Ms. White filed a claim for underinsured motorist (“UIM”) coverage under an automobile insurance policy issued by Erie Insurance Property and Casualty Company to Jerry White, Ms. White's father, who was divorced from Ms. Brennan and who lived in West Virginia.

Erie denied Ms. White's claim and went to court and seeking a declaratory judgment regarding the existence or nonexistence of coverage for Ms. White's claim under Mr. White's policy.

Mr. White was dismissed from the action in an order that stated:

Defendant Jerry L. White acknowledges that his daughter, Defendant Rebecca White, lives with her mother and is a resident of Dripping Springs, Texas. Mr. White further acknowledges that although Ms. White was attending college at the time of the accident, she had not visited him for at least a year and had no clothing or personal items at his home in Smithers, West Virginia. Thus, Mr. White concedes that his daughter, Rebecca White, is not a resident of his household, as defined by the Erie Policy. Additionally, Mr. White acknowledges that when he purchased the Erie Policy, it was not his intent that Rebecca White be covered under it.

The parties stipulated to the following:

- “Rebecca White visited Jerry White in West Virginia”;

- “Jerry White's home and residence in West Virginia was never Rebecca White's home”;

- “At the time of the accident, Rebecca White was an unmarried, un-emancipated child of Jerry White, who was attending school in Texas”; and

- Ms. White “did not identify Jerry L. White's address as her own for school records.”

Erie moved for summary judgment and Ms. White filed a cross-motion for summary judgment. She attached to her motion, among other things, a notarized letter submitted by her mother, Ms. Brennan, that stated:

Rebecca visited Jerry each Christmas after he moved to West Virginia. He paid for [her] plane tickets each year. [She] enjoyed visiting him because [she] also [got] to see his mother ([her] grandmother), and his brother and brother's kids. It's a family visit with Jerry's family.

The trial court granted Erie's motion for summary judgment, determining that there were no genuine issues of material fact with respect to Erie's summary judgment motion. The court concluded:

Rebecca White does not satisfy the clear and unambiguous definition of “anyone we protect” as that term is defined by the Erie [p]olicy. While Ms. White is Jerry White's adopted daughter, Ms. White was not a resident of Jerry White's household on [the day of the accident]. Furthermore, Ms. White did not and does not physically live in Jerry White's home on any basis, let alone on a regular basis.

… Applying the undisputed facts to the clear and unambiguous terms of the [insurance policy] purchased by Jerry L. White from Erie . . . the [c]ourt concludes that said policy of insurance does not provide underinsured motorist coverage for bodily injuries sustained by Rebecca White in the . . . motorcycle accident.

(Emphasis added.)

Ms. White appealed to the Supreme Court of Appeals of West Virginia, arguing that as a child of divorced parents, she should be considered as living with both parents.

The Erie Policy

The Erie policy provided:

“[W]e” will pay damages for bodily injury and property damage that the law entitles “anyone we protect” … from the owner or operator of an “underinsured motor vehicle.”

Damages must result from a motor vehicle accident … and involve:

1. bodily injury to “anyone we protect.” Bodily injury means physical harm, sickness disease or resultant death to a person.

(Emphasis omitted).

The policy defined:

anyone we protect

as:

“you” or any “relative”

(Emphasis omitted.)

The policy defined:

“relative”

as a:

resident of “your” household who is a … [p]erson related to “you” by blood, marriage or adoption.

(Emphasis omitted.)

It also provided:

“Resident” means a person who physically lives with “you” in “your” household on a regular basis. “Your” unmarried, un-emancipated children attending school full time, living away from home, will be considered “residents” of “your” household

(Emphasis omitted.).

The Decision of the Supreme Court of Appeals of West Virginia

The court affirmed.

In its decision, the court agreed with Erie that the phrase “lives with” was unambiguous. It acknowledged that the phrase “should reflect the contemporary realities of family living and should not be narrow and strait-jacketed to apply only to idealized notions of a pristine family unit, harmonious and integrated.”

The court added, however, that the concept of “living with” someone contemplated, “at a minimum, some consistent, personal contact with that person's home.” What was insufficient, the court said, were “[o]ccasional, sporadic, and temporary contacts.” It said that although “lives with” was an expansive phrase, “[t]here may be instances, for example, where a person's stay with an insured relative is so brief and transitory that … it cannot be said that the person was in fact dwelling or living with the relative.”

The court then found that at the time of Ms. White's accident, she was the adult daughter of the insured; she lived with her mother in Texas while attending school in Texas; she kept no clothing or personal items at her father's home; she did not list her father's home as her address in her school records; and her only visits to her father's home since he moved to West Virginia occurred, at most, once a year for Christmas. Under the specific facts of this case, the court ruled, Ms. White's visits to her father's home were so transitory as to preclude her from “living with” him within the meaning of the policy language.

The court concluded that Ms. White was not a resident under Mr. White's policy because she neither lived with Mr. White nor was she living away from home when the accident occurred. Accordingly, she could not be considered “anyone we protect” under the policy and, therefore, the policy did not provide UIM coverage for the injuries Ms. White sustained in the motorcycle accident.

The case is White v. Erie Ins. Property and Cas. Co., No. 15-0521 (W.Va. June 3, 2016).

FC&S Legal Comment

Other courts also have determined that “lives with” in an insurance policy was unambiguous. See, e.g., State Farm Mutual Auto Ins. Co. v. Quinn, 62 Fed. Appx. 425, 430 (3d Cir. 2003) (determining that “lives with” in an insurance policy was unambiguous); Stoner v. State Farm Mut. Auto. Ins. Co., 780 F.2d 1414, 1417 (8th Cir. 1986) (“[T]he phrase 'lives with you' is susceptible of only one interpretation, i.e., actually living in fact….”); Tokley v. State Farm Ins. Cos., 782 F. Supp. 1375, 1378 (D.S.D. 1992) (“[T]he State Farm policy language ['lives with'] is not ambiguous….”); Coley v. State Farm Mut. Auto. Ins. Co., 534 N.E.2d 220, 222 (Ill. Ct.App. 1989) (deciding that a policy containing the term “live with” does not present “ambiguity which would require us to construe the contract against defendant or go behind the contract to consider its underlying purpose.”); Moller v. State Farm Mut. Auto. Ins. Co., 566 N.W.2d 382, 386 (Neb. 1997) (“[W]e also find as a matter of law that the phrase ['lives with'] is not ambiguous.”); State Farm Mut. Auto. Ins. Co. v. Ruiz, 952 P.2d 157, 161 (Wash. 1998) (“[T]he term 'lives with' unambiguously means 'living or dwelling in fact on a permanent or temporary basis.' “); but see Davis v. State Farm Mut. Auto. Ins. Co., 583 So. 2d 225, 230 (Ala. 1991) (“[W]e hold that the term 'live with,' as used in the policy in question, is an 'ambiguous, elastic, or relative term, and includes a very temporary, as well as a permanent, abode.'”); Casolari v. Pipkins, 624 N.E.2d 429, 431 (Ill. Ct.App. 1993) (“The term 'lives with' in the definition of relative as used in the State Farm policy is ambiguous.”).