PHILIP CARL GUNTHER JR V AAA/ACIA
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STATE OF MICHIGAN
COURT OF APPEALS
PHILIP CARL GUNTHER, JR.,
Personal Representative of the Estate of Cory Lee
Gunther, Deceased,
UNPUBLISHED
October 27, 2009
Plaintiff-Appellee,
v
No. 284580
Benzie Circuit Court
LC No. 07-007890-NZ
AAA/ACIA,
Defendant-Appellant.
Before: Hoekstra, P.J., and Bandstra and Servitto, JJ.
PER CURIAM.
Plaintiff was granted partial summary disposition under MCR 2.116(C)(10) based on a
determination that Roxanna Tolar was a resident relative of her parents, defendant’s insureds, at
the time she was involved in an accident with plaintiff’s decedent.1 Once partial summary
disposition was granted, the parties stipulated as to the other issues involved and judgment was
entered in favor of plaintiff. Defendant appeals as of right that judgment. We affirm.
Defendant argues that the trial court erred in determining that Roxanna was residing with
her parents at the time of the accident. We disagree. A trial court’s ruling on a motion for
summary disposition is reviewed de novo. Ormsby v Capital Welding, Inc, 471 Mich 45, 52; 684
NW2d 320 (2004). When reviewing a motion brought under MCR 2.116(C)(10), this Court
considers the affidavits, depositions, pleadings, admissions, and other evidence submitted by the
parties in the light most favorable to the non-moving party. Rose v Nat’l Auction Group, Inc,
466 Mich 453, 461; 646 NW2d 455 (2002). Summary disposition is appropriate if there is no
genuine issue regarding any material fact and the moving party is entitled to judgment as a
matter of law. Id.
Residence and domicile in Michigan are generally synonymous terms and are defined, for
non-insurance purposes, as “the place where a person has his home, with no present intent of
1
In a consent judgment that resolved the underlying wrongful death claim, Roxanna assigned
any insurance rights she had from her parents’ policy to plaintiff.
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removing, and to which he intends to return after going elsewhere for a longer or shorter period
of time.” Dairyland Ins Co v Auto-Owners Ins Co, 123 Mich App 675, 680; 333 NW2d 322
(1983) quoting Hartzler v Radeka, 265 Mich 451, 452; 251 NW 554 (1933). Generally, the
determination of a person’s domicile or residence is a question of fact to be resolved by the trial
court, and this Court will not reverse the trial court’s determination unless the evidence clearly
preponderates in the opposite direction. Goldstein v Progressive Cas Ins Co, 218 Mich App 105,
111; 553 NW2d 353 (1996); Bronson Methodist Hosp v Forshee, 198 Mich App 617, 631; 499
NW2d 423 (1993). However, where, as here, the determining facts are not in dispute, then it is a
question of law for the court. Fowler v Auto Club Ins Ass’n, 254 Mich App 362, 364; 656 NW2d
856 (2002).
To determine residence, a number of factors are weighed and balanced against each other
and no one factor is determinative. Univ of Michigan Regents v State Farm Mut Ins Co, 250
Mich App 719, 730; 650 NW2d 129 (2002). It is error to give any one factor special weight.
Cervantes v Farm Bureau Ins Co, 272 Mich App 410, 415-416; 726 NW2d 73 (2006). In
Workman v DAIIE, 404 Mich 477, 496-497; 274 NW2d 373 (1979), the Court described the
relevant factors in deciding whether a person is domiciled in the same household as the insured:
(1) the subjective or declared intent of the claimant to remain either permanently or indefinitely
in the insured’s household; (2) the formality or informality of the relationship between the
claimant and the members of the household; (3) whether the place where the claimant lives is in
the same house, within the same curtilage, or upon the same premises as the insured; and (4) the
existence of another place of lodging for the person alleging domicile.
