{ "id": 77170, "name": "RISK MANAGEMENT DIVISION OF THE GENERAL SERVICES DEPARTMENT OF THE STATE of New Mexico ex rel. James APODACA and Kathy Apodaca, Plaintiff-Appellant, v. FARMERS INSURANCE COMPANY OF ARIZONA, Defendant-Appellee", "name_abbreviation": "Risk Management Division of the General Services Department ex rel. Apodaca v. Farmers Insurance", "decision_date": "2003-05-30", "docket_number": "No. 22,161", "first_page": "188", "last_page": "194", "citations": [ { "type": "official", "cite": "134 N.M. 188" }, { "type": "parallel", "cite": "75 P.3d 404" }, { "type": "parallel", "cite": "2003-NMCA-095" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "90 N.M. 516", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2874921 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "520", "parenthetical": "\"Under New Mexico law the obligation of a liability insuror is contractual and is to be determined by the terms of the policy.\"" }, { "page": "1037", "parenthetical": "\"Under New Mexico law the obligation of a liability insuror is contractual and is to be determined by the terms of the policy.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/90/0516-01" ] }, { "cite": "1997-NMSC-041", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 142266 ], "weight": 17, "pin_cites": [ { "page": "\u00b6 18" }, { "page": "\u00b6 19" }, { "page": "\u00b6 22" }, { "page": "\u00b6 21" }, { "page": "\u00b6\u00b6 20-21" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0752-01" ] }, { "cite": "113 N.M. 162", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723192 ], "weight": 2, "year": 1992, "pin_cites": [ { "parenthetical": "noting that where clauses in an insurance contract are inconsistent or contradictory, the clause which affords greater coverage for the insured will govern" }, { "parenthetical": "noting that where clauses in an insurance contract are inconsistent or contradictory, the clause which affords greater coverage for the insured will govern" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0162-01" ] }, { "cite": "112 Wis.2d 18", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8673855 ], "weight": 7, "pin_cites": [ { "page": "645" }, { "page": "646-47", "parenthetical": "deciding that the policy behind allowing exclusion applied to a foster relationship where the foster child was treated like family, the placement was for one year, and the foster parents considered the relationship when obtaining the insurance policy" }, { "page": "647", "parenthetical": "stating that insurance companies should not be able to fence both sides" }, { "page": "648", "parenthetical": "holding that, as a matter of law, a foster child under a one-year dispositional order is a resident of the foster household" }, { "page": "646", "parenthetical": "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)" }, { "page": "644-45", "parenthetical": "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 ease of injury\"" } ], "opinion_index": 0, "case_paths": [ "/wis-2d/112/0018-01" ] }, { "cite": "324 S.C. 228", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 514466 ], "weight": 3, "year": 1996, "pin_cites": [ { "parenthetical": "considering terms of insurance contract, terms of foster care contract, nature of foster care relationship where foster parents treated child as their own son, and length of anticipated stay" }, { "page": "832-33", "parenthetical": "considering terms of insurance contract, terms of foster care contract, nature of foster care relationship where foster parents treated child as their own son, and length of anticipated stay" }, { "page": "832" } ], "opinion_index": 0, "case_paths": [ "/sc/324/0228-01" ] }, { "cite": "907 F.Supp. 886", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7826734 ], "pin_cites": [ { "page": "890" } ], "opinion_index": 0, "case_paths": [ "/f-supp/907/0886-01" ] }, { "cite": "181 Misc.2d 475", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 880390 ], "weight": 3, "pin_cites": [ { "page": "402-03" }, { "page": "403", "parenthetical": "concluding that the public policy allowing exclusion should not apply where the foster parents had difficulties with the foster child's behavior during the child's six-week stay and continued placement with them was unclear" } ], "opinion_index": 0, "case_paths": [ "/misc2d/181/0475-01" ] }, { "cite": "675 N.E.2d 1031", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "1033-34", "parenthetical": "considering intent of the insurance policy and length of child's intended stay at the foster home" } ], "opinion_index": 