*1 engaged in plaintiff has not the contribution conduct).
intentional trial court for case in remanded to the This opinion. retrial in accordance with C.J., REID, ANDERSON, O’BRIEN BIRCH, JJ., concur. GREDIG, Jr., and Donald Robert W. Gredig, and Anita Plaintiffs- J. Appellees, TENNESSEE FARMERS MUTUAL COMPANY,
INSURANCE Defendant-Appellant. Tennessee, Appeals Court Eastern Section.
Aug. 1994. Sept. Rehearing Denied Appeal Application for Permission to Denied 3, 1995. Jan. *2 Jr., Johnson, T. Adrienne L.
John Leake, Anderson, Kramer, Rayson, Rodgers Knoxville, Morgan, appellant. for & Black, Shoemaker, T. Kiz- David C. Edwin Black, Maryville, appellees. er & SUSANO, Judge. question of appeal involves a insur-
This resulting coverage of from a fire ance losses by the Plain- consumed a house owned (“Robert”), Gredig, tiff Robert W. Jr. by Robert policy issued to a homeowner’s fire, At the time of the Defendant. house, being then vacated his and it was had brother, occupied by Plaintiff Robert’s (“Donald”), Gredig and the latter’s Donald J. wife, Gredig. The trial the Plaintiff Anita court found pro- be construed to and held that should of his coverage for loss house vide Robert’s by personal property suffered the loss of ap- Defendant has and Anita. The Donald arguing policy does not af- pealed, coverage for either loss. ford
I in dispute. operative facts are was is-
The homeowner’s 9H I policy period SECTION sued Robert’s name for the 22, 1992, April It covered April Robert at 1554 Mt. Tabor house owned PROTECTION PROPERTY Maryville. August, Road in *3 A) (Coverage DWELLING COVERAGE
prior renewed to the time that the was 22, 1992, beginning April for the term cover: We spouses respective and Donald and their at- dwelling, including structures 1. Your agreed writing to trade houses. Pursuant premises. it, residence tached to at the 1991, October, agreement, to that by you occupied dwelling must be The Robert and his wife moved into Donald’s your private residence. and used Boulevard, Maryville, at 2111 Alnwick house into and Donald and his wife moved agreed on Mt. Tabor Road. It was
residence TO APPLYING CONDITIONS pay that each make the other’s house would [Property I SECTION they exchange ment and that would deeds Protection] paid The Defen when both houses were for.
dant not notified of the switch. On was 1, 1992, August the Mt. Tabor Road house Vacancy Unoccupancy Or 13. totally destroyed by fire of an electrical origin. significant The fire also caused a loss premises may be unoccu- The residence personal property belonging to Donald and days period 120 consecutive pied for a Anita. except any coverage without reduction specifies If otherwise.
where this premises is still unoccu- the residence II days, pied 120 consecutive cover- after parties following perti- focus on the to 65% of the age will be reduced policy: nent in the coverages A specified [Dwell- amount for Coverage], Prop- B ing [Personal and C erty Coverage]. USED DEFINITIONS THROUGHOUT THIS POLICY premises may vacant residence days with- period for a of 60 consecutive appear The terms defined below in bold coverage except any reduction out type throughout policy: policy specifies otherwise. If where this “your” Policy- I. “You” and means the premises is still vacant the residence holder named the Declarations and days, coverage will 60 consecutive after spouse living if speci- the same household. of the amount be reduced to 65% A, coverages B and C.
