Infinity Auto Insurance Company v. Whigham et al

Filing 59

ORDER granting 43 Motion for Summary Judgment and adjudges Policy # 110-45711-3536-001 to be void ab initio. The Court directs the Clerk to enter judgment in favor of Infinity Auto Insurance Company. Within fourteen days of the date of this Orde r, the parties shall file either: (1) supplemental briefs to address what portion of the tendered premiums, currently on deposit with the Registry of Court, should be refunded to the insured, if disputed; or (2) a consent motion to disburse the interpleaded funds as agreed. Signed by Judge J. Randal Hall on 03/20/2015. (thb)

IN THE UNITED

STATES DISTRICT COURT

SOUTHERN DISTRICT OF

FOR THE

GEORGIA

AUGUSTA DIVISION
*

INFINITY AUTO

INSURANCE
*

COMPANY,
*
*

Plaintiff,
*
*

v.
*

CV 113-214

*

JOSEPH WHIGHAM and ROBERT

WHIGHAM,
*
*

Defendants.
*

*

R

0

D

E

R

Presently before the Court is Plaintiff Infinity Auto Insurance
Company's

December 1,
serious

(Doc. 43.)

("Infinity") Motion for Summary Judgment.

2012,

injury

Defendant Joseph Whigham

to

his

leg

when

a

("Joseph")

vehicle

On

sustained a

collided

with

his

motorcycle, which he was in the process of purchasing from a friend.
This

case arises

out of Joseph's subsequent

demand

for uninsured

motorist benefits pursuant to an automobile policy ("the Policy")
issued

by

("Robert").
Robert

Infinity

his

father,

Defendant

Robert

Whigham

Infinity seeks to rescind the Policy on the ground that

procured

disclose

to

it

through

misrepresentation

that Joseph was a resident

when

he

failed

of his household.

to

Infinity

alternatively contends that it owes no coverage to Joseph because it
received

occurred,

notice

of

the

claim

over

five

months

after

the

accident

well beyond the thirty-day window required by the Policy.

For the reasons set forth herein,

the Court GRANTS Infinity's Motion

for Summary Judgment and ADJUDGES the Policy void ab initio.

I.

A,

BACKGROUND

Joseph Whigham's Living Arrangements

In 2 009,

during Joseph's

senior year of

high school,

Joseph

moved into his father's home on a permanent basis upon transfer of

physical custody between his parents.
at 28-29,

time,

51;

Joseph

J. Whigham Dep.,

moved

thereafter had no

Whigham

Dep.

at

Nevertheless,

all

his

Doc.

(R.

44-2,

belongings

Whigham Dep.,

at

to

14-15,

his

Doc.

20.)

father's

At that

house

intention to move back in with his mother.

30;

J.

Whigham

Dep.

at

14-15,

56,

19-21,

36,

and
(R.

44.)

for convenience, Joseph continued to use his mother's

mailing address at 1178 Walton's Trail as his legal address since
he "had been at his mom's house so long."

35-36;

see

also R.

Whigham Dep.

at

31

(J. Whigham Dep. at 22,

(explaining that

mother has "always handled his affairs" as far as school,

Joseph's
business,

taxes, and other paperwork, and "there was no need to change any of
that" with respect to his address).)

In 2010,
high

school

Guard.

while living with his father,
and

volunteered

(J. Whigham Dep.

to Fort Leonard Wood,
returned to his

training,

and

at 15,

active

22-23.)

duty

the

National

In August 2 010,

he moved

Missouri for training.

father's home

two

for

Joseph graduated from

weeks

in December 2010

later

he

enrolled

with

(Id. at 26.)
at

at

the

Joseph

conclusion of

Armstrong

State

University

("Armstrong")

in

Savannah,

Georgia.

(Id.

at

Joseph lived in a dorm at Armstrong during the semester,

return

to

returned

his

during

girlfriend.
—

with

father's

summer

(Id. at 29-30,

an

according

the

home

aunt,
to

Whigham Dep.

every

of

or

father,

"he

his

at 34-35

2011

33.)

cousin,

other

weekend

after

25-26.)

but would

and permanently

breaking

up

with

his

Joseph would stay at other places

friend

—

didn't

for

a

live

night

or

two,

else."

During the

(emphasis added).)

anywhere

time

but
(R.

Joseph

was away at training in Missouri and at Armstrong in school, Joseph

lived at Robert's

house,

belongings there.
at 34,

kept a bedroom there,

and kept all

(J. Whigham Dep. at 26, 28-32; R. Whigham Dep.

36.)

In

the

fall

insurance

with

University

in

of

2011,

Infinity,

Statesboro,

apartment with his cousin.

immediately before

Joseph

enrolled

Georgia
(J.

and

at

moved

Robert

applied

Georgia

into

an

at 35, 37, 42-44;

on-campus

Whigham Dep. at 32-34.)

of

see also R. Whigham Dep. at 36-37.)

Joseph's belongings

Whigham Dep.

at 45.)

his father's house.
"doing his

for

Southern

returned to Augusta every weekend and stayed with his father.

all

his

Joseph
(Id.

Robert kept

and maintained Joseph's bedroom.

(J.

Joseph likewise spent the holiday break at
(Id. at 36.)

According to Robert,

college thing" and described the

Joseph was

living arrangement as

one where Joseph was able to "come home if he wanted or if he had a

weekend that he wanted to come home."
Similarly,

(R. Whigham Dep.

at 37-38.)

