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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Allstate Insurance Company v. Falgoust (06/01/2007) sp-6129

Allstate Insurance Company v. Falgoust (06/01/2007) sp-6129, 160 P3d 134

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

ALLSTATE INSURANCE COMPANY, )
) Supreme Court No. S-12090
Appellant, )
) Superior Court No.
v. ) 3AN-02-6444 CI
)
MELISSA V. FALGOUST; DOUGLAS J. ) O P I N I O N
FALGOUST; D.D., a minor, by and )
through his guardian ad litem; A.J., a minor, )
by and through his guardian ad litem; )
STATE OF ALASKA, DEPARTMENT )
OF ADMINISTRATION, )
)
Appellees. ) No. 6129 June 1, 2007
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Morgan Christen, Judge.

          Appearances:   Alfred Clayton, Jr.,  Maryanne
          Boreen,  Bliss, Wilkens & Clayton, Anchorage,
          for   Appellant.   Christine   S.   Schleuss,
          Anchorage, for Appellees D.D. and A.J.  Megan
          R.    Webb,   Assistant   Attorney   General,
          Anchorage,   David   W.   M rquez,   Attorney
          General,   Juneau,  for  Appellee  State   of
          Alaska, Department of Administration.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          MATTHEWS, Justice.


I.   INTRODUCTION
          The  household  exclusion in a homeowners  policy  bars
from  liability coverage the claims of an insured person  against
the  named insured.  Insured person includes any dependent person
in  [the  named  insureds]  care if  a  resident  of  [the  named
insureds] household.  The question presented is whether a  foster
child  is  an  insured person under the household exclusion.   We
answer  in  the  affirmative.  Foster children readily  meet  the
insured person definition, and other jurisdictions have so held.
II.  FACTS AND PROCEEDINGS
          This  is  a  declaratory  judgment  action  brought  by
Allstate Insurance Company.  Allstates amended complaint sought a
declaration that the household exclusion in the homeowners policy
that it issued to Melissa and Douglas Falgoust excluded liability
coverage of claims that the Falgousts former foster children D.D.
and  A.J.  had  asserted  against the Falgousts.   Allstate  also
sought a declaration that if its policy covered these claims, the
coverage Allstate provided was excess to coverage provided by the
State  of Alaska.  The final count of Allstates amended complaint
asserted  a  claim for equitable subrogation against  the  State.
This  count  concerned the claim of the estate of a third  foster
child,  S.M., who died as a consequence of an assault on  him  by
Melissa  Falgoust.   Allstate  settled  this  claim  and   sought
reimbursement from the State for its defense costs and the amount
of the settlement.
          The  superior  court set the context of  this  case  as
follows:
          1.   In  1996,  Melissa and Douglas  Falgoust
               became  licensed foster parents  through
               the   Division  of  Family   and   Youth
               Services   (DFYS),   State   of   Alaska
               Department   of   Health   and    Social
               Services.
               
          2.   Between  1997  and July  27,  1999,  the
               Falgousts  were  the foster  parents  of
               D.D.,  a minor, and A.J., a minor. S.M.,
               a   minor,  was  also  placed  with  the
               Falgousts  for foster care between  June
               1998 and July 27, 1999.
               
          3.   On   July  27,  1999,  Melissa  Falgoust
               fatally  injured S.M.  Melissa  Falgoust
               pled  no  contest and was  convicted  of
               manslaughter,  a  Class  A   felony   in
               violation of AS 11.41.120.
               
          4.   Douglas Falgoust was never charged  with
               a crime relating to S.M.s death.
               
          5.   A.J.  and D.D. claim that they sustained
               damages  as  a  result  of  events  they
               witnessed in the Falgousts foster  home.
               They also claim that they suffered abuse
               in  the  Falgousts foster home prior  to
               July 27, 1999.
               
          6.   Neither  of  the Falgousts were  charged
               with  criminal conduct relating to their
               treatment  of A.J. and D.D.  There  have
               not been any findings of fact made in  a
               civil or criminal proceeding relating to
               A.J.s   and  D.D.s  treatment   in   the
               Falgousts care.
               