0 }, { "cite": "221 Ill.Dec. 607", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 1997, "pin_cites": [ { "parenthetical": "considering intent of the insurance policy and length of child's intended stay at the foster home" } ], "opinion_index": 0 }, { "cite": "286 Ill.App.3d 356", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1544434 ], "year": 1997, "pin_cites": [ { "parenthetical": "considering intent of the insurance policy and length of child's intended stay at the foster home" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/286/0356-01" ] }, { "cite": "118 N.M. 518", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563581 ], "weight": 2, "pin_cites": [ { "page": "526" }, { "page": "567" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0518-01" ] }, { "cite": "2001-NMSC-034", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 183113 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 32" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0272-01" ] }, { "cite": "114 N.M. 778", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731537 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "782" }, { "page": "1236" }, { "page": "782" }, { "page": "1236" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0778-01" ] }, { "cite": "91 N.M. 334", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571037 ], "weight": 6, "pin_cites": [ { "page": "336" }, { "page": "691" }, { "page": "336" }, { "page": "691", "parenthetical": "\"The words 'residence' and 'resident' have no fixed meaning applicable to all cases, but are used in different and various senses, depending upon the subject-matter.\" (internal quotation marks and citation omitted)" }, { "page": "336" }, { "page": "691" } ], "opinion_index": 0, "case_paths": [ "/nm/91/0334-01" ] }, { "cite": "95 N.M. 517", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575492 ], "weight": 4, "year": 1981, "pin_cites": [ { "page": "518" }, { "page": "27" }, { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/nm/95/0517-01" ] }, { "cite": "59 P.3d 721", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 9382371 ], "pin_cites": [ { "page": "728" } ], "opinion_index": 0, "case_paths": [ "/p3d/59/0721-01" ] }, { "cite": "213 W.Va. 16", "category": "reporters:state", "reporter": "W. Va.", "case_ids": [ 9096807 ], "weight": 2, "year": 2002, "pin_cites": [ { "parenthetical": "finding the phrase \"resident of your household\" in a property insurance policy ambiguous" }, { "page": "270", "parenthetical": "finding the phrase \"resident of your household\" in a property insurance policy ambiguous" } ], "opinion_index": 0, "case_paths": [ "/w-va/213/0016-01" ] }, { "cite": "635 N.E.2d 63", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "64-65", "parenthetical": "disagreeing with trial court's conclusion that \"resident of a household\" in a homeowners policy was ambiguous" }, { "page": "65", "parenthetical": "considering the plain meaning of word \"resident,\" temporary nature of stay, and lack of set departure date from foster home" } ], "opinion_index": 0 }, { "cite": "92 Ohio App.3d 331", "category": "reporters:state", "reporter": "Ohio App. 3d", "case_ids": [ 1706876 ], "year": 1993, "pin_cites": [ { "parenthetical": "disagreeing with trial court's conclusion that \"resident of a household\" in a homeowners policy was ambiguous" } ], "opinion_index": 0, "case_paths": [ "/ohio-app-3d/92/0331-01" ] }, { "cite": "568 N.W.2d 156", "category": "reporters:state_regional", "reporter": "N.W.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "159", "parenthetical": "concluding that the terms \"residents\" and \"regularly resides\" in a homeowners policy are susceptible to different meanings and are therefore ambiguous" }, { "page": "159", "parenthetical": "suggesting that \"resident\" may be interpreted \"to include relatives who periodically stay in a home indefinitely, but maintain a legal domicile at some other location during the same period\"" } ], "opinion_index": 0 }, { "cite": "224 Mich.App. 229", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 485941 ], "year": 1997, "pin_cites": [ { "parenthetical": "concluding that the terms \"residents\" and \"regularly resides\" in a homeowners policy are susceptible to different meanings and are therefore ambiguous" } ], "opinion_index": 0, "case_paths": [ "/mich-app/224/0229-01" ] }, { "cite": "507 So.2d 877", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 11975872 ], "weight": 2, "pin_cites": [ { "page": "879" }, { "page": "879", "parenthetical": "considering