Summary Judgment Fails for Lack of Convincing Evidence

Barry Zalma

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Plaintiff Craig Finch owns parcels of real property in Broome County, New York, the relevant ones for our purposes being one on Kennedy Road (hereinafter the subject premises) and another on Bishop Road. A single-family home was situated on the subject premises, while a second home was situated about 1,000 feet away on the Bishop Road property. The homeowner's insurance policy for the subject premises was procured through defendant Erie Insurance Company and named Finch as the insured. Erie contended Finch did not live at the Dwelling and denied his claim on that ground.

In Craig Finch v. Erie Insurance Company, No. 534429, 2022 NY Slip Op 06851, Supreme Court of New York, Third Department (December 1, 2022) Erie appealed the denial of its Motion for Summary Judgment and a New York Appellate Court resolved the dispute.

FACTS

A fire seriously damaged the subject premises on the evening of November 22, 2016. Plaintiff notified defendant of the loss, stating that warm ashes in a vacuum cleaner on the back porch had caused the fire, and the ensuing investigation conducted on defendant's behalf confirmed that the fire was accidental and had begun on the back porch. The investigator did not determine the cause of the fire but could not rule out the vacuum cleaner.

Defendant disclaimed coverage upon the grounds that plaintiff did not reside at the subject premises as required and that, by installing a pellet stove where the warm ashes had originated, he had substantially increased the hazards present there.

Finch sued alleging that Erie had breached the insurance contract by disclaiming coverage.

Both parties moved for summary judgment. The trial court denied the motion and cross motion, and Erie appealed.

ANALYSIS

Defendant, as the party seeking to disclaim coverage on the ground that plaintiff did not reside at the subject premises, bore the burden of establishing that the exclusions or exemptions apply and that they are subject to no other reasonable interpretation.

The policy provides coverage "for loss to... [plaintiff's] dwelling at the residence premises," with the latter term defined as "the dwelling where [plaintiff] reside[s]." What constitutes a residence is not defined in the policy and is therefore construed against defendant as the insurer, but it is well settled that residency requires something more than temporary or physical presence and requires at least some degree of permanence and intention to remain.

A person may have only one domicile but more than one residence for insurance purposes, and the question of whether a person resides in a given location is a fact-driven inquiry that depends on the totality of the circumstances.

Erie came forward with proof suggesting that plaintiff did not reside at the subject premises, including that he had primarily lived at the Bishop Road property for almost a decade prior to the fire, that his sister resided at the subject premises in return for her making the mortgage payments and covering other expenses, and that he had expressed an intent to transfer ownership of the subject premises to her, all serious indicators that he did not reside at the dwelling.

The record, the appellate court concluded, made it clear that plaintiff continued to have significant connections to the subject premises, however, and that he gave conflicting accounts of what his actual plans were for it.

For example, plaintiff testified that the subject premises had been his parents' residence, that he was living there with them when he purchased it around 2001, and that it has consistently been occupied by either him or his family members. Plaintiff testified that he performed all maintenance and repairs at the subject premises while his sister was living there, as well as that he continued to both keep many personal belongings and receive mail there at the time of the fire. Plaintiff also made clear that he was at the subject premises every day for both maintenance and recreation reasons and that he could and did sleep there on occasion.

Although plaintiff did testify that he aimed to transfer ownership of the subject premises to his sister once she paid off the mortgage, he also gave conflicting testimony in which he stated that he wanted to move back there after he "g[o]t [his] sister set," and he explained in an affidavit that his plan was to do so after rehabilitating the home on the Bishop Road parcel for his sister's use.

The trial court established plaintiff's family connections to the subject premises, his continued use of and presence at the subject premises, and his conflicting statements as to his future plans regarding the subject premises reveal questions of fact as to whether he satisfied the residency requirement of the insurance policy that would preclude summary judgment on that point. Evidence at trial may result in a completely different result.

The order was affirmed.

ZALMA OPINION

The residence requirement has been ignored by insurance agents, insurance brokers and people seeking homeowners insurance. As a result, many suits, like that filed by Finch keep finding their was to the trial and appellate courts. The evidence presented by Finch established that the dwelling was his domicile since he received mail there and spent much time at the dwelling. It was not, however, his residence and was the residence of his sister. The entire dispute would have been resolved if Finch had the policy name as an insured, his sister, and add himself as an additional insured. He did not. At trial the insurer will need to produce evidence that Finch did not "reside" at the premises where the fire occurred.

(c) 2022 Barry Zalma & ClaimSchool, Inc.

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Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and [email protected]

Write to Mr. Zalma at [email protected]; http://www.zalma.com; http://zalma.com/blog; daily articles are published at 
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