          7.   Allstate  Insurance  Company  (Allstate)
               provided homeowners insurance to Melissa
               and Douglas Falgoust for their residence
               in  Anchorage, Alaska where  they  lived
               with the three foster children.
               
          8.   Allstate and the State of Alaska settled
               claims presented by S.M.s estate.
               
          9    Allstates    Amended    Complaint    for
               declaratory   relief   against   Melissa
               Falgoust, Douglas Falgoust, D.D.,  A.J.,
               and  Department of Administration, State
               of  Alaska, filed April 17, 2003, seeks:
               (1)   declaration  of  no  coverage  for
               Melissa  Falgoust  arising  from   D.D.s
               claims;  (2) declaration of no  coverage
               for  Douglas Falgoust arising from D.D.s
               claims;  (3) declaration that  Allstates
               coverage  of  Melissa  Falgoust  arising
               from D.D.s claim, if any, is excess; (4)
               declaration  that Allstates coverage  of
               Douglas  Falgoust  arising  from   D.D.s
               claim,   if   any,   is   excess;    (5)
               declaration  of no coverage for  Melissa
               Falgoust  arising from A.J.s claim;  (6)
               declaration  of no coverage for  Douglas
               Falgoust  arising from A.J.s claim;  (7)
               declaration  that Allstates coverage  of
               Melissa  Falgoust  arising  from   A.J.s
               claim,   if   any,   is   excess;    (8)
               declaration  that Allstates coverage  of
               Douglas  Falgoust  arising  from   A.J.s
               claim,  if  any,  is  excess;  and   (9)
               equitable subrogation.
               
          10.  In   a  separate  case  pending  in  the
               superior  court, D.D. and A.J.  filed  a
               complaint  against the State of  Alaska,
               Department   of   Health   and    Social
               Services,  Office of Childrens Services,
               Douglas  Falgoust  and Melissa  Falgoust
               alleging  claims arising  from  acts  or
               omissions  of the Falgousts  while  A.J.
               and  D.D. were in their care.  See  Case
               No. 3AN-04-4058 Civil.
               
          11.  The  Alaska  Foster Parent Handbook  was
               prepared   by   DFYS  (now   Office   of
               Childrens  Services).  The  Handbook  is
               supposed  to  be  given  to  all  foster
               parents.   It  has  a  section   called,
               Liability  Insurance  that  states,   in
               part:
               
                    Liability coverage is provided
                    for all Division of Family and
                    Youth Services foster families
                    .  .  .  .   This coverage  is
                    designed  for  legal   actions
                    brought  against  the   foster
                    parents  because of accidental
                    injury  to the child or damage
                    caused by the child to someone
                    elses   property  or   person.
                    This  coverage  is  in  effect
                    during any period in which you
                    are providing foster care.
                    
          12.  7 AAC 53.100 provides, in part:
               
                    (a)  It  is the policy of  the
                    State  of  Alaska  .  .  .  to
                    indemnify and defend a  foster
                    parent  for injuries occurring
                    during  the  performance   and
                    within  the scope of  duty  of
                    the   foster   care   program,
                    including    (1)    accidental
                    injury  to  a child placed  by
                    the division; or (2) injury to
                    others  by  a child placed  by
                    the  division.  (b) The  state
                    will  not  defend or indemnify
                    foster  parents  for  acts  of
                    intentional    and     willful
                    misconduct . . . .
                    
          13.  The   State  is  self-insured  for   any
               obligation it has to defend or indemnify
               foster parents.
               
          14.  Allstates  homeowners  policy   provides
               that  it  is  to  be treated  as  excess
               coverage  when there is other  insurance
               for a loss.  (Other Coverage Clause).
               
