Opinion
CA2003-00047.
Decided January 9, 2004.
Lockwood and Golden, (Lawrence W. Golden, Esq., of counsel) for Plaintiff Amy L. Bruce.
Brown Kelly, LLP, (Kenneth A. Krajewski, Esq., of counsel), for Defendant Michigan Millers Mutual.
Before the Court is an application by Plaintiff for an order granting summary judgment (CPLR 3212).
Plaintiff, Amy L. Bruce, was injured in a motor vehicle accident on May 21, 2000. Plaintiff's vehicle was struck head when an automobile operated by Travis Niles crossed into Plaintiff's lane. Travis Niles was 18 years old and a member of the United States Army stationed at Fort Drum, New York at the time of the accident. Niles was returning from his mother's home, and operating his grandmother's car at the time of the accident. Travis Niles entered the U.S. Army in July 1999, one month after his high school graduation. He was subsequently discharged from the U.S. Army in 2003.
Plaintiff alleges that Travis Niles should also be considered a resident of the household of his mother, Sharon A. Niles. Plaintiff further contends that, as a resident of that household, Travis A. Niles should be covered under the personal automobile policy issued by Michigan Millers Mutual Insurance Company, the insurer of Sharon A. Niles. Defendant, Michigan Millers Mutual Insurance Company, disputes Plaintiff's claims and denies Travis A. Niles was a resident of his mother's household.
The applicable insurance policy states: "'Family Member' means a person related to you by blood, marriage, or adoption who is a resident of your household."
Plaintiff's Argument
Plaintiff's argument is based upon several pre-trial depositions. Plaintiff claims that sworn statements from those examinations demonstrate Travis Niles resided with his mother in 1992 in Oneida New York, and continued to live there through his high school years, and was still living there when he entered the U.S. Army in July 1999. While admitting that Travis Niles, during the second half of his senior high school year, often stayed overnight at various friends' houses, Plaintiff argues that Niles' mother's home was his "home base", and his only legal residence. Plaintiff further argues that even during his period in the U.S. Army while overseas, Travis Niles considered his mother's home his home base and continued to receive mail there, listed that address when opening bank accounts, car insurance, and had bills mailed to his mother's home. Plaintiff further alleges that Niles continued to keep many belongings at his mother's home, and had all of his clothes and other possessions at his mother's home at the time he left for basic training in 1999. Plaintiff also claims Travis Niles had keys to his mother's home, and was returning from there to Fort Drum at the time of the accident. Plaintiff claims Travis Niles' testimony reflected that he always considered the Peteroboro home his "home address" or residence, and that he had never established any other legal residence, either before or while he was in the military. Plaintiff further adds Sharon Niles claimed Travis Niles as a dependant on her Federal Tax Return for the year 1999, stating that he "lived with her". Defendants' Argument
Defendants admit that the insurance policy for Sharon Niles defines "insured" to include a family member who was a "resident" of the household. However, Defendant denies Travis Niles was a resident of Sharon Niles' household on May 21, 2000, and claims Niles had not been a resident of that household for some time prior to that date. Defendants argue that, while deposition testimony demonstrates Travis Niles may have spent an occasional night at his mother's house while on leave from military duty, Niles never consistently stayed there. Defendants also claim that the testimony revealed that Travis Niles did not have keys to his mother's home during his first year of military service, and that when he did stay at her house, Niles slept on the couch because his girlfriend slept in the bedroom. Defendants further allege that Travis Niles considered his mother's home a permanent home address only for "mailing address purposes". Defendant further alleges that Travis Niles had no intent on returning to or staying at his mother's house following his release of active duty. Rather, Niles had been accepted at, and intended to attend Morrisville College in the Fall of 2003. While admitting that Niles kept his belongings at his mother's house during his basic training, Defendants claim those belongings were in fact boxed up and that Niles used his mother's home as a storage unit, and mail drop. Defendants also allege that Niles changed his address listed with his bank several times, had several other accounts, cell phone and credit cards, which were sent to his military address. Defendants also point out Niles filed a tax return under his military address. Defendants further point out what they claim to be inconsistencies in the depositions of Travis Niles and Sharon Niles.
Applicable Procedural Law
The proponent of a summary judgment must tender sufficient evidence to demonstrate its right to judgment as a matter of law and the absence of any material issues of fact ( Zuckerman v. City of New York, 49 NY2d 557; Winegrad v. New York Univ. Med. Cen., 64 NY2d 851). "Issue finding, rather than issue determination is the Court's threshhold inquiry on a motion for summary judgment." (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395). There must be a tender of evidentiary proof in admissible form ( Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 NY2d 1065; CPLR 3212[b]).
Once the moving party has made the required showing, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form that is sufficient to establish the existence of material issues of fact which would require a trial ( Zuckerman, 49 NY2d 557; Alvarez v. Prospect Hospital, et al., 68 NY2d 320; Friends of Animals, 46 NY2d 1065).