Joseph testified there were no other place he would stay

overnight
came

on

a

regular basis besides

to Augusta

(J. Whigham Dep.

at

his
46,

father's
48)

house

and that

when he

he

"always

lived in Augusta" but went back and forth to college (id. at 50).
In the spring of 2012, Joseph dropped out of his classes, but
kept

his

Statesboro

apartment

and

throughout the spring and summer,

job.

(Id.

at

41-42.)

Thus,

Joseph would stay in Statesboro

when he was working, but would go "home" to his father's house when

he was not.

(Id. at 41-43.)

Joseph did not re-enroll at Georgia

Southern in the fall of 2012,

but was still "back and forth between

[his]

dad's

Joseph

that

and Statesboro."

formally

"he

withdrew

really

wasn't

father full-time.
moved

some

of

(Id.

from

in

school

college"

(Id. at 55-58;

his

at

belongings

45.)

On November 23,

when

and

his

moved

father

back

R. Whigham Dep.

from

Statesboro

to

determined

in

at

2012,

with

40.)

his

Joseph

Robert's

house

prior to that date, but by November 23, 2012 he moved "all the way
back in."

(J.

Whigham Dep.

at 58.)

collided with Joseph's motorcycle
home

after

stopping by

to

see

Eight days later,

as

his

he

returned to his

mother.

(Id.

When Joseph left the hospital after a two-week stay,
father's house.

(Id. at 65.)

Joseph

in

enrolled

(Id. at 7-8.)

truck

a motorist

at

father's

51-53,

60.)

he went to his

Once he recovered from his injuries,

driving

school

in

Cedar

Rapids,

Iowa.

Upon graduation, he became an over the road or long-

haul driver and thus returned to Augusta only occasionally.

R. Whigham Dep. at 91-92.)

(Id. ;

Throughout the two years that he spent in college, Joseph used

money from the military, various jobs, and financial aid to pay his
own

way;

Robert

did

not

financially

support

Joseph,

but

rather

occasionally sent him off with a bag of groceries or extra money
for

food.

(R.

Whigham Dep.

at

37,

39;

J.

Whigham Dep.

Joseph purchased and insured his own transportation.
Dep.

at

39,

39,

41.)

Accordingly,

drive his vehicles.

B.

31.)

(J. Whigham

Robert never allowed Joseph to

(Id. at 69; R. Whigham Dep. at 46-47, 55.)

Robert Whigham's Application for Insurance

Agent Melissa Dees of

("the Bailie Agency")

his auto insurance,

the Donald H.

contacted Robert

Bailie

in August

Doc.

50-2,

Insurance Agency

2011

to requote

as the Bailie Agency had been unable to place

Robert's policy the year prior due to his
Dep.,

at

at

37-38.)

She

driving record.

obtained

quotes

from

(Dees
several

companies and reported the rates to Robert on August 19, 2011 via
telephone.

(Id. at 40.)

On September 12, 2011,

Robert came to the

Bailie Agency offices and formally applied for automobile insurance
with Infinity.

(Id. at 12, 41; R. Whigham Dep. at 43.)

He sought

to insure three cars and identified himself as the only driver and
only household

resident.

(Norman Aff.,

Doc.

43-2,

Ex.

A

("Auto

Application"), at 1; Dees Dep. at 18, 36-37, 39-40, 47-48.)
Specifically,

Infinity's application asked for the identity of

" [a] 11 persons age 14 and older,

the

applicant,

and

any

other

LICENSED OR NOT,

drivers

of

the

who reside with

vehicle (s)

on

this

application."

(Id.)

Robert

also

conjunction with his application.
Robert

executed a

"Fraud Warning"

(Id. at 4.)

in

On this document,

certified:

I have listed on this application all persons age 14 or
older,

licensed or not,

who reside with me and all other

drivers who may operate my auto(s) on a REGULAR or
OCCASIONAL basis.
This includes children away from home
or away at school.
I understand it is my obligation to
report to Infinity any change in driving status for any
person currently listed, added on my policy, residing in
my household, or who operates my auto(s).
(Id.

(emphasis added).)

Ms. Dees walked through the entire application with Robert,

is

her

practice,

and

Robert

had

the

opportunity

completed application before signing it.
69;

Dees

Dep.

at

46-48.)

Robert

(R.

testified,

Instead,

review

Whigham Dep.
however,

not review the application before he signed it.
at 68-69.)

to

that

as

the

at 68he

did

(R. Whigham Dep.

he merely signed where Ms. Dees pointed and

wrote a check for the premium.

(Id.)

Ms. Dees testified that she was not notified at any time prior
to June 2013 that Joseph was a resident of his father's household.

(Dees

Dep.

at

50.)

Although

Robert

applied

for

life

insurance

through the Baillie Agency around the same time that he applied for
the

instant

automobile

policy,

he

merely

identified Joseph as

a

contingent beneficiary and gave 1178 Walton's Trial — the mother's
address

—

as

Joseph's

address.

(Id.

at

12-13,

17,

42-45.)

She

further testified that it was in her financial interest to identify

Joseph on the Policy application, as the additional premiums would
have resulted in an increased commission.

On

the

other

hand,

conversation with Ms.

options.

(See

Specifically,
living

at

in

vehicles."

"getting

Dees

home ... or

the

(Id.

into

at

60,

details"

arrangements,

he

at

in

whether
to

he

Although

with

Ms.

at 61.)

any

lengthy

coverage

76-77.)

"children

effect,"

Robert

lived with me,
doesn't

Robert

her

a

59-63;

had

and

Dees

informing

he

he

had

selecting

that

college,

63.)

