OPINION
Omni Insurаnce Group appeals a summary judgment for Allstate Insurance Co., Lake and Tonya Poage, and Cody, Jill, and Gary Bauer (collectively, “the Poages”), and the denial of its own motion. As there is a genuine issue of material fact as to whether a driver involved in a collision was a resident of the Omni policyholder’s residence, summary judgment for the Poages was improрer. Therefore, we reverse and remand.
FACTS AND PROCEDURAL HISTORY
On April 16, 2008, Cody Bauer was driving a car that collided with a motorcycle driven by Lake Poage. Cody’s mother Treva Bauer owned the car, which Cody was driving with her permission. Treva was insured by Omni. The policy provided liability coverage to Treva, who was the named insured, to family members who used Treva’s car, and to any persons who used thе vehicle with her permission. But the policy explicitly excluded liability coverage for bodily injury resulting from the use of a vehicle by “any resident, including a family member, of your household who is not listed in the Declarations page” (hereinafter “Exclusion 15”). (Appellant’s App. at 53). 1 The collision coverage contains a similar exclusion for loss to the covered auto when it is driven by “a resident of your household ... not listed on the Declaration page.” (Id. at 70.) The policy does not define “resident.” Cody was not listed on the declarations page.
On the date of the collision, Cody was spending the night at Treva’s residence. Treva shared joint legal custody of Cody with Cody’s father. After their divorce they split physical custody. Cody had his own bedroom аt both residences and kept belongings at both places. He considered both residences to be his home. At the time of the collision, Treva was moving from Churubusco to Columbia City, and when she moved Cody changed schools. Cody used his father’s address on his driver’s license and received his mail there.
Cody was seventeen when Treva applied for the Omni policy. She stated on her application that there were no “residents of [her] household, 14 years old and older, that have NOT been disclosed on this application (licensed or not).” (Id. at 114.) About two weeks after Omni was notified of the collision, Treva told Omni that Cody lived with his father and was at her home only on the weekend.
Omni paid Treva’s рroperty damage claim, but later sent Cody and Treva a letter indicating liability coverage might not be available because of questions about Cody’s residence. Both Omni and the Poages moved for summary judgment. 2 The trial court denied Omni’s motion and granted the Poages’.
DISCUSSION AND DECISION
When revieving a grant or denial of summary judgment our review is the same as it is for the trial court: whether there is а genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law.
Monroe Guar. Ins. Co. v. Magwerks Corp.,
We find dispositive the potential application of Exclusion 15, which question in turn depends on whether Cody was a resident of Treva’s household. We agree with the Poages that “the issue of Cody’s coverage turns upon the scope of an exclusion, because Cody is already an insured as Treva’s family member and a permissive driver.” (Br. of Appellees, Lake and Tonya Poage (hereinafter “the Poage Br.”) at 36.) Omni appears to so concede: “No genuine issue of material fact exists as to whether the Poages’ claims for bodily injury result from the use of the vehicle by a resident of Treva Bauer’s household who was not listed in the Declarations pagе.” (Appellant’s Br. at 6.)
Pursuant to the policy language, if Cody was a resident of Treva’s household, Omni was entitled to summary judgment because Cody was not listed on the Declarations page. If he was not a resident of Treva’s household, the Poages were entitled to summary judgment, as Cody was driving Treva’s car with her permission. Because there is a genuine issue of fact as to his residеncy, there should have been no summary judgment.
1. Waiver
The Poages first assert Omni has, for a number of reasons, “implicitly waived” or is estopped from raising every coverage issue it attempts to raise on appeal. (Poage Br. at 14.) We decline to find waiver or estoppel. We prefer to decide a case on the merits whenever possible.
