Progressive Insurance, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1267

Progressive Insurance,
Respondent,

vs.

Justin Abel, et al.,
Appellants.

Filed June 13, 2022
Affirmed in part, reversed in part, and remanded
Bratvold, Judge

Clay County District Court
File No. 14-CV-19-4575

Kenneth H. Bayliss, Jessie L. Sogge, Quinlivan & Hughes, P.A., St. Cloud, Minnesota (for
respondent)

Jordan B. Weir, Vogel Law Firm, Fargo, North Dakota (for appellants)

Considered and decided by Slieter, Presiding Judge; Bratvold, Judge; and Klaphake,
Judge.
*
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
This is an underinsured-motorist-benefits action arising from injuries to an insured’s
20-year-old stepdaughter. Appellants challenge the district court’s grant of summary

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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judgment for respondent-insurer and its denial of summary judgment for appellants.
Appellants argue, among other things, that the district court improperly weighed evidence
and made credibility determinations and therefore erred by denying coverage under the
resident-relative provision of the stepfather’s automobile policy. Because genuine issues
of material fact preclude summary judgment, we affirm in part, reverse in part, and remand
for further proceedings consistent with this opinion.
FACTS
On December 9, 2015, appellant Aubrie Abel was injured while a passenger in a car
accident in Harvey, North Dakota. Aubrie was a 20-year-old student at Minot State
University. Aubrie settled for the $100,000 limit of the driver’s insurance policy and
pursued underinsured-motorist (UIM) benefits.
At the time of the accident, appellant Justin Abel, Aubrie’s stepfather,1 had UIM
coverage through an automobile policy with respondent- insurer Progressive Preferred
Insurance Company (Progressive). Progressive denied Aubrie’s UIM claim after
concluding that “Aubrie was no longer a resident of Justin’s household.” Progressive filed
a complaint seeking a declaratory judgment that Aubrie was not covered by Justin’s
automobile insurance policy. Appellants counterclaimed for UIM benefits. Both parties
moved for summary judgment.
The summary-judgment record established many undisputed facts. Aubrie lived
with her mother and Justin (parents) in Sabin, Minnesota, until her high-school graduation