(Id.

that

53-54;

"I have a son,

off

at 49-50.)

son when

Dep.

asked

recalled

college and comes home."

his

something

Dees,

military,

testified

about

Whigham

Ms.

purportedly told Ms.
off

Dees

R.

when

Robert

(Id.

drive

couldn't

about
that

he's

remember

Joseph's
Joseph

my

living

"goes

With this information,

to
Ms.

Dees purportedly told Robert that Joseph did not need to be listed

on the

policy,

vehicles,

but

warned him that

Joseph would not be

if

Joseph did drive

covered.

(Id.

at

60,

61,

Robert's
63,

76,

77. )

Relying on the

information in Robert's

application,

infinity

issued Policy # 110-45711-3536-001 to Robert on September 15, 2011,
which

included

(Norman Aff.
employee

of

$100,000

U 6.)
URI

On

per

person

uninsured

September 30,

Information

2011,

Services

motorist

Debora

("URI"),

verification interview with Robert via telephone.

Doc.

45,

at

16-18

& Ex.

1.)

During this

coverage.

Linneman,
conducted

an
a

(Linneman Dep.,

interview,

Ms.

Linneman

asked Robert the following questions, to which he answered "no":

1.

"Are there any other household members with
driver's license?" (Linneman Dep. at 25, 50); and

2.

"Are there any children attending school away from
home?"

Ms.
or

a

(Id.

at 27,

42,

51.)

Linneman explained that if Robert had conveyed any additional
"unusual"

would

have

information about

been

entered

his

son or his

simultaneously

reflected in the URI documents.

(Id.

into

the

Infinity's

underwriters,

application

appeared.

information

and

gathered

who

reevaluated

(Norman Aff.

then
the

KU 22,

a

at 10-12.)

no such notes during Robert's interview.
provided

son's

the
it

where

to

and

the

URI
to

insured's

differences

As the information collected
Infinity made no

(Id. % 24.)

changes to his policy or premium.
an

53.)

interview

material

during the interview matched Robert's application,

Jerry Norman,

box

it

Linneman made

(Id. at 25-28,

compared

23.)

comment
Ms.

during

risk

residence,

underwriter

and

Policy

Services

Supervisor

for Infinity, averred that the presence of "additional residents in
a

household

issue

a

risk."

is

policy

(Id.

"Joseph's

material
of

auto

% 16).

to

[Infinity's]

insurance []

Accordingly,

Whigham's

and

constitutes

an

increased

Mr. Norman further declared that

residence

household . . . constitute [d]

decision . . . whether to

in

Robert

Whigham's

an increased risk to Infinity."

(Id.

% 15).

"In light of Joseph Whigham's age and the number of cars

insured

on

the

policy,

would have influenced

knowledge

[Infinity's]

of

Joseph

Whigham's

residence

decision to insure the risk and

materially affected the premium charged to Robert Whigham."

8

(Id.

% 20) .

Indeed,

"Infinity would not have issued the policy at the

premium rate," but

rather would have charged Robert

$1,522

during

in premiums

2011 to March 15, 2013.
that of Ms. Dees,
companies

with

the period

(Id.

spanning

UU 18,

19.)

an additional

from September

15,

This testimony echoed

who stated that for any of the fifteen insurance

which

she

did

business,

additional

drivers

and

"anybody . . . that's living in your house has to be listed on your

policy."

(Dees

Dep.

at

34.)

This

disclosure

may

garner

an

additional premium,

especially with a "youthful male driver" who is

statistically more

likely to

50.)

To

resident

mitigate

status,

insured's

policy.

premium

however,

an exclusion form,

the

any

have accidents.
increase

due

after disclosure the

(Id.
to

at

an

35-36;

49-

individual's

insured can execute

which precludes a given resident from operating

vehicles

and

exempts

them

from

coverage

under

the

(Id.)

Infinity received no declaration from any source prior to his
motorcycle accident on December 1,
at Robert's house,

attended college away from home,

on the weekends to spend the night.
Whigham Dep.

C.

at 66,

and came home

(Norman Aff. UK 5, 13, 14; R.

75-76; O'Shaughnessy Dep., Doc. 49-1, at 36.)

Applicable Policy Language

Joseph's medical

Doc.

2 012 that Joseph kept a bedroom

47-1,

accident:

expenses

exceeded $84,000

(J. Whigham Aff.,

% 3), but he collected only $50,000 as a result of the
$25,000 from the motorist's liability carrier and $25,000

in

uninsured

carrier.

(Id.

additional

available
Whether

motorist

1)11

3,

$100,000

under

contract, however,

5.)
in

his

Infinity's

benefits

Thus,

his

Joseph

uninsured

father's
UIM

from

seeks

motorist

automobile

coverage

father's

extends

is not at issue.1

Rather,

to

access

("UIM")

policy
to

motorcycle

coverage

with

Joseph

the

Infinity.
under

the

Infinity claims (1)

the policy as a whole is void ab initio due to Robert's failure to

disclose

Joseph's

process,

or

(2)

the Whighams

existence

or

residency

during

the

application

it had no obligation to provide coverage because

failed to satisfy the condition precedent of prompt

notice.

The

Policy

issued

to

Robert

addresses

fraud

and

misrepresentation in the following way:
The statements made by you in the application are deemed
to be representations.
If any representation contained

in the application is false,

misleading,

or materially

affects the acceptance or rating of the risk by us, by
either direct misrepresentation, omission, concealment of
facts, or incorrect statements, this policy will be void
from its inception.

(Norman

Aff.,

Clause").)

Ex.