intended duration, foster child/foster parent relationship, and insurance policy language" } ], "opinion_index": 0, "case_paths": [ "/so2d/507/0877-01" ] }, { "cite": "154 Ariz. 174", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 1499187 ], "weight": 2, "pin_cites": [ { "page": "310-11" } ], "opinion_index": 0, "case_paths": [ "/ariz/154/0174-01" ] }, { "cite": "1999-NMSC-006", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257638 ], "weight": 3, "pin_cites": [ { "page": "\u00b627" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0001-01" ] }, { "cite": "80 N.M. 224", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358560 ], "weight": 2, "year": 1969, "pin_cites": [ { "page": "226" }, { "page": "588" } ], "opinion_index": 0, "case_paths": [ "/nm/80/0224-01" ] }, { "cite": "105 N.M. 346", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1599001 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "348" }, { "page": "875" } ], "opinion_index": 0, "case_paths": [ "/nm/105/0346-01" ] }, { "cite": "113 N.M. 703", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723227 ], "weight": 6, "year": 1992, "pin_cites": [ { "page": "705", "parenthetical": "\"An insurance contract should be construed as a complete and harmonious instrument designed to accomplish a reasonable end.\"" }, { "page": "396", "parenthetical": "\"An insurance contract should be construed as a complete and harmonious instrument designed to accomplish a reasonable end.\"" }, { "page": "705" }, { "page": "396" }, { "page": "707" }, { "page": "398", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0703-01" ] }, { "cite": "1998-NMSC-046", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827320 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0396-01" ] }, { "cite": "120 N.M. 302", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559001 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "307", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "725", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0302-01" ] }, { "cite": "115 N.M. 269", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725511 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "272" }, { "page": "975" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0269-01" ] }, { "cite": "120 N.M. 463", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559008 ], "weight": 2, "pin_cites": [ { "page": "471" }, { "page": "1074" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0463-01" ] }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 } ], "analysis": { "cardinality": 1068, "char_count": 22317, "ocr_confidence": 0.669, "pagerank": { "raw": 8.119715878505409e-08, "percentile": 0.468144088709419 }, "sha256": "ad96ea4b30f0789377c2d548363041b44a3312aa106421bcff167cfb4e6f4c8d", "simhash": "1:dc8c3a0788ab3e43", "word_count": 3600 }, "last_updated": "2023-07-14T16:41:45.272947+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: MICHAEL D. BUSTAMANTE and CYNTHIA A. FRY, Judges." ], "parties": [ "RISK MANAGEMENT DIVISION OF THE GENERAL SERVICES DEPARTMENT OF THE STATE of New Mexico ex rel. James APODACA and Kathy Apodaca, Plaintiff-Appellant, v. FARMERS INSURANCE COMPANY OF ARIZONA, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nCASTILLO, Judge.\n{1} This case presents an issue of first impression: whether a foster child is a \u201cresident\u201d of the foster home for the purposes of the resident exclusion in a homeowner\u2019s insurance policy. The district court, determining that foster child Emeterio Garcia was a resident of the home of his foster parents, James and Kathy Apodaea (Apodacas), granted summary judgment to the insurance carrier, Farmers Insurance Company of Arizona (Farmers). We reverse the summary judgment and remand for further proceedings.\nI. BACKGROUND\n{2} 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 \u201clong term\u201d 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\u2019s 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 \u201cbodily injury to any resident of the residence premises\u201d or for injury resulting from home care services provided by the insured; and (5) as licensed foster parents, the Apodacas were \u201cpublic employees\u201d 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.\n{3} On May 12, 1999, JoAnn Martinez (Martinez), Emeterio\u2019s grandmother, individually and as personal representative of Emeterio\u2019s estate, brought a wrongful death suit against the Apodacas, CYFD, and certain of CYFD\u2019s employees, alleging 42 U.S.C. \u00a7 1983 violations, negligence, and breach of fiduciary duty. Farmers and RMD disagree as to whether (1) Emeterio was a resident of the Apodacas\u2019 home, (2) Emeterio\u2019s 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.