{
  "id": 8527760,
  "name": "LUMBERMENS MUTUAL CASUALTY COMPANY v. GOLDIE PEARL SMALLWOOD, TERESA ANN BRITT, ANTHONY CHARLES HUTCHINSON and THOMAS WAYNE NEW",
  "name_abbreviation": "Lumbermens Mutual Casualty Co. v. Smallwood",
  "decision_date": "1984-06-05",
  "docket_number": "No. 8310SC444",
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  "last_updated": "2023-07-14T17:24:21.303361+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges Wells and Braswell concur."
    ],
    "parties": [
      "LUMBERMENS MUTUAL CASUALTY COMPANY v. GOLDIE PEARL SMALLWOOD, TERESA ANN BRITT, ANTHONY CHARLES HUTCHINSON and THOMAS WAYNE NEW"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nDefendant contends that the trial court erred in granting plaintiffs motion for summary judgment in that there is a genuine issue of material fact as to whether Teresa Ann Britt was a resident in her mother\u2019s household at the time of the accident and as to whether she was operating the automobile with the permission of Anthony Charles Hutchinson, the owner of the vehicle. We agree that there are genuine issues as to both questions and find that the court committed error in granting plaintiffs motion for summary judgment.\nDefendant bases his contention regarding the residency of Teresa Ann Britt on the affidavits of various persons who averred that she in fact appeared to be living with her mother at the time of the accident and on the answer filed by Britt in which she stated she was a resident of her mother\u2019s household. We find that this evidence raises at the very least an issue of fact which should be passed upon by a jury.\nUnder Rule 56(c) of. the North Carolina Rules of Civil Procedure, summary judgment will be granted \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d However, upon ruling on a motion for summary judgment, the court must look at the record in the light most favorable to the party opposing the motion. Patterson v. Reid, 10 N.C. App. 22, 178 S.E. 2d 1 (1970).\nFor defendant to prevail in this matter, there must first be a finding that there is some question about whether Teresa Ann Britt was a \u201cresident\u201d of her mother\u2019s household at the time of the accident. \u201cThe words \u2018resident,\u2019 \u2018residing\u2019 and \u2018residence\u2019 are in common usage and are found frequently in statutes, contracts and other documents of a legal or business nature. They have, however, no precise, technical and fixed meaning applicable to all cases.\u201d Jamestown Mutual Insurance Co. v. Nationwide Mutual Insurance Co., 266 N.C. 430, 435, 146 S.E. 2d 410, 414 (1966). One of the more complete definitions is found in the case of Watson v. North Carolina Railroad Company, 152 N.C. 215, 67 S.E. 502 (1910): \u201cResidence is dwelling in a place for some continuance of time, and is not synonymous with domicile, but means a fixed and permanent abode or dwelling as distinguished from a mere temporary locality of existence; and to entitle one to the character of a \u2018resident,\u2019 there must be a settled, fixed abode, and an intention to remain permanently, or at least for some time, for business or other purposes.\u201d Id. at 209, 67 S.E. at 503.\nAt her deposition, Teresa Ann Britt testified that she \u201chad a blue and white trailer that was parked right behind my Mom and I was living there on January 31, 1981. Prior to that, I had been living with my mother.\u201d Moreover, when questioned specifically about her residence, the following exchange occurred:\nQ. And at that time you were supporting yourself?\nA. Yes sir.\nQ. And living in your trailer?\nA. Yes.\nQ. And you were not a. resident of your mother\u2019s house?\nA. I was not.\nOn the other hand, defendant has introduced numerous affidavits purporting to show that Teresa Ann Britt was living with her mother at the time of the accident and that, in fact, the trailer in which Teresa Ann Britt contends she was residing was not connected to water, sewer or gas and had broken windows and doors, making it unsuitable for occupancy. Moreover, Britt contended in her answer that she was a resident of her mother\u2019s household. In examining the record in the light most favorable to defendant, it appears that the aforementioned evidence does in fact establish a genuine issue as to whether, at the time of the accident, Teresa Ann Britt had established a \u201cpermanent abode\u201d in either her mother\u2019s house or in the nearby trailer. Certainly reasonable men could reach different conclusions about her residency. See Page v. Sloan, 281 N.C. 697, 190 S.E. 2d 189 (1972). As there is conflicting evidence as to whether Britt was living with her mother or in a separate trailer on 31 January 1981, we conclude that this question must be answered by a jury.\nAs for the second question of whether Britt drove the vehicle with the permission of its owner, we, again, find the existence of a genuine issue of material fact. Although Anthony Clark Hutchinson testified in his deposition that he never allowed Britt to use his automobile, there were in evidence affidavits from area residents who stated that they had, in fact, seen Britt drive Hutchinson\u2019s car on other occasions. Moreover, Britt stated in her answer that she .thought she had had Hutchinson\u2019s permission to drive the vehicle. We find that the conflicting nature of this forecast of evidence warrants that the question of whether Britt operated the vehicle with the permission of its owner be submitted to a jury.\nUpon our finding that there are genuine issues both as to the question of whether Britt was a resident in her mother\u2019s household and as to the question of whether she was operating the vehicle with the permission of its owner, we hold that the order of the trial court granting plaintiffs motion for summary judgment is\nReversed.\nJudges Wells and Braswell concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "Warrick, Johnson and Parsons, by Dale P. Johnson, and Lanier and Fountain, by Russell J. Lanier, Jr., for defendant appellant.",
      "Patterson, Dilthey, Clay, Cranfill, Sumner and Hartzog, by Dan M. Hartzog, for plaintiff appellee."
