A homeowners’ policy does not cover injuries a woman suffered when rushed by a pit bull while at a separate home a mile away, owned by the insured, but occupied by the insured’s son and grandson; the Roanoke U.S. District Court grants summary judgment to the insurance carrier.
Norman E. Barker (Norman) lives with his wife at 750 Estates Road in Roanoke, where he has lived for the last 20 years. No one has resided with the couple for the past seven years. Previously, the couple lived at 3317 Ventnor Road in Roanoke. However, since their move 20 years ago, they have not owned any personal property which is kept inside the Ventnor Road house. They do keep an RV at 3317 Ventnor Road, which is parked outside the fence that surrounds the house. The distance between the 3317 Ventnor Road house and the 750 Estates Road house is about 1.3 miles.
Norman P. Barker (Preston) is Norman Barker’s son. Preston lives at 3317 Ventnor Road with his son, Norman’s grandson. The property is still owned by Norman, but Norman does not collect rent from Preston. Preston has lived at 3317 Ventnor Road for his entire life. Preston pays the utilities and performs any repairs to the 3317 Ventnor Road house. Norman rarely visits Preston at the Ventnor Road address. However, Norman goes to the property about once a month to work on the RV. Preston’s son also visits Norman, his grandfather, at 750 Estates Road about once a month.
Plaintiff alleges that on Sept. 9, 2014, she was walking in her neighborhood and approached the house at 3317 Ventnor Road, where Preston’s son was struggling to control a pit bull, Hercules. The pit bull ran to plaintiff, jumped on her and caused significant injuries. Plaintiff sued Norman and Preston. She also filed this declaratory judgment action against Norman, Preston and State Farm, Norman’s homeowners carrier.
The court concludes Norman and Preston are not residents of the same household. State Farm has presented evidence that the Barkers did not consider Preston to be a resident of Norman’s household at the time of the incident. That Norman visited the Ventnor Road property and that Preston’s son visited his grandfather at 750 Estates Road on a monthly basis is relevant to whether Preston’s son visited Norman’s house at approximately the same intervals, does not support the proposition that Preston was a resident of Norman’s household, as required by the definitional language of the homeowners policy.
Further, Preston is responsible for maintenance at the Ventnor Road property – not maintenance at Norman’s house. There is no indication that Preston assists with repairs at the 750 Estates Road house, keeps personal property at 750 Estates Road, receives substantial mail at that residence or maintains a room or other private space there. Norman and Preston do not live “under one roof” or “within one curtilage” as Norman lives 1.3 miles away from Preston.
Plaintiff has not met her burden in demonstrating that Preston is a resident of Norman Barker’s household. The court believes this case is similar to Hatcher v. Nationwide Mut. Ins. Co., 70 Va. Cir. 430 (Va. Cir. 2000), in many important aspects.
Because a declaratory judgment as to whether Norman is an owner of the dog Hercules will not serve a useful purpose nor terminate and afford relief from the statecourt controversy giving rise to the instant proceeding, the court will dismiss the request for declaratory relief as to ownership of the dog.
Summary judgment for State Farm.
Bryant v. State Farm Fire & Cas. Co. (Conrad) No. 7:16cv504, May 23, 2017; USDC at Roanoke, Va.; Jeffrey L. Dorsey for plaintiff; Theodore I. Brenner for defendant. VLW 017-3-285, 12 pp.
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