1 This opinion refers to Aubrie and Justin individually by their first names to avoid
confusion and refers to Aubrie and Justin collectively as appellants.
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in 2014. After graduation, Aubrie lived in West Fargo, North Dakota , with her mother’s
grandparents to get a North Dakota driver’s license, which she obtained. Aubrie testified
that she “struggled” to pass the Minnesota driver’s test and did not have a Minnesota
driver’s license. In March 2015, Aubrie moved to Harvey, North Dakota, to live with and
help care for her great-grandparents.
While in Harvey, Aubrie became a certified nursin g assistant (CNA). Aubrie’s
grandmother paid for the CNA coursework. In July 2015, Aubrie began working 36.5 hours
per week as a CNA in Harvey. Aubrie’s employer paid for her online classes at Minot State
so she could be certified as a direct s upport professional. At the same time she started
working as a CNA, Aubrie moved into an apartment in Harvey, where she lived by herself
for four months until the accident. After the accident, Aubrie moved back to Sabin and
lived with her parents.
After hearing arguments on the parties’ summary-judgment motions, the district
court issued a written decision determining there was no UIM coverage for Aubrie’s
injuries through Justin’s automobile policy. The district court concluded that Aubrie was
not a resident of Justin ’s household because “the undisputed facts show that Aubrie had
established a separate residence in Harvey, North Dakota, at the time of the accident.” In
making this determination, the district court relied on Aubrie’s employment in Harvey, her
rent payments for the apartment, her North Dakota driver’s license, and Aubrie’s response
during a deposition that she would move back to Sabin “eventually” and was not going to
live in Harvey “forever.” The district court also rejected an affidavit from Aubrie as
“self-serving and not sufficient to create a genuine issue of material fact as it contradict s
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testimony provided in a prior deposition, under oath.” The district court therefore denied
appellants’ motion for summary judgment and granted Progressive’s motion for summary
judgment.
This appeal follows.
DECISION
Appellate courts “review the grant of summary judgment de novo to determine
whether there are genuine issues of material fact and whether the district court erred in its
application of the law.” Montemayor v. Sebright Prods., Inc., 898 N.W.2d 623, 628 (Minn.
2017) (quotation omitted). In considering the record on summary judgment, appellate
courts “view the evidence in the light most favorable to the party against whom summary
judgment was granted.” STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72,
76-77 (Minn. 2002). Summary judgment is proper if the moving party shows that “there is
no genuine issue as to any material fact and the movant is entitled to judgment as a matter
of law” based on the record, which may include depositions, documents, affidavits,
admissions, and interrogatory answers. Minn. R. Civ. P. 56.01, 56.03 (a). A genuine issue
of material fact exists “when reasonable persons might draw different conclusions from the
evidence presented.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997).
In this appeal, we consider whether summary judgment is appropriate given the
record evidence and the terms of Justin’s automobile policy, which provides UIM coverage
for the named insured’s resident relative. The interpretation of an insurance policy is a
question of law that we review de novo. Depositors Ins. Co. v. Dollansky, 919 N.W.2d 684,
687 (Minn. 2018). Appellate courts interpret unambiguous language in an insurance policy
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“to ascertain and give effect to the intentions of the parties as reflected in the terms of the
policy.” King’s Cove Marina, LLC v. Lambert Com. Constr. LLC, 958 N.W.2d 310, 316
(Minn. 2021) (quotation omitted). This court previously held that a similar resident-relative
provision is unambiguous. Skarsten v. Dairyland Ins. Co., 381 N.W.2d 16, 19 (Minn. App.
1986), rev. denied (Minn. Mar. 27, 1986). 2 Here, neither party contends the
resident-relative provision is ambiguous, and we agree that the language is unambiguous.
Justin’s automobile policy provides that an “insured person” includes a “relative” if
related to the named insured by “blood, marriage, or adoption.” The policy also states that
a relative includes “unmarried dependent children temporarily away from home . . . if they
intend to continue to reside in [the named insured’s] household.” We note that the
resident-relative provision in Justin’s policy both expands and limits coverage. See id. at
18 (stating resident-relative language “is widely used in insurance policies to both exclude
and extend coverage”). The resident-relative provision first defines coverage as including
a relative who is “a person residing in the same household” as the named insured. But the
resident-relative provision also limits or excludes coverage by providing that an unmarried
dependent child who is “temporarily away from home” will “qualify as a relative if they
intend to continue to reside in [the insured’s] household.” (Emphasis added.)

