Household Resident Includes Stepchild Living Elsewhere?

Is a stepchild living elsewhere automatically considered a resident of your household? My insured's stepson, age seventeen, resides with his natural father, but occasionally visits his natural mother and spends the night.

He was driving his father's car when he caused a serious accident. He was sued in excess of his father's policy. His father's insurer paid the full bodily injury limits of the policy, and the injured plaintiff's insurer paid underinsured motorists. But now the plaintiff's insurer is suing my insured for the amount it paid in underinsured motorists coverage.

Is the stepson a resident of my insured's home, and does liability extend?

Ohio Subscriber

There is no clear cut answer to your question. Depending on the jurisdiction, courts have determined residency based on the facts presented by each individual case.

One court found, for insurance purposes, that a boy residing with his father following a divorce was not a resident of his mother's household. Some of the questions considered by the court in making this determination included: Did the child have a key to his mother's house? Did he keep clothes there? Who claimed him as a tax exemption? Were visits regularly scheduled? Was he shown on his mother's auto policy?

Finally, the court stated that more than physical presence was required in order to be a resident of a household, and added that other jurisdictions took into consideration the child's living habits with both parents.

In any event, your client's insurer must provide a defense under the terms of the policy.