On October 14, 2014, the Supreme Court of Ohio handed down a merit decision in Schill v. Cincinnati Ins. Co.,  2014-Ohio-4527. At issue in the case was the availability of umbrella coverage from an insurance policy in a wrongful death case. The answer turned on the definition of domicile in the policy.  In a unanimous opinion written by Justice Pfeifer, the court held that domicile means the place where a person resides, intends to remain, and to return when away temporarily.  In the context of this case, that meant no umbrella coverage in the death claim. The case was argued November 6, 2013.

Case Background

While riding his bicycle in Geauga County, Ohio, Miles Coburn was killed by a car driven by Robert Schill. Robert was driving his own car, which was insured by a liability policy in the amount of $500,000. Coburn’s widow, Peggy Spaeth, filed a wrongful death suit against Robert and his insurance company. Spaeth settled with the insurer.  Robert then sought additional coverage under the personal umbrella policy of his parents, James and Jean Schill, as a definitional insured under their policy.  That policy was issued by Cincinnati Insurance Company (CIC).

Procedural Posture

CIC denied coverage under the umbrella policy, and Robert filed a declaratory judgment action seeking a declaration that CIC owed him a duty of indemnification in the wrongful death case. CIC counterclaimed against Robert and Spaeth.  The trial court consolidated the cases, and granted summary judgment to CIC on the issue of coverage. Robert assigned his coverage claims to Spaeth as part of a settlement, and Spaeth pursued the appeal of the trial court judgment.  The Eighth District Court of Appeals reversed, finding James was domiciled in Ohio for insurance company purposes, and thus Robert was covered under the umbrella policy. The Supreme Court of Ohio accepted jurisdiction on the question of domicile.

Read the oral argument preview of this case here and the analysis of that argument here.

Useful Statutes and Precedent

R.C. 5747.24 (B)(1) (to be presumed domiciled outside Ohio for tax purposes, a person must not only reside at least 182 days a year outside Ohio, but must also file a statement with the Ohio Tax Commissioner confirming that he or she is not domiciled in Ohio.)

R.C. 5747.24(C)(failure to file the appropriate statement with the Ohio Tax Commissioner creates a rebuttable presumption that a person is domiciled in Ohio for tax purposes)

Sturgeon v. Korte, 34 Ohio St. 525 (1878). (Established two requirements for obtaining a new domicile: physical presence in a new residence, and intention to remain at that location. A temporary residence may become a domicile by a change of purpose and election to remain at that location as a home.)

Williamson v. Osenton, 232 U.S. 619 (1914). (The essential fact that raises a change of abode to a change of domicile is the absence of any intention to live elsewhere.)

Texas v. Florida, 306 U.S. 398, (1939). (Residence in fact, coupled with the purpose to make the place of residence one’s home, are the essential elements of domicile.)

Fuller v. Hofferbert, 204 F.2d 592 (6th Cir.1953). (Because “domicile” and “residence” are usually in the same place, they are frequently used as if they had the same meaning. “Domicile,” however, means living in a locality with intent to make it a fixed and permanent home, while “residence” simply requires bodily presence as an inhabitant in a given place.)

In re Estate of Hutson, 165 Ohio St. 115, 133 N.E.2d 347 (1956). (In order to change one’s domicile, there must be actual abandonment of the first domicile, intention not to return to the first domicile, and acquisition of a new domicile in another place with the intention of making the new domicile a permanent home. The acts of the person must correspond with the purpose of changing one’s domicile.)

Cincinnati Ins. Co. v. Minser, 1989 WL 567 (2^nd dist. Jan. 4, 1989). (Domicile is a permanent home to which one intends to return in event he should leave.)

Key Disputed Language of CIC Policy

Robert’s parents’ umbrella policy provides coverage to a “resident relative.” Resident relative is defined as “[a] person related to ‘you’ by blood, marriage or adoption that is a resident of ‘your’ household and whose legal residence of domicile is the same as yours.”

Robert is clearly a blood relative of his parents. The issue is whether Robert had the same “legal residence of domicile” as either parent. It was undisputed in the case that Robert was legally domiciled in Ohio, and his mother Jean was legally domiciled in Florida. So the resolution of coverage turns on whether Robert’s father James’ “legal residence of domicile” was Ohio or Florida. If Ohio, Robert would be covered under the umbrella policy; but if Florida, Robert would not be covered. So this is a very fact intensive matter, and the court reviewed in great detail the facts supporting domicile in each state.

Some Fundamentals About Residence and Domicile (see precedent section for citations)

The opinion reviews many, many holdings and cases discussing residence and domicile.

• A person’s domicile is where the person has a true, fixed, permanent home to which, when absent, the person has the intention of returning.
• A person can have a residence that is not the person’s domicile.
• Essential elements of domicile are residence in fact with the purpose to make the place of residence one’s home.
• Residence just requires bodily presence in a given place; domicile means living in a place with the intent to make it a permanent home.
• To establish a change in domicile, a person must have physical presence in a new residence and the intent to stay there. Domicile cannot be temporary or transient.
• Intent is crucial in establishing domicile, and intent cannot be based on wishful thinking. Motive behind that intent is irrelevant.

James and Jean Move to Florida, But….James “Flunks Retirement”

James and Jean Schill moved to Bonita Springs Florida in 1993, when James intended to retire as CEO and Chairman of his business, ChemTechnologies. One motive for the move was Florida’s lack of a personal income tax. The Florida house is titled solely in Jean’s name. Florida has become Jean’s permanent domicile and residence. But James, in his own words, “flunked retirement.”

Factors Favoring Ohio as James’ Domicile

For years since moving to Florida, James has spent two weeks each month in Ohio, working at ChemTechnologies. He leaves Florida around the eighth or tenth of the month, and returns around the twentieth. When in Ohio, James stays at Robert’s house, which is about thirteen miles from his company. James pays most of the operating costs on Robert’s house, such as insurance, utilities, and real estate taxes.  When James is in Ohio, he works about twelve hours a day. He charges ChemTechnologies and a family partnership a per diem for those work days. James keeps a car at Robert’s house, but the car is registered in Florida. When in Ohio, James attends church there. His accountant, estate planning and business lawyers, insurance agent, and investment advisor are all in Ohio.

Factors Favoring Florida as James’ Domicile

James has a second car that he keeps in Florida. He has had a Florida driver’s license since he moved down there, and didn’t renew his Ohio license. He and his wife moved all their personal property to Florida. James has been registered to vote in Florida since 1993, and has not voted in Ohio since then. His doctor and dentist are in Florida. All of his checking and savings accounts are in Florida banks. James receives his social security benefits by direct deposit in a Florida bank, and does not file any federal, state, or local income tax returns that list the Ohio house as his residence. He keeps all his business records in Florida. James and his wife are members of a Catholic parish in Florida. In response to questions, James answered that he considers Florida to be his residence.

The Tax Laws

Florida has no personal income tax. James always very carefully tailored his time to make sure that he spent less than fifty percent of his time in Ohio, to avoid the presumptive evidence of being domiciled, and thus taxed, in Ohio.  Only one time since 1993 has James spent more time in Ohio than in Florida in any given month.  By statute, to avoid a presumed Ohio domicile for tax purposes, a person must not only reside at least 182 days a year outside Ohio, but must also file a statement with the Ohio Tax Commissioner confirming that he or she is not domiciled in Ohio. James has never filed such a statement.

Dismissing the Tax Red Herring

At oral argument of this case, Spaeth really pounded on James Schill’s failure to file the appropriate statutory tax statement with the Ohio Tax Commissioner that is required in order to be presumed domiciled somewhere other than Ohio. The high court gave James’ failure to file that form far less weight than Spaeth had urged.  The court noted that failure to file the form would mean that James would be presumed to be domiciled in Ohio for tax purpose, but the statute also provides that a person can rebut the presumption with a preponderance of the evidence to the contrary.  The court noted that there was no evidence that James had ever been challenged by Ohio about his domicile, and that his own testimony showed he could rebut that statutory presumption against his Florida residence.

Case Holding

The court concluded that the objective facts in the case (listed above in factors favoring Florida domicile) combined with James’ statements of intent, clearly establish Florida as James’ domicile. As for Ohio—“the nature of his contact with Ohio is transient—he works, and then he leaves,” Pfeifer wrote.

“We hold that James’s regular work activity in Ohio does not contradict an intent to make Florida his permanent residence, nor does it change the fact of his residence in Florida. James’s clear intent was to work part-time in Ohio and be domiciled in Florida. He has meticulously ordered his life to make that so.”

Result?

Peggy Speath will not get the insurance from CIC under the umbrella policy of James and Jean Spaeth in her wrongful death case.

Case Syllabus

None

Concluding Observations

I correctly called this one for the insurance company, although I thought the case would be splintered, and it was unanimous.

At oral argument, Chief Justice O’Connor really got into it with Spaeth’s lawyer, and Justice Pfeifer really got into it with CIC’s lawyer. It turned out that both of their views from the questioning formed the backbone of the decision. The Chief asked Spaeth’s lawyer about fact after fact demonstrating Jean and James’ many Florida contacts.

Justice Pfeifer asked CIC’s lawyer “what new law was being provided for lawyers and judges?” “Why are we here,” he mused, noting this was just a case about one insured, one policy and one accident. “Isn’t this just a case of error correction? Everyone understands what domicile is except the Eighth District?”

In fact, this is pretty much the way Pfeifer’s opinion for the court turned out—a very fact specific case of error correction, establishing no new law. I think the opinion gave the case more ink than it deserved.

Nice touch, though—including a little poetry in the opinion–this quotation from Robert Frost:

“Home is the place where, when you have to go there, / They have to take you in.” Robert Frost, The Death of the Hired Man (1914)” ({¶ 23} of opinion).