Clothing + Toothbrush + Joint Custody Arrangement = Resident for UM Coverage Under Father's Fiance's Auto Policy

AUTO – UM – RESIDENT OF HOUSEHOLD – INFANT CLAIMANT OF DIVORCED PARENTS – SPECIAL PROCEEDING TO STAY UM ARBITRATION – CPLR § 7503
Matter of Allstate Ins. Co. v. Moreno
(Sup. Ct., Suffolk Co., decided 6/5/2008)

While riding his bicycle, Robert Giffone, Jr. was hit by an uninsured motor vehicle and injured. His divorced parents Catherine and Robert Sr., who lived separately, made a claim for UM coverage and then demanded arbitration of that claim under a personal auto policy Allstate had issued to Robert Sr.'s fiance, Nancy Moreno, who married Robert Sr. seven weeks after the accident.

The Allstate SUM policy endorsement (which included UM coverage) defined the term "insured" as "the named insured and, while residents of the same household, your spouse and the relatives of either you or your spouse."

Allstate commenced this special proceeding for a permanent stay of the UM arbitration, contending: (1) that Robert Sr. was not an "insured" under the Moreno policy; and (2) that even if he were, Robert Jr. was not a resident of his household.

At a hearing of this matter, counsel for all parties stipulated that at the time of the accident, the Allstate policy named Robert A Giffone, Sr. as an insured driver. Additionally, the respondents introduced a copy of a New York State Insurance Identification Card issued by Allstate to Mr. Giffone under the Moreno policy for his 1995 Jeep Cherokee. That ID card specifically stated that "An authorized NEW YORK insurer [Allstate] has issued an Owner's policy of Liability Insurance . . . to: Giffone, Robert A." The hearing evidence also included a copy of the Allstate Auto Policy Declarations, which confirmed that the policy for Mr. Giffone's Jeep Cherokee included UM/SUM coverage.

Based on that evidence, Suffolk County Supreme Court Justice Peter Mayer ruled that "the respondents * * * established that respondent Robert A. Giffone, Sr. was, himself, an insured under the subject Allstate policy at the time of Robert Jr.'s accident[.]" Justice Mayer also found that Robert Jr. was a resident of both his parents' households:

The evidence has also established that although Robert Jr. resided with his mother, Catherine Giffone, at the time of the accident, he also resided with his father under a joint custody arrangement. It is well settled that a person may have more than one residence for purposes of insurance coverage (Hochhauser v. Elec. Ins. Co., 46 AD3d 174, 844 NYS2d 374 [2d Dept 2007]; Dutkanych v United States Fid. & Guar. Co., 252 AD2d 537, 675 NYS2d 623 [2d Dept 1998]). 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 (Hochhauser v. Elec. Ins. Co., supra; New York Cent. Mut. Fire Ins. Co. v Bonilla, 269 AD2d 599, 704 NYS2d 819 [2d Dept 2000]; Allstate Ins. Co. v Rapp, 7 AD3d 302, 776 NYS2d 285 [1st Dept 2004]).

In opposition to Allstate's petition, the respondents submit affidavits from both of Robert Jr.'s parents, respondent Mr. Giffione and Catherine Giffone. The sworn affidavits establish that at the time of the May 8, 2006 accident, both parents shared joint custody of Robert Jr., and that Robert Jr. resided with his father on alternate weekends and during summers. More specifically, Robert Jr. had his own bedroom and kept clothing and a toothbrush at his father's house on a year-round basis. These facts sufficiently establish that as a child of divorced parents, Robert Jr. was, in fact, a resident of both parents' households on the date of his accident (citations omitted).

UM coverage applied, Allstate's application for a stay of arbitration was denied, and the parties were directed to proceed to arbitration pursuant to the applicable policy provisions.