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by Megan Zeller

More often than not, liability coverage and how the courts interpret insurance policies often reflect current social mores and norms. As the dynamics around domestic households and partnerships continue to evolve, who constitutes a partner and what constitutes a family or relationship will likely impact who and what can be covered or excluded under personal liability coverage for homeowner’s insurance policies.

Recently, in Safeco Ins. Co. of Indiana v. Hanson, an insurer attempted to grapple with who constitutes a “domestic partner.” Typically, homeowners insurance policies exclude coverage for bodily injuries for anyone who is considered part of a household of a residential home. Safeco, however, has a unique policy that specifically defines “domestic partner,” where:

1. Throughout this policy, “you” and “your” refer to the “named insured” shown in the Declarations and:

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c. your domestic partner, if a resident of the same household. “Domestic partner” means a person living as a continuing partner with you and:

(1) is at least 18 years of age and competent to contract;

(2) is not a relative, and

(3) shares with you the responsibility for each other's welfare, evidence of which includes:

(a) the sharing in the domestic responsibilities for the maintenance of the household; or

(b) having joint financial obligations, resources, or assets; or

(c) one with whom you have made a declaration of domestic partnership or similar declaration with an employer or government entity.

Domestic partner does not include more than one person, a roommate whether sharing expenses equally or not, or one who pays rent to the named insured....

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In this case, a homeowner lived in a home with her ex-husband, where she died from a gunshot wound. The ex-husband was charged with her murder, where a grand jury indicted him for “intentionally and knowingly caus[ing] the death of an individual . . . by shooting her with a gun OR then and there, with intent to cause serious bodily injury . . .”.

The homeowner’s children filed a wrongful death suit against the ex-husband, where the petition alleged that the homeowner “died as a result of a gunshot wound which was negligently caused by [the ex-husband] and is the proximate cause of death.” The ex-husband tendered the suit to Safeco to defend and indemnify him under the terms of the homeowner’s policy. 

Shortly thereafter, Safeco sought declaratory relief and argued that the ex-husband was a “domestic partner” under the policy and as a result, excluded from coverage. Specifically, Safeco argued that the homeowner and her ex-husband were “domestic partners” under the terms of the policy because “[t]hey slept in the same bedroom, mingled their financial assets, and took care of each other by cooking and doing laundry for each other.”

Ultimately, this case was ruled as a default judgment due to the ex-husband’s failure to respond to Safeco’s pleadings. Although the court never ruled on Safeco’s domestic partner argument, the argument is nonetheless a compelling issue that insurers should be aware of. It could be argued that the ex-husband was merely a roommate, and therefore covered under the terms of the policy. The extent of how future parties mingle assets, share in the household duties, or their sleeping arrangements may ultimately determine if the parties are just roommates or “domestic partners.” Importantly, these coverage issues will likely not be determined under the “eight corners” that insurers are bound by in any duty to defend analysis. As a result, courts in Texas may have to determine whether the extrinsic evidence goes solely to an issue of coverage, as required by Monroe. Based on how Texas courts have interpreted Monroe in the last three years, I suspect a “domestic partner” exclusion argument is a perfect example of how extrinsic evidence may be applied under Monroe. In a case examining whether parties were “domestic partner[s],” the case would review extrinsic evidence that could conclusively establish the coverage fact to be proved and would likely not overlap with the merits of liability – assuming that the extrinsic evidence didn’t contradict the facts alleged in the pleadings. Accordingly, insurers should be aware that in situations like these, extrinsic evidence may play a surprisingly vital role in a domestic partner analysis.