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Baldwin v. State Farm Fire and Casualty Company11/18/2003
Mona Baldwin appeals from the trial court's denial of her motion for summary judgment in this declaratory judgment action filed by State Farm. In this action, State Farm seeks a declaration that it has no duty to defend Richard Baldwin, Mona Baldwin's former husband, in her wrongful death suit filed after the death of their son Weston in an accident at his father's home. State Farm claimed that Weston Baldwin was a resident in his father's household at the time of his death and, therefore, there is no coverage under either Richard Baldwin's homeowner's policy or his personal liability umbrella policy. In her motion for summary judgment, Mona Baldwin asked the court to find as a matter of law, that when a child is with the non-custodial parent at that parent's home, the child is not a "resident" for insurance purposes. The trial court denied the motion and we affirm.
This case arose after the Baldwins' eight-year-old son was killed at his father's home while the father was attempting to remove a fallen tree. The tree shifted positions and rolled on the child after the father trimmed away limbs with a chain saw. The mother filed a wrongful death action against the father, but State Farm denied coverage on the theory that the incident was governed by an exclusion for injuries to a relative who is a resident of the named insured's household.
On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the non-movant. Blue Cross & Blue Shield of Georgia v. Kell, 227 Ga. App. 266, 267 (1) (488 SE2d 735) (1997); Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).
1. The evidence in the record shows that the Baldwin's divorce decree provides that the parents shall share joint care, custody and control of the children and shall work toward each one having the children 50 percent of the time. Although Baldwin testified that he was not able to have the children with him half of the time, he stated in his deposition that, "I have them for two and a half months in the summertime and she has them for nine and a half months . . . He said that the children resided with him at least 129 days during the year prior to the accident and, at the time of the accident, both children were staying with him for the weekend.
In its order, the trial court noted that Richard Baldwin testified at his deposition that he considered the child to be a member and a resident of his household at the time of the accident. The court also pointed out that the death certificate listed the child's residence as that of the father.
"Residence and domicile are not synonymous and convertible terms. A man may have several residences, but only one place of domicile." Avery v. Bower, 170 Ga. 202, 204 (152 SE 239) (1929). "It has long been held by the numerous decisions of our appellate courts that the questions of domicile and residence are mixed questions of law and fact and are ordinarily one for a jury to determine." State Farm &c;Ins. Co. v. Gazaway, 152 Ga. App. 716, 718 (263 SE2d 693) (1979). For instance, in Travelers Ins. Co. v. Mixon, 118 Ga. App. 31 (162 SE2d 830) (1968), this Court found there was an issue of fact as to whether the son was a resident of his father's household for purposes of insurance coverage where the son worked in Atlanta and shared an apartment there, but returned to his father's house on weekends. Id. at 33. Likewise, in Gazaway, supra, the court held that although the wife lived separately from her husband, there was an issue of fact as to whether she was a "resident" of his hous
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