Shanice Currie v. State Auto Property & Casualty Insurance Company

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 18, 2023
Decided July 5, 2023
Before
DIANE P. WOOD, Circuit Judge
JOHN Z. LEE, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 22-2517
SHANICE CURRIE,
Plaintiff-Appellant,
v.
STATE AUTO PROPERTY &
CASUALTY INSURANCE COMPANY,
Defendant-Appellee.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 2:20-cv-1342
Lynn Adelman,
Judge.
O R D E R
Shanice Currie has a homeowners insurance policy with State Auto Property &
Casualty Insurance Company (State Auto). After two fires severely damaged her duplex
in Milwaukee, Currie sought payment from State Auto. State Auto denied the request
for coverage, claiming that the duplex was not a “residence,” and therefore was not
covered by the policy. Currie sued State Auto for breach of contract. The district court
granted summary judgment to State Auto, holding that the homeowners insurance
policy did not cover Currie’s loss. We affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 22-2517 Page 2
I. Background
Currie purchased the previously abandoned duplex (the Property) from the City
of Milwaukee in the spring of 2018. She proceeded to install electricity and fill the
bedroom with a dresser, mirror, clothing, and a bed. Still, the property had no running
water, kitchen appliances, no chairs or sofas in the living room, or a front door. Where a
door should be, there was a wooden board that Currie would have to unscrew to enter
the Property. Strangers came and went and Currie took no action to eject them. Apart
from sleeping at the Property two or three nights per month, Currie did not stay there.
She bathed, prepared meals, kept personal belongings, and received mail at her two
other addresses in Milwaukee.
The homeowners policy Currie purchased from State Auto for the Property
covered “residence premises,” which the policy defined as:
The two-, three-, or four-family dwelling where you reside in at least one
of the family units . . . on the inception date of the policy period shown in
the Declarations and which is shown as the “residence premises” in the
Declarations.
Because the policy’s inception date was September 15, 2018, Currie needed to reside in
one of the units on the Property on that date for coverage to attach.
On October 31 and on November 2, 2018, fires broke out at the Property, causing
extensive damage. Currie informed State Auto that the Property was a total loss and
sought full replacement value. State Auto denied Currie’s claim, explaining that the
Property was never her residence.
Currie sued State Auto for breach of contract. The district court, sitting in
diversity, granted State Auto’s motion for summary judgment. The court held that,
while the operative clause in the policy—“the dwelling where you reside”—was
ambiguous, “[a] reasonable person would, nevertheless, understand the clause to
require plaintiff to maintain and use the [Property] as a home, even if it was only one
residence among many.” Given Currie’s lack of legal and practical ties to the Property,
the district court found that a jury could not reasonably conclude that Currie resided
there.

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No. 22-2517 Page 3
Currie now appeals, arguing that the Property was her residence on the policy’s
inception date, and that the district court erred in its application of Wisconsin law.
II. Discussion
We review a grant of summary judgment de novo, drawing all reasonable
inferences in favor of the non-moving party. Johnson v. Dominguez, 5 F.4th 818, 824 (7th
Cir. 2021). As insurance contract disputes are matters of state law, this Court, sitting in
diversity, must apply Wisconsin law. See, e.g., Std. Mut. Ins. Co. v. Bailey, 868 F.2d 893,
896 (7th Cir. 1989) (“[W]e are faced with the task of attempting to rule in this case
according to [Wisconsin] law as we believe the [Wisconsin] courts would probably
resolve it.”). Whether the Property was covered by the policy is a question of law.
Danbeck v. Am. Fam. Mut. Ins. Co., 629 N.W.2d 150, 153 (Wis. 2001).
Looking to Wisconsin law, there is no statutory definition of “residence” or
“dwelling” with respect to homeowners insurance coverage. See Drangstveit v. Auto-
Owners Ins. Co., 536 N.W.2d 189, 191 (Wis. Ct. App. 1995) (“Because neither ‘occupied’
nor ‘dwelling’ are technical terms, we may ascertain their meanings by reference to
recognized dictionaries.”). Therefore, the district court needed to give these terms
definitions consistent with their “common, ordinary meaning[s], that is, what the
reasonable person in the position of the insured would have understood the words to
mean.” Folkman v. Quamme, 665 N.W.2d 857, 865 (Wis. 2003) (internal quotation marks
and citation omitted). The district court did so, reasoning that an ordinary person
would understand these terms to mean a property that is maintained and used as a
home. Because Currie did not use the Property in this manner, the court found that no
reasonable jury could conclude that she resided there.
Currie disagrees. Citing Thorne v. Member Select Insurance Co., 882 F.3d 642, 644
(7th Cir. 2018), she argues that the court should have instead applied three factors to
determine what qualifies as a residence: (1) physical presence at the property; (2)
subjective intent to reside there; and (3) unfettered access to the property and its
contents. Thorne, however, applied Indiana law. Currie offers no proof that any
Wisconsin court has even considered the three-part test explained therein, much less
adopted it as the state’s substantive law. Thus, the district court properly concluded
that Thorne does not control. Std. Mut., 868 F.2d at 896.
Currie next argues that Wisconsin law defines a residence as “the concurrence of
intention and personal presence” at a dwelling. She further asserts that Wisconsin law

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No. 22-2517 Page 4
requires physical presence at a property only on the policy’s inception date and that
“the continued personal presence thereafter is not essential to continuous residence.”
Because Currie waited until her reply brief to raise these arguments, they are waived.
See White v. United States, 8 F.4th 547, 552 (7th Cir. 2021).
Even if they were not, the district court correctly concluded that Currie did not
“actually live” at the Property, on the inception date or at any other time, thus it was
not her residence. This remains true under Currie’s “presence plus intent” standard.
Currie was personally present at the Property only two to three nights per month and,
even on those occasions, her use of the space did not evidence an intent to reside there.
Even though Currie had access to kitchen appliances, utensils, cooking equipment,
sofas, and chairs, she did not store any of these items at the Property. In addition,
Currie did not bathe or cook at the Property; nor could she—her kitchen and bathroom
were not functional. This address was not listed on her driver’s license, and her mail
was sent to a different location. Most telling, the Property was unsecure without a door
and Currie made no effort to prevent strangers from sleeping there.
Finally, Currie presents no evidence that she was at the Property specifically on
September 15, 2018. Thus, even if the Court were to agree with Currie that residence
requires a property owner’s physical presence only on the policy’s inception date, her
appeal still fails.
As a matter of law, Currie’s Property was not a residence on the policy’s
inception date or any time before or after. Thus, it was not covered by the insurance
policy, and the district court’s grant of summary judgment to State Auto was proper.
AFFIRMED

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