ALBERT DEVINCENTIS v. AMICA MUTUAL INSURANCE COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4959-08T34959-08T3

ALBERT DEVINCENTIS,

Plaintiff,

v.

AMICA MUTUAL INSURANCE

COMPANY,

Defendant-Respondent,

and

NEW JERSEY MANUFACTURERS

INSURANCE COMPANY,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 25, 2010 - Decided

Before Judges Carchman and Parrillo.

On appeal from the Superior Court of New

Jersey, Law Division, Morris County,

Docket No. L-000732-08.

O'Donnell, McCord & DeMarzo, P.C.,

attorneys for appellant (James M.
DeMarzo, of counsel; David N. Heleniak,

on the brief).

Sellar Richardson, P.C., attorneys for

respondent (John M. Kearney, of counsel;

Christopher W. Ferraro, on the brief).

PER CURIAM

This dispute between two insurance carriers raises the issue as to where plaintiff Albert M. DeVincentis was a resident and which carrier is responsible for his underinsured motorist (UIM) coverage. Following a bench trial, the judge determined that plaintiff was not a resident of his sister Diane Shannon's household and that her carrier, defendant Amica Mutual Insurance Company (Amica), was not obligated to provide coverage to plaintiff. The judge determined that plaintiff's carrier, defendant New Jersey Manufacturers Insurance Company (NJM), was responsible for UIM coverage. NJM appeals, and we affirm.

The underlying cause of action arose as a result of an automobile accident on October 28, 2004, in Lodi, at which time plaintiff sustained personal injuries. The other driver, Duane Ingala, was insured to a limit of $15,000, and plaintiff settled his claim against him for that amount. Plaintiff was insured by NJM with UIM coverage of $100,000. At the same time, plaintiff's sister, Diane Shannon, was insured with Amica and maintained UIM coverage of $300,000, which was "stepped-down" to plaintiff's policy limit of $100,000.

At the time of the settlement, plaintiff's counsel sent a Longworth letter to Amica. Amica responded and ultimately denied UIM coverage, relying on that portion of its policy that includes coverage for family members "who [are] resident[s] of your household." To resolve the coverage issue, plaintiff filed a declaratory judgment action against NJM and Amica seeking a determination as to which carrier was to provide UIM coverage.

The issue was simply whether plaintiff was a resident of his sister's home and therefore covered by Amica. Judge Rand took extensive testimony from plaintiff and his sister and thereafter, made factual findings concluding that plaintiff was not a "resident" of his sister's residence. He found that Amica was not obligated to provide coverage, and NJM was responsible for UIM coverage.

These are the facts on which he based his findings.

In 1998, Shannon (and family) bought and moved into a home located in Wyckoff, New Jersey (hereinafter "Wyckoff home" and/or "Shannon household"). From the date of purchase until January 28, 2002, plaintiff resided at the Wyckoff home. During the aforementioned period, plaintiff was paying rent to Shannon.

In January 2002, plaintiff moved out of the Wyckoff home to attend the police academy, residing with his girlfriend in Roxbury, New Jersey. Plaintiff graduated from the police academy in June 2002 and became employed as a state trooper. Plaintiff continued to reside in Roxbury until August 2004.

In August 2004, after breaking up with his girlfriend, plaintiff rented an apartment in North Haledon. Plaintiff placed a deposit on the apartment. Plaintiff also acquired items for the apartment such as rugs and shower curtains and moved personal items into the apartment.

Plaintiff's father became terminally ill in August 2004. Plaintiff stayed at the Wyckoff home occasionally as an overnight guest in order to assist his sister in the care of their terminally ill father. On December 3, 2004, plaintiff's father died, after which plaintiff never stayed at the Wyckoff home. Thereafter, plaintiff moved in with his then girlfriend.

Plaintiff stopped paying rent in January 2002 and never paid rent thereafter. Plaintiff maintained the Wyckoff home as a mailing address purely for convenience sake. After plaintiff moved out of the Wyckoff home in January 2002, plaintiff's former room became a nursery for Shannon's son. Shannon did not consider plaintiff a resident of the Wyckoff home after January 2002. Around the time of the accident, plaintiff occasionally stayed at the Wyckoff as an overnight guest, sleeping on a futon located in the sun porch. To summarize, at the time of the accident, plaintiff was sleeping at: (1) new girlfriend's house, (2) North Haledon apartment, and (3) Wyckoff home.

The judge then concluded:

And clearly from the evidence here, I find that both Ms. Shannon Diane Shannon and Albert Jr. clearly did not express any intent that he would be a resident in the Shannon household in any sense of that term at the time of the accident. He was there purely for convenience and purely on a temporary basis and, as of the time of the accident, was there exclusively to assist his sister and brother-in-law in caring for their dying dad and for nothing more.

Consequently, I find the position of Amica Mutual Insurance Company prevails; that Albert Jr., not being a resident of the Shannon household, is not entitled to coverage under that policy and that the sole and exclusive policy which is applicable in this case is that issued by New Jersey Manufacturers.

It's not an easy decision simply because Albert Jr. made it difficult because of the manner in which he had his "address of convenience". But in the absence of bad faith, in the absence of fraud, in the absence of any conduct which would estop anybody here, and there is no such conduct, I find that the address of convenience is insufficient to carry the day for N.J.M.

On appeal, NJM challenges the judge's factual findings. That claim implicates our standard of review. We must give deference to the "factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record." N.J. Div. of Youth and Family Servs. v. C.M., ____ N.J. ____ (slip op. at 3 (2010)(LaVecchia, J., dissenting); MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quotation marks omitted)). The deference is particularly appropriate when there are issues of credibility since they relate to "the trial court's feel of the case as to matters such as the demeanor and credibility of witnesses[.]" D.G. ex rel. J.G. v. N. Plainfield Bd. of Educ., 400 N.J. Super. 1, 26 (App. Div.), certif. denied, 196 N.J. 346, cert. denied, ___ U.S. ___, 129 S. Ct. 776, 172, L. Ed.2d 756 (2008). A judge's findings of fact will not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Inv. Ins. Co., 65 N.J. 474, 484 (1974)).

The judge made explicit findings that on the date of the accident, plaintiff was not a resident of his sister's home. He further found that the use of the address was one of convenience rather than indicative of establishing the Wyckoff address as his residence.

The issue of whether a relative is a resident of a household is fact-sensitive. Hardwicke v. Am. Boychoir Sch., 188 N.J. 69, 93 (2006). Likewise, the meaning of "household" is similarly dependent upon the facts of a particular case. Gibbons v. Callaghan, 158 N.J. 662, 673, 677 (1999) (noting that when determining whether there is a common household, "our courts often consider whether the insured and the relative seeking coverage share a 'substantially integrated family relationship.'").

While NJM correctly notes that "residence" is not "domicile," the judge found that the occasional overnight visits by plaintiff to his sister's residence did not carry with it the indicia of residence. His findings as to the physical circumstances of the Wyckoff home and the fact that plaintiff's former room now housed his nephew, his maintenance of his own apartment in Haledon, his residing in his girlfriend's home, all led to the finding that plaintiff was not a resident of the Shannon household. We are satisfied that the occasional and transitory "sleep-over" at his sister's home did not form the residency necessary to invoke coverage under the Amica policy.

Judge Rand's factual findings and legal conclusions were correct and we find no basis for our intervention.

 
Affirmed.

Longworth v. Van Houten, 223 N.J. Super. 174 (App. Div. 1988).

(continued)

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A-4959-08T3

July 12, 2010