Applicable Substantive Law
The determination of residency for insurance coverage ". . . requires something more than temporary or physical presence and requires at least some degree of permanence and intention to remain" ( Gov't Emples. Ins. Co. v. Paolicelli, 303 AD2d 633). It is clear that military service and living arrangements that accompanies it are insufficient to defeat a claim of residency (NY Cent. Mut. Fire Ins. Co. v. Peckey, 298 AD2d 970 [4th Dept. 2002]; Appleton v. Merchants Mut. Ins. Co., 16 AD2d 361 [4th Dept. 1962]).
A person may have more than one residency for insurance purposes ( Prudential Prop. Cas. Ins. Co. v. Galioto, 266 AD2d 926 [4th Dept. 1999]). However, the claimant of such a position has the burden, and the record must support such a position ( Walburn v. State Farm Fire Casualty Co., 215 AD2d 837). Physical presence alone is insufficient, especially if an adult has established another legal residence ( Walburn, 215 AD2d 837).
Discussion
Plaintiff has submitted evidentiary proof sufficient to meet her burden for summary judgment, and absent opposition, she would prevail. However, Defendant has submitted rebuttal evidence and claims there are material questions of fact as to Travis Niles' residency sufficient to deny Plaintiff's relief.
The facts reveal Travis Niles was eighteen years old, on active duty with the U.S. Army, and had been stationed away from his mother's home for ten months. Those facts alone are insufficient to defeat a claim of residency (NY Cent. Mut. Fire Ins. Co., 298 AD2d 970; Appleton, 16 AD2d 361).
Defendants do not dispute those points per se, but argue other facts exist to support their position. They claim that during his senior year Travis Niles often spent several nights monthly at homes other than his mothers. Defendants argue that fact is also demonstrative that Travis Niles was not a resident of his mother's home at that time, or at the time of the accident. The Court does not find Defendant's argument persuasive as to Travis' time in high school. As stated, a person may have more than one residency for insurance purposes ( Prudential Prop. Cas. Ins. Co., 266 AD2d 926). The evidence submitted demonstrates that at the time of high school Travis would have been considered more in the category of a child splitting time between parents homes ( see Nationwide Ins. Co. v. Allstate Ins. Co., 181 AD2d 1022 [4th Dept. 1992]).
The facts of the case herein are not identical to those in any of the cases cited by either party in support of their positions. Defendant points out the differences from Peckey, (298 AD2D 970): Travis Niles did not have possession of the keys to his mother's home at the time of the accident; was not being discharged shortly after the accident; and had not stayed up to 30 days on leave at his mother's home. Most telling for Defendant is that Travis indicated he intended to stay at his mother's home after his discharge only until he left for Morrisville College in the fall, and married his girlfriend. Defendant claims Travis lacked the intent necessary to establish permanent residence at this mother's home.
Plaintiff counters that Travis Niles did have keys to the home in May 2000; that he did stay at his mother's home for 10 days of leave in December 1999, and for two weeks immediately preceding the accident; and that he did intend to stay at his mother's home after his discharge, if only until he left for college.
The Court finds important that no evidence was presented that Travis Niles ever established another legal residence. Niles received mail at his barracks, several times changed his address on bank accounts, and sometimes had phone bills mailed to his military address. That information is insufficient to overcome the evidence that Travis always resided in the barracks stateside and overseas, and never established another residence he intended to return to. A soldier does not forfeit residency at his parent's home simply because he is physically located elsewhere, lives in military barracks, and receives mail at those barracks ( Appleton, 16 AD2d 361). The determinative points in Appleton were that the solider there never established another legal residency, and that his time away from his parent's home was considered temporary. The fact that Travis Niles in July 2003 indicated his intent to go to College in the coming Fall is not controlling, or even overly relevant upon the determination of Travis' residence on May 2000.
The Court acknowledges that a hearing on the issue of residency is required once Defendant has met their burden of establishing the existence of evidentiary fact[s] ( American Nat'l Prop. Cas. Co. v. Chulack, 265 AD2d 550; Liberty Mut. Ins. Co. v. Simon, 187 AD2d 926 [4th Dept. 1992]; Hollander v. Nationwide Mut. Ins. Co., 60 AD2d 380, lv denied 44 NY2d 646). However, the Court does not find that the Defendant has met their burden, and that no hearing is therefore necessary. Even under the presented facts, the issue is one of law and the facts cited are not deemed material under controlling legal precedents. Based upon the evidence submitted the Court does not find any issue as to Travis Nile's residence in May 2000. He had no other "legal residence" at that time, and had returned to that home on his leave from the U.S. Army.
The Court finds that Plaintiff has proven Travis Niles was a resident of his mother's home on May 2000. The evidence demonstrates he did more that occasionally stay there, or use the home only as a drop spot. Travis Niles has no other residence to return to, and considered his mother's home his permanent home.
Based upon the foregoing it is hereby
ORDERED, that Plaintiff's application for Summary Judgment is hereby granted; and it is further
ORDERED, that Plaintiff's application for declaratory judgment directing Defendant to consider Travis Niles a resident of Sharon Niles' home for insurance purposes is hereby granted.
The foregoing is the Decision and Order of the Court.