Young, et al v. State Farm Mutual, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-60586
Summary Calendar
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RONNIE E. YOUNG AND PATRICIA YOUNG, INDIVIDUALLY,
AND AS MOTHER AND NEXT FRIEND OF LESLEY YOUNG, A MINOR,
Plaintiffs-Appellants,
VERSUS
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
AND STATE FARM FIRE AND CASUALTY COMPANY,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Northern District of Mississippi
_________________________
March 29, 2000
Before SMITH, BARKSDALE and PARKER,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Ronnie and Patricia Young appeal a
summary judgment in favor of State Farm
Mutual Automobile Insurance Company and
State Farm Fire and Casualty Company (“State
Farm”). Concluding that there are fact issues
tht preclude summary judgment, we reverse
and remand.
I.
Plaintiffs’s daughter, Lesley Young, was
struck by a car in February 1996 and suffered
substantial injuries. The driver of the car left
the scene and has not been found or identified.
Lesley was twenty years old and had been on
the road, away from her parents home, since
May 1995. She recently had dropped out of
college and received only minimal financial
support from her parents.1
On the date of the accident, Ronnie Young
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R.
47.5.4.
1 Although Lesley did receive approximately
$1,000 from her father before leaving home,
neither side seriously contends that this amount
could qualify as material financial support for the
lengthy time she was gone. Indeed, while there is
a dearth of evidence as to how Lesley supported
herself, it is beyond dispute that the large part of
her support came from some other source(s).

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2
had a health insurance policy with State Farm,
on which Lesley was a named insured, and
several automobile insurance policies and
umbrella policies issued by State Farm that
provided for uninsured motorist coverage.
The automobile policies defined insureds for
purposes of uninsured motorist coverage to
include “a person related to [the named
insured]” “who lives with [the named
insured].” Similarly, the umbrella policy
defined an insured to include “the following
residents of the named insured’s household:
(1) the named insured’s relatives, and (2)
anyone under the age of 21 under the care of
the person named above.” Thus, both policies
required that Lesley “live[] with” or “reside[]”
with Ronnie Young to qualify as an insured.
Ronnie Young initially filed a claim only on
the health insurance policy. Although there
was no question that Lesley was covered by it,
and although Ronnie Young stated that he was
not making a claim for uninsured motorist
coverage, State Farm’s health insurance
division notified the automobile insurance
division about the potential application of
uninsured motorist and medical payments
coverage under the automobile policies. State
Farm also began an investigation into the facts
surrounding the accident and Lesley’s status as
a member of the household. The investigation
delayed the payment under the health
insurance policy.
The plaintiffs sued in state court seeking
coverage for Lesley under the uninsured
motorist provisions of Ronnie Young’s
automobile and umbrella policies. Plaintiffs
asserted breach of contract and the
independent tort of bad faith breach of
contract.2 State Farm counterclaimed for a
declaratory judgment denying Lesley the rights
of the insured.
Following removal to federal court, State
Farm moved for summary judgment. The
court struck certain evidence submitted by
plaintiffs in response to the motion and entered
summary judgment. Then, in denying
plaintiffs’ motion to reconsider, the court
refused to consider a newly-submitted affidavit
of Lesley’s, ruling that it was untimely.
Plaintiffs appeal the summary judgment and
the exclusion of certain “expert” testimony and
of the affidavit.
II.
Plaintiffs contend that the undisputed facts
establish that Lesley was a resident of her
parents’ home and that her absence from it
was merely a “sojourn” undertaken with intent
to return. They argue that, at a minimum, they
have submitted enough evidence to create a
material issue of fact as to whether Lesley
Young still resided at home.
There is no dispute with respect to the
underlying historical facts, but only as to the
consequences of Lesley’s extended absence
from home and whether, as a matter of law,
she can qualify as a “resident.” This is an issue
that is proper for summary judgment. See
Johnson v. Preferred Risk Auto. Ins. Co.,
659 So. 2d 866, 870 (Miss. 1995).
Under Mississippi law, “residence” requires
(1) presence and (2) an intent to remain for
some time. Id. at 872. This does not require
that Lesley remain at her parents’ home the
entire year, however, and the analysis of
residency under Mississippi law recognizes a
flexible, case-by-case approach, which includes
a balancing of all of the facts. Id. (“‘Resident’
has no technical or fixed meaning; the term is
‘flexible, elastic, slippery, and somewhat
ambiguous.’”).
2 Plaintiffs also included an opaque assertion of
fraud related to State Farm’s handling of their
claims. They have not, however, presented any
evidence of bad faith or fraud. Instead, the
evidence shows that State Farm had a legitimate
reason to delay in paying on the health insurance
policy, even though they were ultimately liable
under it. Because there is no evidence supporting
(continued...)
(...continued)
this charge, and because plaintiffs do not seriously
defend it on appeal, we disregard this portion of the
complaint.

