Thomas A. Gilligan, Jr., C. Todd Koebele, Murnane, Conlin, White & Brandt, P.A., 1800 Piper Jaffray Plaza, 444 Cedar St., St. Paul, MN 55101 (for respondent)

Duane A. Kennedy, 724 First Ave. S.W., Durst Bldg., Suite 4, Rochester, MN 55902 (for appellant)

Considered and decided by Davies, Presiding Judge, Willis, Judge, and Forsberg, Judge.^*

^*

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

Appellant, who was injured in an automobile accident, challenges the district court's finding that the driver of the automobile was not a resident of his parents' household at the time of the accident and the court's conclusion that appellant consequently was not entitled to benefits under the driver's parents' homeowners or umbrella liability policies. We affirm.

Respondent State Farm, which insured Haeflinger at the time of the accident, tendered its $100,000 policy limit. Appellant did not accept the liability limit from Haeflinger's automobile policy, arguing that Haeflinger was also insured under State Farm homeowners and umbrella insurance policies issued to Haeflinger's parents. Both of those policies included in their definition of "insured" relatives of the named insured who were "residents" of the named insured's "household."

In June 1996, State Farm commenced this declaratory judgment action against Susan Westphal, as conservator for Michelle Westphal, and the Haeflingers, seeking a declaration that Kurt Haeflinger was not a resident of his parents' household and therefore was not "an insured" under his parents' policies. State Farm moved for summary judgment. In March 1997, the district court granted summary judgment in favor of State Farm and declared that, for insurance purposes, Haeflinger was not a resident of his parents' household at the time of the accident. This appeal followed.

The Haeflinger's homeowners and umbrella liability policies both included in their definitions of "insured" relatives of the named insured who were "residents" of the named insured's "household." "Household" for insurance purposes has generally been defined as synonymous with "family" and includes "those who dwell together as a family under the same roof." Van Overbeke v. State Farm Mut. Auto. Ins. Co., 303 Minn. 387, 392, 227 N.W.2d 807, 810 (1975).

Minnesota courts have adopted a three-factor test to determine residency in the insured's household. The three factors are: (1) whether the relative was living under the same roof as the insured; (2) whether the relationship was "close, intimate and informal"; and (3) whether the intended duration of the residency was likely to be substantial, such that it would be "reasonable to conclude that the parties would consider the relationship" when contracting for insurance. Firemen's Ins. Co. of Newark, N.J. v. Viktora, 318 N.W.2d 704, 706 (Minn. 1982). The first two factors "are generally satisfied by a finding that the person seeking coverage and the named insured `dwell together as a family under the same roof.'" Johnson v. American Economy Ins. Co., 419 N.W.2d 126, 128 (Minn. App. 1988), citing Viktora, 318 N.W.2d at 707. This court elaborated on the Viktora factors in Wood v. Mutual Serv. Cas. Ins. Co., 415 N.W.2d 748 (Minn. App. 1987), review denied (Minn. Feb. 12, 1988). In that case, this court stated that in determining whether a person is a resident of a household the court may also consider: (1) the person's age; (2) whether a separate residence is established; (3) the person's self-sufficiency; (4) frequency and duration of stays in the family home; and (5) intent to return. Id. at 750.

The record in this case supports the district court's summary judgment determination that Haeflinger was not a member of his parents' household at the time of the accident. It is undisputed that Kurt Haeflinger's relationship with his parents has been strained for several years. In 1992, Haeflinger moved out of his parents' home. Since that time he has lived in several different places, including the home of a high-school friend, the home of his aunt and uncle, an apartment, and the home of a girlfriend. During this time, Haeflinger returned on numerous occasions to live briefly at his parents' home. In January 1995, Haeflinger's parents loaned him the money for a deposit on an apartment. Haeflinger and a friend signed a 14-month lease and moved into the apartment.

Appellant argues that Haeflinger was a resident of his parents' household at the time of the 1995 accident because (1) his personal possessions remained at his parents' home, (2) he used his parents' address as his mailing address, and (3) he was not self-sufficient because his parents paid the rent (and damage deposit) for his apartment, bought him a car, and paid for his health insurance and college tuition.

Except for the damage deposit, the record indicates otherwise. There is no record evidence that Haeflinger had any personal possessions at his parents' home at the time of the accident. Additionally, the mere fact that Haeflinger was still receiving some mail at his parents' home at the time of the accident is not determinative of whether or not he was a resident of his parents' household. See Van Overbeke, 303 Minn. at 391-92, 227 N.W.2d at 810 (emancipated student who maintained own apartment not resident of parents' household, despite use of parents' mailing address).

Appellant cites no record evidence indicating that Haeflinger's parents were supporting him at the time of the accident. Rather, the record evidence indicates he held two part-time jobs. Haeflinger testified that his parents were not supporting him in any way. Contrary to appellant's assertion, there is no record evidence indicating that Haeflinger was a student at the time of the accident.

Appellant also argues that Haeflinger should be considered a resident of his parents' household because his parents listed him as a resident on their application for the umbrella liability policy, satisfying the third Viktora factor. The insurance application is not, however, determinative of whether Haeflinger was a resident of his parents' household months later at the time of the accident. The Minnesota Supreme Court has held that, in determining whether a person is a resident of a household, the relevant time to examine family relationships is at the time of the accident, rather than at the time that the insured contracts for insurance. State Farm Fire & Cas. Co. v. Short, 459 N.W.2d 111, 114 (Minn. 1990). Whether Haeflinger's parents considered him a resident of their household in 1993, when they originally contracted for the umbrella liability policy, or in 1994, when they renewed the contract, is irrelevant in determining whether or not Haeflinger was a resident of their household at the time of the 1995 accident.

The district court correctly determined that there was no genuine issue of material fact regarding whether Haeflinger was a resident of his parents' household at the time of the accident. The record evidence indicates that at the time of the accident Haeflinger was living in an apartment and not with his parents. Because Haeflinger was living on his own, his relationship with his parents does not satisfy the first two Viktora factors, which require that relatives live under the same roof. See Johnson, 419 N.W.2d at 128 (first two Viktora factors generally satisfied by finding that person seeking coverage living under same roof as insured).

We affirm the district court's determination that Kurt Haeflinger was not a resident of his parents' household at the time of the accident and is therefore not "an insured" under his parents' homeowners and umbrella insurance policies.

Affirmed.