Prudential Prop. & Cas. Ins. Co. v. Koby12/8/1997
FORD, Presiding Judge.
This is an accelerated calendar appeal from the Trumbull County Court of Common Pleas. Appellant, Prudential Property and Casualty Insurance Company, appeals from a judgment entry granting summary judgment for appellees, Edgar W. Koby, Jr., ("Koby"), Thomas G. Butcher ("Butcher"), Beverly Butcher ("Beverly"), Stephanie Butcher ("Stephanie"), Sally Butcher ("Sally"), and Stacey Butcher ("Stacey"), in a declaratory judgment action.
Koby is a thirty-two year-old captain in the United States Army, stationed at Fort Hood in Killeen, Texas. On December 28, 1994, Koby was visiting his parents' home at 9660 Howland-Springs Road, Trumbull County, Howland Township, Ohio. While he was visiting, he was target shooting in his parents' backyard when he fired a gunshot into the woods which accidentally struck and injured Butcher.
On September 22, 1995, Butcher, individually, and Beverly, in her own behalf and as next friend of the couple's minor children, filed a complaint against Kobsand his parents, Edgar W. Koby, Sr. and Patricia Ann Koby, seeking damages. Koby sought defense and indemnification from appellant, the issuer of a homeowner's insurance policy on his parent's home. The policy provides insurance-coverage for the insured and "residents of your household" including the insured's relatives. Appellant declined to defend and indemnify on the ground that Koby is not a resident in the household of his parents, but instead has his own residence in Texas, where he is stationed as a career officer in the military.
On December 7, 1995, appellant filed a complaint for declaratory judgment, naming Koby as the defendant, seeking a declaration that it had no duty to defend or indemnify Koby. Appellant filed a motion to consolidate case No. 95CV1494, the personal injury action, and case No. 95CV2027, the declaratory judgment action, on February 20, 1996. An amended complaint, naming Butcher, Beverly, Stephanie, Sally, and Stacey as additional defendants, was filed on April 17, 1996.
Appellant filed a motion for summary judgment on June 28, 1996, which was overruled by the trial court on November 22, 1996. In overruling appellant's summary judgment motion, the trial court determined that there was a substantial indication that Koby considered 9660 Howland-Springs Road to be his residence, based on the fact that he paid taxes in Ohio, possessed an Ohio driver's license, voted in Ohio, and used that address as his residence address when requested.
Appellees Butcher, Beverly, and the minor children by and through Beverly, filed their motion for summary judgment on December 20, 1996. In a judgment entry filed on January 29, 1997, the trial court granted summary judgment on the issue of insurance coverage, determining that Koby is an insured entitled to defense and indemnification under the subject policy. The court also declared its judgment to be a final appealable order, stated that there was no just cause for delay, and ordered that the consolidated cause proceed to trial on the issue of damages.
Appellant filed a timely notice of appeal, and raises a single assignment of error:
"The trial court erred to the prejudice of [appellant] in overruling its motion for summary judgment and granting the motion for summary judgment of [appellees]."
The decisive issue in this case is whether, for insurance coverage purposes, Koby, a thirty-two year-old career Army officer residing in Killeen, Texas, is also a resident of his parents' home in Howland Township, Ohio.
A reviewing court "is required to view the evidence most strongly in favor of the party opposing
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