Wrongful Death (Cotton States Mutual Ins. Co. v. Tuck)

Cotton States Mutual Ins. Co. v. Tuck

In the Tennessee Court of Appeals in Nashville, M2011-02445-COA-R3-CV

Chad and Jami McNair were married with two young children: DaKota and Ashlynne. In March 2009, the couple separated. Chad went to live with his step-grandparents, Olen and Patsy Gardner, while Jami and the children went to the home of Chad’s father and step-mother, Joe and Candy McNair. Approximately three months later, Jami went to a horse show in Alabama, leaving her children with Candy McNair. Candy took the kids to the home of her parents, Olen and Patsy Gardner, where Ashlynne tragically drowned in the backyard swimming pool.

Jami brought a claim against the Gardners and their insurance company. Later Chad and Jami sued Candy McNair asserting claims of negligent supervision and wrongful death, asking for $1,000,000 in damages.

The Cotton States insurance policy at issue excludes liability for “bodily injury” to any insured. The policy defines “insured” in the following manner: “you” and residents of “your” household who are either relatives, or under 21 years of age in the care of a person identified above. Cotton States argued that Jami and Ashlynne were in fact residents of the McNair household on the date when the drowning took place, therefore denying coverage under the policy for the child’s death.

The trial court denied the argument and found that mother and child were not residents of the McNair household on the date of Ashlynne’s death. Cotton States appealed, claiming that the trial court erred in requiring permanency in order to establish residency.

The Tennessee Court of appeals reviewed a great deal of testimony that focused on whether Jami and her children were residents of Candy McNair’s home during the three month time period between March 2009 through June 20, the day of the drowning.

The Court of Appeals affirmed the trial court’s decision, finding that overall, the facts in this case present a temporary living arrangement that would end as soon as Jami could afford to live on her own. The court specifically noted that the situation could be likened to a “temporary visit by a relative.”