FRANCIS C. SHERIDAN v. THE PROFORMANCE INSURANCE COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5769-08T25769-08T2

FRANCIS C. SHERIDAN and

CHRIS LUNER,

Plaintiffs-Appellants,

v.

THE PROFORMANCE INSURANCE

COMPANY, KIMBERLY A. HANNIGAN,

Defendants-Respondents,

and

MARTHA CUCINOTTA AS ADMINISTRATRIX

OF THE ESTATE OF JOHN CUCINOTTA,

DECEASED,

Defendant.

________________________________________________________________

Argued April 19, 2010 - Decided May 5, 2010

Before Judges Lisa and Coburn.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1385-08.

Steven M. Mezrow argued the cause for appellants (Pansini & Mezrow, attorneys; Michael O. Pansini, on the brief).

Connor, Weber & Oberlies, attorneys for respondent The Proformance Insurance Company (Rebecca L. Thomas, on the brief).

Respondent Kimberly A. Hannigan has not filed a brief.

PER CURIAM

Plaintiffs Francis Sheridan and Chris Luner brought an action for injuries arising out of a two-car automobile accident. They occupied one vehicle. Defendant Kimberly A. Hannigan was the driver of the other vehicle, which was owned by her grandfather, John Cucinotta. The Cucinotta vehicle was insured by The Proformance Insurance Company. It is undisputed that Hannigan was a permissive user of her grandfather's vehicle, and the basic liability coverage under the policy is available to cover any loss for which she is found responsible. However, Proformance denies that the excess liability coverage in the policy applies because it alleges that Hannigan was not a member of Cucinotta's household at the time of the accident.

Plaintiffs initiated this declaratory judgment action, seeking a determination that Hannigan was a member of her grandfather's household and that the excess coverage applies. The trial court granted summary judgment in favor of Proformance, and plaintiffs now appeal. They argue that material facts are in dispute which require a jury determination as to whether Hannigan was a member of Cucinotta's household, and therefore the court erred in granting summary judgment in favor of Proformance. We disagree with plaintiffs and affirm.

Applying the Brill standard, these are the facts in the motion record in the light most favorable to plaintiffs. John Cucinotta, either alone or together with his brother, Joe Cucinotta, owned land on Sun Haven Drive in Clayton. John Cucinotta and his immediate family lived in a home on 611 (later renumbered as 613) Sun Haven Drive. Cucinotta was in the construction business. At some point, he sold the home in which he lived and built a new one on property he owned along side of it, designated as 619 Sun Haven Drive, into which he and his wife moved.

In about 1992, Hannigan and her two-year-old daughter were living in a different community. Cucinotta built or caused to be built a house intended for her occupancy on part of the property he owned on the opposite side of Sun Haven Drive from where he lived. The home is designated as 650 Sun Haven Drive. Hannigan lived continuously at 650 Sun Haven Drive until after June 20, 2005, the date of the accident in the underlying litigation.

The Cucinotta brothers apparently built several houses along Sun Haven Drive for occupancy by various extended family members. When Hannigan was asked in her deposition whether, when she was growing up, this was "all one piece of property [where] all these houses were," she responded: "I think they were already divided as I was growing up." The house in which Hannigan lived at 650 Sun Haven Drive was on a separate tax lot than either of the houses her grandfather occupied over the years on the opposite side of the street. The house in which she lived was not directly across the street from her grandfather's house; it was offset by three houses.

Hannigan never lived in either of her grandfather's houses, and he never lived at 650 Sun Haven Drive. Cucinotta did not collect rent from Hannigan, and he paid the real estate taxes on 650 Sun Haven Drive during most of the time that Hannigan lived there. Hannigan paid some of the utilities, and Cucinotta paid some.

Hannigan had her own key to 650 Sun Haven Drive. There is no evidence in the record suggesting in any way that she and her grandfather moved freely between the two houses in which they respectively lived, kept any clothing or other personal effects in each other's residences, received mail at the other's residence, or in any way had any more access to each other's residence than any other invitee.

Cucinotta was the named insured in the Proformance policy. The excess coverage provision defines "Covered Person(s)" as residents of the insured's household who are his family members. "Family Member" is defined to include a person related by blood "who is a resident of [the insured's] household." The term "household" is not defined in the policy.