\n{4} 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\u2019s 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.\n{5} RMD argues on appeal that the district court\u2019s 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).\nII. DISCUSSION\nA. Standard of Review on Summary Judgment\n{6} Summary judgment is proper when no issues exist as to any material fact and \u201conly the legal effect of the undisputed facts remains to be decided.\u201d Ruiz v. Garcia, 115 N.M. 269, 272, 850 P.2d 972, 975 (1993); see Rule 1-056 NMRA 2003. \u201c[Sjummary judgment is not appropriate when the facts before the court are insufficiently developed or where further factual resolution is essential for determination of the central legal issues involved.\u201d Brown v. Taylor, 120 N.M. 302, 307, 901 P.2d 720, 725 (1995) (internal quotation marks and citation omitted). We review de novo whether there are genuine issues of material fact justifying summary judgment. Self v. United Parcel Sew., Inc., 1998-NMSC-046, \u00b6 6, 126 N.M. 396, 970 P.2d 582.\nB. Contract Interpretation\n{7} We must determine whether the district court had before it sufficiently developed facts to conclude as a matter of law that Emeterio was a resident of the Apodacas\u2019 home and that the resident exclusion applies. The relevant portions of the Apodacas\u2019 policy read as follows:\nDEFINITIONS\n9. Insured' \u2014 means you and the following persons if permanent residents of your household:\na. your relatives,\nb. anyone under the age of 21.\nSECTION II \u2014 LIABILITY\nWe will pay those damages which an insured becomes legally obligated to pay because of bodily injury ... resulting from an occurrence to which this coverage applies.\nSECTION II EXCLUSIONS\nWe do not cover:\n6. Bodily injury to any resident of the residence premises except a residence employee who is not covered under Workers\u2019 Compensation or Employers\u2019 Liability Coverage.\nThe policy does not define \u201cresident.\u201d\n{8} In interpreting the undefined \u201cresident,\u201d the district court is guided by general principles of contract law. See Rummel v. Lexington Ins. Co., 1997-NMSC-041, \u00b6 18, 123 N.M. 752, 945 P.2d 970 (\u201cinsurance contracts are construed by the same principles which govern the interpretation of all contracts.\u201d) (internal quotation marks and citations omitted). The district court must ultimately decide what coverage the parties agreed to under the policy. See Safeco Ins. Co. of Am., Inc. v. McKenna, 90 N.M. 516, 520, 565 P.2d 1033, 1037 (1977) (\u201cUnder New Mexico law the obligation of a liability insuror is contractual and is to be determined by the terms of the policy.\u201d). In doing so, the district court considers the policy as a whole. Knowles v. United Servs. Auto. Ass\u2019n, 113 N.M. 703, 705, 832 P.2d 394, 396 (1992) (\u201cAn insurance contract should be construed as a complete and harmonious instrument designed to accomplish a reasonable end.\u201d). If a policy is clear and unambiguous, then the court does not construe the terms; it merely gives the terms their usual and ordinary meaning. W. Commerce Bank v. Reliance Ins. Co., 105 N.M. 346, 348, 732 P.2d 873, 875 (1987); Ivy Nelson Grain Co. v. Commercial Union Ins. Co., 80 N.M. 224, 226, 453 P.2d 587, 588 (1969). However, where meanings of terms are not obvious, or if the contract is \u201creasonably and fairly susceptible of different constructions,\u201d then it may be ambiguous. Allsup\u2019s Convenience Stores, Inc. v. N. River Ins. Co., 1999-NMSC-006, \u00b627, 127 N.M. 1, 976 P.2d 1; Rummel, 1997-NMSC-041, \u00b6 19, 123 N.M. 752, 945 P.2d 970. Even if an ambiguity is not apparent on its face, an ambiguity can arise when otherwise clear policy language \u201cappears ambiguous upon application to a particular circumstance.\u201d Id. \u00b6 48, 945 P.2d 970 (citation omitted).