B

Auto

Policy"),

at

19

("Fraud

The Policy also provides that Infinity may "void [the]

policy or deny coverage

1

("Personal

for fraud or misrepresentation even after

Infinity does not contend, for example, that Part C, Exclusion 7(a) of

the Policy — which precludes UIM coverage for "bodily injury or property
damages resulting from the ownership,
maintenance,
or use of . . . any
vehicle with . . . less than four wheels'" — applies.
(Personal Auto Policy
at 10 (emphasis added).)

10

the occurrence of an accident or loss."

(Id.)

The Policy further

reserved, consistent with Georgia law,

the right to void [the] policy from its beginning if we
determine that you have provided incomplete, inaccurate
or

false

information

misrepresentations,

in

omissions,

your

application.

concealments

of

Your

fact

or

incorrect statements must be either fraudulent; material
either to our acceptance of the risk or hazard, or we, in

good faith, would either not have issued this policy or
would not have issued this policy in as large an amount
or at the premium rate charged or would not have provided
coverage with respect to the hazard insured against and
resulting in the loss if we had known the true facts.

(Id- at 20 ("Rescission Clause").)

This reiterates the language

appearing in the heading of the Application's "Fraud Warning":
IN ACCORDANCE WITH APPLICABLE STATE LAW,
AT

ITS DISCRETION,

POLICY,

INFINITY

REJECT THE APPLICATION,

MAY,

RESCIND THE

LIMIT COVERAGE OR CHARGE AN INCREASE IN PREMIUM

FOR WHICH YOU ARE RESPONSIBLE, IF ANY PERSON HAS (1)
PROVIDED INFORMATION WHICH IS FALSE, MISLEADING, OR
INACCURATE, OR (2) FAILED TO DISCLOSE INFORMATION WHICH,
IF PROPERLY DISCLOSED, WOULD AFFECT INFINITY'S DECISION
TO WRITE THIS POLICY OR CHANGE THE TERMS THEREOF OR THE
PREMIUM CHARGED.

(Auto Application at 4.)

By signing the Fraud Warning, Robert

certified he understood that:

[a] s state law allows, no coverage is provided and the

policy shall be null and void from inception ... if any
information in this application is false, misleading, or
would materially affect the policy premium or acceptance
of the risk by the Company[.]
(Id. H 7(a).)

11

II.

The

STANDARD OF REVIEW ON SUMMARY JUDGMENT

Court

depositions,

shall

answers

grant
to

summary

judgment

interrogatories,

together with the affidavits,

"if

and

the

pleadings,

admissions

on

file,

if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled
to

summary

judgment

Crossarm Co.,

P.

56(c).

as

a

matter

of

1259,

1260

357 F.3d 1256,

The

"purpose

of

law."

Hickson

(11th Cir.

summary

judgment

Corp.

2004);

is

v.

N.

Fed. R. Civ.

to

pierce

the

pleadings and to assess the proof in order to see whether there is a
genuine
Radio

need

Corp.,

" [The]

for

trial."

475 U.S.

party

seeking

Matsushita

574,

Elec.

587

(internal

summary

(1986)

judgment

Indus.

always

Co.

v.

Zenith

citation omitted).

bears

the

initial

responsibility of informing the district court of the basis for its
and

motion,
court]
of

(1986) .

fact."

case.

portions

of

the

[record

is

may

indeed a

Clark v.

(11th Cir.

Celotex

Corp.

v.

Catrett,

477

U.S.

avoid

genuine

Coats

1991).

summary

&

issue

Clark,

Facts

are

judgment

as

Inc.

to

the

by

the

317,

material

("Clark I"),

"material"

if

demonstrating

929

facts

323

Liberty Lobby,

those material

Inc.,

facts "is

477

U.S.

242,

248

its

F.2d 604,

608

they could

(1986).

'genuine' . . . [only]

12

that

of

outcome of the suit under the governing substantive law.
v.

before

if — and only if — the movant carries its initial burden,

non-movant

there

those

which it believes demonstrate the absence of a genuine issue

material

the

identifying

A

affect

the

Anderson
dispute

of

if the evidence is

such

that

a

reasonable

moving party."

jury could

record in the

and resolve

all

Matsushita,

475 U.S.

conflicting

verdict

for

the

non-

factual

Davenport-Harris

favorable to the non-moving party

disputes

at

587.

in

The

the

non-moving party's

Court must

Anderson,

477

Home,

F.2d 930,

Funeral

the

the Court must view all the evidence

light most

evidence.

Nevertheless,

a

Id.

When ruling on the motion,

in the

return

non-moving

834

party's

U.S.

favor.

also avoid weighing

at

255;

934

(11th Cir.

response

to

the

McKenzie

v.

1987).

motion

for

summary judgment must consist of more than conclusory allegations,
and

a

Darby,

mere

911

F.2d 1493,

"scintilla"

F.2d 1573,
1498

of

evidence

1577

(11th Cir.

will

(11th Cir.

not

1990);

suffice.

Pepper v.

Walker

Coates,

v.

887

1989).

The Clerk gave Defendants appropriate notice of the motion for

summary judgment and informed them of the summary judgment rules,

the right to file affidavits or other materials in opposition, and
the

consequences

requirements

Cir.

1985)

of

(per

of

default.

Griffith

v.

(Doc.

46.)

Wainwright,

curiam) , are

772

satisfied.

Thus,

F.2d

The

822,

time

the

825

for

notice

(11th

filing

materials in opposition has expired and the motion is now ripe for
consideration.

III.

Georgia

law provides

that

DISCUSSION

" [a]11

statements

and descriptions

in any application for an insurance policy . . . shall be deemed to
be representations."