2 In Skarsten, we considered the resident-relative provision found in Minnesota Statutes
section 65B.43, subdivision 5, which defined “‘[i]nsured’” to include a relative of the
named insured who ‘resides’ in the same household with the named insured.” 381 N.W.2d
at 18 (quoting Minn. Stat. § 65B.43, subd. 5 (1982)). We noted t he same statute also
provided that “[a] person resides in the same household with the named insured if that
person usually makes his home in the same family unit, even though he temporarily lives
elsewhere.” Id.
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Appellants argue the district court erred by granting summary judgment for
Progressive based on evidence that Aubrie established a separate residence in Harvey and
its conclusion that Aubrie was not Justin’s resident relative at the time of the accident.
Progressive contends the district court’s summary-judgment decision rests on undisputed
evidence that Aubrie lived in Harvey and did not intend to continue to reside with her
parents in Sabin.
Generally, whether a relative resides in the named insured’s household is a question
of fact. Id. (stating that whether an individual is a resident of an insured’s household is a
“fact question”); Frey v. United Servs. Auto . Ass’n, 743 N.W.2d 337, 344 (Minn. App.
2008) (“Whether an individual is a resident relative of an insured is normally a factual
question.”); State Farm Fire & Cas. Co. v. Lawson, 406 N.W.2d 20, 22 (Minn. App. 1987)
(“Whether a relative resides in the insured’s household at the time of an accident is a
question of fact. ”), rev. denied (Minn. June 30, 1987). “[S]ummary judgment may be
entered” on a question of fact, however, “where the material facts are undisputed and as a
matter of law compel only one conclusion.” Sauter v. Sauter, 70 N.W.2d 351, 354 (Minn.
1955).
Minnesota courts have used three factors to determine whether a relative is a
resident of the insured’s household: (1) living under the same roof as the named insured ;
(2) living in a close, intimate, and informal relationship with the named insured; and
(3) due to that intentionally substantial, informal relationship, considering the relationship
“in contracting about such matters as insurance or in their conduct in reliance thereon.”
7
Firemen’s Ins. Co. of Newark v. Viktora, 318 N.W.2d 704, 706 (Minn. 1982) (quotation
omitted); accord Skarsten, 381 N.W.2d at 19.
When considering the residence of a relative who is “temporarily away from home,”
Minnesota courts expand the analysis of the first Viktora factor to incorporate a separate
five-factor analysis: (1) age of the relative; (2) whether a separate residence is established;
(3) self-sufficiency of the relative; (4) frequency and duration of the relative’s stay in the
named insured’s home; and (5) the relative’s intent to return to the named insured’s
household. Wood v. Mut. Serv. Cas. Ins. Co., 415 N.W.2d 748, 750 (Minn. App. 1987) ,
rev. denied (Minn. Feb. 12, 1988).
We consider the district court’s analysis of the undisputed facts about Aubrie under
each Wood factor. First, Aubrie was 20 years old at the time of the accident. Second, Aubrie
established a separate residence in Harvey at the time of the accident, while her parents
lived in Sabin. Third, Aubrie was employed full time, paid her own rent, and cooked and
cleaned for herself. She attended online college classes paid for by her Harvey employer.
(Below, we discuss additional facts about Aubrie’s self-sufficiency that were not included
in the district court’s analysis.) Fourth, Aubrie testified she returned to Sabin “every
weekend” and could not remember any extended stays in her parents’ home during the time
she lived in Harvey.
The parties hotly contest the record evidence on the fifth Wood factor—Aubrie’s
intent to return to Justin’s household in Sabin. We briefly summarize the record evidence
on the fifth factor. Aubrie’s 2018 affidavit stated Aubrie’s “permanent residence” is in
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Sabin, she used the Sabin address on her tax returns, and she considered herself a member
of her parents’ household.
The district court limited its analysis of the fifth factor to Aubrie’s 2020 deposition,
where she testified that she did not know when asked if she could “say for certain that [she]
would have moved back to Sabin” before the accident. She also stated that her plan at the
time of the accident was “to get a degree and move back [to Sabin]” and that she “most
definitely” would have moved in with her parents if she got a job in Sabin. When asked if
it was “[f]air to say there was no set or definite plan to move back to Sabin prior to this
accident,” Aubrie replied, “No, I was going to move back eventually. I wasn’t going to live
in Harvey forever.”
In Aubrie’s 2021 affidavit, she stated that she “never established a permanent home