\n{9} We find no New Mexico case law on whether an undefined \u201cresident\u201d in a household insurance policy is ambiguous language. Other jurisdictions considering the term \u201cresident\u201d in insurance policies arrive at differing conclusions. See, e.g., Farmers Ins. Co. v. Oliver, 154 Ariz. 174, 741 P.2d 307, 310-11 (Ct.App.1987) (\u201c[ujnder Arizona law[,] ... \u2018resident of the same household\u2019 [in a homeowners insurance policy] on its face is not ambiguous\u201d) (citation omitted); Jenks v. State, 507 So.2d 877, 879 (La.Ct.App.1987) (finding \u201cresident\u201d in a homeowners policy unambiguous as applied but acknowledging that the term has been found to have many meanings and definitions and must be construed within the fact and circumstances of each case); Vanguard Ins. Co. v. Racine, 224 Mich.App. 229, 568 N.W.2d 156, 159 (1997) (concluding that the terms \u201cresidents\u201d and \u201cregularly resides\u201d in a homeowners policy are susceptible to different meanings and are therefore ambiguous); Prudential Prop. & Cas. Ins. Co. v. LaMarr, 92 Ohio App.3d 331, 635 N.E.2d 63, 64-65 (1993) (disagreeing with trial court\u2019s conclusion that \u201cresident of a household\u201d in a homeowners policy was ambiguous); Farmers Mut. Ins. Co. v. Tucker, 213 W.Va. 16, 576 S.E.2d 261, 270 (2002) (finding the phrase \u201cresident of your household\u201d in a property insurance policy ambiguous); T.M. ex rel. Cox v. Executive Risk Indem., Inc., 59 P.3d 721, 728 (Wyo.2002) (reiterating that \u201cresident\u201d in a professional liability policy is subject to varying interpretations and so is ambiguous).\n{10} We agree with other jurisdictions that have concluded the undefined term, \u201cresident\u201d or \u201cresidence\u201d may be subject to various interpretations depending on the context of the case. \u201c[Rjesidence usu[ually] just means bodily presence as an inhabitant in a given place.\u201d Black\u2019s Law Dictionary 1310 (7th ed.1999). But the term can be also mean domicile, which may require presence and intent \u201cto make the place one\u2019s home.\u201d Id.; see also Hagan v. Hardwick, 95 N.M. 517, 518, 624 P.2d 26, 27 (1981). Residency may require actual physical presence on a permanent basis, see Perez v. Health & Soc. Servs., 91 N.M. 334, 336, 573 P.2d 689, 691 (Ct.App.1977), or physical presence on a temporary basis with a primary residence elsewhere. See Racine, 568 N.W.2d at 159 (suggesting that \u201cresident\u201d may be interpreted \u201cto include relatives who periodically stay in a home indefinitely, but maintain a legal domicile at some other location during the same period\u201d). Without a definition in the insurance policy, differing and equally reasonable constructions of the term are possible, depending on the context. See Perez, 91 N.M. at 336, 573 P.2d at 691 (\u201cThe words \u2018residence\u2019 and \u2018resident\u2019 have no fixed meaning applicable to all cases, but are used in different and various senses, depending upon the subject-matter.\u201d (internal quotation marks and citation omitted)). Accordingly, we conclude that the term is ambiguous in this case and must be construed.\n{11} When construing ambiguous contract language, the district court must \u201cadopt the interpretation that is most in accord with reason and the probable expectations of the parties.\u201d Rummel, 1997-NMSC-041, \u00b6 22, 123 N.M. 752, 945 P.2d 970. At the same time, the contract is construed liberally in favor of the insured. Id. We note that exclusion clauses in insurance policies are to be narrowly construed. Knowles, 113 N.M. at 705, 832 P.2d at 396. The district court may use all available extrinsic evidence to interpret ambiguities, including \u201cthe language and conduct of the parties and the circumstances surrounding the agreement, as well as oral evidence of the parties\u2019 intent.\u201d Mark V, Inc. v. Mellekas, 114 N.M. 778, 782, 845 P.2d 1232, 1236 (1993), Rummel, 1997-NMSC-041, \u00b6 21, 123 N.M. 752, 945 P.2d 970. Based on these principles of construction, we find that additional facts must be developed in the record before the district court may properly determine whether the contract does, indeed, exclude Emeterio from coverage as a resident of the Apodaeas\u2019 home. We therefore reverse summary judgment. We take this opportunity to discuss what factors the district court must consider in deciding whether the term, \u201cresident,\u201d applies to Emeterio. We remand for further consideration of the factors in accordance with this opinion. See Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, \u00b6 32, 131 N.M. 272, 34 P.3d 1148 (remanding the case for the trial court to apply the newly announced test for determining the employer\u2019s wilful injury); Lamay v. Roswell Indep. Sch. Dist., 118 N.M. 518, 526, 882 P.2d 559, 567 (Ct.App.1994) (remanding the case for the parties to have the opportunity to argue the facts in light of the new test adopted by this Court in a workers\u2019 compensation question) (citations omitted).\n{12} Before discussing the factors, however, we briefly address RMD\u2019s request that this Court adopt the same analysis of residency as used in the context of divorce proceedings, Hagan, 95 N.M. at 518, 624 P.2d at 27 or in the context of determining eligibility for public benefits, Perez, 91 N.M. at 336, 573 P.2d at 691. Although we find those cases somewhat helpful, they rely primarily on physical presence and intention to be a resident of a particular place. We believe that additional factors must be considered to determine whether a foster child is a resident of a foster home. We now discuss the factors.\nC. Analysis\n1. Factors-Other Jurisdictions\n{13} New Mexico has not previously addressed the specific question of whether a foster child is a resident of a foster home under a homeowner\u2019s insurance policy and so we turn to other jurisdictions for guidance. Those courts which have addressed the issue have conducted a case-by-case analysis using a variety of factors that we find persuasive. See, e.g., Country Mut. Ins. Co. v. Peoples Bank, 286 Ill.App.3d 356, 221 Ill.Dec. 607, 675 N.E.2d 1031, 1033-34 (1997) (considering intent of the insurance policy and length of child\u2019s intended stay at the foster home); Jenks, 507 So.2d at 879 (considering intended duration, foster child/foster parent relationship, and insurance policy language); Mundell v. Nationwide Ins. Cos., 181 Misc.2d 475, 693 N.Y.S.2d 400, 402-03 (N.Y.Sup.Ct.1999) (considering intended duration of the relationship, Family Court records, pending placement hearing, and the public policy allowing exclusion); LaMarr, 635 N.E.2d at 65 (considering the plain meaning of word \u201cresident,\u201d temporary nature of stay, and lack of set departure date from foster home); Merchants Mut. Ins. Co. v. Artis, 907 F.Supp. 886, 890 (E.D.Pa.1995) (considering ordinary meaning of \u201cresident,\u201d length of stay in foster home, lack of plans to reunite the children with their natural parents, and treatment plans of state caseworkers); State Farm Fire & Cas. Co. v. Breazell, 324 S.C. 228, 478 S.E.2d 831, 832-33 (1996) (considering terms of insurance contract, terms of foster care contract, nature of foster care relationship where foster parents treated child as their own son, and length of anticipated stay); A.G. by Waite v. Travelers Ins. Co., 112 Wis.2d 18, 331 N.W.2d 643, 645 (Ct.App.1983) (holding that whether a person is a resident of a household depends on the following three factors, no one of which is controlling: \u201c(1) living under the same roof; (2) in a close, intimate and informal relationship; and (3) where the intended duration of the relationship is likely to be substantial, where it is consistent with the informality of the relationship, and from which it is reasonable to conclude that the parties would consider the relationship in contracting about such matters as insurance or in their conduct in reliance thereon\u201d).\n{14} These cases involve two basic inquiries: what was the intent of the parties to the insurance contract, and what was the nature of the child\u2019s stay in the foster home. Some jurisdictions also discuss the public policy behind allowing the resident exclusion to apply. See, e.g., A.G. by Waite, 331 N.W.2d at 646-47 (deciding that the policy behind allowing exclusion applied to a foster relationship where the foster child was treated like family, the placement was for one year, and the foster parents considered the relationship when obtaining the insurance policy); Mundell, 693 N.Y.S.2d at 403 (concluding that the public policy allowing exclusion should not apply where the foster parents had difficulties with the foster child\u2019s behavior during the child\u2019s six-week stay and continued placement with them was unclear).\n2. New Mexico Test for Exclusion to Apply to the Foster Child\n{15} We hold that to determine whether Emeterio was a resident under the Apodacas\u2019 homeowner\u2019s insurance policy, the district court should consider 1) the intent of the parties to the insurance contract and 2) the nature of the child\u2019s stay in the foster home. The public policy allowing the exclusion is inherent in evaluating the two factors. As we discussed above, in determining what coverage the parties intended, the district court first examines the language of the policy, construing it as a whole, and then may look to extrinsic evidence. Rummel, 1997-NMSC-041, \u00b6\u00b6 20-21, 123 N.M. 752, 945 P.2d 970; Mellekas, 114 N.M. at 782, 845 P.2d at 1236.