O.C.G.A.

§ 33-24-7(a);

13

see also Personal Auto

Policy

at

omissions,

1

(tracking

same

concealed facts,

language).

Misrepresentations,

and incorrect statements made by an

insured during negotiations for an insurance policy, however, will
bar recovery only where

such representations

are

(1)

fraudulent;

(2) material either to the acceptance of the risk or to the hazard

assumed by the insurer; or (3) the insurer in good faith would not

have issued the policy in as large an amount, at the premium rate
applied
O.C.G.A.

for,

or

at

all

if

the

true

facts

had

been

known.

See

§ 33-24-7(b).

Thus, to avoid coverage under this statute,2 the insurer need
not prove that

the

insured made the offending representation with

intent to deceive or even knowledge of its falsity.
Am.

Int'l Specialty Lines Ins.

2012)

(citing Home Indem.

Supp.

1569,

whether

1574

the

(N.D.

applicant

Ga.

1995)).

acted

White v.

Am.

298,

Ct.

2007)

(Ga.

insurer need
false

App.

in

212,

N.H.

Indeed,

good

faith

217-18

v.
"it

in

is

and that

it

was

material."

omitted).

696-97

Pope v.

(Ga. Ct. App.

Mercury

2009)

Ga.

910

F.

immaterial

completing

Family Life Assurance Co.,
(citations

(N.D.

Toombs,

only show that the representation was

Ga. , 677 S.E.2d 693,

2

486 B.R.

Co. Manchester,

application."
300

Co.,

See Perkins v.

643

the

S.E.2d

Rather,

"the

[objectively]
Indem.

Co.

(citing White,

As uninsured motorist insurance coverage can be rejected,

of
643

it is not a

form
of
mandatory
insurance
coverage
to
which
the
defense
of
misrepresentation would be precluded as a matter of public policy.
Piatt v.
Nat' 1 Gen. Ins. Co., 423 S.E.2d 387, 392 (Ga. Ct. App. 1992).

14

S.E.2d at

3 00) .

"A material misrepresentation

is one

that would

influence a prudent insurer in determining whether or not to accept
the risk, or in fixing a different amount of premium in the event
of such acceptance."
v.

Snead,

499

Id. at 697 (citing Jackson Nat. Life Ins. Co.

S.E.2d

173,

176

(1998)).

question of materiality is for the jury,
excludes

every

reasonable

" [O] rdinarily [, ]

[but]

inference

the

where the evidence

except

that

the

misrepresentation was material, the issue becomes a question of law
for the court."

Id.

(internal punctuation omitted).

The Whighams do not challenge in their brief or provide any

evidence to controvert Infinity's supported assertions that (1) the

representations at issue were material and (2)
not have issued the

Policy to Robert at the premium rate applied

for had Joseph's residency been disclosed.

indicates

that

respects.

See

Amusements,

Inc.,

May 10,

260,

269

2012)

(7th

pressed in

they
LR

do

7.5,

No.

not

oppose

SDGa;

see

CV 111-014,

1986)

opposition to

for

This failure to respond

Infinity's

also

2012

(citing Lazzara v.

Cir.

WL

1656919,

Howard A.

the

a motion

application

such

that

proposition

in

Dreamland

*5

(S.D.

Ga.

802

F.2d

Inc.,

that

Robert's

Thus,

these

v.

a

ground not

for summary judgment

constituted a misrepresentation of fact.

15

at

Esser,

before the Court is whether Joseph "reside[d]
of

motion

Northington

treated by the district court as abandoned).

time

that Infinity would

is

to be

the sole issue

with" Robert at
failure

to

the

disclose

" [Q]uestions of domicile and residence are mixed questions of
law and fact and are ordinarily one[s]

Daniel v.
2008)

Allstate

Ins.

Co.,

(quoting Baldwin v.

206, 207

660 S.E.2d

of

consider

both

aggregate

the

named

the

details

(citation omitted);

the

of

household,

the

(Ga.

Co.,

Ct.
590

App.

S.E.2d

family's

courts

living

generally

policy

insurance

and

"the

arrangements."

see also Burdick v. GEICQ,

(Ga. Ct. App. 2006) .

767

In deciding whether a relative is a

insured's

language
of

765,

State Farm Fire & Cas.

(Ga. Ct. App. 2003)).

resident

for a jury to determine."

Id.

626 S.E.2d 587, 589

"Of critical importance to this analysis is

whether the family members have established and maintained separate
households under different management."
(citing State Farm Fire

(Ga. Ct. App. 2002)).

Burdick, 626 S.E.2d at 589

& Cas. Co. v. Goodman,

576 S.E.2d 49, 52

A relative's household relationship with the

insured may end where he has demonstrated intent to remove himself

from the household and has taken some action toward doing so,

or

vice versa.

Goodman, 576 S.E.2d at 52 (citing Keene v. State Farm

Mutual Auto.

Ins. Co. , 152 S.E.2d 577, 578

An

individual

may have

insurance coverage.

more

than

residence

Ct. App.

for

1966)).

purposes

of

Daniel, 660 S.E.2d at 769 (citing Baldwin, 590

S.E.2d at 207 and Travelers Ins.

(Ga. Ct. App.

one

(Ga.

Co.

1968)).

16

v.

Mixon,

162 S.E.2d 830,

831

A.

The Policy Language

Unfortunately,

Infinity's policy language is not elucidating:

it defines "resident" as "any person living in your

household,

other than you or a relative," and "relative" is defined as "any
person related to you . . . who lives in your household, whether or

not temporarily living elsewhere."