          With  respect to the claims in the separate tort action
described  by  the superior court in paragraph  10,  Allstate  is
currently defending the Falgousts under a reservation of rights.
          In  the  present  action  Allstate  moved  for  summary
judgment.   Allstate sought (1) a declaration that the  household
exclusion  relieves Allstate from any duty to defend or indemnify
the  Falgousts with respect to the claims of D.D. and  A.J.;  and
(2)  a  declaration that the State is the primary insurer of  the
Falgousts  and  that any coverage by Allstate is  excess  to  the
States  coverage.   The  superior court denied  both  aspects  of
Allstates motion.
          The  superior  court then held a status  conference  in
order to determine what issues remained to be resolved.  Allstate
argued  that the court should issue a declaration that the  State
has  a  duty  to defend the Falgousts with respect to the  claims
brought against them by D.D. and A.J.  Allstate noted that it was
presently conducting the defense of these claims and that it  had
an  equitable claim against the State for its defense costs.  The
State  countered that the question of the States duty  to  defend
the  Falgousts on the claims of A.J. and D.D. was not before  the
court  and properly should be decided in the separate tort action
that  had been brought by A.J. and D.D.  No decision was made  on
this   question  at  the  status  conference.   Soon  after   the
conference  Allstate filed a memorandum arguing that  its  claims
against  the State concerning the defense of the claims  of  D.D.
and A.J. were fairly within its amended complaint.
          At  about  the same time, the State filed a motion  for
summary   judgment  seeking  dismissal  of  Allstates   equitable
subrogation claim arising out of Allstates settlement  on  behalf
of  the  Falgousts  with  the estate of S.M.   Allstate  did  not
directly oppose this motion.  Instead, it moved for leave to file
a   second  amended  complaint.   The  proposed  second   amended
complaint  deleted the subrogation claim in the amended complaint
with  respect to the defense and settlement of the claim  of  the
estate of S.M.  The proposed second amended complaint also sought
a  declaration that the State had a duty to defend and  indemnify
the  Falgousts for some or all of the claims asserted by A.J. and
D.D.  and  sought  damages against the State for Allstates  costs
incurred in defending the Falgousts with respect to those claims.
The  superior  court denied Allstates motion  to  file  a  second
amended  complaint,  stating that Allstate could  seek  the  same
relief  in  the tort action filed by A.J. and D.D.  Subsequently,
the   court  granted  the  States  motion  for  summary  judgment
pertaining  to Allstates equitable subrogation claim relating  to
the  claim of the estate of S.M., observing that Allstate had not
opposed the motion.
          Allstate  asked  the superior court to incorporate  its
various  rulings  into a final judgment so  that  Allstate  could
appeal.  The court obliged and entered written findings of  fact,
conclusions  of  law,  and a final judgment against  Allstate  in
favor of the Falgousts and the State.
          Allstate  now appeals, challenging the superior  courts
conclusion   that  the  household  exclusion  in  the   Falgousts
homeowners policy did not exclude the claims of A.J. and D.D. and
the  courts refusal to entertain Allstates claim that  the  State
has a duty to defend the Falgousts with respect to the claims  of
D.D. and A.J.
III. DISCUSSION
     A.   The Household Exclusion Applies.
          The main question presented in this case is whether the
claims  of  the former foster children A.J. and D.D. against  the
Falgousts are excluded by the terms of the household exclusion in
the Falgousts homeowners policy.
          The   liability  insurance  coverage  provided  by  the
homeowners  policy  issued by Allstate to the Falgousts  protects
insured  person[s] from liability claims brought by others.   The
term   insured  person[s]  encompasses  the  Falgousts  as  named
insureds and also includes relatives and dependent persons in the
Falgousts  care  residing  with the  Falgousts.   The  homeowners
policy defines insured persons as:
          Insured  person(s)   means  you  and,  if   a
          resident of your household:
          (a) any relative; and
          (b) any dependent person in your care.
          
(Emphasis in original.)  The policy defines you and your  as  the
named insured:
          You  or  your  means the person named on  the
          Policy  Declarations as the insured and  that
          persons  resident spouse. [Here, Douglas  and
          Melissa Falgoust.]
          
(Emphasis in original.)
          Although  the  policy  thus broadens  the  category  of
insured persons to include resident relatives and dependents,  it
also  provides  that  claims brought by insured  persons  against
other  insured  persons  under  the  policy  are  excluded   from
liability coverage.  The exclusion provides:
          We  do  not cover bodily injury to an insured
          person  or property damage to property  owned
          by  an insured person whenever any benefit of
          this   coverage  would  accrue  directly   or
          indirectly to an insured person.
          
