Nationwide Mutual Insurance Company v. Hamrick et al

Filing 43

MEMORANDUM OPINION AND ORDER. Signed by Magistrate Judge Don D. Bush on 10/26/2011. (baf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
NATIONWIDE MUTUAL
INSURANCE COMPANY
Plaintiff,
VS.
MARK HAMRICK and
MARCIA HAMRICK, as
Next Friend of KODI HAMRICK
Defendants.

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CASE NO. 4:10CV589

MEMORANDUM OPINION AND ORDER
The Court, having heard the evidence skillfully presented at trial by both parties, finds that
Plaintiff herein, Nationwide Mutual Insurance Company, should have judgment against Defendants,
Mark Hamrick and Marcia Hamrick, as next friends of Kodi Hamrick. The sole issue in the case was
whether Kodi Hamrick, who has now reached the age of majority, was a covered person under his
father’s insurance policy, particularly the Uninsured/Underinsured Motorists Coverage.
To avail himself of coverage, Kodi Hamrick would have to be a covered person under the
terms of the policy. A family member is a covered person. However, the policy defines “family
member” as a “person who is a resident of your household and related to you by blood, marriage or
adoption.” This definition includes a ward or foster child who is a resident of your household, and
also includes your spouse even when not a resident of your household during a period of separation
in contemplation of divorce. Since Kodi was the biological child of Mark Hamrick, the only

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question is whether he was a resident of Mark Hamrick’s household.
Insurance policies are contracts and are therefore interpreted according to the ordinary rules
of contract construction. Tanner v. Nationwide Mut. Fire Life Co., 289 S.W.3d 828, 831 (Tex.
2009); Utica Nat’l Ins. Co. of Tex. v. Am. Indem. Co., 141 S.W.3d 198, 202 (Tex. 2004). The
Court’s primary concern is to ascertain the parties’ intent as reflected in the terms of the policy itself.
Utica Nat’l Ins. Co., 141 S.W.3d at 202; Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex.
1994). If policy language is worded so that it can be given a definite or certain legal meaning, it is
not ambiguous and will be construed as a matter of law. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124
S.W.3d 154, 157 (Tex. 2003); Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 907
S.W.2d 517, 520 (Tex. 1995). A contract is ambiguous if the contract language is susceptible to two
or more reasonable interpretations. Schaefer, 124 S.W.3d at 157 (citing Kelly-Coppedge, Inc. v.
Highlands Ins. Co., 980 S.W.2d 462, 465 (Tex. 1998)). Whether a contract is ambiguous is itself
a question of law. Kelley-Coppedge, Inc., 980 S.W.2d at 464.
Neither party contends that the policy was ambiguous. Moreover, the Texas Department of
Insurance (formerly the State Board of Insurance) is charged with adopting standard policy forms
to be used by motor vehicle insurers. See TEX . INS. CODE § 5.06(1). With certain exceptions
inapplicable to this case, insurers can only use a policy form adopted by the Texas Department of
Insurance. Id. at art. 5.06(2); see also Progressive County Mut. Ins. Co. v. Sink, 107 S.W.3d 547,
550 (Tex. 2003); Urrutia v. Decker, 992 S.W.2d 440, 443 (Tex. 1999) (citing Springfield v. Aetna
Cas. & Sur. Ins. Co., 620 S.W.2d 557, 558 (Tex. 1981)).

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In general, Texas cases determining residency have relied on the child’s relationship to the
household, the nature of the child’s stay in the home, and the intent of the parties. See Easter v.
Providence Lloyds Ins. Co., 17 S.W.3d 788 (Tex. App.- Austin 2000, no writ). In regard to minor
children, there is authority that one residence does not preclude a finding of another residence. See
Hartford Cas. Ins. Co. v. Phillips, 575 S.W. 2d 62 (Tex. Civ. App.- Texarkana 1978, no writ). In
other words, the child can have two residences. As a general rule, the focus of the inquiry is on the
intent of the non-insured person for whom coverage is sought: whether or not that individual
intended his or her departure from the residence of the insured to be permanent or temporary. If the
child intends to return, the departure is only temporary and the child remains a covered person. See
Cicciarella v. Amica Mut. Ins. Co., 66 F.3d 764 (5th Cir. 1995).
Kodi lived with his mother after his parents’ divorce. The family court awarded his mother
the sole managing conservatorship. Kodi attended schools in the Quitman and Mineola areas. He
would visit his father on certain holidays and possibly a few weekends throughout the year.
Kodi’s father, Mark Hamrick, lived with his sister but had a separate bedroom. Kodi stayed
in his father’s room or in another part of the house when he visited. He also kept a few clothes and
games at the house where Mark lived. However, in determining the intent to reside, the Court looks
to the intent of Kodi. He testified more than once that he did not intend to permanently stay with his
father. He listed his mother’s address as his address and testified that he would visit his father
primarily in the summers.

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Mark testified that in the 2009 time frame, he drove a truck for about a month to a month and
a half on and would then have three to four days off. He could not give an estimate of how often
Kodi would stay with him. The long and short of all this is that Kodi would visit his father from
time to time when Mark was not on the road driving.
However, the Court believes that Kodi had no intent to reside in his aunt’s household with
his dad. This is evidenced by Kodi’s own testimony, as well as the nature of the living arrangement
Mark had with his sister and the sporadic visits Kodi paid to his father.
This takes nothing away from the relationship the two had. All the evidence demonstrates
that Mark is hard working, loves his family, and is a good father. Putting that aside, Kodi did not
reside in the same household as Mark.
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As such, judgment shall be granted for Plaintiff Nationwide Mutual Insurance Company in
all respects. Within 10 days of the date of this Order, Plaintiff shall submit a proposed final
judgment for the Court’s consideration and entry.
SO ORDERED.
SIGNED this 26th day of October, 2011.
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DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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