Barry Goldberg is asked from time to time whether it is possible to sue a relative and obtain a recovery. While there are definitely times when we would all like to sue one of our relatives, you should be aware that obtaining insurance coverage for such an eventuality may be difficult. Typically, these situations arise when a relative negligently operates a vehicle you are in or you are injured at a relative's home. Forgetting for a moment the advisability of suing your own relative, there is no law preventing you from bringing such a suit. However, the opportunity for fraud is so great that the courts allow insurers to limit insurance coverage for such instances whenever a resident of your own household is involved.
This determination is sometimes complicated when dealing with adult children, college students, dual families from divorce and about any number of other possibilities which is a reflection of the modern family.
A number of California cases have considered the meaning of the term "resident" in the context of an insurance policy's resident relative exclusion clause. California courts have held that the term "resident" is not "inherently ambiguous" (Kibbee v. Blue Ridge Ins. Co. (1999) 69 Cal.App.4th 53, 61 (Kibbee)) although it may be ambiguous in a "particular context" (National Auto. & Cas. Ins. Co. v. Underwood (1992) 9 Cal.App.4th 31, 38 (Underwood)). The meaning of the term " 'resident' " "varies according to the circumstances and facts of the case." (Utley v. Allstate Ins. Co. (1993) 19 Cal.App.4th 815, 821.)
"California courts are in agreement the term 'residence' ' "connotes any factual place of abode of some permanency, more than a mere temporary sojourn [.]" ' [Citations.] This understanding is consistent with dictionary definitions of the term 'resident' as one ' "who dwells in a place for a period of some duration" ' and 'residence' as ' "a temporary or permanent dwelling place, abode, or habitation to which one intends to return as distinguished from a place of temporary sojourn or transient visit." ' [Citations.]" (Kibbee, supra, 69 Cal.App.4th at pp. 61-62.)
Several of the cases interpreting resident relative exclusion clauses have concerned children who were the subject of custody orders. In such cases, "there is no bright-line test for determining a child's residency," but "the usual rules of contract interpretation and the common understanding of the terms 'resident' and 'residence' provide clear direction as to the factual inquiry a court must undertake in determining the applicability of the resident relative exclusion." (Kibbee, supra, 69 Cal.App.4th at p. 62.) The determination turns on whether the child regularly spends time in the household in question, " 'such that there exists a continuing expectation of the child's periodic return on intervals regular enough that the household is the child's home during the time the child is there, as opposed to a place of infrequent and irregular visits[.]' [Citation.]" (Ibid.)
In Safeco Ins. Co. v. Gibson (1989) 211 Cal.App.3d 176 (Gibson), the custody order provided for joint legal custody and shared physical custody of the child, but it specified that the child's "primary place of residence" was his mother's home. (Id. at p. 178.) The child spent half of each week with each parent, until he died in a car accident. The mother filed a wrongful death action against the father, who had been driving the car. The father's insurance company refused to defend the action because the policy had a resident relative exclusion clause, and it filed a declaratory relief action, then sought summary judgment. The trial court granted summary judgment in favor of the insurance company, finding the child had " 'a dual residence.' " (Id. at p. 184.)
In Underwood, supra, 9 Cal.App.4th 31, the parents shared legal and physical custody of their children, but the custody order designated the father as the children's " 'primary caretaker.' " (Id. at p. 35.) The children lived with the father during the week and stayed with the mother every other weekend as well as on some holidays and during the summer. At the mother's house, the children stayed in a second bedroom that was also used for storage. While the children were with their mother over their Easter vacation, they were injured in a car accident. The mother's insurance company refused to provide coverage, asserting that the policy's resident relative exclusion clause applied. The trial court disagreed and granted summary judgment against the insurance company.
On appeal, the Underwood court found that there were three different reasonable constructions of the term " 'resident' " as used in the insurance policy. (Underwood, supra, 9 Cal.App.4th at p. 41.) It was reasonable to find that the children had a single residence, with their father, since they spent "far more time" there. (Id. at p. 40.) It was also reasonable to find that the children were residents of their mother's house "at the time of the accident." (Ibid.) A third reasonable finding was that the children "had dual residences." (Ibid.) Since all three constructions were reasonable, the court held that the policy had to be interpreted in favor of coverage. Thus, the Underwood court held that the children were not residents of their mother's household at the time of the accident and affirmed the trial court's grant of summary judgment against the insurance company. (Id. at p. 41.)
In Kibbee, supra, 69 Cal.App.4th 53, a custody order provided that the children "would live with each parent for alternating seven-day periods." (Id. at p. 55.) However, after the father moved to Mexico with his new wife, the children lived exclusively with the mother. During a two-week vacation to the father's home in Mexico, one of the children drowned, along with the father. (Id. at p. 56.) The mother sought recovery from the father's new wife, who tendered the defense to her homeowner's insurance policy. The insurance company refused to provide coverage based on the policy's resident relative exclusion clause. After the new wife sued the insurance company for breach of contract, the trial court granted summary judgment in favor of the insurance company.
The Kibbee court agreed that the children were not residents of the father's household at the time of their visit to Mexico. The court contrasted the visit with the original seven-day time-sharing arrangement. The court found it significant that there were no plans for future visits by the children, and that the children had "brought with them only the clothing and toys they needed for the two-week period." (Kibbee, supra, 69 Cal.App.4th at p. 63.) The court held, "The conclusion is inescapable that while staying with [their father] in Mexico the boys were on a 'mere temporary sojourn.' " (Ibid.)
The above cases provide guidance as to the factors that determine whether a relative is a resident of a particular household. The above cases hold that the actual living arrangement establishes whether a relative is a resident of a particular household. (See Gibson, supra, 211 Cal.App.3d at p. 182; Kibbee, supra, 69 Cal.App.4th at pp. 55, 63.)
While there are times we would all like to sue our family members, we should also be aware that there may not be insurance coverage for such a claim or lawsuit. A personal injury attorney with significant insurance coverage experience should be consulted in any case which involves the potential liability of a family member. Determining "the actual living arrangement" of a family is a factual issue of proof which involves historical evidence, legal documents and future intent. Such evidence should be left in the hands of experienced counsel.