For the first time, the Rhode Island Supreme Court has considered the question of when an individual may be considered an insured “resident” within the scope of coverage under a homeowners policy. In Peerless Ins. Co. v. Luppe, -- A.3d --, 2015 WL 3915752 (2015), the Court interpreted the term broadly, focusing on evidence of an individual’s intention to remain at the residence for more than a temporary period in deciding whether he or she will be considered a “resident” for insurance coverage purposes.
The case involved a minor child of divorced parents. Maya Henderson’s parents, Denise Luppe and Christopher Henderson, shared joint custody of their daughter, though her “physical placement” was with Ms. Luppe, and Mr. Henderson had rights of reasonable visitation. The couple agreed that those visitation rights would include overnight stays at her father’s new home on Wednesdays and Thursdays. His home included a spare bedroom, though she often slept in her father’s room. While Maya did not always sleep there, some of her clothing and toys were kept in the spare bedroom, and she used the room when Mr. Henderson’s relatives visited.
Maya suffered serious injuries when she was bitten by her father’s dog during one of her regularly scheduled visits. Her mother brought suit against her former husband on both her own and Maya’s behalf. Mr. Henderson sought a defense from Peerless under his homeowner’s policy. However, Peerless declined coverage based on a policy provision excluding coverage for bodily injury to an “insured,” defined as “you and residents of your household who are: a. [y]our relatives; or b. [o]ther persons under the age of [twenty-one] and in the care of any person named above.” Convinced that Maya was among those excluded from coverage by the policy, Peerless filed a complaint for declaratory judgment seeking a determination that Maya was a resident in her father’s home at the time of the accident.
All parties agreed that the appropriate test for residency was set forth in the Court’s prior opinion in Aetna Life and Casualty Co. v. Carrera, 577 A.2d 980 (R.I. 1990) which laid out the following four factors: “(1.) the amount of time [one] spends at a locality (2.) the nature of [one’s] place of abode (3.) [one’s] activities in the locality and (4.) [one’s] intentions with regard to the length and nature of [one’s] stay.” Carrera, 577 A.2d at p. 984. Focusing on the last factor in particular, the Court concluded that Maya was a resident in her father’s home because she had “a recent history of physical presence together with circumstances that manifest an intent to return to the residence within a reasonably foreseeable period.” Carrera, 577 A.2d at p. 985.
In finding that Maya passed the test for residency under Carrera, the Court distinguished its decision from an earlier ruling in Barricelli v. American Universal Insurance Co., 583 A.2d 1270 (R.I. 1990), another case involving the question of whether the child of divorced parents was a resident in one of the parents’ homes. While the minor child in Barricelli made weekly visits to her mother’s home, including overnight visits on alternate weekends, and kept clothing and other belongings there. The Court in Barricelli concluded that these were “transitory” visits, based on the facts that the child slept on a pull-out bed and packed a suitcase for her weekend visits, and held that she was not a “resident” for purposes of coverage under her mother’s auto policy.
The Court’s effort to reconcile the holdings in Baricelli and Luppe is strained, at best. While the suitcase and pull-out bed were certainly distinguishable facts between the two cases, the conclusion that they warranted a different result in the determination of the child’s residency for coverage purposes seems rather dubious. We anticipate that able practitioners can and will argue that items such as a suitcase and a pull-out bed evince every bit as much of an intention to return to the residency in a reasonably foreseeable time, especially in the case of parents whose socio-economic status does not allow the luxury of a second bedroom complete with extra clothing and toys. What seems certain after Luppe, however, is that all future cases will hinge on the question of intentionality, and the current Court appears inclined toward a more generous interpretation of “residency” in the coverage context.