(Emphasis   in  original.)   This  is  the  so-called   household
exclusion that is the centerpiece of this case.
          The  superior court denied Allstates motion for summary
judgment  concerning the household exclusion because it concluded
that the word dependent is ambiguous.  The court stated:
               Regardless  of the length of  placement,
          all  foster  care is intended to provide  the
          children  with  a  safe,  caring  environment
          where   they  are  clothed,  fed,  sheltered,
          disciplined  and  supervised.   Allstate   is
          correct  that  there  is conclusive  evidence
          that  A.J.  and D.D. lived with the Falgousts
          for  extended  periods of time and  that  the
          Falgousts  cared  for  them,  but  the   term
          dependent  is  susceptible to more  than  one
          meaning.   Dependent is  often  used  in  the
          sense  of being financially dependent.   A.J.
          and  D.D.  were in the legal custody  of  the
          State  of Alaska at the time of S.M.s  death.
          They  were  financially  dependent  upon  the
          State of Alaska (and, in D.D.s case, upon his
          natural  parents).  They were not financially
          dependent upon [the] Falgousts.
          
(Citations  omitted.)  Having found that the  term  dependent  is
ambiguous, the superior court construed the ambiguity against the
insurer and thus concluded that the foster children did not  fall
within the meaning of the term.
          We  construe  insurance policies in such a  way  as  to
honor  a  lay  insureds reasonable expectations.1   And,  as  the
superior  court  correctly  observed,  ambiguities  in  insurance
policies should be construed most favorably to an insured.2   But
the  latter  rule  only  applies  when  there  are  two  or  more
reasonable interpretations of particular policy language.3  Here,
for  the reasons described below, we conclude that this condition
is not present.
          In our view the term any dependent person in the policy
cannot  reasonably be read as referring only to persons  who  are
financially  dependent  on  the named  insureds.   The  term  any
dependent  person is inclusive.  The only textual limitations  on
the term are that the dependent person must be in the care of the
named  insured  and  a resident of the named insureds  household.
There  is  no  suggestion  in  the  policy  language  that   some
subcategories of dependent persons that satisfy these limitations
are meant to be excluded.
          Policy   language  is  construed  in  accordance   with
ordinary and customary usage.4  The common usage of the adjective
dependent when used to describe a person is lacking the necessary
means  of support and receiving aid from others (as from  persons
outside  the immediate family or from a private or public welfare
agency)  such  as a program of assistance for children.5   Blacks
first  definition of the noun dependent is [o]ne  who  relies  on
another  for  support.6  Under these definitions foster  children
clearly are dependent persons.
          We  conclude that the term any dependent person in your
care as used in the policy includes foster children who have been
committed to the care of the named insured.  If the term did  not
encompass  foster  children, it would  seldom  be  applied.   The
household  exclusion (setting aside for the moment the  dependent
person clause) encompasses any relative who is a resident of  the
named  insureds household.  Thus, all natural or adopted children
of  the  named insured are included regardless of their dependent
status.  Adult dependent persons not related to the named insured
are included within the term, but that is a category that is much
less common than the foster parent/child relationship.
          Case   law   from  other  jurisdictions  supports   our
conclusion.   Allstate Insurance Co. v. Thom, from the  Court  of
Appeals  of Michigan, is squarely on point.7 In Thom an insurance
company  sought a declaratory judgment that it did  not  have  an
obligation  to defend or indemnify a foster parent whose  alleged
negligence  caused the injury of a foster child who had  been  in
the foster parents custody for some eleven months.8  The Michigan
Court  of  Appeals  held that the foster child  was  a  dependent
person  in the foster parents care and thus an insured under  the
          household exclusion of the foster parents homeowners policy:
               On  de  novo review, we agree  with  the
          lower   court  that  [the  child]  met   this
          definition,   even   though   [the    childs]
          placement  with  the  [foster  parents]   was
          temporary and the placement agency . . .  had
          ultimate responsibility and control over [the
          childs] care and funded his support.[9]
          