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3
Plaintiffs frame the issue as whether Lesley
was emancipated. They correctly observe that
if she was not, she must be considered a
resident of Ronnie Young’s household,
because “[a] minor is legally unable to
establish a residence separate and apart from
his or her parents.” Aetna Cas. and Sur. Co.
v. Williams, 623 So. 2d 1005, 1010 (Miss.
1993). Although the district court analyzed
the issue as one requiring interpretation of
State Farm’s policies and the definition of
insured, it is plain under Mississippi law that
the term “resident” in an uninsured motorist
provision must be construed broadly “to avoid
or preclude exception or exemptions from
coverage.” Id. at 1008.
The district court did not abuse its
discretion in excluding Lesley Young’s
untimely-submitted affidavit, and, as a result,
plaintiffs cannot establish a material fact as to
whether she intended to return home following
her travels.3 The only other statements
supporting this assertion were stricken from
Patricia Young’s affidavit, and plaintiffs do not
challenge that ruling.
Nevertheless, State Farm has not presented
sufficient evidence that Lesley or her parents
intended that she be emancipated. This is not
a case like Rennie v. Rennie, 718 So. 2d 1091,
1094 (Miss. 1998) in which “[s]ince [the child]
voluntarily chose emancipation, she may not
now revoke her irresponsible launch into
adulthood.” Rather, here there is no properly
submitted evidence at all with respect to
Lesley’s intentions, but only inferences that
can be drawn from her decision to travel for
over nine months with minimal contact with
her parents, apparently supporting herself in
large part on her own.
Nothing about this behavior is inconsistent
with plaintiffs’ argument that Lesley planned
to return home. Thus, the ultimate issue is
who bears the burden of proof to establish or
deny residency. Because only an “insured” is
covered by the policies, plaintiffs bear the
initial burden to show that Lesley resided with
Ronnie Young. They met that burden when
they proved that she was a minorSSi.e., under
twenty-one years oldSSbecause minors legally
reside with their parents. See Aetna.
3 Likewise, the district court did not err in
striking Dale C. Crawford as an expert witness.
Though he worked in the insurance industry for
over 30 years, he could not be called on to testify
to the legal question of who is a “resident” under
Mississippi law. See Matthews v. Ashland Chem.
Co., 770 F.2d 1303, 1311 (5th Cir. 1985); Owen
v. Kerr-McGhee Corp., 698 F.2d 236, 240 (5th
Cir. 1983).

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4
At this point, the burden shifted to State
Farm to rebut plaintiffs’ showing by proving
that Lesley was not a minor because she had
been emancipated. The evidence of her
travels, combined with the limited contact and
financial support from her parents, is
insufficient, without more, to establish such
emancipation as a matter of law for purposes
of summary judgment. This is particularly true
given the undisputed facts properly submitted
by plaintiffs: that Lesley’s voter registration
remained in her parents’ county, that during
her travels she had not taken a full-time job to
support herself, that she never rented or
owned any property, that she left most of her
clothing at home with her parents, that they
had not sought a judicial emancipation, and
that she was given a phone card by her parents
to call while she traveled. As further
indication that they did not intend that Leslie
be emancipated, plaintiffs emphasize that
Ronnie Young maintained health insurance on
Lesley.
We do not decide the issue here, but only
determine that the question of intent is for a
fact finder and is not appropriate for summary
judgment. Accordingly, the summary
judgment is REVERSED and REMANDED
for further proceedings.4
4 State Farm's motion to dismiss the claims of
Ronnie and Patricia Young for lack of standing is
DENIED.

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