Washington County Superior Court. (WC 12-17). Associate Justice Kristin E. Rodgers.
For Plaintiff: John D. Hughes (Pro Hac Vice).
For Defendants: Mark B. Morse, Esq.; Gregory P. Massad, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
Is the minor daughter of divorced parents, who lives with her mother but regularly stays at her father's home for overnight visits twice per week, a resident of the father's home for the purpose of determining coverage under the provisions of a homeowner's insurance policy? Under the undisputed facts present in this case, we hold that the child does reside at her father's home and we therefore affirm the judgment of the Superior Court. The defendants, Christopher Henderson and Denise Luppe, each appeal from a final judgment entered in Washington County Superior Court granting summary judgment in favor of the plaintiff, Peerless Insurance Company (Peerless), and denying Ms. Luppe's cross-motion for summary judgment. The defendants are the divorced parents of a minor child, Maya Henderson. On August 23, 2010, while Maya was enjoying overnight visitation with her father, she was bitten by her father's dog and suffered serious injuries. Ms. Luppe soon brought a personal injury suit on Maya's behalf against Mr. Henderson, who sought a defense under the terms of his homeowner's insurance policy with Peerless. Peerless responded by filing a declaratory judgment action, pursuant to G.L. 1956 § 9-30-1. In this action, Peerless sought a declaration that Maya was a resident of her father's household and, therefore, was excluded from coverage for injuries that she sustained when she was bitten by the dog.
I Facts and Travel
Maya's parents separated in January 2009, completed a property settlement agreement in September 2009, and terminated their marriage pursuant to a judgment of absolute divorce entered in the Family Court in May 2010. The judgment of divorce awarded joint legal custody of Maya to her parents, with " physical placement to be with [Ms. Luppe] and [Mr. Henderson] to have all reasonable rights of visitation." This was consistent with the couple's property settlement agreement, which was incorporated by reference in the judgment, and which defined joint custody as " shared responsibility for all major decisions concerning the upbringing, education, medical care, dental care, spiritual care, and all matters concerning the general welfare of the child." Following the couple's separation, Mr. Henderson lived nearby in a small studio apartment, and Ms. Luppe remained in the former marital domicile. As a result of the small size of Mr. Henderson's apartment, Maya's visits with her father between January 2009 and June 2010 mostly took place at her mother's home, which Mr. Henderson visited after work on a near daily basis for a few hours each day. In fact, Mr. Henderson testified by deposition that Maya had no more than a couple of overnight visits to his studio apartment.
However, Mr. Henderson soon purchased a home that had sufficient space to allow a regular schedule of overnight visitation with his daughter. That visitation schedule, agreed to amicably by both parents,
was " pretty rigid," in the words of Mr. Henderson. Accordingly, Maya would stay at her father's house two days each week, overnight, on Wednesdays and Sundays. After exercising overnight visitation, Mr. Henderson would bring Maya to school, and Ms. Luppe or Maya's grandmother would pick her up at the end of the school day. When Maya stayed at her father's house, she would sleep in her father's bedroom, despite the presence of a " spare guest room" in the house. However, Maya would sleep in that room when her cousins would occasionally visit her at her father's home. Maya's paternal grandparents also regularly visited, and, when they did, they would stay in that bedroom as well. The bedroom did contain some of Maya's toys and clothing, including " essentials" and various other " backup items," such as a " [s]weatshirt, * * * shorts, a pair of jeans, sandals, [and] sneakers." Generally, what Maya would wear during visitation depended on how she was attired when she arrived at her father's home. On occasion, Maya would bring a bag she used to transfer her belongings between her mother's and father's houses. Mr. Henderson's house also contained various toiletries belonging to Maya, including a toothbrush, hairbrush, and hair dryer. Mr. Henderson gave deposition testimony that he did not consider his house to be Maya's home, and neither did she: " [Maya] knows it as daddy's house. You know, she knows [her mother's] home as, let's say, home, and she knows my home as daddy's house."
On Sunday, August 22, 2010, Maya was at her father's house, in keeping with the normal visitation schedule. While Mr. Henderson was in the kitchen, Maya was attacked by the father's dog. Maya required ...