United Farm Family Mut. Ins. Co. v. Michalski,
As we find potentially dispositive the issue of Treva’s possible misrepresentation on her application for insurance with
We must initially address the Poag-es’ assertion that “Indiana Trial Rule 9(B) requires that a party must specifically plead the facts and circumstances giving rise to a claim of fraud or misrepresentation.” (Poage Br. at 24) (emphasis added). That is not what Rule 9(B) says or what it means, and we admonish the Poages’ counsel to refrain from so misstating our rules. The rule explicitly requires specific averment of fraud, but does not address, or even mention, mere misrepresentation. Nor have the Poages offered legal authority to the effect Rule 9(B) applies to allegations of mere misrepresentation in general or to insurance application misrepresentations in particular. 4
Fraud and misrepresentation are not the same, and under the Omni policy, coverage may be denied if the insured knowingly misrepresented a material fact
or
engaged in fraudulent conduct. (Appellant’s App. at 73.) Misrepresentation is but one element of fraud, either actual or constructive, and the Poages offer no authority to support their statement thаt the specificity requirements for pleading fraud also apply to allegations of mere misrepresentation.
See, e.g., Wells v. Stone City Bank,
We accordingly proceed to consider the merits of the case before us.
2. Residency
The Omni policy excludes liability coverage for bodily injury resulting from the use of a vehicle by “any resident, including a family member, of your household who is not listed in thе Declarations page.” (Appellant’s App. at 53.) The collision coverage contains a similar exclusion for loss to the covered auto when it is driven by “a resident of your household ... not listed in the Declarations page.” (Id. at 70.) If Cody was a resident of Treva’s household, then Treva’s statement on the application that there were no “residents of [her] household, 14 years old and older, that have NOT been disclosed on this application (licensed or not),” (id. at 114), was a misrepresentation.
A misrepresentation on an application for an insurance policy is “material” if the fact misrepresented, had it been known to the insurer, would have reasonably entered into and influenced the insurer’s decision whether to issue a policy or to chаrge a higher premium.
Allied Prop. & Cas. Ins. Co. v. Good,
The materiality of a representation or omission is a question of fact to be resolved by the factfinder unless the evidence is such that there can be no reasonable difference of opinion.
Colonial Penn Ins. Co. v. Guzorek,
When, as here, the parties leave the term “resident” undefined, we apply Indiana common law to determine its meaning.
Indiana Farmers Mut. Ins. Co. v. Imel,
In Imel, a case involving a policy exclusion, liability coverage was limited by a provision that coverage “does not apply to: ‘bodily injury to ‘you’, and if residents of ‘your’ household, ‘your’ relatives and persons in ‘your’ сare or in the care of ‘your’ resident relatives.” Id. at 301.
In Imel, an eight-year-old child’s parents divorced. By agreement, the child visited the father’s mother and stepfather, the Imels, at their farm near Madison. The visits were twice each month and included both single day visits and overnight weekend visits. When the Imels were out of town or the mother had a family function or outing, the weekend at the Imels’ fаrm would be skipped and the lost time would not be made up. When the child stayed at the Imels’ farm, his mother typically did not attend, and the Imels were then the child’s primary caregiver. During his visits the child had to abide by rules set by the Imels, who had full authority to care for him and discipline him as needed. The child brought his own clothes and favorite toys with him. When spending the night, he stayed in the Imels’ guest bedroom, as did all of the Imels’ guests.
We determined the child was not a resident of the Imels’ household. Id. at 305. We first noted, with regard to the child’s physical presence in the Imels’ household, his status was more that of a temporary visitor rather than a resident. On the day the child was injured at the Imel farm, he lived with his mother in Hanover, Indiana, and attended school there. Since the child was three years old, hе had regularly visited the Imels about twice a month on weekends. There were toys in the Imels’ household, but they were for the general use of all the Imels’ grandchildren.
As to the child’s subjective intent to reside in the Imels’ household, we noted the Imels considered the mother to be the child’s primary caregiver. The Imels deferred to the mother on issues of discipline and medication. All рarties considered the child a resident of mother’s home and considered his temporary stays at the Imels’ farm nothing more than family visits.
Finally, we analyzed the nature of the child’s access to the Imels’ home and its contents. During his visits the child slept in the guest bedroom, which was used by all the Imels’ children and grandchildren, and not exclusively by the child. Even though he had access to the parts оf the house an eight-year-old child would normally have access to, he had to abide by certain rules. But, like any guest, he was free to move about the interior of the home. “In sum, considering all the factors indicative of [the child’s] living habits, we conclude that frequent and prearranged visits of an eight-year-old grandchild with his paternal grandparents do not amount to a chаnge of residency from his mother’s home to his grandparents’.” Id. at 305.