          Other  courts  have also found foster  children  to  be
within  the  household  exclusion of the homeowners  policies  of
their  foster parents.10  But there is a difference  between  the
homeowners  policy  in this case and the homeowners  policies  in
most  other  cases.   Whereas the present policy  speaks  of  any
dependent  person  in  [the insureds] care,  the  other  policies
commonly refer to any person under twenty-one in the care of  the
insured.11  It appears that by using the present language Allstate
sought  to  broaden  the  insured  persons  category  to  include
dependent adults.  Since virtually all non-relative minors in the
care of an insured are dependents, a convenient way to accomplish
this  purpose  was  to describe the newly broadened  category  in
terms of dependency.  Therefore, despite the language difference,
we  believe that these cases are persuasive precedents as to  the
intended  operation of the household exclusion  with  respect  to
foster children.
          The  remaining question is whether A.J. and  D.D.  were
residents of the Falgousts household.  The homeowners policy does
not  define the term resident.  A.J. and D.D. argue that the term
resident  is ambiguous and requires further factual inquiry.   We
disagree.
          In  determining  who  qualifies  as  a  resident  of  a
household under insurance policies, we have declined to formulate
a fixed rule but instead look closely at the facts of each case.12
We have stated that a child may be a resident of the household of
one  parent for coverage purposes even when the other parent  has
custody.13   In  Dugan v. Atlanta Casualty  Co.,  we  noted  that
residents  differs from visitors [or] guests in that  the  former
term  requires something more than a temporary habitation.14   In
this case, A.J. and D.D. lived with the Falgousts for periods  of
fifteen and seven months respectively before S.M.s death.15  There
is no evidence that there were definite plans for either child to
leave the Falgousts care at that time.16  Without demarcating the
precise time boundary separating residents from temporary guests,
we  think  that it is clear that A.J. and D.D. were residents  of
the  Falgousts  household.   We are supported  in  this  view  by
numerous decisions of courts in other jurisdictions holding  that
foster   children  are  residents  for  the  purpose  of  similar
homeowners policies where the foster children had been with their
foster  parents  for more than a few months and had  no  definite
date of departure.17
          We  conclude that the household exclusion excludes  the
claims  of  D.D.  and  A.J.  from coverage  under  the  Falgousts
homeowners  policy.  Allstate thus has no further  obligation  to
defend the Falgousts against those claims.18
     B.   The  Court  Did  Not Err in Refusing To Adjudicate  the
          States Duty To Defend.
          
          Allstate  also  challenges the superior  courts  ruling
that  (1)  declined  to  adjudicate  whether  the  State  had  an
obligation to defend the Falgousts against the claims of D.D. and
A.J.;  and  (2)  declined to rule whether Allstate  had  a  claim
against the State for its costs incurred in the defense of  those
claims.   It  is  our view that the superior court  did  not  err
concerning  these points.  Given the superior courts ruling  that
Allstates  policy provided coverage to the Falgousts,  there  was
substantial  uncertainty  as  to how the  defense  responsibility
between  Allstate and the State should be shared.  The answer  to
this  question was complex because of the uncertainty as to which
of  the claims might be partially excluded by the intentional and
willful  misconduct exclusion applicable to the State19  and  the
similar  exclusion relating to intentional or  criminal  acts  or
omissions in the Allstate policy.  Without knowing which  of  the
claims of D.D. and A.J. were excluded under these provisions, the
court  would face great difficulty in attempting to sort out  the
respective defense responsibilities of Allstate and the State.
          Under  todays decision the uncertainty with respect  to
Allstates obligations is ended.  Nonetheless, there is little  to
recommend  remanding  this  case to  the  superior  court  for  a
declaration  concerning  the  States  duty  to  defend   or   for
adjudication of any monetary claim that Allstate may have against
the  State.   Declaratory judgments are primarily useful  because
they  provide  parties with legal guidance regarding  prospective
conduct.20  As a result of our decision on the household exclusion
issue,  Allstates  concerns with respect  to  whether  it  should
continue  to  conduct its defense of the Falgousts  and,  if  so,
whether  it should seek State participation in their defense  are
put  to rest.  If Allstate has a claim against the State, it  has
now fully taken shape, and Allstate can decide whether or not  to
pursue  it.   Allstate may do so either as a cross-claim  in  the
separate  tort action brought by D.D. and A.J., as  suggested  by
the  superior court,21 or in an independent action.  Employing  a
declaratory judgment proceeding is no longer either necessary  or
appropriate.
IV.  CONCLUSION
          For  the  above reasons, the judgment in this  case  is
reversed  with  respect  to the applicability  of  the  household
exclusion  and  affirmed  with respect  to  the  superior  courts
refusal   to   adjudicate  questions  of   the   States   defense
responsibility.   This  case  is  therefore  REVERSED  IN   PART,
AFFIRMED  IN  PART,  and  REMANDED  for  entry  of  judgment   in
accordance with this opinion.
_______________________________
     1     Allstate Ins. Co. v. Teel, 100 P.3d 2, 6 (Alaska 2004)
([A]lthough  we  will  not  ignore or rewrite  provisions  in  an
insurance  contract, even unambiguous language  in  an  insurance
contract  will  be  interpreted to comport  with  the  reasonable
expectations of a layperson.); C.P. ex rel. M.L. v. Allstate Ins.
Co.,  996  P.2d 1216, 1222 (Alaska 2000) ([B]ecause an  insurance
policy  is a contract of adhesion, we construe it to give  effect
to the insureds reasonable expectations.).

