COURT OF APPEALS DECISION DATED AND RELEASED August 31, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-1598
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
JAMIE L. MCCALLUM,
ZENATH MCCALLUM
STOEVEKEN,
a minor by her
guardian ad litem,
ERIK B. ELLINGSON,
Plaintiffs-Appellants,
v.
ALPHA PROPERTY &
CASUALTY
INSURANCE COMPANY,
Defendant-Respondent.
APPEAL from a judgment
of the circuit court for Waupaca County:
PHILIP M. KIRK, Judge. Affirmed.
Before Dykman, Sundby,
and Vergeront, JJ.
PER CURIAM. Jamie McCallum and her daughter, Zenath
McCallum Stoeveken, appeal from a judgment dismissing their claim against Alpha
Property & Casualty Insurance Company.
Jamie and Zenath sued Alpha as the liability insurer for Bruce and Karen
McCallum, Jamie's parents, after the McCallums' dog bit Zenath. Alpha denied liability because a policy
provision excluded liability coverage for injuries suffered by residents of the
McCallum household. A jury trial
resulted on the residency issue, with the jury finding in Alpha's favor. The issues are whether the court should have
resolved the residency question in Jamie and Zenath's favor as a matter of law,
and whether the evidence supports the jury's finding that Jamie and Zenath
resided in the McCallum household.
Because we conclude that residency was properly treated as a question of
fact, and that the evidence supports the verdict, we affirm.
In early 1989, Jamie
experienced marital difficulties, including some physical abuse. As a result, she left her husband in
Milwaukee and moved in with her parents in Waupaca in February 1989, along with
Zenath, who was then fourteen months old.
Jamie transferred all her belongings to the McCallums or to storage, and
did not intend to return to her husband.
She testified that because she had no money or a job, returning home was
her only option. She further testified
that she only intended to stay with her parents for a month or two until she
could find a job and afford her own home.
In March 1989, she began
dating her current husband, and soon began discussing the possibility of their
living together. That eventually
happened, but not until November 1989.
In the meantime, Jamie remained in her parents' household, where the dog
bite occurred in July. Jamie found work
in May 1989, but it was a part-time low wage job that never gave her the income
needed to live on her own.
The McCallums' home has
five bedrooms, and Jamie and Zenath each had one to herself. Jamie did not pay rent or regularly contribute
to the household expenses. Mr. McCallum
testified that he set no time limits or conditions on Jamie's stay with
them. He had no opinion as to Jamie's
intention when she moved in with them.
There is no dispute that during their stay with the McCallums, both
Jamie and Zenath were treated as members of the family.
A person resides in the
insured's household for purposes of liability coverage if (1) he or she lives
under the same roof as the insured, (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 the parties would consider the relationship
for insurance purposes. Pamperin
v. Milwaukee Mut. Ins. Co., 55 Wis.2d 27, 37, 197 N.W.2d 783, 788
(1972). On the other hand, one is not a
resident of the household if "even though he has no other place of abode,
he comes under the family roof for a definite short period or for an indefinite
period under such circumstances that an early termination is highly
probable." National Farmers
Union Property & Casualty Co. v. Maca, 26 Wis.2d 399, 408, 132
N.W.2d 517, 521-22 (1965). The jury was
so instructed, and returned a verdict that Jamie and Zenath were residents of
the McCallum household in July 1989.
The trial court refused to change that verdict on motions after verdict.
Jamie and Zenath first
argue that the residency issue is a question of law that should have been
resolved without a trial. We disagree.
Intent, a crucial element of residency, can be determined only by
inference from historical facts. Tellurian
U.C.A.N., Inc. v. Goodrich, 178 Wis.2d 205, 215, 504 N.W.2d 342, 346
(Ct. App. 1993). That is a fact
finder's duty and the trial court properly allowed a jury trial on the
issue.
Jamie and Zenath next
argue that the undisputed evidence admitted at trial allowed only one
reasonable inference—that the stay of Jamie and Zenath in the McCallum
household was never intended to last more than a short time. Again, we disagree. As a matter of credibility, the jury could
have rejected Jamie's testimony regarding her intent when she moved into the
household. The jury could also have
concluded that Jamie voluntarily, or as a matter of necessity, abandoned her
original intent. The jury could
reasonably infer that a young woman (Jamie was then in her early twenties),
with a baby, no money and limited work skills and experience, and just out of a
bad marriage, might plan an extended stay with parents willing and able to take
her in and support her. Although the
alternative inference was also reasonably available, we are bound by the jury's
choice among reasonable inferences.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.