fied for 7. “Insured Person” means: POLICY CONDITIONS GENERAL
(a) you; APPLYING TO (b) your spouse or the relatives of ei- I AND II SECTION SECTION household; ... ther Liability Protection] [Personal premises” II. “Residence means the if at policy shall be void 8. This entire you reside, family dwelling or two where given by an in- any permission is time Declarations, is described residence occupancy for of the sured including grounds not the immediate premises an in- by anyone other than farming. used person written con- without our sured
sent. (All emphasis original) agreement. context of entire Cocke County Highway Newport Bd. Commrs. v. argues The Defendant that the failure of (Tenn.1985). Bd., Utils. Robert to its written for Don- obtain consent indicated, given previously As must be words occupy ald and Anita the Mt. Tabor Road ordinary interpretation. St. their usual and property policy. voids the The Plaintiffs ar- Co., Surplus Paul Lines Ins. 725 S.W.2d at whole, gue policy, taken aas ambigu of a contract is they contend are includ- and when ous when its is uncertain within ed the definition of “Insured Person” fairly than one it can be construed more they because are relatives of Robert’s and Clemmer, way. Farmers-Peoples Bank v. living were in his “household” at the time of (Tenn.1975). *4 “A 519 S.W.2d 805 the fire. may placed on strained construction not be language ambiguity
the to find where used Ill none exists.” Id. This case is controlled well- strictly policies con Insurance are principles interpretation
known of law. “The Sturgill in the v. strued favor of insured. agreement of a written is matter of law and fact, Georgia, 465 S.W.2d Insurance Co. omitted) (citation Therefore, not of Life of 742, (Tenn.App.1970). 744 If a contract of scope our of review is de on the novo record susceptible to ambiguous is insurance and presumption with no of correctness meanings, (citations two “... the one favor reasonable trial court’s conclusions of law. Boyd omitted)”. adopted.” must be Stansell, able to insured Rainey v. 836 S.W.2d Compa 117, Peoples v. Protective Insurance (Tenn.App.1992). is 118 there no When Life 869, (Tenn.1961); evidence, ny, Stur appeal in 345 S.W.2d 872 conflict the issue on gill, 465 at 744. question becomes a law. Tennessee S.W.2d Mut., American Farmers Mut. v. 840 S.W.2d Plaintiffs, holding In the trial court for the 933, (Tenn.App.1992). 936 “The cardinal rule Opinion: in its Memorandum said interpretation to ascertain of contracts is parties give the intention of the and to effect record, is of the From entire the Court princi legal to that intention consistent with policy of insur- opinion and finds ples.” Rainey, at 118. 836 S.W.2d must, ambiguous and ance is with court will look to the material contained law, applicable strictly be construed in the four corners the instrument to urged against by Defendant. the forfeiture meaning expression an ascertain its as is, insurance ... accord- The contract of Motors, parties’ Inc. intent. Bob Pearsall v. ingly, provide coverage. construed to Inc., Chrysler-Plymouth, Regal 521 S.W.2d expound belief The trial court not on its did (Tenn.1975). 578, of the con 580 words policy ambiguous. that insurance usual, given their natural tract should be a number argue that there are Plaintiffs ordinary meaning. Surplus St. Paul Lines among being that ambiguities, them Co., chief Bishops Ins. Co. v. Gate Ins. an Person” part of the definition of “Insured (Tenn.App.1986); Rainey, 836 in- “relatives of named [the which refers to provisions at “All contract S.W.2d your his house- harmony spouse] each sured or be with should construed other, original). The Plain- reasonably (Emphasis if be hold.” such construction can Donald, made, being a repugnancy argue clearly between rela- so as to avoid tiffs single Robert’s, provisions of a contract.” Id. un- several is an “Insured Person” tive of coverage. policy and thus entitled
der
“residing
They
your
house-
contend that
determining
mean
In
whether the
subject to a
language
hold” is
clear
ing of a contract
cov-
provide
reasonable
which would
following
apply
principles. The
courts
Donald con-
erage
to Donald and his wife.
dispute must
examined
be
quot-
previously
reasonably
property because Section
tends that “household” can
interpreted
If
to mean Robert’s “house.”
require the
does not
De-
Opinion,
ed in this
be-
this is the case then Donald is covered
an “Insured
permission
order for
fendant’s
residing in a
titled to
cause he was
“house”
premises.
Person” to reside
the insured
Robert at
time of the fire.
proposition, we exam
a threshold
As
argues
policy
The Defendant
“residing
household” is
ine whether
ambiguous.
upon
It relies
8 of
Section
Policy
apply,
General
Conditions
Boyd
Peoples Protective
property damage:
Company,
time juve escape a state attempting while from premises by occupancy of the residence person facility been anyone than an with- nile detention where he had other insured (Emphasis in out our written consent. life insurance committed was insured under a original) juvenile’s That father. issued Family “Eligible lives of insured the argues It is clear and *5 Members,” children concept a which included unambiguous. position It that takes the age in house years “under 19 of who live his its since Robert did not ask for and obtain com The made an extensive hold.” Court written consent for Donald and his wife to occupy property, Mt. the about the case of Island v. the Tabor road ment California Co., is void. It contends that Donald is not 30 Cal.2d Fireman’s Fund Indem. not, an “Insured Person” because he was (1947), an auto P.2d which involved 184 153 Defendant, according residing Rob- policy which contained a mobile insurance ert’s household at the time of the fire. It provision including language the “member of argues that “household” as used the his household.” It is clear that our reasonably is not and cannot be concept ambiguity of in its Court had the construed to mean Robert’s “house.” It pointed it out that the Califor mind because points out that the “residence defines “that if an insur nia court had commented premises” clearly that the definition provision capable is of two ance contract apply prop- would not to the Mt. Tabor Road meanings one favorable to the insured the erty specifically the definition refers to since Boyd, at adopted.” must be premises” place the “residence as the where Immediately following quote, this and with He was not at “reside[s].” any the that property the Mt. Tabor Road at the time of out indication from Court the fire. to be considered “member of his household” Supreme Court said: our
The critical determination this case is language “residing your whether the authority great weight of seems is, household” If it then the is those to the effect that a household means step in Plaintiffs have taken the first estab- roof, one living together under one under but, step” lishing coverage; this “first is not control of one head and under the common enough. The Plaintiffs cannot succeed mere- person. ly by showing language ambigu- is that the They go must further and demonstrate ous. juvenile holding the deceased Id. susceptible a language to reason- among those individuals was not included encompass them able which would being of his house- “member[s] defined as coverage. of If Donald within the “bosom” policy, the thus not covered under hold” and household,” then “residing [Robert’s]' the said: Court an Person” and Robert did not he is “Insured reason- ... if insurance contract is not permission for his need the Defendant’s interpretation any ably susceptible of other at the Mt. Tabor Road brother’s residence 914 Mione, living Colo.App.