Plaintiffs correctly argue that the term "household," when undefined in an insurance policy, does not always require that the individuals involved live under the same roof. Plaintiffs rely primarily upon Gibson v. Callaghan, 158 N.J. 662 (1999), and Mazzilli v. Accident & Casualty Insurance Company of Winterthur, Switzerland, 35 N.J. 1 (1961), in support of their argument that the factual circumstances in this case render the term "household" in the Proformance policy ambiguous, thus requiring a jury determination as to whether Hannigan was a member of Cucinotta's household. This argument is unpersuasive for two reasons. First, the cases upon which plaintiffs rely do not support their argument because of significant factual distinctions. Second, plaintiffs point to no facts which are in dispute which might lead a jury to find in their favor on the "household" issue.

In Mazzilli, a husband and wife lived in a home on a single 2.46-acre tract of land which was a single lot on the local tax map. Mazzilli, supra, 35 N.J. at 3. Without subdividing the lot, they built a second house on the property about 150 feet away from the original house, which was intended for their own use. Ibid. Therefore, no new lot lines were ever "marked out on the tax map or otherwise; no fence or other physical boundaries were created. The 2.46-acre tract remained as a unit which contained the two houses." Id. at 3-4. When marital difficulties arose, the husband moved into the new house and the wife remained in the original house. Id. at 4. The parties had a young son, who moved freely between the two houses and "apparently had the freedom of both places." Ibid. The parties viewed this overall property as "all one place where the entire family was living." Ibid. The insurance policy that was implicated when an accident occurred covered as the insured "premises" the entire 2.46-acre tract on which both dwellings were situated. Id. at 14.

Under these unique circumstances, the Court held that it was "not unreasonable to conclude that both dwellings constituted 'the' household and that parents and son were residents of it within the contemplation of the insurance policy." Id. at 16. The distinguishing characteristic was that the circumstances established a "substantially integrated family relationship." Id. at 19.

Nearly forty years later, the Court revisited the subject in Gibson. In that case, the insured, an elderly woman, moved out of her home after suffering an injury and went to live with her daughter to care for her during her convalescence, but always intended to return as soon as she was physically able to do so. Gibson, supra, 158 N.J. at 665-66. She continued to maintain her homeowners policy on her home. She continued to receive mail there. She left behind her clothing and personal effects. After three years went by, concerned about the risk of burglary and vandalism, she asked her grandson and his wife to move in and care for the home, which they did; they paid her rent and paid the utilities, but the insured continued to pay property taxes. Id. at 666. The grandson and his wife did not take out a new homeowners policy on the insured's home believing they were covered by the grandmother's policy, which remained in effect. Id. at 666-67. They offered to buy the home from the grandmother, but she declined, because she continued in her intention to return there when her health improved. Id. at 666.

The Court recognized once again that each of these cases is highly fact-sensitive and the meaning of "resident of your household" may vary according to the circumstances in each case. Id. at 672. The Court applied the test laid down in Mazzilli, namely whether individuals living under separate roofs shared a "substantially integrated family relationship." Id. at 673. The Court concluded that under the unique set of circumstances presented in the appeal, the insured and her grandson and his wife could be deemed members of the same household. Id. at 677.

The Court distinguished cases from other jurisdictions relied upon by the insurance company in which individuals were not found to be members of the same household because "[i]n those cases, although the named insured owned the insured house, the named insured did not live there and had no intention of ever living there. In essence, the named insured was a landlord and the tenant in the insured premises happened to be a relative." Id. at 679. The Court concluded that cases in which "household" is equated with a "substantially integrated family relationship" between the insured and a relative seeking coverage require an analysis of "whether the relative seeking coverage, who did not reside exclusively in the insured premises, had a sufficient connection to the insured premises to be considered a member of that 'household.'" Id. at 680 (emphasis added).

The case before us is precisely in the category rejected by the Court in Gibson. Cucinotta was nothing more than a landlord or benefactor of his granddaughter. Not only did Hannigan not live exclusively in her grandfather's home, she did not spend any time there and did not have free access to the home. There was a total lack of the kind of connection necessary to render these arrangements a "substantially integrated family relationship." Viewing the facts most favorably to plaintiffs, no rational factfinder could make such a finding.

We have examined the motion record and presented the facts in the light most favorable to plaintiffs. Plaintiffs have not pointed to a single material fact that is in dispute and requires resolution by a jury. The case was ripe for summary judgment, which was correctly granted in light of the controlling legal principles.

 
Affirmed.

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

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