"resident"

Robert's

in

Robert's

application,

("Georgia

By this definition, Joseph is not

Amendatory Endorsement"), at 1.)
a

(Norman Dep., Ex. B

household,

however,

did

but

not

rather

ask

a

him

"relative."

to

disclose

"relatives."

The

language

in

the

Policy

Application,

straightforward and by its own terms
(See Auto Application at 4

however,

becomes part of

("I hereby apply to

the

is

more

Policy.

the Company for a

policy of insurance as set forth in this application on the basis
of the statements contained herein.

this

application

document.").)

becomes

a

part

On the first page,

By signing below I agree that

of

my

policy

14

and"

at

or older,

(2)

1

LICENSED OR NOT,

added).)

additional clarity as
"reside."

hint.

(1)

Alone,

legal

" [a]11 persons

this

(Auto Application

provision

to who is a "resident" or what

As to the "who," however,

There,

a

who reside with the applicant,

"any other drivers of the vehicles(s)."

(emphasis

is

the Application requests that the

insured identify two categories of individuals:
age

and

provides

no

it means to

the Fraud Warning provides a

the Policy Application similarly requires the insured

to certify that he

has

listed two categories of

17

individuals:

(1)

"all persons age 14 or older, licensed or not, who reside with [the

and"

insured]
insured's]

autos

Application

contains

(2)

at

the

"all
on

other

a

REGULAR

% 1

4,

drivers
or

(emphasis

following

modifier

who

may

OCCASIONAL

added).)

or

[the

basis."

The

(Auto

next

sentence

"This

descriptor:

children away from home or away at school."

operate

includes

(Id.)

The Whighams contend this modifier creates ambiguity,

and a

"fair interpretation" of the language indicates that Robert only
was

required to

"disclose

1.

resident

relatives

and 2.

all

other

persons who may occasionally or regularly drive his autos including
children away from home or away from school."
11.)

(Defs.'

Resp. at

They emphasize that "[i]n construing an insurance policy, the

test is not what the insurer intended its words to mean, but what a

reasonable person in the position of
them

to

mean."

S.E.2d 168,

(Id.

at

10.)

Mason

and

ambiguity

foremost,

argument

the

Court

is
"it

acted

completing

good

at

described
whether

Allstate

3 00.

faith

Whether

language

his

objectively

in

meant

answers

false.

to

notes

that

misplaced:

§ 33-24-7 (b) (2) and (3),

S.E.2d

v.

Ins.

Co.,

680

171 (Ga. Ct. App. 2009).

First

in

the insured would understand

is

Robert

does
the

Indeed,

language as the Whighams urge,

immaterial

was

not

the

even

alter

if

under
whether

about

the
on

the

what

Court's

the

Whighams'
O.C.G.A.

the

application."

unsure

questions

the

applicant
White,
the

above-

analysis

Application

Court

643

construes

of

were

the

there remains the possibility that

18

Joseph

was

a

"resident

relative"

such

that

he

should

have

been

disclosed.

Even

so,

the

Court

finds

that

the

phrase

"This

includes

children away from home or away at school" is not ambiguous on its

face:

policy

language

"is

genuinely

ambiguous

only

when

the

phrasing ... is so confusing that an average policyholder cannot
make out the boundaries of coverage."
v.

Henderson,

No.

2013)

5:ll-CV-499 MTT,

Mar.

11,

Co.,

427 S.E.2d 798,

language

"Words,

capable

like

Anderson v.

The

(citing Ga.

of

modifier

Baptist

And

when

Children's

are

judged
Co.,

contains
gauged

words

the

(M.D.

Ga.

at *3

by

Essex Ins.

the

company

307 S.E.2d 499,

no
by

the

Co.

Nor is the modifier

suggested

by

& Cas.

Home v.

1993)).

construction

Fidelity Ins.

itself

2013 WL 949877,

(Ga. Ct. App.

the

people,

Se.

limitation.

800

State Auto Prop.

of

words

500

Whighams.

they

keep."

(Ga.

1983).

qualification

surrounding

it,

or
the

preceding sentence of the Fraud Warning that the modifier describes
uses

the

word

"and"

in

its

conjunctive

form,

implying

equal

grammatical rank of its parts.

See The Chicago Manual of Style § 5.194

(16th

disjunctive

ed.

indicate

2010).
that

Unlike

an

the

alternative

election must be made.3

choice

"or,"

exists

or

"and"
imply

does
that

not
an

Thus, the language in and structure of the

Fraud Warning unambiguously indicates that "children away from home
or away at

3

See

J.C.W.,

school"

Haugen

v.

applies to Jboth categories of

Henry

734 S.E.2d 781,

Cnty. , 594

S.E.2d

789 (Ga. Ct. App. 2012).

19

324,

326

individuals the

(Ga.

2004);

In

re

Application

seeks

insured and
under

the

(2)

to

identify -

other drivers

Policy

such

reside

(1)
the

of

children

those

insured's vehicles.

can

who

"reside"

with

notwithstanding their temporal or geographic absence,

with

the

the

Thus,
insured

which echoes

the common law principle that an individual may have more than one
residence

for

S.E.2d at 769

B.

purposes

of

insurance

coverage.

The Policy language alone,

however,

means to "reside" in this case.

and

language

in

Daniel,

660

(citations omitted).

The Aggregate Details of the Whighams'

ordinary

See

accepted

insurance

Living Arrangements

does not resolve what it

Georgia courts have held that the

meaning

of

disputes

"resident"

pertains

to

and

"one

other

who

similar

physically

maintains permanent or frequently utilized living accommodations."
See Daniel,
Farm Mut.

