "residents."

Geyer lived in his parents' home until he began attending college in September 1992. He lived on campus for his first school year and resumed living in his parents' home during the summer. After that summer, he moved his computer, clothing and personal effects to his campus residence, and that was the last time he lived in his parents' home for any extended period. His subsequent stays in the home were in conjunction with holiday and school break visits, and he had no permanent bedroom in the home. During his second and third school years he lived on campus. For the summer between those years, he lived off campus with friends. The fire occurred during his third school year.

Geyer's parents provided financial support to him during his first and second college years, but he relied entirely on student loans, grants and part-time employment thereafter.

Geyer began having personal mail sent to him at college in his second year, but he continued to have important business mail sent to his parents' address. He continued to list his parents' address as his own on his driver's license; designated his parents' address as his permanent residence on his official college records; and used his parents' address as his own for voter registration, social security, and federal tax returns. His parents claimed him as a dependent on their tax return for 1994 but not for 1995, and listed him as a dependent on their health insurance. Geyer's college financial aid office listed him as a dependent of his parents, and he and his parents signed a form acknowledging that status. He held his only bank account jointly with his parents.

As of the time of the fire, Geyer did not consider himself to be a resident of his parents' home and he used their address for some purposes merely for convenience.

On these facts, the district court found that Geyer was not a resident of his parents' home at the time of the fire and granted summary judgment to respondent. This appeal followed.


The determination of whether a person is a resident of a particular household for insurance coverage purposes is a question of fact. Morgan v. Illinois Farmers Ins. Co., 392 N.W.2d 37, 39 (Minn. App. 1986), review denied (Minn. Oct. 22, 1986); Fruchtman v. State Farm Mut. Auto. Ins. Co., 274 Minn. 54, 55, 142 N.W.2d 299, 300 (1966). Factual determinations are reversible only if they are clearly erroneous. Morgan, 392 N.W.2d at 39.

Ostensibly, we are asked to review a summary judgment and to determine whether or not the district court correctly applied the law to undisputed facts. See Betlach v. Wayzata Condominium, 281 N.W.2d 328, 330 (Minn. 1979) (on appeal from summary judgment appellate court determines whether there is genuine issue of material fact and whether trial court correctly applied law). In actuality, the facts were not entirely undisputed. The ultimate and dispositive fact issue of residency was disputed.[1] The parties agreed only to the context facts and they stipulated that the court could base its decision on various exhibits. The court did so and determined that Geyer was not a resident of his parents' home at the time of the fire. Having decided the ultimate fact issue, the court decided the legal issue, namely, that the insurance contract did not provide coverage for Geyer as a nonresident of the insured premises. The parties do not dispute the legal conclusion that a nonresident is not entitled to coverage. The standard of review is not, therefore, the summary judgment standard but rather the "clearly erroneous" test that applies to factual determinations.

Our appellate courts have applied two sets of criteria for deciding residency in insurance coverage cases. The first, set forth in Fireman's Ins. Co. of Newark, N.J. v. Viktora, 318 N.W.2d 704, 706 (Minn. 1982), relies on three factors:

1. Whether the person is living under the same roof as the named insured;

2. in a close, intimate, and informal relationship; and

3. the intended duration is likely to be substantial, is consistent with the informality of the relationship, and it is reasonable that the relationship would be considered in contracting about such things as insurance


The second set of criteria was detailed in Wood v. Mutual Serv. Cas. Ins. Co., 415 N.W.2d 748, 750 (Minn. App. 1987), review denied (Minn. Feb. 12, 1988):

1. Person's age;

2. whether person has established a separate residence;

3. whether the person is self-sufficient;

4. the frequency and duration of the person's stay in the home;

5. the person's intent to return to the home.

The district court analyzed the facts in light of these criteria and found that Geyer, having taken several objective steps to remove himself from residency in his parents' home, was not a resident in that home at the time of the fire. The facts support the court's finding under both sets of criteria. Geyer was not living in the family home; his stays there were brief; he stated that he intended not to return permanently; and he was a 20-year old who was financially self-sufficient. Although he had not established a permanent separate residence, he had ongoing residency on his college campus.

There were, to be sure, indicia of residency in the family home as well. Geyer kept the address of that home on his driver's license and listed it on important documents. The court found that Geyer did so for convenience rather than to indicate residency. Our supreme court has recognized that sometimes adult children who reside elsewhere continue to use a family address as a convenience. See Fruchtman, 274 Minn. at 57, 142 N.W.2d at 301 (adult child in military used parents' address as convenience and not to maintain residence there). We cannot say that the court's finding in this regard was clearly erroneous.

Appellant argues that a person can be a resident of more than one household. See American Family Mut. Ins. Co. v. Thiem, 503 N.W.2d 789, 790 (Minn. 1993). We agree, but the criteria for residency established in Vicktora and Wood still apply. The facts of this case do not satisfy the criteria as to Geyer's family home. The court did not clearly err in finding that Geyer was a nonresident of his parents' home at the time of the fire.


[1] It is likely that "residency" is a mixed question of fact and law. Such characterization does not, however, change our approach on review.