Opinion
DOCKET NO. A-2153-12T2
08-29-2013
FRANK AND KRISTIN GIANGERELLI, HIS WIFE, Plaintiffs, v. JUSTIN GARI and JOANNE MACOLINO, Defendants. IFA INSURANCE COMPANY, Plaintiff-Appellant, v. JUSTIN M. GARI, Defendant, and FRANK GIANGERELLI and KRISTIN GIANGERELLI, his wife, Parties-in-Interest. NEW JERSEY MANUFACTURERS INSURANCE COMPANY, Intervenor-Respondent.
Glen T. Dyer argued the cause for appellant IFA Insurance Company (Dyer & Peterson, P.C., attorneys; Mr. Dyer, on the brief). Raymond R. Connell argued the cause for respondent New Jersey Manufacturers Insurance Company (Dwyer Connell & Lisbona, attorneys; Mr. Connell, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Koblitz and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket Nos. L-5419-10 and L-9579-10.
Glen T. Dyer argued the cause for appellant IFA Insurance Company (Dyer & Peterson, P.C., attorneys; Mr. Dyer, on the brief).
Raymond R. Connell argued the cause for respondent New Jersey Manufacturers Insurance Company (Dwyer Connell & Lisbona, attorneys; Mr. Connell, on the brief). PER CURIAM
This case involves a dispute between two insurance companies, IFA Insurance Company (IFA) and New Jersey Manufacturers Insurance Company (NJM), over coverage of an automobile accident. IFA appeals from the October 4, 2012 order for judgment in favor of NJM and December 4, 2012 order denying a new trial. The central question is whether the evidence supported the judge's legal conclusion that the driver, twenty-one-year-old Justin M. Gari, was a resident of his mother, Joanne Macolino's, household and thus, pursuant to her car insurance contract, IFA must cover the accident. We agree that the evidence submitted was so one-sided that dismissal at the end of trial was appropriate.
Gari was driving his mother's car during the early morning hours of July 6, 2008, when he had an accident injuring plaintiff Frank Giangerelli, a Fairfield Township Police Officer.
Following the accident, Giangerelli and his wife filed suit against Gari and his mother. IFA then filed a declaratory judgment action, pursuant to the Uniform Declaratory Judgment Act, N.J.S.A. 2A:16-50 to -62, against Gari. NJM, the Giangerellis' personal insurance carrier, filed a complaint for intervention into the Giangerelli lawsuit because the Giangerellis had sought uninsured (UM) and/or underinsured (UIM) motorist coverage in light of the injuries. Both parties agree that IFA provided only $100,000 per person in liability coverage (less than the Giangerellis' UM/UIM coverage limit) and denied coverage claiming that Gari had no reasonable belief that he was entitled to operate his mother's car at the time of the accident.
The IFA policy provided:
EXCLUSIONS
A. We do not provide Liability Coverage for any "insured":
. . . .
8. Using a vehicle without a reasonable belief that that "insured" is entitled to do so. This exclusion (A.8) does
The policy, in pertinent part, defined "family member" as "a person related to you by blood, marriage or adoption who is a resident of your household."not apply to a "family member" using "your covered auto" which is owned by you.
Sadly, in March 2011 Gari died in a motor vehicle accident. A default judgment was entered against him shortly thereafter. The Giangerellis' personal injury and IFA declaratory judgment actions were consolidated. A stipulation of dismissal with prejudice was filed in favor of Macolino.
The declaratory judgment matter went to trial. By stipulation of the parties, the Giangerellis' action was dismissed without prejudice in favor of private, contractual arbitration of the UM/UIM coverage between NJM and its insureds.
Gari's mother testified that she divorced Gari's father when Gari was four or five years old when she received custody of Gari. The order awarding custody did not change, although when he was ten or eleven years old Gari moved to Florida to live with his father. According to his mother, Gari visited his mother every summer and every holiday. She had a separate bedroom in her apartment where he stayed and he received occasional mail at her address. In or around 2004, Gari became involved in the juvenile justice system and was not able to travel to New Jersey. Macolino could not remember precisely what year that occurred, but testified that Gari was in bootcamp in Florida for six months and was unable to travel. At the time of trial in 2012, she could not recall whether he had visited her during the years 2006 or 2007.