     2     Morgan v. Fortis Benefits Ins. Co., 107 P.3d 267,  270
(Alaska  2005);  State Farm Mut. Auto. Ins. Co. v.  Lawrence,  26
P.3d 1074, 1080 (Alaska 2001); C.P., 996 P.2d at 1222.

     3     See,  e.g., Krossa v. All Alaskan Seafoods,  Inc.,  37
P.3d  411,  416 (Alaska 2001) (A contract is ambiguous  only  if,
taken   as  a  whole,  it  is  reasonably  subject  to  differing
interpretations. (quoting Williams v. Crawford, 982 P.2d 250, 253
(Alaska 1999))); 11 Samuel Williston & Richard A. Lord, Williston
on  Contracts   30:4 (4th ed. 1999) (noting that  a  contract  is
ambiguous   if   the   written  instrument   remains   reasonably
susceptible to at least two reasonable but conflicting meanings).

     4     See  C.P.,  996 P.2d at 1223 n.41 (using the  ordinary
usage of the term accident to interpret an insurance policy).

     5     Websters Third New International Dictionary 604 (1961)
(emphasis omitted).

     6    Blacks Law Dictionary 470 (rev. 8th ed. 2004).

     7    No. 203676, 2001 WL 1523847 (Mich. App. May 18, 2001).

     8    Id. at * 1.

     9    Id.

     10     Merchs. Mut. Ins. Co. v. Artis, 907 F. Supp. 886, 890
(E.D.  Pa.  1995);  Country Mut. Ins. Co. v.  Peoples  Bank,  675
N.E.2d  1031, 1033-34 (Ill. App. 1997); Prudential Prop.  &  Cas.
Ins.  Co.  v.  LaMarr, 635 N.E.2d 63, 65 (Ohio App. 1993);  State
Farm  Fire  &  Cas. Co. v. Breazell, 478 S.E.2d  831,  833  (S.C.
1996);  Easter ex rel. M.D.E. v. Providence Lloyds Ins.  Co.,  17
S.W.3d 788, 792 (Tex. App. 2000).

     11     Merchs.  Mut. Ins. Co., 907 F. Supp. at 888;  Country
Mut.  Ins.  Co., 675 N.E.2d at 1033-34; Prudential Prop.  &  Cas.
Ins.  Co.,  635  N.E.2d at 64; State Farm Fire &  Cas.  Co.,  478
S.E.2d at 832; Easter, 17 S.W.3d at 790; see also 9A Steven Plitt
et  al., Couch on Insurance 3D  128:2 (2005) (stating that it  is
common   for  homeowners  policies  to  expressly  exclude   from
liability protection other persons under the age of 21 and in the
care  of  the insured or their resident relatives); 7A John  Alan
Appleman,  Insurance Law and Practice  4501.04 (Walter F.  Berdal
ed.  1979)  (The  definition of the insured in homeowners  policy
includes  the  named  insured stated in the  declaration  of  the
policy and includes if residents of the named insureds household,
his  spouse, the relatives of either, and any other person  under
the age of twenty-one in the care of an insured. ).