\n{16} We emphasize that an insurer cannot have it both ways. For example, if the foster child is not considered a resident for purposes of coverage for tortious acts on third parties, the child cannot, then, be considered a resident for purposes of the exclusion. See A.G. by Waite, 331 N.W.2d at 647 (stating that insurance companies should not be able to fence both sides); see also Fed. Ins. Co. v. Century Fed. Sav. & Loan Ass\u2019n, 113 N.M. 162, 166 n. 3, 824 P.2d 302, 306 n. 3 (1992) (noting that where clauses in an insurance contract are inconsistent or contradictory, the clause which affords greater coverage for the insured will govern). Where an insuring clause and an exclusionary clause irreconcilably conflict, courts may refuse to enforce the exclusionary clause when it would have \u201cdeprive[d] the insured of the insurance coverage which the insured reasonably understood was afforded by the policy for which premiums were paid.\u201d Knowles, 113 N.M. at 707, 832 P.2d at 398 (internal quotation marks and citation omitted). We observe from the language in the Apodacas\u2019 policy that there may be a conflict between the clause requiring that the resident be \u201cpermanent\u201d in order to be an insured and the exclusionary clause, which lacks the qualifier. The district court should consider evidence regarding the effect of the possible conflict if there would have been coverage for Emeterio as an insured.\n{17} By nature of the child\u2019s stay, we mean both the State\u2019s objective intention for the child\u2019s stay and the subjective relationship between the child and foster parents. In determining the State\u2019s intent, the following should be considered: CYFD documentation concerning the designation of the child\u2019s placement prior to the injury, e.g., \u201cemergency,\u201d or \u201clong term\u201d; any dates proposed for moving the child from the foster home prior to the injury; any pending assessments or other evaluations by CYFD that might bear on the child\u2019s continued placement in the foster home; any orders pending prior to the injury that might affect the child\u2019s placement; and the duration of the child\u2019s actual stay in the home. We decline to set any bright line test for how long the foster child must be in the home-either actual or intended length of stay-before the child becomes a resident. But see AG. by Waite, 331 N.W.2d at 648 (holding that, as a matter of law, a foster child under a one-year dispositional order is a resident of the foster household).\n{18} 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.\n{19} 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 \u00a7 128:6 (\u201cWhen used in the phrase, \u2018resident of the insured household,\u2019 resident designates a relationship where persons live together as a family and deal with each other in a close, intimate, and informal relationship.\u201d).\n{20} 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 \u00a7 128:3 (1997) (hereinafter Couch 3d); A.G. by Waite, 331 N.W.2d at 644-45 (explaining the purpose is \u201cto 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 ease of injury\u201d) (internal quotation marks and citation omitted). Thus, by evaluating the intent of the parties and the nature of the child\u2019s stay, the district court necessarily considers the public policy basis for the exclusion.\nIII. CONCLUSION\n{21} Because additional facts must be developed to determine whether Emeterio was a resident of the Apodacas\u2019 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.\n{22} IT IS SO ORDERED.\nWE CONCUR: MICHAEL D. BUSTAMANTE and CYNTHIA A. FRY, Judges.", "type": "majority", "author": "CASTILLO, Judge." } ], "attorneys": [ "Carol J. Ritchie, Felker, Ish, Ritchie & Geer, P.A., Santa Fe, NM, for Appellant.", "Lawrence M. Glenn, Daniel J. O\u2019Brien, Daniel J. O\u2019Brien & Associates, P.C., Albuquerque, NM, for Appellee." ], "corrections": "", "head_matter": "2003-NMCA-095\n75 P.3d 404\nRISK MANAGEMENT DIVISION OF THE GENERAL SERVICES DEPARTMENT OF THE STATE of New Mexico ex rel. James APODACA and Kathy Apodaca, Plaintiff-Appellant, v. FARMERS INSURANCE COMPANY OF ARIZONA, Defendant-Appellee.\nNo. 22,161.\nCourt of Appeals of New Mexico.\nMay 30, 2003.\nCarol J. Ritchie, Felker, Ish, Ritchie & Geer, P.A., Santa Fe, NM, for Appellant.\nLawrence M. Glenn, Daniel J. O\u2019Brien, Daniel J. O\u2019Brien & Associates, P.C., Albuquerque, NM, for Appellee." }, "file_name": "0188-01", "first_page_order": 218, "last_page_order": 224 }