She testified that she moved to Nevada with her second husband for two and one-half years and her son visited her there as well. When she moved back to New Jersey, she returned to her former apartment complex.
Gari came to stay with his mother a week before the accident. He brought his clothes and books. She contacted a local branch of the school he was attending to find out if he could transfer from the Miami, Florida school to the school in Hawthorne, New Jersey. She said her son spoke to her about the likelihood of permanently relocating to New Jersey, but after the accident returned to live with his father in Miami.
On the night of the accident, Macolino testified that she was asleep and therefore did not give Gari permission to drive her car. She indicated that she usually let him drive her car when it was available.
Fairfield Police Officer Gerald J. Veneziano, who investigated the accident on July 6, 2008, testified that he spoke to Gari, who appeared under the influence of drugs or alcohol and was highly agitated. Gari told Officer Veneziano that he lived and worked in Florida, had been visiting his mother and did not have her permission to use the car.
The officer testified that Gari said he "worked" at the Everest Institute, although counsel represented that that is where he was attending school.
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At the end of trial, after both sides rested and before summations, NJM successfully moved for a judgment in its favor pursuant to Rule 4:40-1. On appeal, IFA argues that the trial judge improperly substituted his judgment for that of the jury under circumstances in which reasonable jurors could have determined that Gari was not a resident of his mother's household at the time of the accident. We disagree.
"If the controlling language [of an insurance policy] will support two meanings, one favorable to the insurer, and the other favorable to the insured, the interpretation sustaining coverage must be applied." Mazzilli v. Accident & Cas. Ins. Co. of Winterthur, Switzerland, 35 N.J. 1, 7 (1961). Thus, IFA had the burden of proving that its policy did not cover the accident. With that general framework in mind, we consider the case law on residency.
"While a person may have only one true domicile, he may have more than one residence." Santeez v. State Farm Ins. Co., 338 N.J. Super. 166, 174 (Law Div. 2000). "In fact, he may be a resident of more than one household for purposes of insurance." Ibid. Children of divorce frequently are residents of both parents' homes. Ohio Cas. Ins. Co. v. Estate of Wittkopp, 326 N.J. Super. 407, 412 (App. Div. 1999); Miller v. United States Fidelity & Guar. Co., 127 N.J. Super. 37, 43-44 (App. Div. 1974). The concept of an "integrated family unit" and "dual household residency" has arisen in insurance cases to expand insurance coverage to children who are residents, if not domiciliaries, of both parents' homes. See Roman v. Correa, 352 N.J. Super. 124, 128-129 (App. Div. 2002).
Although Gari was twenty-one years old, it was not clear from the record whether or not he was emancipated. He was unmarried, lived with his parents and was going to school. Emancipation of a child was defined by our Supreme Court in Newburgh v. Arrigo, 88 N.J. 529, 543 (1982):
[E]mancipation is the act by which a parent relinquishes the right to custody and is relieved of the duty to support a child. Emancipation can occur upon the child's marriage, induction into military service, by court order based on the child's best interests, or by attainment of an appropriate age. Although emancipation need not occur at any particular age, a rebuttable presumption against emancipation exists prior to attaining the age of majority, now 18.In New Jersey, parents frequently have a continuing duty to support their children and assist in educational expenses until the children graduate from college. Id. at 543-44.
[(Citations omitted).]
A child's dual residency can extend far into his adult years, even after the child has become emancipated and moved to another state, where he works, pays taxes, and owns property. See Arents v. Gen. Accident Ins. Co., 280 N.J. Super. 423, 425-26, 429 (App. Div. 1995) (determining that a forty-one-year-old son had a dual residency with his parents for insurance purposes).
Here, Gari had a bedroom that he used in his mother's apartment, he visited her regularly and for lengthy periods of time over many years, received some mail at her address and, prior to the accident, was seriously considering changing his domicile to her home and continuing his education at the branch of his school near her home. While he remained a domiciliary of Florida, he clearly was a resident of both of his parents' homes. A reasonable jury could not have found to the contrary.
IFA's objections to the trial judge's evidentiary rulings with regard to questions posed by counsel are without sufficient merit to require discussion in a written opinion. R. 2:11-3(e)(1)(E). "As a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion." Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION