COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67051 AMERICAN SELECT INSURANCE COMPANY: : : Plaintiff-Appellant : JOURNAL ENTRY : v. : AND : : OPINION MARTHA A. PAYNE, ET AL. : : : Defendant-Appellees : DATE OF ANNOUNCEMENT OF DECISION: MARCH 23, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-247420 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: RONALD A. RISPO DAVID C. LAMB Weston, Hurd, Fallon, Paisley & Howley 2500 Terminal Tower Cleveland, Ohio 44113-2241 For Defendant-Appellees: ELLIS B. BRANNON GARY MANTKOWSKI 6294 Ridge Road P.O. Box 189 Sharon Center, Ohio 44272 - 2 - SWEENEY, JAMES D., P.J.: Plaintiff-appellant American Select Risk Insurance Co., now American Select Insurance Co., appeals the trial court's decision denying its motion for summary judgment and granting the motion of the defendants-appellants Martha Payne and Viola Hoffman. The appellant filed an action for declaratory judgment seeking a determination that Martha Payne was not entitled to uninsured motorists coverage under the policy of Viola Hoffman. Martha Payne and Viola Hoffman are sisters. Although Mrs. Payne owns a residence in Latrobe, Pennsylvania, for the last six years she has spent every summer at her sister's home in Parma Heights, Ohio. On May 23, 1992, Mrs. Payne was returning to Pennsylvania from a three week visit to her sister. She was a passenger in a van driven by her niece, Barbara Zaniewski, when they were struck by an uninsured motorist. The accident occurred on the Ohio Turnpike in the Township of Jackson, Mahoning County, Ohio when Jerome Kaminski, the other driver, crossed the median and struck the van. Mrs. Payne sustained serious injuries, and her great niece, another passenger, was killed. On November 17, 1993, the affidavits of Mrs. Payne, Mrs. Hoffman and Mrs. Zaniewski were filed with the trial court. Martha Payne affirmed that she and Mrs. Hoffman are sisters; that she was a passenger in her niece's van at the time of the accident; that she was en route from Parma Heights to her home in Latrobe, Pennsylvania; that she has a separate bedroom at her sister's home - 3 - where her clothes and toiletries are kept year round; and that her mail was forwarded to her sister's address. Mrs. Payne affirmed that she assisted her sister in caring for her grandchildren during the summers of 1990, 1991, and 1992; and that she helped care for her ill brother-in-law during the summer of 1991. She did not pay rent, but performed household and lawn care tasks. She ate meals, went shopping, and engaged in other recreational activities with her sister. Mrs. Payne considered her sister's house to be her summer home. Mrs. Hoffman's affidavit corroborated that of Mrs. Payne as to their living arrangements. In addition Mrs. Hoffman affirmed that Mrs. Payne has resided with her in the summer since 1986; and that Mrs. Payne was free to enter and leave without permission. Mrs. Zaniewski affirmed that since 1986 she generally brought her aunt to Ohio on Memorial Day weekend and returned her to Pennsylvania on Labor Day weekend. On April 19, 1992 she brought Mrs. Payne to Ohio to assist in caring for her children, and was taking her back to Pennsylvania on May 23, 1992 at the time of the accident. She affirmed that she intended to bring her aunt back to Ohio in five or six weeks after a class she was taking in Oklahoma City was concluded. At the time of the accident, Mrs. Hoffman was the named insured on an automobile insurance policy issued by the appellant. The policy, under Part C - Uninsured Motorists Coverage, states: - 4 - INSURING AGREEMENT A. We will pay compensatory damages which an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury caused by an accident and sustained by an insured. The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle. We will pay under this coverage only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgment, or settlements. Any judgment for damages arising out of a suit brought without our written consent is not binding on us. B. "Insured" as used in this Part means: 1. You or any family member. (Emphasis in original). The term family member is defined in the definitional section of the policy as: G. "Family member" means a person related to you by blood, marriage or adoption who is a resident of your household. Family member also includes a ward or foster child under the age of 21 who is a resident of your household. (Emphasis in original). The appellant asserts two assignments of error: I. THE TRIAL COURT ERRED BY GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. II. THE TRIAL COURT ERRED WHEN IT DENIED PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT. As the Supreme Court held in Turner v. Turner (1993), 67 Ohio St.3d 337, pursuant to Civ.R. 56(C), summary judgment is appropriately rendered when no genuine issue as to any material - 5 - fact remains to be litigated; the moving party is entitled to judgment as a matter of law; it appears from the evidence that reasonable minds can come to but one conclusion; and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. The Turner Court cited to Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, and Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. In the case presently before this court, there is no dispute as to any material fact. The appellant contends that Mrs. Payne was not a resident of Mrs. Hoffman's household as required for coverage under the policy. The appellees argue that the policy does not preclude dual residency, and does not require that Mrs. Payne reside with Mrs. Hoffman year round in order to be covered under the policy. As in Shear v. West American Ins. Co. (1984), 11 Ohio St.3d 162, the policy before this court does not define household. In Shear, supra, the Supreme Court held that the term "household" must be given its common, ordinary, usual meaning; and that "household" is defined in Webster's Third New International Dictionary as "*** those who dwell under the same roof and compose a family: *** a social unit comprised of those living together in the same dwelling place ***." See also Thompson v. Preferred Risk Mut. Ins. Co. (1987), 32 Ohio St.3d 340, where the court affirmed the trial - 6 - court's ruling that brothers who lived together from September 1983 to February 1984 were residence of the same household. In Farmers Ins. of Columbus v. Taylor (1987), 39 Ohio App.3d 68, the court considered whether a child of divorced parents who lives with the mother, but visits the father on weekends and during the summer, is a resident of the father's household for the purpose of coverage under an uninsured motorists policy. The court determined that the child was a resident of the father's household, and held that the term resident refers to one who lives in the home of the named insured for some period of some duration or regularity, although not necessarily permanently, but excludes a temporary or transient visitor. These guidelines have been the determinative factor in other cases. See Snedegar v. Midwestern Indemn. Co. (1988), 44 Ohio App.3d 64; and State Farm Fire & Cas. Co. v. Davidson (1993), 87 Ohio App.3d 101. In the case sub judice, the appellant has advanced no argument which requires the trial court's determination be overruled. The evidence shows that although Mrs. Payne did not permanently reside with her sister, she did live in her sister's household for one- fourth of every year, and that this period of time occurred with regularity. Mrs. Payne was not a temporary or transient visitor. Since the test set forth in Taylor, supra, has been met, both of the appellant's assignments of error are overruled. Judgment affirmed. - 7 - It is ordered that appellees recover of appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. BLACKMON, J., and O'DONNELL, J., CONCUR JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .