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ARSCEOLA JOYCE BROWN                                                         *   NO. 2010-CA-1383
DAVIS ON BEHALF OF THE
MINOR CHILDREN, ZAIRE                                                        *
ALI ROSE AND COREION I.                                                          COURT OF APPEAL
JENA MOLETTE                                                                 *
FOURTH CIRCUIT
VERSUS                                                                       *
STATE OF LOUISIANA
ELLWOOD PLEASANT,                                                            *
CHARLES GREEN, STATE
FARM INSURANCE
COMPANY, DEF COMPANY
AND ABC INSURANCE
COMPANY, ET AL.
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2004-15408, DIVISION “K-5”
Honorable Herbert A. Cade, Judge
Judge Terri F. Love
(Court composed of Judge Patricia Rivet Murray, Judge Terri F. Love, Judge
Roland L. Belsome)
Robert E. Couhig, Jr.
Robert E. Couhig, III
COUHIG PARTNERS, LLC
643 Magazine Street
Suite 300
New Orleans, LA 70130
COUNSEL FOR ARSCEOLA JOYCE BROWN DAVIS
ON BEHALF OF THE MINOR CHILDREN, ZAIRE ALI ROSE AND
COREOIN I. JENA MOLLETTE and PAULA T. HONORE ON BEHALF
OF MINOR CHILD UNIQUE HONORE
Chauntis T. Jenkins
Michele L. Trowbridge
PORTEOUS HAINKEL & JOHNSON, L.L.P.
704 Carondelet Street
New Orleans, LA 70130--3774
COUNSEL FOR STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY
AFFIRMED
June 15, 2011




State Farm appeals the trial court’s finding that the decedent’s primary
residence was with its insured at the time of death.  According to the testimony, the
decedent resided with the insured, which would provide insurance coverage for the
decedent pursuant to the insured’s uninsured motorist coverage with State Farm.
However, State Farm produced documentary evidence that the decedent utilized
addresses  other than  the insured’s  for  voting, identification, and  employment
records.  The trial court found the testimony credible as to the decedent’s residence
due to her lifestyle and found that the decedent resided with the insured.   For the
reasons that follow, we do not find that the trial court committed manifest error in
finding that the decedent resided primarily with the insured and affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Valerie Molette died from injuries received from a single vehicle motorcycle
accident.   The motorcycle was operated by Charles Green and owned by Ellwood
Pleasant, both of whom were uninsured.   Arsceola Molette Davis filed a petition
for damages on behalf of two of Ms. Molette’s minor children, Zaire Ali Rose and
Coreion I. Jena Molette, against Mr. Green, State Farm Automobile Insurance
Company  (“State  Farm”),  ABC  Insurance  Company,  and  Mr.  Pleasant.    The
petition was amended to add Paula Honoré as a plaintiff on behalf of Ms. Molette’s
third minor child, Uniqué Honoré.   Louis Davis, Jr., Ms. Molette’s stepfather, was




insured by State Farm with a policy of uninsured/underinsured motorist insurance
with limits of $100,000 each person/$300,000 each accident.
The Plaintiffs filed a motion for partial summary judgment, which was
followed by State Farm’s motion for summary judgment and opposition.   State
Farm alleged that Ms. Molette did not reside in Mr. Davis’ household and was,
therefore, not covered by his insurance policy.  The trial court denied the Plaintiffs’
motion for summary judgment, but granted State Farm’s motion for summary
judgment and dismissed the claims with prejudice.   After the trial court denied a
motion for new trial, the Plaintiffs appealed.   This Court reversed the trial court
and remanded for further proceedings finding that the trial court erred because
genuine issues of material fact existed as to whether Ms. Molette was a resident of
Mr. Davis’ household for insurance purposes.
On remand, and following a bench trial, the trial court found that Ms.
Molette was insured under Mr. Davis’ policy with State Farm in effect at the time
of the accident and ordered State Farm to pay $100,000 to the minor children.  The
award was to be divided equally and included judicial interest from the date of
judicial demand and all costs.  State Farm’s appeal followed.1
State Farm contends that the trial court committed manifest error by finding
that Ms. Molette primarily resided with Mr. Davis and by finding that Ms. Molette
was covered by State Farm’s insurance policy.
STANDARD OF REVIEW
Appellate courts review findings of fact using the clearly wrong/manifestly
erroneous standard of review.   Chimneywood Homeowners Ass’n, Inc. v. Eagan
1 State Farm was originally granted a suspensive appeal.   However, State Farm filed an ex parte consent motion to
convert suspensive appeal to devolutive appeal, which was granted.   The Plaintiffs also filed a motion to dismiss
appeal with this Court seeking to convert the appeal.   This Court also granted the motion and converted State Farm’s
suspensive appeal to a devolutive appeal.
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Ins. Agency, Inc., 10-0368, p. 5 (La. App. 4 Cir. 2/2/11), 57 So. 3d 1142, 1146.
During review, we “must find from the record that there is a reasonable factual
basis for the finding of the trial court” and “that the record establishes the finding
is not clearly wrong or manifestly erroneous.”    Ardoin v. Firestone Polymers,
L.L.C.,  10-0245, p.  6  (La.  1/19/11),  56 So.  3d  215,  219.    Once the review is
completed,  “[i]f the trial court’s findings are reasonable in light of the record
reviewed in its entirety, the appellate court may not reverse.”   Id.   The trial court
also has a “better capacity to evaluate live witnesses as compared to our access
only to a cold record, as well as the proper allocation of trial and appellate
functions between the respective courts.”  Fletcher v. Rein, 10-1095, p. 3 (La. App.
4 Cir. 1/19/11), 56 So. 3d 1080, 1082. Thus, “when there are two permissible
views of the evidence, the factfinder’s choice between them cannot be manifestly
erroneous.”  Ardoin, 10-0245, p. 6, 56 So. 3d at 219.
PRIMARY RESIDENCE
State Farm asserts that the trial court committed manifest error by finding
that Ms. Molette resided with Mr. Davis at the time of her death because despite
the testimony, none of the documentary evidence proves she resided with Mr.
Davis.
Mr.  Davis’  insurance  policy  included  the  following  pertinent  language
regarding uninsured motor vehicle coverage:
UNINSURED MOTOR VEHICLE - COVERAGE U
Who Is an Insured - Coverages U and UEO
Insured                                                                                   -  means  the  person  or  persons  covered  by
uninsured motor vehicle coverage or  “economic-only”
uninsured motor vehicle coverage.
This is:
1. the first person named in the declarations;
2. his or her spouse;
3. their relatives
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(Emphasis in original).   It is undisputed that Ms. Molette was not a named insured,
nor was she the insured’s spouse.  Thus, Ms. Molette was covered by State Farm if
she was considered a relative of Mr. Davis by the insurance policy.   Mr. Davis’
insurance policy’s pertinent definition of a relative was a “person related to you or
your spouse by blood, marriage or adoption who resides primarily with you.”
(Emphasis in original).
“Whether a person is or is not a resident of a household is a question of law
as  well  as  fact  that  is  to  be  determined  from  all  the  facts  of  each  case.”
Prudhomme v. Imperial Fire & Cas. Ins. Co.,  95-1502, p.  3  (La. App.  3 Cir.
4/3/96), 671 So. 2d 1116, 1118; see also Berryhill v. Entergy New Orleans Inc.,
05-0005 (La. App. 4 Cir. 8/3/05), 925 So. 2d 12.   “The intention of a person to be a
resident of a particular place is determined by his expressions at a time not
suspicious, and his testimony, when called on, considered in the light of his
conduct and the circumstances of his life.”   Id.                                           “Although residency is dependent
on the facts of each case, the principal test is physical presence with the intention
to continue living there.”  Id., 95-1502, p. 3, 671 So. 2d at 1119.
Dwayne Franklin, Mr. Davis’ younger brother, testified that Mr. Davis asked
him to move Ms. Molette from her Chalmette address to Mr. Davis’ household.
Mr. Franklin thought that Ms. Molette moved after Mr. Davis married her mother,
but he was “not really sure.”   However, Mr. Franklin was certain that Ms. Molette
was living with Mr. Davis at the time of her death.  Mr. Franklin also stated that he
was told that Ms. Molette would be “staying there.”
Coreion, Ms. Molette’s  fourteen  year-old  daughter  at  the time  of trial,
testified that Ms. Molette moved in with her at Mr. Davis’ household a few months
before Mr. Davis and Mrs. Davis’ wedding on December 25, 2003.   She stated that
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Ms. Molette was living there at the time of the wedding, was living there when she
died, and did not reside anywhere else between the time of the wedding and her
death.
On cross-examination, State Farm tried to demonstrate inconsistencies in
Coreion’s statement because she stated in her deposition that her mother moved in
one month before death.   However, Coreion thought that her current testimony had
to be correct because she remembers Ms. Molette walking her to school.   Coreion
also  stated  that  she  did  not  think  she  understood  the  questions  during  the
deposition.   Upon being questioned about her mother receiving mail at Mr. Davis’
household, Coreion testified that Ms. Molette received Coreion’s report cards at
Mr. Davis’ address.
Mrs. Davis, Ms. Molette’s mother, testified that Ms. Molette moved into Mr.
Davis’ household before the wedding and was residing there when she died.   Mrs.
Davis further stated that Ms. Molette did not live anywhere else between the
wedding and her death.   Mrs. Davis provided Ms. Molette’s address for her death
certificate.
On cross-examination, Mrs. Davis testified that Ms. Molette was allegedly
involved in criminal activity and had pending court dates at the time of her death.
Ms. Davis also believed that Ms. Molette was using the older Chalmette address in
order to receive food stamps even though defense counsel presented an affidavit
from the Department of Social Services stating that Ms. Molette never received
any social services.2   Further, Mrs. Davis stated that she does not know why her
daughter used the Chalmette address for her Louisiana identification card because
she was living in Mr. Davis’ household.   Mrs. Davis also testified that Ms. Molette
2 This Court notes that the affidavit also states that records were destroyed during Hurricane Katrina.
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was living in Mr. Davis’ household while working for Checkers/Rally’s and does
not know why Ms. Molette would not list Mr. Davis’ household as her address.
Tyrrell Molette,3 Ms. Molette’s brother, testified in his deposition that Ms.
Molette was living in Mr. Davis’ household at the time of her death.   He stated that
Ms. Molette moved into Mr. Davis’ household in November or December of 2003,
and that he helped her move.   Although Mr. Molette believes that Ms. Molette
placed some items in storage when she moved into Mr. Davis’ household, she did
not have belongings in Chalmette when she died.   Lastly, Mr. Molette thought that
Ms. Molette was receiving mail at Mr. Davis’ household, but he was unsure as to
mail at any other addresses.
Mr. Davis4 testified in his deposition  that Ms. Molette moved into his
household, from Chalmette, in December 2003 and lived there at the time of her
death.   He stated that his brother, Mr. Franklin, helped Ms. Molette move in and
that she never moved out before she died.
State  Farm  presented  documentary  evidence  to  refute  the  Plaintiffs’
testimonial evidence that Ms. Molette resided in Mr. Davis’ household at the time
of her death.    The Department of Public Safety and Corrections Identification
records for Ms. Molette indicated that she utilized her Chalmette address and the
family’s  older  address  on  General  Meyer  Avenue.                                                The  records  from
Checkers/Rally’s, where Ms. Molette was employed when she died, contained the
older General Meyer Avenue address.   The Registrar of Voters records included
Ms. Molette’s Chalmette address as well as the General Meyer Avenue address.
Case documents from St. Bernard Parish reflected that Ms. Molette resided at the
3 Mr. Molette’s deposition was submitted during the bench trial.
4 Mr. Davis passed away prior to the bench trial and his deposition was submitted into the record.
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Chalmette address.   Lastly, the police report of the accident lists Chalmette as Ms.
Molette’s address.
The trial court judge stated:
[c]learly this is a credibility call. You were quite open in
your questioning.  The question is, does the Court find, as
we  discussed  in  chambers,  that  this  testimony  is
contrived or stretched for the purpose of establishing a
primary residence or is it simply a lifestyle which lended
- loaned or lends itself to  - not the structure that we
might imagine for some people.
I will look at it, I will look at all the documents . . .
The  trial  court  judge  weighed  the  testimony  and  the  documentary  evidence
presented.  State  Farm  alleged  that  there  were  inconsistencies  in  Coreion’s
statements regarding when her mother moved in; however, Coreion consistently
testified that Ms. Molette was living with Mr. Davis at the time of her death.
Given the conflicting documentary evidence and the abundant testimony of Mr.
Davis,  Mrs.  Davis,  Mr.  Franklin,  Mr.  Molette,  and  Coreion  supporting  the
contention that Ms. Molette’s intention was to reside with Mr. Davis when she
died, we do not find that the trial court committed manifest error.
DECREE
For  the  above  mentioned  reasons,  we  find  that  the  trial  court  did  not
manifestly err by finding that Ms. Molette primarily resided with Mr. Davis at the
time of her death and affirm.
AFFIRMED
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