In Dairyland, supra at 681-682 this Court noted that all relevant factors must be
considered, and that the four Workman factors were merely among the relevant factors to be
considered. This Court cited Workman in stating that residency must be viewed flexibly in the
context of any number of factual settings. Moreover, in contemplating the particular problems of
young people transitioning into independence, the Court formulated additional factors to be
considered. Id. at 680-681. Of particular note here, in Dobson v Maki, 184 Mich App 244, 254;
457 NW2d 132 (1990), this Court observed that the facts of a case, particularly those of young
adults with varying degrees of separation from the parental home, do not always fit neatly into
the enumerated factors. This Court has listed such other relevant factors as (1) whether the child
continues to use the parents’ home as the child’s mailing address; (2) whether the child maintains
some possessions with the parents; (3) whether the child uses the parents’ address on the child’s
driver’s license or other documents; (4) whether a room is maintained for the child at the parents’
home; and (5) whether the child is dependent upon the parents for support. Fowler, supra at
364-365, citing Dairyland, supra at 682.
In the instant case the balance of the factors favors a determination that Roxanna’s
residence was at her parents’ home. Therefore, the trial court did not err in granting plaintiff’s
motion for partial summary disposition on this issue.
At the time of the accident, Roxanna Tolar was a young adult in transition. She had
previously moved from her childhood home in Michigan to Louisiana in June 2003. However,
by late June 2005, she could no longer afford to live in Louisiana, and consequently, she returned
to Michigan. Upon her return, she typically stayed at her parents’ home, although she also
stayed at other homes. She was waiting for an apartment of her own to become available and
spoke with her mother about staying at her parents’ home in the meantime. Her parents’ home
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had only one bedroom, so Roxanna slept on the floor with some blankets. Roxanna put most of
her belongings in a storage facility, but typically kept enough clothing to wear for a week. She
also kept her cat at her parents’ house and forwarded her mail to their home. She listed her
parents’ address as her own on forms to obtain employment, open a bank account, and rent the
storage facility. When living with her parents, Roxanna had free access to all the amenities of
the home, including food. Her father would also transport her when necessary, and she would
ride to work with her parents’ neighbor. Her father also paid for meals at restaurants, but no
other cash assistance was extended to Roxanna.
Roxanna also stayed at her sister’s home for 3 to 4 nights to help baby-sit when her
sister’s husband was not home, and she stayed at least one night at a friend’s house. In early
August 2005, Roxanna’s brother-in-law left town to work in another city for two weeks.
Roxanna went to stay with her sister while he was gone to help care for her nephew. Roxanna
believed that her apartment would become available during that time. Several days after staying
at her sister’s house, on August 9, 2005, Roxanna borrowed her sister and brother-in-law’s car
and was involved in the subject accident.
We note that the first factor for consideration as set forth in Workman, supra, subjective
or declared intent, favors a finding that Roxana was not a resident of her parents’ home at the
time of the accident. Roxanna ultimately intended to move into an apartment of her own in
Michigan. Prior to arranging this she was not without a residence. She primarily lived at her
parents’ home and expected to stay there until she moved. However, her plan was to move into
the apartment as soon as it was ready, and this occurred during the time she was staying with her
sister to help with child-care, nine days after the accident.
The second Workman factor, concerning the “formality or informality of the relationship
between the person and the members of the insured’s household,” does not disfavor a finding
that Roxana was a resident of her parents’ home at the time of the accident. Although there was
only an informal relationship between Roxanna and her parents, that relationship allowed her to
freely use her parents’ home at will. Further, she was able to utilize the parental relationship for
no-cost housing, and also for utilities, food, and transportation. In contrast, Roxanna’s informal
arrangement with her sister had greater limitations; it was based primarily on child-care
considerations and Roxanna could not stay there if her sister’s husband was home.
The third Workman factor, pertaining to whether the claimant lives in the same house or
upon the same premises as the insureds, favors a finding that Roxana was a resident of her
parents’ home at the time of the accident. Roxanna resided in the same house and on the same
premises with her parents during the periods she was staying with them.
Likewise, the fourth Workman factor also favors a finding that Roxana was a resident of
her parents’ home at the time of the accident. Roxanna had only limited access to “another place
of lodging.” As noted, she was able to stay with her sister, primarily to help with child-care,
only when her sister’s husband was absent. She also stayed with a friend at least once in the
nearly two months between arriving in Michigan and obtaining her apartment. She considered
residing at a homeless shelter before she was able to stay with her parents.
Turning to the additional factors for consideration identified by this Court in Dairyland,
supra, we note that, regarding the first factor, Roxanna considered having her mail forwarded to
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a post office box, but chose to have her address changed to her parents’ home and received her
mail there. This further supports plaintiff’s argument that Roxanna was a resident of her parents’
home at the time of the accident.
The next Dairyland factor also slightly favors a finding that Roxanna was a resident of
her parents’ home at the time of the accident. Roxanna maintained some of her personal
possessions at her parents’ home. While she stored most of her belongings and kept only what
was necessary with her, those belongings she did not place in storage, including a slow cooker
and blankets, were kept at her parents’ home. She also kept her cat at her parents’ home. And,
Roxanna’s mother testified that Roxanna would come back to her parents’ home for clothes
when she was staying with her sister.
The third Dairyland factor likewise favors a finding that Roxana was a resident of her
parents’ home at the time of the accident. Roxanna listed her parents’ address as her own on
bank, rental, and employment documents. She also identified her parents’ address as her own to
the police at the scene of her accident.
Conversely, the fourth Dairyland factor weights slightly in favor of a finding that Roxana
was not a resident of her parents’ home at the time of the accident. Roxanna did not have a
separate room at her parents’ home; that home has only a single bedroom. Thus, Roxanna
usually slept on the living room floor with her blankets.
Finally, the last Dairyland factor also favors a finding that Roxana was not a resident of
her parents’ home at the time of the accident. Even though she did not pay rent, and received
food, utilities, and transportation as needed, Roxanna did not receive direct financial support
from her parents.
When determining Roxanna’s place of residence, we are required to weigh and balance
each of the aforementioned factors against one another; no one factor is determinative and it is
error to give any one factor special weight. Cervantes, supra at 415-416; State Farm, supra at
730. This Court found in Dobson, supra at 254, that the young man in transition there would not
have considered himself without a home; rather, he actually considered his father’s home as his
residence even though he slept at various places at different times. Here, too, Roxanna would
not have considered herself homeless at the time of the accident. Further, as our Supreme Court
has explained, “[e]very person must have a domicile somewhere” and “very slight circumstances
must often decide the question.” Beecher v Common Council of Detroit, 114 Mich 228, 230; 72
NW2d 206 (1897).
There are arguably three places that could have served as Roxanna’s residence on August
9, 2005: her parents’ home, her sister’s home or a friend’s home. Roxanna was not a resident of
her sister’s home. Rather, she was permitted to stay there for the purposes of babysitting, for the
convenience of her sister and brother-in-law, only when her brother-in-law was out of town. She
did not leave any belongings there and was not generally welcomed to stay there when her
brother-in-law was home. And, there is no evidence suggesting that Roxanna was a resident of
the home of any friend. Thus, the only supportable conclusion, if only, perhaps, by “very slight
circumstances,” is that Roxanna resided at her parents’ home until she moved into her own
apartment shortly following the accident. For that reason, balancing the entire circumstances of
Roxanna’s life, we conclude that the undisputed facts presented weigh in favor of a
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determination that Roxanna resided at her parents’ home on August 9, 2005. Therefore, the trial
court did not err by concluding that she was a resident relative according to her parents’
insurance policy at the time of the automobile accident involving plaintiff’s decedent.
We affirm. Plaintiff, being the prevailing party, may tax costs pursuant to MCR 7.219.
/s/ Joel P. Hoekstra
/s/ Richard A. Bandstra
/s/ Deborah A. Servitto
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