660 S.E.2d at 769

Auto.

Ins.

(citations omitted); Rainey v. State

Co. , 458 S.E.2d 411,

412

(Ga.

Ct.

App.

1995)

(noting the phrases "lives with," "resides with,"

"is a member of

the

household"

household,"

"or

is

a

resident

of

the

are

sufficiently similar to warrant analysis under the same standard).

Thus, the Court turns to examine the nature and extent of Joseph's
living

arrangements

application,

keeping

in

the
in

aggregate

mind

the

at

the

inclusive

time

of

Robert's

Policy

language

addressing "children . . . away at school."
Joseph describes his living arrangements as follows: beginning

in 2009,

Joseph had "nowhere else to

20

go" after some disagreements

arose

with

his

mother,

and

he

intended

the

move

home to be permanent.

(J. Whigham Dep.

2 010

for military training,

when Joseph left

school

or

Beginning

through

work

in

from

his

January

Friday

employment.

on

fatherfs

2011,

Joseph

campus,

close

at 18-20.)

his

to and from
at

spent

21,

Sunday

classes
50,

father's

Up until August

(Id.

generally

(See id. at 32, 35, 37, 42-46,

his

he went

house.

to

to

and

24.)

nights

place

He spent most

56.)

Saturday nights, Sundays, and holidays at his father's home.
see also

id.

at

30,

36.)

from home or at school,
(id.

at

governed
at

his

father's

21,

26,

father's

home
(Id.

driving

home

home

on a

at
to

(Id. at 53, 60.)

59),

32),
(id.

at

29,

35,

that

his

father's

rules

45).

He

59.)

On the
house

day of
from

a

the

31-32.)

accident,

visit

to

to

his

he

his

in
was

mother.

Joseph's plan was "to live

[his] dad until he finished college or got
(Id. at

returned

the day after Thanksgiving

By his own admission,

something like that."

away

and kept all his ancillary belongings

father's

his

the period Joseph was

understood

full-time basis

56-57,

(Id.;

he had his own bedroom at his father's home

45,

(id. at 21-22,

2012.

with

30,

Throughout

of

[his] own place or

He repeatedly stated that

he "always lived in Augusta," even if he was working or in school,
and that he "was always living with [his] dad."

(Id. at 50, 55.)

Robert — the insured — described Joseph's living arrangements
as

follows:

Robert

mother's house.

(R.

"knew

[Joseph]

Whigham Dep.

was

never

at 28,

30,

going

31,

back"

35-36.)

to

his

"There

was never an option for him move back" after his mother "kicked him

21

out"

and put him "on the curb with all his

from

2 009

until

the

Joseph

Joseph "was living at
even

though

Joseph

started

[his] house."

was

"doing

attending

his

college

Robert's
kept

to

entire

all

Finally,

of

at

38

house,

Joseph's

kept

belongings

in

2 011,

Thereafter,

thing,"

Joseph

could

weekend that he wanted to

(emphasis added).)

Robert

34.)

Thus,

Joseph had access to

Joseph's

there.

bedroom

(Id.

at

intact,

33,

34,

and
42.)

Robert encouraged Joseph to come back home when he began

struggle

college,

(Id.

(Id.)

Armstrong

(Id. at 33,

"come home if he wanted to or if he had a

come home."

stuff."

and

at

school:

[Robert]

" [h]e

would

could

pay

come

for

Joseph heeded his father's advice,

there

and

everything."

stay,

(Id.

at

moved back to Augusta,

then on consistently stayed at Robert's house at

go

to

49.)

and from

night.

(Id. at

42.)

It

cannot be disputed that Joseph spent considerable time at

his father's home during the course of pursuing his college degree.
Of

course,

"[m]ore

than

mere

physical

presence

and

transient

visitation is required to make a person a resident of a household."
Rainey,
Ins.

458 S.E.2d at 413

Co. , 355 S.E.2d 705,

Robert's

respective

importantly,
those

(citing Sanders v.
706

intent

(Ga.

in

Ct.

this

App.

case

Ga.

Farm Bureau Mut.

1987)).

is

Joseph's and

critical,

and

more

there is no genuine issue of material fact as to what

intentions

were.

After

his

mother

transferred

physical

custody to Robert in 2009, Joseph intended to live exclusively with
his

father

until

he

finished

22

college

or

until

he

became

economically independent and able to move out on his own.

Whigham
house,

Dep.

at

31-32.)

intent

to

live

in

his

father's

even if only for the time being, was sufficient to establish

his residence there."

Sanders,

Davenport, 229 S.E.2d 489,
Similarly,

go.

"This

(See J.

355 S.E.2d at 706

491 (Ga. Ct. App.

(citing Smiley v.

1976)).

Robert understood that Joseph had no other place to

Robert made sure to have space for Joseph during at least one

move to a new home.

(See J. Whigham Dep.

no plan to kick Joseph out
from

high

school

in

enrolled in college.

2 010,

of

the

enlisted

the

in

(Cf. R. Whigham Dep.

at 92

(describing,

since

taking up truck driving).)

door policy:

nest

at 26-27.)

for the first time,

He expressed

instant

the

he

National

at 28-30,

graduated
Guard,

or

34-38 with id.

that Joseph is "on his own"

Instead,

he

maintained an open

Joseph's regular weekend visits throughout the school

year were welcome and did not require permission

(see id.

at

38) ;

Joseph was allowed to enjoy each part of the living facilities (id.
at 32) ; and at no point did the living arrangement entail payment
of

rent

or

utilities

to

Robert,

permanently in November 2012

(see id.

even

at

once

40;

J.