We addressed Indiana Farmers’ argument the child had “a dual residency,” both at his mother’s and the Imels’. We acknowledged our prior holdings that for some purposes a person may have more than one residence, but noted “the case at bar involves an exclusion provision, and accordingly, the term resident should be constructed narrowly.” Id. Considering that the child was eight years old, “his primary residence is logically with his mother,” and “our review of [the child’s] visits to the Imel farm, in light of all the evidence designated to the trial court, does not mandate a finding of dual residency.” Id.
There is, by contrast, a genuine issue of fact as to whether Cody was a “resident” of Treva’s household. Cody apparently had more of a physical presence in Treva’s household than did the child in Imel, but he did not live there full-time. His parents’ custodial agreement indicated Cody would divide his time equally between his parents. He had his own bedroom at each parent’s residence, and kept belongings at both places. There was evidence he subjectively considered both places his home and spent about an equal amount of time at both places.
Cody’s subjective intent to reside in Tre-va’s household is also less certain than was the child’s intert in Imel. Omni notes Cody changed high schools when, near the time of the collision, Treva moved from Churu-busco to Columbia City. But Cody used his father’s address when he applied for financial aid at Ivy Tech. He also used his father’s address on his driver’s license and receivеd his mail there. 5 He was a listed driver on his father’s policy.
It appears Cody had greater access to Treva’s home and its contents than did the child in Imel, as he had his own room and belongings both places, and at age seventeen presumably had greater access and was obliged to abide by different rules than the eight-year-old child in Imel.
Our application of the Imel factors leads us to conclude there is a genuine issue of fact as tо whether Cody was a resident of Treva’s home, so there is a genuine issue of material fact regarding whether he should be excluded from coverage under Treva’s Omni policy. The Poages therefore should not have been granted, but Omni was properly denied, summary judgment. We accordingly reverse and remand for trial.
Reversed and remanded.
Notes
. Ind. Appellate Rule 46(A)(6) provides facts in a Statement of Facts "shall be supported by page references to the Record on Appeal or Appendix in accordance with Rule 22(C).” In its Statement of Facts, Omni quotes language from a number of provisions throughout the policy, but in support directs us only to "(App. p. 40).” (Appellant’s Br. at 3.) Page 40 of the Appendix is the cover page of Omni's Exhibit A, which includes the policy and some other documents. That exhibit spans forty-five pages of the Appendix. Omni does not specifically indicate where within those forty-five pages the various policy provisions to which it refers might be found. We remind Omni’s counsel that we will not sift through a record to locate error so as to state an appellant’s case,
Barth v. Barth,
. Allstate insured Cody's father.
. The Poages also argue Omni waived this issue for at least two other reasons — it paid Treva’s property damage claim, and it issued a letter that "assured Cody of coverage.” (Poage Br. at 23.) We deсline to find waiver on those grounds.
As for the first, the Poages cite
Gallant Ins. Co. v. Wilkerson,
The Poages next argue, without citation to authority, Omni waived any policy defenses by sending Cody a letter in October 2008 indicating "Cody was nоt insured under its policy,” (Poage Br. at 22), and then, in November 2008, "issuing its November 19, 2008 letter which assured Cody of coverage.” (Id. at 23.) We note initially that nothing in the November letter explicitly "assured Cody of coverage” — rather, it said Omni would do everything it could to settle the claim within the Omni policy limits. Nor did the October letter say "Cody was not insured under [the Omni] policy” — rather, it said there was a "question whether coverage under this policy applies to this occurrence.” (App. at 234.) The Poages assert the November letter waived any of Omni’s policy defenses because it was "entirely inconsistent with Omni’s position in its October 31st letter that Cody was not insured.” (Poage Br. at 22.) As the October letter acknowledged only a "question” about coverage, we decline tо find the subsequent letter "inconsistent” with it.
. This distinction appears particularly significant in the context of insurance applications. Whether the applicant intended to mislead or knew of the falsity is irrelevant. False representations concerning a material fact, which mislead, will avoid an insurance contract, like any other contract, regardless of whether the misrepresentation was innocent or made with a fraudulent design.
Colonial Penn Ins. Co. v. Guzorek,
. There was evidence his high school sent mail to both addresses.