[*1]
Matter of Government Empls. Ins. Co. v Fudge
2008 NY Slip Op 51926(U) [21 Misc 3d 1102(A)]
Decided on July 15, 2008
Supreme Court, Suffolk County
Sgroi, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through October 1, 2008; it will not be published in the printed Official Reports.


Decided on July 15, 2008
Supreme Court, Suffolk County


In the Matter of the application of Government Employees Insurance Company to Stay Arbitration, Petitioner,

against

Donna M. Fudge, as Guardian of MIGUEL CUEVAS, an Infant, Respondents.




24837-2007



LAW OFFICE OF GAIL S. LAUZON

Attorney for the Petitioner 875 Merrick Ave.

Westbury, New York 11590

SIBEN & SIBEN, LLP

Attorneys for Respondent

90 East Main Street

Bay Shore, New York 11706

Sandra L. Sgroi, J.



ORDERED that the relief requested in the motion by the Petitioner Government Employees Insurance Company for an order that the Court direct that any hearing held in this matter address the separate issues of whether the infant Miguel Cuevas was (1) a resident and (2) a relative of Donna M. Fudge is granted; and it is further

ORDERED that a conference shall be held on September 25, 2008 at 10:00 a.m. at the John P. Cohalan Courthouse, Central Islip, New York, Courtroom S23 to determine if additional discovery is necessary before a hearing is scheduled to determine if the Respondent Miguel Cuevas is both a relative and a member of the household of Donna M. Fudge and to address all other issues, including any outstanding disclosure that is required; and it is further

ORDERED that at the next conference the attorneys for the Respondent shall provide proof that Donna M. Fudge has the legal authority to act as the guardian for the infant Miguel Cuevas; and it is further

ORDERED that, at the conclusion of the hearing, the parties shall submit memoranda of law on the issues raised by these papers and the facts presented at the hearing pursuant to a briefing schedule to be determined at that time.

Government Employees Insurance Company, the Petitioner, received a Demand for Arbitration filed by the attorneys for Donna M. Fudge as Guardian of Miguel Cuevas, an Infant, the Respondents on or about July 26, 2007. This Demand for Arbitration alleges that the Respondent Miguel Cuevas, while a pedestrian, sustained injuries in an accident involving an alleged uninsured automobile on April 4, 2006, and Cuevas seeks benefits under a policy of automobile insurance issued by the Petitioner to Donna M. Fudge. Pursuant to the terms of that insurance policy, the injured Respondent, Miguel Cuevas, must be a resident relative of Donna M. Fudge's household on the date of the accident to be a covered person under the policy. The Petitioner, by its attorney, alleges that Miguel Cuevas was not a relative or a resident of the household of Donna Fudge on the date that the accident occurred. The examination under oath of Donna Fudge was submitted as an Exhibit to the motion. In this examination under oath, Fudge's statements were consistent with the affidavit that she submitted to the Court in opposition to the relief requested in the Petition. No other evidentiary proof was submitted in support of the Petitioner's allegation that Cuevas was not part of Fudge's household.

The accident report is submitted as an Exhibit to this motion and it indicates that Miguel Cuevas was a pedestrian attempting to cross Great Neck Road when he was struck by a vehicle driven by Gloria Rua. The address for Miguel Cuevas on the accident report is listed as 2435 Great Neck Road, Copiague, New York. This is the same address where Fudge resides. [*2]

In opposition to the Petition, Donna Fudge has submitted her affidavit alleging that she was living in the downstairs portion of the house on the premises located at 2435 Great Neck Road, New York when the accident occurred and that the infant Respondent, Miguel Cuevas and Christopher Cuevas, Miguel Cuevas' brother, resided with her at that time. However, she states that this house has a common front entrance which accommodates and accesses two apartments located within the building. Although Fudge states that Barbara Cuevas, Miguel Cuevas' mother, lived in the upstairs apartment, she further states that Miguel resided in the downstairs portion of the house with her when the accident happened and that she was responsible for his support at that time.

In the examination under oath of Fudge, she stated that she provided help and support to her elderly mother who resided in the upstairs apartment and that after Miguel Cuevas, his bother, baby sister and mother moved into the upstairs portion of the home in the summer of 2005, Miguel Cuevas and his brother moved downstairs into Donna Fudge's apartment because it was too crowded for these boys to remain upstairs. Fudge stated at her examination that four people were sleeping in one bedroom in the upstairs apartment before Miguel and his brother moved downstairs and Miguel was sleeping on the floor upstairs and he did not have a bed.

The Appellate Division, Second Department has repeatedly held that the term "household" in an insurance policy, without further definition, is ambiguous because that word lacks a fixed meaning ( see, Auerbach v. Otsego Mut. Fire Ins. Co., 36 AD3d 840, 829 NYS2d 195). Where an insurance policy "is written in such language as to be doubtful or uncertain in its meaning, all ambiguity must be resolved in favor of the [insured] against the [insurer]" (Hartol Prods. Corp. v. Prudential Ins. Co., 290 NY 44, 49, 47 NE2d 687). When the meaning of the ambiguous term "household" must be construed by the Court to determine if coverage exists, the intent of the parties is of critical importance (see, Auerbach v. Otsego Mut. Fire Ins. Co., supra ) and the factual circumstances of the particular case involved must be considered (see, Schaut v. Firemen's Ins. Co. of Newark, 130 AD2d 477, 479, 515 NYS2d 60).

The Appellate Division, Second Department, in often quoted language, stated in Schaut v. Firemen's Ins. Co. of Newark (supra ) that:

The interpretation must reflect "the reasonable expectation and purpose of the ordinary business man when making an insurance contract" (Burr v. Commercial Travelers Mut. Acc. Assn. of Amer., 295 NY 294, 301, 67 N.E. 248) and the meaning "which would be given it by the average man" ( Berkowitz v. New York Life Ins. Co., 256 App.Div. 324, 326, 10 NYS2d 106; see, Miller v. Continental Ins. Co., 40 NY2d 675, 389 NYS2d 565, 358 NE2d 258; Stainless, Inc. v. Employers Fire Ins. Co., 69 AD2d 27, 418 NYS2d 76, affd. 49 NY2d 924, 428 NYS2d 675, 406 NE2d 490).
[*3]

With regard to the specific issue of residence, a person may have more than one residence for the purposes of insurance coverage ( see, Matter of Prudential Prop. & Cas. Ins. Co. [Galioto ], 266 AD2d 926, 926, 697 NYS2d 415). "Whether a person is a resident' of an insured's household' requires something more than temporary or physical presence and requires at least some degree of permanence and intention to remain' " ( Matter of State Farm Mut. Auto. Ins. Co. v. Nicoletti, 11 AD3d 702, 702, 784 NYS2d 128, quoting New York Cent. Mut. Fire Ins. Co. v. Kowalski, 195 AD2d 940, 941, 600 NYS2d 977; see, Lindner v. Wilkerson, 2 AD3d 500, 501-502, 769 NYS2d 551; Government Empls. Ins. Co. v. Paolicelli, 303 AD2d 633, 633, 756 NYS2d 653).

Here, there is a triable issue of fact as to whether Miguel Cuevas resided in the "household" of Donna M. Fudge, as that term is defined for the purpose of the insurance policy issued by the Petitioner (see, Auerbach v. Otsego Mut. Fire Ins. Co., 36 AD3d 840, 829 NYS2d 195; Rohlin v. Nationwide Mut. Ins. Co., 26 AD3d 749, 809 NYS2d 374; see also, State Farm Mut. Auto. Ins. Co. v. Nater, 22 AD3d 762, 804 NYS2d 379). The Court notes that in State Farm Mut. Auto. Ins. Co. v. Nater, (supra ), two individuals in the process of being divorced from each other and living in separate apartments within the same house were found to be part of a common household as that term is used by an insurance policy. The Court notes that under the circumstances involved herein, even if Cuevas was living in the upstairs apartment and Fudge was not acting as the Respondent's de facto guardian and providing financial support, it is possible that the circumstances involved in this living arrangement would require the Court to find that Cuevas was part of the "household" of Fudge.

In addition to the issue of being a resident of Fudge's household, Miguel Cuevas must also be "related" to Fudge in order for Cuevas to be a covered person. The insurance policy issued by the Petitioner covers relatives and it defines the term relative as "***a person related to you who resides in your household."(see Petitioner's Exhibit "B").

At the examination under oath, Donna Fudge testified that Miguel Cuevas is her nephew and that his mother is Fudge's step-sister.[FN1] She further testified that there is no blood relationship between her and Miguel's mother. According to her testimony, Miguel's mother is presently in a shelter and Miguel only saw his father on Sundays for three to four hours. She stated that she has been acting as Miguel's de facto guardian for an extended period of time.

The Petitioner alleges that the applicable provision of the insurance policy for the purposes of defining "relative" is found in Section IV-Supplementary Uninsured Motorists Coverage, page 11 of page 22, which states:
The unqualified term "insured" means: (1) you, as the named insured and, while [*4]residents of the same household, your spouse and the relatives of either you or your spouse***.


In the policy, the provision labeled Section I-Liability Coverages defines "relative" as "a person related to you who resides in your household." (Policy, page 4 of 22). Related does not appear to be further defined or limited by the policy.

The Appellate Division, Second Department in General Assur. Co. v. Schmitt, (265 AD2d 299, 696 NYS2d 72) stated:
The law is clear that if an insurance policy is written in such language as to be doubtful or uncertain in its meaning, all ambiguity must be resolved in favor of the insured against the insurer ( Hartol Prods. Corp. v. Prudential Ins. Co., 290 NY 44 [47 NE2d 687], rearg. denied 290 NY 744 [49 NE2d 1010]; Ruder & Finn v. Seaboard Sur. Co., 71 AD2d 216 [422 NYS2d 85], affd. 52 NY2d 663 [439 NYS2d 858, 422 NE2d 518], rearg. denied 54 NY2d 753 [443 NYS2d 1031, 426 NE2d 756]). The term household' has been characterized as ambiguous or devoid of any fixed meaning in similar contexts ( see, Hollander v. Nationwide Mut. Ins. Co., 60 AD2d 380, 383 [401 NYS2d 336], lv. denied 44 NY2d 646 [406 NYS2d 1026, 378 NE2d 127]; Aetna Cas. & Sur. Co. v. Miller, 276 F.Supp. 341; Miller v. United States Fid. & Guar. Co., 127 N.J.Super. 37, 316 A.2d 51) and, as such, its interpretation requires an inquiry into the intent of the parties ( see, Kenyon v. Knights Templar & Masonic Mut. Aid Assn., 122 NY 247, 254 [25 N.E. 299]). The interpretation must reflect the reasonable expectation and purpose of the ordinary business man when making an insurance contract' ( Burr v. Commercial Travelers Mut. Acc. Assn., 295 NY 294, 301 [67 NE2d 248]) and the meaning which would be given it by the average man' ( Berkowitz v. New York Life Ins. Co., 256 App.Div. 324, 326 [10 NYS2d 106]; see, Miller v. Continental Ins. Co., 40 NY2d 675 [389 NYS2d 565, 358 NE2d 258]; Stainless, Inc. v. Employers' Fire Ins. Co., 69 AD2d 27 [418 NYS2d 76], affd. 49 NY2d 924 [428 NYS2d 675, 406 NE2d 490]). Moreover, the circumstances particular to each case must be considered in construing the meaning of the term ( see, Kenyon v. Knights Templar & Masonic Mut. Aid Assn., supra ; Mazzilli v. Accident & Cas. Ins. Co., 35 N.J. 1, 170 A.2d 800; Cal-Farm Ins. Co. v. Boisseranc, 157 [151] Cal.App.2d 775, 312 P.2d 401) ( Schaut v. Firemen's Ins. Co. of Newark, 130 AD2d 477, 478-479, 515 NYS2d 60).


It has been held, where the term relative was defined in the policy "a person who regularly resides in [the named insured's] household and is related to [the named insured] by blood, marriage or adoption"that the husband of the daughter of the policy holder was an insured (see, Matter of Nationwide Mut. Ins. Co. (Hodge), 224 AD2d 770, 636 NYS2d 946) and that the step-daughter of the policy holder was an insured (see, Smith v. Pennsylvania Gen. Ins. Co., 32 [*5]AD2d 854, 300 NYS2d 975, affd 27 NY2d 830, 316 NYS2d 436, 265 NE2d 258; see also, Matter of New York Cent. Mut. Fire Ins. Co. (Prehoda by Prehoda), 231 AD2d 829, 830, 647 NYS2d 66, 67-foster child held to be an "insured"; Developments in Uninsured and Underinsured Motorist Coverage, 69-OCT NY St. B.J. 18, 20, 1997). Here, the policy does not apparently even attempt to limit the definition of "related" to the extent that it was limited in Matter of Nationwide Mut. Ins. Co. (Hodge) (supra ). While any ambiguity in the policy will be construed against the insurer for the benefit of the policy holder and in favor of the infant who is alleged to be the "relative" of Fudge(see, McGuinness v. Motor Vehicle Acc. Indemnification Corp., 18 AD2d 1100, 239 NYS2d 920), the Court will take evidence at the hearing on the issue both of whether the infant was a resident and whether the infant was a relative of Donna Fudge, as that term is used in the policy.



Dated:________________________SANDRA L. SGROI, J. S. C.
Footnotes


Footnote 1: Fudge testified that "Her father was married to my mother" and "I was an adult when my mother and her father got married."