ROBERTA KIMBEL ROSNER v. LIBERTY MUTUAL INSURANCE COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4576-07T34576-07T3

ROBERTA KIMBEL ROSNER,

Individually, WENDY ROSNER,

Individually and as

Co-Executrix of the Estate of

ERWIN ROSNER, and STEPHANIE

PANASCI, Individually and as

Co-Executrix of the Estate of

ERWIN ROSNER,

Plaintiffs-Respondents,

v.

LIBERTY MUTUAL INSURANCE

COMPANY,

Defendant/Third-Party

Plaintiff-Respondent,

v.

GOVERNMENT EMPLOYEES

INSURANCE COMPANY,

Third-Party Defendant-

Appellant.

 

Argued March 3, 2009 - Decided

 
Before Judges Winkelstein, Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-3161-05.

Robert A. Hicken argued the cause for appellant (Capehart & Scatchard, attorneys; Mr. Hicken, of counsel; Patricia L. Dee, on the brief).

Heidi R. Kopelson argued the cause for respondents Roberta Kimbel Rosner, Wendy Rosner and Stephanie Panasci (Folkman Law Offices, attorneys; Ms. Kopelson, on the brief).

Respondent Liberty Mutual Insurance Company has not filed a brief.

PER CURIAM

On February 13, 2003, Erwin Rosner was involved in a motor vehicle accident in Burlington County. He died on May 29, 2003 from injuries sustained in the accident. Plaintiffs, Rosner's estate; his wife, Roberta Kimbel Rosner (Kimbel); and his daughters, filed a third-party complaint against the driver of the other motor vehicle, Christina Lubeck, and a first-party claim for underinsured motorist (UIM) benefits against Rosner's insurance carrier, Liberty Mutual Insurance Company.

Liberty Mutual filed a third-party complaint against Government Employees Insurance Company (Geico), which insured Kimbel at the time of the accident. Liberty Mutual claimed that Kimbel's UIM coverage with Geico was primary to that of Rosner's UIM coverage with Liberty Mutual. After plaintiffs filed a direct claim against Geico for UIM coverage, Geico denied the claim on the ground that Rosner was not a "resident relative" under Kimbel's policy and was thus not entitled to coverage.

On December 18, 2007, following cross-motions for summary judgment, Judge Suter ordered Geico to provide UIM coverage to plaintiffs. On appeal, Geico claims that the trial court incorrectly applied New Jersey law; Rosner was not a resident spouse under the Geico policy; and Pennsylvania law precludes payment of UIM benefits to a resident family member operating a vehicle not covered by the insurance policy. We reject Geico's arguments and affirm substantially for the reasons expressed by Judge Suter.

Kimbel met Rosner in 1993. They married in 1998. Kimbel resided in a home that she owned in Merion, Pennsylvania. Rosner lived in an apartment he owned in New York City, where he operated two businesses. While dating, and during the first several years of their marriage, Kimbel and Rosner lived in their respective homes during the week and stayed together at either the Merion residence or New York apartment from Thursday to Monday. After they married, Rosner sold the apartment he owned, and he and Kimbel bought another New York apartment together. Kimbel retained sole ownership of the house in Merion.

In a deposition, Kimbel testified that before Rosner's death, he "slowed down his work," going to the New York office two or three days a week, and began spending more time in Merion. In 2001 or 2002, approximately a year to a year and a half before his accident, Rosner stopped working and lived "fulltime" in Merion with Kimbel. They spent their weekends during the summer at Kimbel's house on Long Beach Island or at their apartment in New York. While at the Merion residence, Rosner garaged his vehicle there. His two adult daughters, plaintiffs Wendy Rosner and Stephanie Panasci, both testified that if they wished to contact their father, they first tried to reach him at the Merion residence because they knew that was where he spent most of his time.

During the marriage, Rosner paid all bills associated with his New York apartment and the apartment he owned with Kimbel, while Kimbel paid all bills associated with the Merion and Long Beach Island homes. Several legal documents, including a durable power of attorney signed by Rosner and a healthcare proxy that Kimbel and Rosner both signed, listed the couple's address as New York.

