Opinion
Case No. 5D00-1146
Opinion filed August 31, 2001
Appeal from the Circuit Court for Osceola County, John H. Adams, Sr., Judge.
D. Paul McCaskill, Orlando, for Appellants.
Michael C. Tyson, Lori A.W. Smith, Carlos M. Colombo of Zimmerman, Shuffield, Kiser Sutcliffe, P.A., Orlando, for Appellee.
Marsha Hanson and her daughter Heather Kinsey appeal a summary judgment finding that Heather was not a family member residing in Marsha's Nevada household when she was injured in a Florida automobile accident and was not an insured under a Liberty Mutual Fire Insurance Company policy issued in Nevada to Marsha.
Both the appellant and appellee agree that whether Heather was a resident family member in Marsha's household must be construed according to Nevada law. Nevada reserves resolution of the issue of fact of residency for the jury. In this case, although the greater weight of the evidence favors the finding that Heather was not a resident of the Nevada household, facts do exist that supports Heather's assertion to the contrary and summary judgment was improper. See Mallin v. Farmers Ins. Exchange, 839 P.2d 105, 118 (Nev. 1972) (Handelsman, D.J., dissenting) (the issue of whether an individual is a "resident" for purposes of a policy exclusion is one of fact for the jury); Moore v. Moore, 336 P.2d 1073, 1074 (Nev. 1959) (in a divorce proceeding, the husband's residence and his intent were factual matters for the trier of fact's determination to the same extent as any other matters of fact) (citations omitted).
We vacate the summary judgment and remand for further proceedings.
PETERSON, GRIFFIN and SAWAYA, JJ., concur.