     12     Dugan v. Atlanta Cas. Cos., 113 P.3d 652, 657 (Alaska
2005).

     13     Simmons v. Ins. Co. of N. Am., 17 P.3d 56, 64 (Alaska
2001).

     14    Dugan, 113 P.3d at 658.

     15    The record also suggests that each child had lived with
the  Falgousts  before the immediate period of  time  leading  to
S.M.s death such that they had each spent a total of about twenty-
two months in the Falgousts care.

     16    Even if such plans existed, we are not convinced that a
set date of departure would necessarily destroy residence status.
Otherwise, a scheduled future move would leave children  with  no
residence  in  the eyes of the law, regardless of how  long  they
might have lived in their current placement.

     17    See Merchs. Mut. Ins. Co., 907 F. Supp. at 890 (holding
that  foster children who lived with their foster parents for  at
least  nine  months  and  had  no set  date  for  departure  were
residents   of  their  foster  parents  household   under   their
homeowners policy); Country Mut. Ins. Co., 675 N.E.2d at  1033-34
(holding  that  a foster child who lived with her foster  parents
for  twelve  months  and  had no set date  for  departure  was  a
resident  of her foster parents household under their  homeowners
policy);  Prudential  Prop. & Cas. Ins. Co.,  635  N.E.2d  at  65
(holding  that  a foster child who lived with her foster  parents
for more than six months and had no set date for departure was  a
resident  of her foster parents household under their  homeowners
policy);  State Farm Fire & Cas. Co., 478 S.E.2d at 832  (holding
that  a  foster child who had lived with his foster  parents  for
twenty months and had no set date for departure was a resident of
his  foster  parents  household under their  homeowners  policy);
Easter,  17 S.W.3d at 790 (holding that a foster child who  lived
with  her  foster parents for five months was a resident  of  her
foster parents household under their homeowners policy).  But see
Risk  Mgmt.  Div., Gen. Servs. Dept of State ex rel.  Apodaca  v.
Farmers  Ins.  Co.  of Ariz., 75 P.3d 404, 410 (N.M.  App.  2003)
(remanding for the lower court to consider 1) the intent  of  the
parties to the insurance contract and 2) the nature of the childs
stay  in  the foster home where the foster child in question  had
lived with his foster parents for more than six months).

     18    See Merchs. Mut. Ins. Co., 907 F. Supp. at 890 (holding
that  an  insurance  company had no duty to defend  or  indemnify
where  a policys household exclusion applied); Country Mut.  Ins.
Co.,  675  N.E.2d  at  1031-32 (recognizing  that  if  a  policys
household exclusion applies, the insurance company has no duty to
defend  or indemnify); State Farm Fire & Cas. Co., 478 S.E.2d  at
832  (affirming  the  lower  courts decision  that  an  insurance
company  did  not have a duty to defend or indemnify because  the
household exclusion applied).

     19    See 7 AAC 53.100(b).

     20     See  Anchorage Chrysler Ctr., Inc. v. DaimlerChrysler
Corp.,  129 P.3d 905, 912 (Alaska 2006) (noting that two  factors
favoring  the  issue of a declaratory judgment are (1)  when  the
judgment  will serve a useful purpose in clarifying and  settling
the  legal relations in issue, and (2) when it will terminate and
afford  relief from the uncertainty, insecurity, and  controversy
giving  rise to the proceeding (quoting Broadview Chem. Corp.  v.
Loctite  Corp., 417 F.2d 998, 1001 (2d Cir. 1969))); 10B  Charles
Alan  Wright, Arthur R. Miller & Mary Kay Kane, Federal  Practice
and  Procedure   2751  (3d ed. 1998) ([The  declaratory  judgment
remedy]  gives  a  means by which rights and obligations  may  be
adjudicated in cases involving an actual controversy that has not
reached  the  stage  at which either party may  seek  a  coercive
remedy  and in cases in which a[nother] party who could  sue  for
coercive  relief  has  not  yet  done  so.);  22A  Am.  Jur.   2d
Declaratory  Judgments  1 (2003) (A declaratory  judgment  is  an
action in which the court declares the rights, duties, status, or
other legal relations between the parties.  Declaratory judgments
resolve  uncertainties and controversies before  obligations  are
repudiated, rights are invaded or wrongs are committed.).

     21    If permitted by the judge in the tort case.

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