At the time of the automobile accident, Rosner, who had a New York driver's license, was driving a vehicle that he owned and was registered in New York. His insurance policy with Liberty Mutual, issued in New York, listed his residence and the place where the vehicle was principally garaged as the New York residence that he owned with Kimbel. Kimbel's Geico policy had been issued in Pennsylvania. It listed a Pennsylvania address as her residence. The policy did not list Rosner as a resident relative.

Following the accident, the admission papers at Cooper Hospital from February 14, 2003, listed Rosner's New York address. A registration record from Kindred Hospital, where Rosner stayed for approximately three and a half months after his accident, listed the Merion, Pennsylvania address as his residence.

The motion judge found that, as a matter of law, Rosner was a resident of Kimbel's Merion home, as evidenced by the testimony of Kimbel and Rosner's daughters; Rosner and Kimbel's marriage certificate; Rosner's death certificate; a Paine Webber account dated April 2003; cremation approval; and registration records from Kindred Hospital listing Rosner's residence as the Merion home. We agree with that analysis.

The Geico policy defines an insured to include the named insured's spouse, if the spouse is a resident of the same household. The laws of both Pennsylvania, where the Geico policy was issued and Kimbel resided, and New Jersey, where the accident occurred, recognize that an individual may have dual residences for purposes of insurance coverage. See Arents v. Gen. Accident Ins. Co., 280 N.J. Super. 423, 428 (App. Div. 1995); Wall Rose Mut. Ins. Co. v. Manross, 939 A.2d 958, 968 (Pa. Super. Ct. 2007), appeal denied by Wall Rose Mut. Ins. Co. v. Manross, 946 A.2d 688 (Pa. 2008). Although it is arguable that Rosner was a resident of New York at the time of the accident, the record also supports the motion judge's conclusion that Rosner was a resident of Pennsylvania. Put simply, the record shows that Rosner was a resident of both states at the time of the accident. As such, he qualified as a resident spouse of Kimbel, and was therefore entitled to coverage under the Geico policy.

Geico argues that even if Rosner was a resident spouse at Kimbel's Merion home, the policy still precludes coverage because the vehicle he owned and was driving at the time of his accident was not listed in the policy and therefore not insured by the policy. Geico further contends that, applying Pennsylvania law, public policy mandates that the court protect insurers against underwriting unknown risks which ultimately lead to higher premiums for coverage for everyone.

We reject Geico's arguments for two primary reasons. First, Geico's policy does not include language that would exclude Rosner from coverage because he drove a car not specifically listed in the policy.

Second, Geico's reliance on cases that uphold "other household vehicle" exclusions based on the public policy of reducing unknown and uncompensated risks to insurance companies so as to maintain reasonable premiums is misplaced. See Prudential Prop. and Cas. Ins. Co. v. Colbert, 813 A.2d 747 (Pa. 2002); Burstein v. Prudential Prop. and Cas. Ins. Co., 809 A.2d 204 (Pa. 2002). Those cases stand for the proposition that "other household vehicle" exclusions that are clearly set out in a policy are enforceable. Here, the Geico policy contains no such exclusion.

The Geico policy defines an "insured motor vehicle" as a motor vehicle:

(a) described in the declarations and covered by the bodily injury liability coverage of this policy;

(b) temporarily substituted for an insured motor vehicle when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction;

(c) operated by you or your spouse if a resident of the same household.

But the term "insured motor vehicle" does not include:

(i) a motor vehicle used to carry passengers or goods for hire except in a car pool;

(ii) a motor vehicle being used without the owner's permission; or

(iii) under subparagraphs (b) and (c) above, a motor vehicle owned by or furnished for the regular use of an insured.

Geico asserts that this definition establishes an "other household vehicle" exclusion that denies coverage for any vehicle not owned by the insured and not listed on the policy. We disagree. The language Geico relies on is not an exclusion from coverage. Only if the policy contains an exclusion does the public policy of Pennsylvania demand that the court enforce it. See Colbert, supra, 813 A.2d 747; Burstein, supra, 809 A.2d 204. That is not the case here.

 
Geico's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Suter in her thorough and well-reasoned opinion.

(continued)

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A-4576-07T3

March 31, 2009