This opinion will be unpublished and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

C5-99-685

Auto-Owners Insurance Company,

Respondent,

vs.

Richard Hansen, Jr.,

as parent and natural guardian of

Richard Hansen, III, a minor,

Appellant,

Nicholas Spolarich,

Respondent.

Filed October 5, 1999

Affirmed

Randall, Judge

Aitkin County District Court

File No. C2-98-605

Robin C. Merritt, Hanft, Friede, OíBrien, Harries, Swelbar & Burns, P.A., 1000 U.S. Bank Place, 130 West Superior Street, Duluth, MN 55802-2094 (for respondent Auto-Owners)

Kevin S. Carpenter, Carpenter Law Office, 26 North 6th Avenue, Suite 350, P.O. Box 745, St. Cloud, MN 56302 (for appellant)

Wendy J. Cox, Wendy J. Cox, P.A., 1050 Carlson Center, 601 Carlson Parkway, Minnetonka, MN 55305 (for respondent Spolarich)

Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

Appellant challenges the district courtís award of summary judgment to respondent insurance company. We affirm.

FACTS

On September 9, 1995, sixteen-year-old respondent Nicholas Spolarich threw a rock, striking Richard Hansen III in the eye, causing personal injury. Appellant Richard Hansen, Jr., brought suit against Spolarich on behalf of his minor son, seeking recovery for the personal injury. At the time of the incident, Spolarich was spending a portion of each week with his grandparents, Paul and Violet Spolarich, while his father worked in the Twin Cities. Spolarich tendered his defense to respondent Auto-Owners Insurance Company (Auto-Owners), his grandparentsí farm insurance carrier. Spolarich claimed he was entitled to coverage as a resident relative in his grandparentsí home. Auto-Owners denied liability. Spolarich and Hansen then entered into a Miller-Shugart settlement agreement whereby judgment was entered against Spolarich, but could be collected only from any applicable insurance coverage provided by Auto-Owners.

Auto-Owners commenced a declaratory judgment action seeking a determination that Spolarich was not a resident relative under the terms of his grandparentsí farm insurance policy. Auto-Owners and Hansen filed cross-motions for summary judgment. The district court granted summary judgment to Auto-Owners. Hansen appeals.

Evidence established that during the relevant time period: (1) Spolarich stayed overnight at his grandparentsí home approximately two nights per week while his father was working in the Twin Cities area; (2) Spolarich did not keep any personal belongings at his grandparentsí house; (3) he did not have his own bedroom or living space in his grandparentsí home; (4) he received all his mail at his fatherís house; (5) he owned a vehicle and had established a degree of independence; and (6) his grandmother did not consider Spolarich to be a resident of her home for insurance purposes and therefore did not inform Auto-Owners of his overnight stays.

D E C I S I O N

I. Standard of Review

An appellate court asks two questions when reviewing the grant of summary judgment: (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). On appeal, an appellate court must view the evidence in light most favorable to the party against whom the summary judgment was rendered. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

Both this court and the supreme court have stated that whether an individual is a resident relative of an insured is a factual 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). When the relevant, underlying facts are not in dispute, however, whether an individual is a resident relative may be decided as a matter of law. See American Family Mut. Ins. Co. v. Thiem, 503 N.W.2d 789, 790-91 (Minn. 1993) (holding undisputed facts supported legal conclusion that child was resident of father's household). In considering a purely legal issue, an appellate court need not give deference to the district court's decision. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984). Here, the parties filed cross-motions for summary judgment and thereby represented that the material facts were not in dispute. See Thiem, 503 N.W.2d at 790 (stating by submitting cross-motions for summary judgment, parties "tacitly agreed that there exist no genuine issues of material fact").

II. Merits

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 parties would consider the relationship * * * "in contracting about such matters as insurance or in their conduct in reliance thereon."

Firemanís Ins. Co. v. Viktora, 318 N.W.2d 704, 706 (Min. 1982) (quoting Pamperin v. Milwaukee Mut. Ins. Co., 197 N.W.2d 783, 788-89 (Wis. 1972)). In Lawson this court stated:

Minnesota equates the first two factors which define "household" as synonymous with "family" for insurance purposesó"those who dwell together as a family under the same roof." Another important factual consideration is "the duration of the stay." No single factor controls. Rather, they all merge to create either a portrait of a relationship akin to household membership or one more transient in character.

406 N.W.2d at 22 (citations omitted).

This court further enunciated 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.

Wood v. Mutual Serv. Cas. Ins. Co., 415 N.W.2d 748, 750 (Minn. App. 1987), review denied (Minn. Feb. 12, 1988). The supreme court has also taken into account such factors as whether a person kept any clothing or furnishings at the insuredsí property or received mail there. Lott v. State Farm Fire & Cas. Co., 541 N.W.2d 304, 308 (Minn. 1995). The presence or absence of any one of these factors is not controlling, but taken together they may support a finding of legal residency.

The record evidence supports the district courtís determination that Spolarich was not a resident relative of his grandparentsí home at the time of Hansenís injury. The Viktora test is conjunctive and requires all three elements to be met. The first two elements are interpreted consistently with the common meaning of familyó"those who dwell together as a family under the same roof." Lawson, 406 N.W.2d at 22 (quotation omitted). On the nights Spolarich stayed with his grandparents, he was merely present in their home to accommodate his fatherís work schedule and to ensure that he would be supervised in his fatherís absence. Additionally, the third element is absent in the present case. The intended duration of Spolarichís stays was not substantial; he usually stayed two nights per week, and never on consecutive nights. Further (although not determinative by itself), Spolarichís grandmother did not believe that Spolarich was a resident of her home. She never informed Auto-Owners of Spolarichís presence in the house and never contacted them to discuss the issue of coverage.

The factors considered by the Minnesota Supreme Court in Lott and the factors considered by this court in Wood support the district courtís conclusion that Spolarich was not a resident relative entitled to liability coverage under his grandparentsí insurance policy. Spolarich did not keep any belongings or clothes at his grandparentsí house, did not receive his mail there, or have an assigned bedroom. See Lott, 541 N.W.2d at 308 (considering whether person kept clothing or furnishings at insuredsí home or received mail there). Spolarich was 16 years old and had his own vehicle at the time of the injury, and his father provided him with a great deal of freedom. See Wood, 415 N.W.2d at 750 (listing age and self-sufficiency as factors to consider in determining whether person is resident relative of insured). Spolarich also spent the majority of the nights in his family home, to which he always intended to return. See id. (listing frequency and duration of stay and intent to return as factors to consider in determining whether person is resident relative of insured).

The record facts in this case support the legal conclusion that Spolarich was not a resident relative of his grandparentsí home for the purpose of insurance coverage. We conclude the district court properly granted Auto-Owners summary judgment.

Affirmed.