in Harvey” and that her “intent all along was to leave Harvey as soon as [she] completed
[her] education.” She also stated that her “permanent intent was to return to Sabin” and that
“[a]t all times [she] had an apartment in Harvey, Sabin was [her] home.”
The district court erred in its analysis of the record evidence under the five Wood
factors for three reasons.
First, the district court failed to address evidence favorable to appellants’ claim for
UIM coverage. For example, the district court failed to mention Aubrie’s 2018 affidavit
even though the affidavit stated that Aubrie considered herself a member of her parents’
household and that her permanent residence was in Sabin. The district court also
understated Aubrie’s deposition testimony by stating Aubrie “periodically” returned to
Sabin while living in Harvey. Aubrie testified that she returned to Sabin “[l]ike every
9
weekend.” The district court also ignored evidence that Aubrie used her Sabin address on
her tax returns and that her Harvey employer paid for her college classes.
Second, the district court drew an inference unfavorable to appellants based on
evidence that Aubrie had a North Dakota driver’s license. Appellants do not contest that a
driver’s license is relevant evidence of a driver’s residence. See Lundquist v. Leonard,
652 N.W.2d 33, 36 (Minn. 2002) (noting evidence of a driver’s -license address when
determining a political candidate’s residence). Here, however, the district court relied on
Aubrie’s address on her North Dakota license without considering Aubrie’s testimony that
she got a North Dakota driver’s license because she “struggled” to pass the Minnesota
driver’s-license exam. Rather, the district court characterized this evidence favorably to
Progressive by stating that “Aubrie had no intention of obtaining a Minnesota driver’s
license.” Thus, the district court failed to analyze the driver’s -license evidence in a light
favorable to appellants. See STAR Ctrs., 644 N.W.2d at 76 (stating that on a motion for
summary judgment, evidence must be viewed in the light most favorable to the nonmoving
party).
Third, the district cour t erred by rejecting Aubrie’s 2021 affidavit as self-serving.
The district court relied on Banbury v. Omnitrition Int’l, Inc., where this court held “a
self-serving affidavit that contradicts earlier damaging deposition testimony is not
sufficient to create a genuine issue of material fact.” 533 N.W.2d 876, 881 (Minn. App.
1995). Banbury also stated, however, that “a subsequent affidavit” may “raise a factual
issue where the deposition itself reveals confusion or mistake; such an affidavit is not
inherently inconsistent with the deposition, but rather seeks to explain it.” Id.
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Aubrie’s 2021 affidavi t was submitted after her deposition. The affidavit stated
Aubrie’s “only permanent intent was to return to Sabin once [she] completed [her]
education.” The district court determined Aubrie’s 2021 affidavit contradicted her
deposition testimony about her intent to return to Sabin. The district court described
Aubrie’s deposition testimony as follows: “When asked whether Aubrie had a set or
definitive plan to move back to Sabin prior to the accident, she replied that she was going
to move back eventually and wasn’t going to live in Harvey forever.” The district court’s
description, however, omits Aubrie’s full testimony.
In her deposition, Aubrie was asked if it is “fair to say that there was no set or
definite plan to move back to Sabin prior to this accident.” Aubrie replied, “No,” before
continuing to say she “was going to move back eventually” and “wasn’t going to live in
Harvey forever.” Thus, Aubrie’s deposition testimony denied that she had “no set or
definite plan to move back to Sabin.” Reading Aubrie’s answer to the “definite plan”
question along with her other deposition testimony in the light most favorable to Aubrie,
her testimony is, at the very least, confusing about her inten t to return to Sabin . Thus,
Aubrie’s 2021 affidavit clarifies confusion on a central factual issue, and the district court
erred by rejecting the affidavit as self-serving. See id.
The district court also erred by rejecting Aubrie’s 2021 affidavit because it clarified
her deposition testimony on who paid utilities for her Harvey apartment. The district court
stated that Aubrie paid for utilities in her apartment. In her deposition, Aubrie testified she
did not remember whether any utilities payments were “associated” with her Harvey
apartment. Aubrie agreed that, if any utilities were paid, then she would have been
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“responsible.” In her 2021 affidavit, Aubrie stated her parents “paid” for the Harvey
apartment’s utilities. Viewed in the light most favorable to Aubrie, her 2021 affidavit
“reveals confusion or mistake” in her deposition testimony about who paid for the
