Parties often litigate the issue of whether a person was a resident of another’s home for purposes of an insurance policy. This case involved a declaratory judgment action brought by an insurer to determine whether it had a duty to provide coverage to a son who lived in his mother’s household. The mother had specifically told the insurer that there were no residents of her household over the age of 14. Therefore, if the son was a "resident" under the terms of the insurance policy, there was no coverage; if the son was not a "resident," there was coverage because he was driving his mother’s car with her permission.
The Court went through the factors identified by Indiana Farmers Mutual Insurance Company v. Imel, 817 N.E.2d 299 (Ind. Ct. App. 2004) and found a question of fact as to the son’s residence. This issue is often a question of fact, but can be decided as a matter of law, as evidenced by the Court of Appeals’ recent decision in Quiring v. GEICO General Insurance Co., 953 N.E.2d 119 (Ind. Ct. App. 2011), which, somewhat curiously, the Poage court did not cite.
The court also held, in footnote 3, that by paying the related property damage claim the insurer had not waived the issue of whether the son was covered. The court also found the insurer did not waive the coverage issue by writing a letter stating that there was a question as to coverage and that the insurer would do everything it could to settle the claim within policy limits. These holdings are extremely important for insurance defense counsel.
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