than
it means
child
a
under the
528 P.2d
(1974)
father,
duty
the
roof with its
then it
where the court said
factors
is the
of
determining
or
say
be considered in
whether
the Court to
This
is of
so.
person
is a resident of household
opinion
reasonably susceptible
that it is not
“(1)
subjective
or declared
include:
any
interpretation.
of
other
(2)
individual,
intent of
relative
Id., at 874.
permanence
per
of
or transient nature
household, (3)
residence in the
son’s
Boyd
of
rationale
the decision in
has
relationship between the individual and the
unreported
been followed
at least
two
(4)
household,
of
members
of
cases
this Court. Stacie A. James v.
place
lodging.”
existence of a second
Co.,
Fireman’s Fund Insurance
TAM13
20-
(“resident
4 (Tenn.App.W.S.1988)
of the same
applies the definition of
Whether one
your
household” and
household”
“resident
here,
Boyd,
controlling
we
or
think
language
liability
policy);
automobile
Per
Thomas,
factors
a combination
Corporation
manent General Assurance
v. both,
at
language
clear that the
issue
it is
T.
Trent Woods and Travelers Insurance
your
“residing
house
instant case—
Company,
(Tenn.App.W.S.
18 TAM 23-7
by our case law is not
hold” —as defined
1993) (“resident
household”
ambiguous. Donald and Robert were not
policy).
in automobile
“living together
They
one
were
roof.”
not “under one head.” Since neither con
appellate
courts
this state have
other, they
trolled the
were not “under
clearly
held
similar to
“re-
person.”
control
common
siding in your
language of
household”
policy susceptible
instant
definition. To
*6
imply
do
mean
that
the
We
not
to
the extent that it can be and has been de-
“residing
words
in
al
household” are
courts,
by
appellate
language
fined
our
the
is
ways easy
given
a
of
apply
to
to
set
facts.
effect,
not
In
the definition of
they
relatively easy to
While we believe
are
language
question,
the
in
in the
of
absence
a
case,
apply
always
in the
is not
instant
this
policy,
supplied by
in
has
definition
the
been
situation;
the
the fact that
the
but
words
law.
has
case
That
been the case since at
may
apply
given
be difficult to
to a
factual
Boyd
1961
least
when
was decided.
ambigu
situation does not make those words
Thomas,
using the
argue
that
ous.
In
we were
term
Plaintiffs
our decision
Thomas,
“ambiguous”
the sense that
words
Farm Mut.
Ins. Co.
State
Auto.
v.
