Coverage for Residents Who Don't Primarily Reside in a Household
As with Frazier, in Haydel v. State Farm Mutual Automobile Insurance, 935 So. 2d 171, 174 (La. App. 1st Cir. 2006), a 15-year-old was killed while riding as a passenger in a vehicle driven by his friend. His father sought recovery under his own underinsured motorist policy containing the "primarily resides" language. The decedent's father agreed that the decedent resided with his mother for "most" of the school year, and that he spent about "70 percent" of his time in his mother's household, but argued that the decedent had more than one residence. The court also found that while the decedent had more than one residence, there could be only one primary residence.
In Bauer v. USAA Casualty Insurance, 295 Wis. 2d 481, 487, 720 N.W.2d 187, 190 (2006), the Wisconsin Court of Appeals followed Alabama's lead, observing that "to have a 'primary' residence under this commonly accepted definition means there can only be one primary residence." Likewise, in State Farm Mutual Automobile Insurance v. Fultz, C.A. No. 2:06-cv-0015 (N.D.W.V. September 24, 2007), the court considered the "resides primarily" language and made the satisfyingly unambiguous declaration that even though it is certainly possible for someone to have two residences, "an individual cannot primarily reside at more than one residence."
In Wallace v. State Farm Mutual Automobile Insurance, 2007 Ohio 6373, No. F-07-012 (Ohio Ct. App. Nov. 30, 2007), the Ohio Court of Appeals turned to the Black's Law Dictionary, which defines primary as "first; principal; chief; leading," before concluding that, "clearly, the essence of the meaning indicated by the term 'primary' is that it is indicative of singular, not multiple, application."
In Hall v. Shelter Mutual Insurance, 45 Kan. App. 2d 797, 802, 253 P.3d 377, 381 (2011), the Kansas Court of Appeals, like the other courts before it, had no trouble with the distinction between the old language and the new language, stating "the purpose of ... excluding coverage to a child not primarily residing with a parent is readily apparent in this case. ... Hall may have established that Kinnie maintained residency in both households, but the evidence is undisputed regarding her primary residence."
And in State Farm Fire and Casualty v. Lange, 480 Fed. Appx. 309, 314 (5th Cir. 2012), the "resides primarily" language made an appearance in a federal court of appeals. There, the U.S. Court of Appeals for the Fifth Circuit found the term "primary residence" to be unambiguous, holding that under Texas law, the fact that a driver kept important possessions in his parents' home and stayed there on occasional weekends was not enough to make his parents' home his primary residence. He had moved out of their home almost four years before the accident, worked full-time and lived in an apartment 45 miles away.
When litigation regarding coverage on uninsured and underinsured motorist policies containing the "resides primarily" language inevitably arrives in Pennsylvania, the growing body of litigation around the country provides ample support for the conclusion that this language will not allow a person, including the minor child of divorced parents, to argue that he or she "resides primarily" in more than one household, or with more than one parent.
This means that in cases like that of Frazier, the grieving parents of a deceased child would simply be out of luck.
Asher Brooks Chancey is an attorney at the Nicolson Law Group. He focuses his practice on products liability, commercial transportation and civil litigation.