apartment utilities and “seeks to explain it.” See id.
Even if we were to accept the district court’s conclusion that Aubrie’s 2021 affidavit
contradicted her deposition testimony about her intent to return to Sabin and the utility
payments, then we would still conclude that the district court erred. The district court’s
decision failed to address new evidence in the 2021 affidavit about relevant facts that were
not discussed in Aubrie’s deposition. For example, the 2021 affidavit established that
Aubrie’s parents claimed her as a dependent on their tax returns and paid for her health
insurance, car insurance, and cell phone. At the same time the district court ignored these
facts about Aubrie’s self-sufficiency (or lack thereof), the district court found Aubrie paid
her own rent and utilities and did her own cooking and cleaning.
In Skarsten, we reversed summary judgment for the insurer based on the
resident-relative provision and cautioned “a court must not rely on selected facts in order
to justify a conclusion.” 381 N.W.2d at 19. Here, the district court’s summary-judgment
decision rested on “selected facts” because it ignored relevant evidence favorable to
appellants’ position, drew inferences unfavorable to appellants, and failed to view the
record evidence in a light favorable to appellants.
Aside from challenging the district court’s analysis of the record evidence,
appellants contend that adult children “temporarily away from home qualify as residents
for purposes of insurance coverage under Minnesota law.” Progressive responds that the
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district court’s decision denying UIM coverage “poses no threat to legal principles
applicable to those who leave for college and maintain residence in their parent’s homes.”
Minnesota’s caselaw supports appellants’ position. In Viktora, the supreme court
reversed a summary-judgment decision denying homeowner’s coverage to a 23-year -old
son who was injured after he returned to live with his parents during a strike at his
workplace. 318 N.W.2d at 705, 707. In Schoer v. W. Bend Mut. Ins. Co., this court affirmed
a judgment granting UIM coverage to a 21-year -old college student living in Minnesota
based on the jury’s determination that the student was a member of his mother’s Wisconsin
household. 473 N.W.2d 73, 76-77 (Minn. App. 1991). In Wood, this court affirmed a
summary judgment granting coverage under a parent’s automobile policy for a 20-year-old
son who had enlisted in the U.S. Army and was injured while on his way home for leave.
415 N.W.2d at 749-51.
Progressive argues we should distinguish each of these cases and instead be guided
by the supreme court’s decision in Lott v. State Farm Fire & Casualty Co., 541 N.W.2d
304, 308 (Minn. 1995). In Lott, the supreme court reversed summary judgment declaring
coverage for a 30-year-old son under a resident-relative provision in his parent’s
homeowner’s policy. Id. The son had not lived with his parents for eight years and had a
separate residence. Id. at 306. A guest at the parent’s lake house sued the son after the guest
was injured on the dock. Id. The supreme court’s decision pointed out that the son visited
the lake house every year for ten weekends plus one full week, the son had no clothing or
belongings at the lake house, and the son had been self-supporting for eight years. Id. at
308.
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Progressive’s argument is unpersuasive. While the district court correctly noted that
Aubrie returned to Sabin only for weekend visits, the frequency of Aubrie’s visits was
“[l]ike every weekend” compared to the son’s ten weekend visits per year in Lott .
Moreover, none of the other facts in Lott closely align with the evidence offered by Aubrie,
a 20-year-old student who worked, attended college, and paid her own rent for four months
while receiving some financial support from her parents. In contrast, the son in Lott had
been self-supporting for eight years.
Because the record, when viewed in the light most favorable to appellants, raises
genuine issues of material fact about whether Aubrie was a resident relative of Justin’s
household at the time of the accident , we conclude the district court erred by granting
Progressive’s motion for summary judgment, and therefore we reverse in part.
Appellants argue that we should enter summary judgment in favor of UIM coverage,
either because the evidence does not allow for conflicting inferences on Aubrie’s residence
in Sabin or because Aubrie maintained two residences at the time of the accident. For the
reasons stated, we conclude the record raises genuine issues of material fact about Aubrie’s
residence, and therefore we affirm in part the district court’s decision to deny summary
judgment to appellants.
Affirmed in part, reversed in part, and remanded.