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Risk Management Division of the General Services Dep't of State ex rel. Apodaca v. Farmers Insurance Co. of Arizona5/30/2003
This case presents an issue of first impression: whether a foster child is a "resident" of the foster home for the purposes of the resident exclusion in a homeowner's insurance policy. The district court, determining that foster child Emeterio Garcia was a resident of the home of his foster parents, James and Kathy Apodaca (Apodacas), granted summary judgment to the insurance carrier, Farmers Insurance Company of Arizona (Farmers). We reverse the summary judgment and remand for further proceedings.
I. BACKGROUND
The undisputed facts in the record are that: (1) on October 30, 1996, the Children, Youth and Families Department (CYFD), which had legal custody of two-year-old Emeterio, placed the child in the licensed foster home of the Apodacas for "long term" care with a plan to return Emeterio home to his parents; (2) the child died on May 13, 1997, by drowning in a hot tub at the foster home; (3) the Apodacas were named insureds under a homeowner's policy issued by Farmers; (4) the policy provides liability coverage for the Apodacas for certain damages they become legally liable to pay and excludes coverage for "bodily injury to any resident of the residence premises" or for injury resulting from home care services provided by the insured; and (5) as licensed foster parents, the Apodacas were "public employees" of the State of New Mexico. The Risk Management Division (RMD) extends insurance coverage under the Public Liability Fund for certain claims brought against public employees.
On May 12, 1999, JoAnn Martinez (Martinez), Emeterio's grandmother, individually and as personal representative of Emeterio's estate, brought a wrongful death suit against the Apodacas, CYFD, and certain of CYFD's employees, alleging 42 U.S.C. ยง 1983 violations, negligence, and breach of fiduciary duty. Farmers and RMD disagree as to whether (1) Emeterio was a resident of the Apodacas' home, (2) Emeterio's death was excluded from coverage, and (3) Farmers or RMD has the duty to defend or indemnify the Apodacas for any judgment entered against them.
On September 1, 1999, RMD brought a declaratory judgment action against Farmers and others, seeking a determination that Farmers is primarily liable for any liability of the Apodacas to Martinez and Emeterio's estate. Farmers moved for summary judgment on the grounds that resident and home care exclusions applied to this case. RMD opposed summary judgment arguing that the circumstances of the case give rise to a factual dispute as to whether Emeterio was a resident and whether the home care services exclusion applies to foster care. Martinez also filed a memorandum in opposition to summary judgment, but was dismissed from the action by stipulation before the summary judgment hearing. Following a hearing on January 24, 2001, the district court granted summary judgment to Farmers concluding that Emeterio was a resident and that the resident exclusion applied to deny coverage for his death. The order did not address the home care exclusion.
RMD argues on appeal that the district court's ruling on the resident exclusion was in error, and that it would be improper to grant summary judgment on the home care services exemption. Since the district court has not ruled on the home care services exclusion, we address only the resident exclusion on appeal. See In re Termination of Parental Rights Eventyr J., 120 N.M. 463, 471, 902 P.2d 1066, 1074 (Ct. App. 1995) (declining to consider an issue that the district court had not considered in reaching its decision).
II. DISCUSSION
A. Standard of Review on Summary Judgment
Summary judgment is proper when no issues exist as to any mate
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