State of New York
Supreme Court : County of Monroe

- against -

Index No. 98/7203

ANDREW V. SIRACUSE, J.

The sole issue before the court is whether Kathryn Smith is to be considered a resident of her mother's house for purposes of her mother's automobile insurance coverage. Ms. Smith was injured on June 5, 1997, two months short of her twenty-fourth birthday, while she was walking from her apartment on Monroe Avenue and Union Street in the City of Rochester to a coffee shop further down Monroe Avenue. She was struck by a car, suffering injuries substantial enough to require a stay of a week and a half in Strong Memorial Hospital; she states that she has permanent scarring and is permanently disabled.

Ms. Smith applied for coverage under her mother's automobile insurance policy because of the low liability policy held by the motorist who caused the injury. Peerless Insurance Company denied coverage on the basis that Ms. Smith was not a resident in her mother's house at the time of the injury. She then sought to arbitrate the claim. Peerless has moved for a permanent stay of the arbitration, while Ms. Smith has cross-moved to compel it.

The policy clause at issue defines "insured" as "you, as the named insured and, while residents of the same household, your spouse and the relatives of either you or your spouse". The policy does not define "resident". Ms. Smith was not named in the policy, either as primary or secondary driver, but she is, of course, a relative of the insured; her residency is thus the only issue.

The address Ms. Smith gave at the time of the accident was 117 West Ivy Street, in East Rochester. This was her voting and mail address as well, and it had been the address on a drivers' license she had held until it was revoked when she was 21. From the age of sixteen, however, Ms. Smith had been a transient. Her papers ascribe her frequent changes of residence to drug and alcohol problems. She would live with friends or with a lover, moving every few months; in all this time, however, she kept many of her possessions at her mother's house, had a bedroom available to her there, and claims to have considered West Ivy Street to be her home. She spent very little time there, however, visiting mainly on holidays and occasionally on weekends, including the one before the accident, while she moved some of her possessions there for storage.

Ms. Smith states that she had moved to the Monroe Avenue apartment at the beginning of June, to be within walking distance of her job as a waitress at Java Joe's café. Her mother had arranged this month-to-month tenancy; immediately before this Ms. Smith had been living with friends and was dependent on public transportation.

Ms. Smith notes that residence is a broader term than domicile, and that one can have more than one residence for insurance purposes. She argues that the facts show the necessary indicia to establish her residence at West Ivy Street. In addition, Ms. Smith argues that the term "resident" must be construed strictly against the insurer, because it is ambiguous. In the alternative, Ms. Smith claims that questions of fact preclude judgment for the petitioner.

The petitioner relies on Ms. Smith's seven-year history of residence elsewhere than her mother's home, and argues that the court must follow the Court of Appeals holding in Matter of Aetna Casualty and Surety Co. v Gutstein (80 NY2d 773). In that case the Appellate Division had found for the respondent:

[W]hile the respondent rents an apartment in New York City, he also spends a substantial amount of time at his father's home; he maintains his own room there; he keeps his own clothes, books, and records there; he frequently stays overnight there; he is free to come and go as he wishes there, and he has his own key to the house. Moreover, the respondent has listed the address of his father's home as his own residence address on his voter registration and driver's license, as well as on his Federal and State income tax returns, and he receives mail at that address. In addition to the foregoing facts, the respondent is listed as the principal operator of one of his father's cars on the declarations page of the insurance policy at issue (169 AD2d 718, 719).

Although respondent stored some belongings in his parent's New Jersey house and spent the night there occasionally, we conclude that Supreme Court's finding that respondent was not a resident of his father's household more nearly comports with the weight of the evidence than does the Appellate Division's finding (80 NY2d 773).

The Gutstein decision has been distinguished by a Miscellaneous case, Pellegrino v State Farm Ins. (167 Misc2d 617), but only on the grounds that the respondent in the Pellegrino case was the minor child of divorced parents; because of this, Supreme Court held, the significance of his presence in his non-custodial parent's home was quite different. The Fourth Department had applied similar reasoning in a case that predated Gutstein, Nationwide Insurance Co. v Allstate Insurance Co. (181 AD2d 1022), holding in a joint custodial arrangement that a child was a resident in the houses of both parents.

Ms. Smith was not a minor child and the distinguishing factors in Pellegrino are thus not present. As noted above, she cannot show even those indicia that Gutstein did. The Court of Appeals decision clearly controls the result, and the petitioner is entitled to a permanent stay of the arbitration. Respondent's other arguments are without merit. The term "resident" is not inherently ambiguous, and it is the judicial interpretation of the term that the court must follow; it is not to be construed so strictly against the insurer that it loses all meaning. Furthermore, the facts are fully presented here, in what is functionally the equivalent of a summary judgment proceeding, and there is in fact no factual dispute between the parties except, perhaps, on irrelevant issues such as Ms. Smith's subjective belief that her home was on West Ivy Street. The question the court was called upon to decide was one of law: namely, the legal significance of the living arrangement outlined in the facts submitted by both petitioner and respondent. Crediting the respondent's submissions and drawing all favorable inferences from them, the court nonetheless concludes that these facts do not establish legal residence as the Court of Appeals considered it in Gutstein. Counsel for the petitioner may prepare an order, without costs or disbursements.

DATED: Rochester, New York

November 4, 1998

Andrew V. Siracuse, J.S.C.

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

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