 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Risk Management Division of the General Services Dep't of State ex rel. Apodaca v. Farmers Insurance Co. of Arizona5/30/2003
ar dispositional order is a resident of the foster household).
We emphasize that although actual or intended duration of the relationship is a factor, it is not determinative. Nor is a showing of permanency required. See id. at 645 (stating that while permanency is not required, something more than a mere temporary sojourn is required for a person to be a resident). We therefore disagree with the arguments of both RMD and Farmers to the extent they claim that a certain duration and/or termination date for the foster care relationship is necessary for designation as a resident.
In determining the nature of this foster child/foster parent relationship, the district court should consider whether the relationship was informal, close, and intimate, suggesting that the child may be a resident. See A.G. by Waite, 331 N.W.2d at 646 (determining that the foster child was a resident where, among other factors considered, the child was treated like one of the family, was shown love and affection by his foster family, and understood he was moving into the foster home for an extensive period (one year)); see also Breazell, 478 S.E.2d at 832 (holding that the district court properly concluded that the foster child was a resident of the foster home for insurance purposes where the material facts showed the foster parents, with whom the child lived for twenty months, exclusively provided for his needs and treated him as they would their own son, and where the foster care contract required the foster parents for an indefinite period of time to rear, support, care for, and provide the child with an opportunity for an adequate education); Couch 3d § 128:6 ("When used in the phrase, `resident of the insured household,' resident designates a relationship where persons live together as a family and deal with each other in a close, intimate, and informal relationship.").
Public policy supports allowing the exclusion as a means to prevent collusion. For example, insurance contracts will often exclude from coverage liability for bodily injury to residents of the insured household in order to prevent collusion in the filing of insurance claims. 9 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 128:3 (1997) (hereinafter Couch 3d); A.G. by Waite, 331 N.W.2d at 644-45 (explaining the purpose is "to exempt the insurer from liability to those persons to whom the insured, on account of close family ties, would be apt to be partial in case of injury") (internal quotation marks and citation omitted). Thus, by evaluating the intent of the parties and the nature of the child's stay, the district court necessarily considers the public policy basis for the exclusion.
III. CONCLUSION
Because additional facts must be developed to determine whether Emeterio was a resident of the Apodacas' home, we reverse summary judgment. We remand for further proceedings consistent with this opinion. Any additional relevant facts that are disputed must be resolved by a fact finder.
IT IS SO ORDERED.
WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge
CYNTHIA A. FRY, Judge
|