there,
here,
to
as
are sometimes difficult
(Tenn.App.1983),
We think the factors to considered ambiguity equivo- A is where the latent aptly obscurity at bar cality expression case such as were or of inten- of expressed by Ap- from words them- Colorado Court tion does arise selves, but state peals Auto. Asso. v. from United Services
915 policy. they are not “Insured Per- to which the Since extrinsic circumstances refer, sons],” required get in- words of the instrument and Robert was explanation by susceptible is the mere company’s permission for surance written facts, development of extraneous without occupancy prop- Mt. Tabor Road their of the altering adding or to the written lan- erty. failure to do so voids His requiring guage, or more to be under- coverage there was no under the and thus thereby fairly comport stood then will the Plain- for the losses sustained ordinary legal with the of the sense the fire. tiffs as a result of phrases words and made use of. policy provi- that the Since we have found Sowder, 132, 148, Teague v. 121 Tenn. company upon sion which the insurance re- (1908). 114 S.W. Policy lies—Section 8 of General Condi- do not address tions —is not we patent ambiguity between distinction the issue of whether there is a reasonable ambiguity on the one hand and latent on interpretation language, “residing in of the “am- the other has been characterized as (of instrument)” your household” which would include Donald biguous terms the written within its ambit. it to and his wife Suffice opposed “ambiguous as facts.” Union Hanvell, say, that of the Corp. the definition Planters Harwell, (Tenn.App.1978). Boyd In the in- makes it clear that “household” con- demnity question provided protec- templates relationship place bond in a and a and not immaterial, employee. just tion for acts of an Since the place. Therefore it is employee concerned, on a was leave of subject language far as the complained at the time of the acts absence living Donald his wife were in Robert’s of, necessary it was to determine if the important they wer- house. What is indemnity provided protection, it bond en’t in his “household.” ambiguity required was claimed that the Since we have found against strict construction insurance void, unnecessary reach the rendered company. holding construction Robert is entitled to recover issue whether against company the bond the insurance 13 of the 65% his loss Section for, Nearn, Judge speaking was not called *7 I, Applying proper- to Conditions Section Court, for the stated: ty protection policy. section of the The We have examined the bonds and we provision “void” of Section 8 the General nothing ambiguous find about them. Policy applies property Conditions parties ambiguous The hereto confuse protection policy. policy If the section of the ambiguous terms with facts. Whether void, is, nullity it then it is a and we hold employee in or not Harwell was an It if it had purposes. and void for all is as ordinary sense of the word was a matter Therefore, go we need never been issued. by jury of fact to be determined may a appear this to be no further. While presented. under the facts result, If happened. not have harsh need Id. at 92. compa- insurance Robert had obtained the occupancy
ny’s permission for Donald’s of the house, policy not have been void. would IV re-write a contract It is not for us to conclude that the trial court was We duty is to achieve a certain result. Our subject finding error it. parties’ agreement as we find enforce the believe that Section 8 of the We we have done this case. That is what Policy renders the General Conditions Judgment the trial court is vacated The and his wife were not void since Donald Complaint Appellees’ is dismissed. and the time “residing in household” at the [Robert’s] Appellees. appeal are taxed to the Costs on hence were not “Insured of the fire and of costs is remanded for collection individuals are defined This case as those Person[s]” proceedings swap. No and further not advised the Defendant of the below for such they had advised the De- may necessary Opin- testified consistent with this exchange fendant of residences. ion. opportunity litigate parties had an notice, estoppel. waiver and issues FRANKS, J., concurs. They no litigated these issues. There is GODDARD, (E.S.), hearing for a on reason to remand this case participating. P.J. not already litigated. issues which have been ON
OPINION PETITION question was We found that the FOR REHEARING found, further on and based us, it was the evidence before void be a The Plaintiffs have filed Petition Re- proof cause there no Defen hearing. They we contend that committed sought re permission dant’s had been with finding that the Defendant was not error spect Gredig living in the to Donald covered Gredig notified that the brothers had so, very By we doing house. addressed the They swapped houses. contend we could not issues for which the Petition seeks remand. finding or have because should not made It is true that the trial court did not reach finding. They trial made court no such issues; these this is immaterial. did but We dismissing the Plain- contend that instead reach We the relief these issues. believe did, Complaint, as we have tiffs’ we should granted by appropriate us in this case was legal “for a factual and determina- remanded dispose findings of all because our issues as to the of the Defendant’s tion parties by litigated raised at trial. question of notice and as to the the waiver 13(c) Tenn.R.App.P. and 36. See thereby.” estoppel of Defendant accordingly It is that the Peti- ORDERED Rehearing hereby denied. tion for pleadings put in this at case notice, waiver, questions issue
estoppel. parties presented proof on issues, including premium notice ad these Gredig at the address of dressed brother, the house owned his Donald Gre- found, dig. based the evidence We on record, Gredig, policyholder, that Robert WASIELEWSKI, Richard sought permission had not Defendant’s Plaintiff-Appellant, occupy for his and the latter’s wife to brother house. The fact that Robert the insured mortgagee about the house Gredig told the *8 K MART John CORPORATION premium swap and fact that the notice Trentham, Defendants- Gredig place at a was addressed to Robert Appellees. not, do other than the covered residence individually cumulatively, prove that Tennessee, Appeals Court the brothers had Defendant knew Eastern Section. mortgagee swapped houses. Notice to 30, Aug. 1994. Defendant, fact that and the not notice ad Rehearing Sept. sent to another 1994. premium notice was Denied only proves that the Defendant dress Appeal Permission premium anoth notice to advised to send Denied prove latter fact does not er address. This Jan. Gredig living in the was not that Robert prove certainly does covered house with his brother. swapped he had houses fact, Gredig that he had testified