    ],
    "corrections": "",
    "head_matter": "LUMBERMENS MUTUAL CASUALTY COMPANY v. GOLDIE PEARL SMALLWOOD, TERESA ANN BRITT, ANTHONY CHARLES HUTCHINSON and THOMAS WAYNE NEW\nNo. 8310SC444\n(Filed 5 June 1984)\nInsurance \u00a7 87.2\u2014 entitlement to coverage under automobile policy \u2014 resident of same household \u2014 permission of owner to drive automobile\nIn a declaratory judgment action instituted by the insurer of an automobile in which the plaintiff sought a judicial determination of its liabilities under the policy, the trial court erred in granting plaintiffs motion for summary judgment since there was a genuine issue as to whether the driver of the automobile was a resident in her mother\u2019s household and as to whether she was operating the vehicle with the permission of its owner.\nDEFENDANT appeals from Bailey, Judge. Judgment entered 25 February 1983 in Superior Court, WAKE County. Heard in the Court of Appeals 8 March 1984.\nOn 31 January 1981, an automobile owned by Anthony Charles Hutchinson and being operated by Teresa Ann Britt overturned causing injury to Thomas Wayne New, who was a passenger in the vehicle. On 22 December 1981, New filed suit against Hutchinson, Britt and Goldie Pearl Smallwood, Britt\u2019s mother, seeking compensation for the injuries he received in the accident.\nPlaintiff Lumbermens Mutual Casualty, the insurer of Small-wood, instituted a declaratory judgment action in which it sought a judicial determination of its liabilities under the policy it issued to Smallwood. The policy contains the following provisions:\nLumbermens Mutual Casualty Company . . .\n(a) agrees with the insured . . . [t]o pay on behalf of the insured all sums which the insured shall become legally obligated to pay damages because of . . . bodily injury . . . arising out of the ownership, maintenance or use of . . . any non-owned automobile. . . .\nThe policy further defines those persons afforded coverage as:\nPersons Injured\nThe following are insureds under Part I:\n(b) With respect to a non-owned automobile,\n(2) any relative, but only with respect to a private passenger automobile or trailer, provided his actual operation ... is with the permission, or reasonably believed to be with the permission, of the owner and is within the scope of such permission. . . .\nDefinitions\n\u201crelative\u201d means a relative of a named insured who is a resident of the same household.\nPlaintiff alleged in its complaint that Teresa Ann Britt was not entitled to coverage under the policy in that she was not a resident of the same household as Goldie Pearl Smallwood and was not, at the time of the accident, driving the vehicle with the permission of its owner. On 23 July 1983, plaintiff filed a motion for summary judgment in which it contended that the depositions and pleadings in the declaratory judgment action showed no genuine issue of material fact. Upon the granting of this motion, defendant Thomas Wayne New gave notice of appeal.\nWarrick, Johnson and Parsons, by Dale P. Johnson, and Lanier and Fountain, by Russell J. Lanier, Jr., for defendant appellant.\nPatterson, Dilthey, Clay, Cranfill, Sumner and Hartzog, by Dan M. Hartzog, for plaintiff appellee."
  },
  "file_name": "0642-01",
  "first_page_order": 674,
  "last_page_order": 678
}