Joseph

returned

Whigham Dep.

at

45.)

The Court does not ignore the fact that Joseph did pay rent
and utilities with his own funds for campus accommodations and used
his mother's mailing address on legal documents.

But these facts

are only dispositive in a vacuum, especially given the basic legal
maxim that

"[a]

man

may have

several

23

residences."

Baldwin,

590

S.E.2d at

769.

207

(citation omitted);

all

Considering

the

see

facts

also Daniel,

relevant

to

660

S.E.2d at

Joseph's

living

situation - from the day he moved in with his father in 2009 until
he enrolled in an out-of-state trucking school in 2013 — there is
no

genuine

issue

of

material

fact

as

to

whether

Joseph

was

a

resident of Robert's home at the time Robert applied for insurance

with

Infinity

living

in

2011.

accommodations"

Daniel,

660

S.E.2d

Robert
for

at

769,

maintained

Robert

and

throughout

Joseph

remove

at

himself

Rainey,
intent

458
to

31-32) .
from

S.E.2d

remove

his

at

that

[his]

cancelled

father's

413

household,

(finding

from

his

the

nor

did

father

daughter's

checks,

information

in

his

identified his daughter as not living with him,
that

he
week

per

"lived"
with

S.E.2d at 706
household

work,
his

v.

the

when

in the
his

apartment

daughter

to

ended

to
(J.

close

Cf.

demonstrated

household
as

tax

when

an
he

corroborated

returns

which

and his admission

spending
to

Robert.

several

work) ;

nights

Sanders,

355

(finding the son ended his membership in his mother's
he

weekend visits

son

despite

be

moved

to

his

father's

subsequently became engaged,

McEachern,

intended

Joseph did not take sufficient action to

himself

rent

see

own place"

moved out of her home and into his own apartment,
by

utilized

period,

unequivocally

stay there "until he finished college or got

Whigham Dep.

"frequently

218

his

to

mother's

S.E.2d 645,

membership

647-48

24

to

be

close

to

and diminished the frequency of

home);

in

residence

his

Cotton

States

(Ga. Ct. App.

father's

Mut.

1975)

household

Ins.

Co.

(finding

when

he

moved with his wife to a home a mile and a half away,
to be living in his father's home,
his

own"

and

contribution

the
of

head of
the

his

did not claim

and believed himself to be "on

own household

down

payment,

Robert's

failure

all

despite

his

furnishings,

father's

and

daily

meals).

Accordingly,
application

which

as

included

a

"resident"

"children

constitutes

a

false

answer

"no"

or

away

misrepresentation
to

URI's

to

disclose

someone

who

from

home

of

"resides"

fact.4

subsequent

Joseph

or

away

with

at

Robert's

stand-alone

on

the

him —

school"

—

objectively
verification

question "Are there any children attending school away from home?"
only

bolsters

this

conclusion.

(Linneman

Dep.

at

Infinity thus has proven all that the law requires,
Co.

Manchester,

910

F.

Supp.

at

1574,

the Policy under its express terms.
be

void

ab

initio,

the

Court

and

is

27,

42,

51.)

see Home Indem.

entitled to

rescind

Having adjudged the Policy to

declines

to

address

Infinity's

alternative arguments in defense of coverage.
4

Robert points the finger at Ms. Dees, emphasizing that (1) "she knew as

a result of issuing a prior life insurance policy that Robert Whigham had a
son, Joseph Whigham," (2) "knew that resident relatives over 14 years of age
had to be disclosed" if they met certain residency or automobile use
requirements,
and
(3)
notwithstanding the information she received from
Robert, Ms. Dees "confirmed that Joseph did not have to be on the policy."
(Doc. 52 at 4-5.)
Ms. Dees' actions and/or representations, however, are
irrelevant to the Court's analysis of whether rescission,
grounded in
allegations of material misrepresentation, is the appropriate remedy in this
case.
It does not matter if Robert, pursuant to Ms. Dees purported advice,
believed in good faith that his son did not meet the definition of "resident"
or did not have to be included on the policy.
"O.CG.A. § 33-24-7 (b) does

not require that an insurer prove the insured's knowledge of .
the
falsity of the misstatement or omission at issue."
Pope, 677 S.E.2d at 698
(citing White, 643 S.E.2d at 300) .
Accordingly, "it is immaterial whether
the applicant acted in good faith in completing the application." White, 643
S.E.2d a t

300.

25

IV.

CONCLUSION

For the foregoing reasons,

for
#

Summary

Judgment

110-45711-3536-001

Clerk

to

enter

to

the Court GRANTS Infinity's Motion

(Doc.

be

ab

void

judgment

in

43)

and

initio.

favor

of

The

ADJUDGES
Court

Infinity

Policy

DIRECTS

Auto

the

Insurance

Company.

Within FOURTEEN DAYS
SHALL file either:

(1)

should

K 35) ,

if

be

date of

this Order,

the parties

currently on deposit with the Registry of

refunded

disputed;

the

supplemental briefs to address what portion

of the tendered premiums,
Court,

of

or

to

(2)

the

a

insured

consent

(see

motion

Compl.,

to

Doc.

disburse

1,

the

interpleaded funds as agreed.

ORDER ENTERED at Augusta,

Georgia,

>c#0tL

this£~>X^^/< flay of March,

2015.

HONQBABfiE JT RAJJETAJ/ HALL (
UNITED

STATES

DISTRICT

IERN DISTRICT

26

JUDGE

OF GEORGIA