DeCeglie v State Farm Ins. Cos.
Annotate this CaseDecided on August 28, 2006
Supreme Court, Suffolk County
Joseph DeCeglie Jr., Plaintiff,
against
State Farm Insurance Companies, Defendant
2002-04665
Lillian M. Kennedy Esq.
Epstein & Grammatico Esqs.
Attorneys For Plaintiff
1393 Veterans Mamorial Highway
Hauppauge, New York 11788
Maryellen David Esq.
Martin Fallon & Mulle Esqs.
Attorneys For Defendants
100 East Carver Street
Huntington, New York 11743
Jeffrey Arlen Spinner, J.
The Plaintiff has commenced this action to obtain a declaratory judgment decreeing that the Defendants are legally obligated to provide him with both a defense and indemnity in an action for wrongful death, pending in the Supreme Court, Nassau County. The Plaintiff asserts that he is entitled to the same under the terms of automobile policy no. 7276603-A09-32D issued to him by the Defendants. Subsequent to the commencement of the action, the Defendants moved for summary judgment pursuant to CPLR 3212 which application was denied by the Court on March 24, 2005 (Hon. Peter Fox Cohalan, J.S.C.). The matter was thereafter assigned to this Part for [*2]trial which was held on August 14, 2006.
The operative facts, which are not in dispute, are relatively simple. On September 2, 1997, the Plaintiff borrowed an automobile that was owned by his brother in law Michael Macchiarola and insured by a carrier other than the Defendants. The Plaintiff was involved in a collision with a pedestrian, causing the death of the pedestrian and the subsequent underlying action at law. Mr. Macchiarola's vehicle was duly insured, albeit with de minimis coverage and the Court was led to understand that his carrier had tendered the policy limits, which was far below the alleged damages. The Plaintiff gave timely notice to the Defendants (the
insurer of his personal vehicle, which was not involved in the collision) of the collision. The Defendants thereafter disclaimed coverage upon the grounds that the incident fell within one or more of the express exclusions contained within the policy issued by them.
Both the Plaintiff and Michael Macchiarola testified before the Court. Both had a somewhat fuzzy recall of the events herein, asserting that they had occurred almost nine years ago. There were portions of deposition testimony to which reference was made upon the record. The Court also received four exhibits into evidence.
The Plaintiff asserts entitlement to defense and indemnity claiming that stated exceptions do not apply because Mr. Macchiarola was not actually residing with him at the time and that his permissive use of the vehicle constituted a Temporary Substitute Vehicle (as defined in Defendants' policy) thus entitling him to the relief sought. The Defendants claim that the Plaintiff's permissive use of Mr. Macchiarola's vehicle falls squarely within the policy exclusions because Mr. Macchiarola was residing with the Plaintiff and the vehicle was not a Temporary Substitute Vehicle. The Defendants appear to place the bulk of their argument and position on the claim that Mr. Macchiarola was a "relative residing" with the Plaintiff and so coverage would be excluded under the policy.
The testimony offered by Plaintiff was that Mr. Macchiarola was "in and out" and "wasn't always with me." He stated that Mr. Macchiarola would divide his time between the Plaintiff's home (where he was permitted use of the spare bedroom), the home of his girlfriend and the home of his parents. He did not have a key or other unlimited access to Plaintiff's home though he did use Plaintiff's address for his operator's license and vehicle registration. Plaintiff testified that he neither levied nor collected rent or any other form of remuneration from Mr. Macchiarola. However, some of his testimony was in conflict with statements that he made at a pre-trial depositions held on October 18, 1999 and May 2, 2002, respectively. Indeed, on October 18, 1999, he conceded, under oath, that Mr. Macchiarola had a separate room, had toiletries in the bathroom, left each day and went to work and returned in the evening, all for more than one week at a time.
Mr. Macchiarola testified before the Court in this matter. Among other things, he stated that he spent his time at his girlfriend's house, that home of his parents and the home of the Plaintiff. He allowed that he had a "couple of things" of a personal nature at Plaintiff's home and that had [*3]no intention of remaining there permanently. He stated that the Plaintiff had borrowed his car on perhaps one or two prior occasions and had first asked permission. The Plaintiff did not have a set of keys to Mr. Macchiarola's vehicle. He stated that during the nine months preceding the collision, he stayed at his girlfriend's home in Baldwin "a few nights a week" and kept personal belongings there as well as at Plaintiff's home in Greenlawn. He stated further that he would stay at his parents' home in Dix Hills to care for their pets while they were away. He asserted that they usually went away at least five or six times each year, sometimes for more than one month at a time. He stated that all of his furniture and the bulk of his clothing and other personal items were at his parents' home while only around "10% or 15%" were maintained at the Plaintiff's home. He stated that at the time of the collision, he was "between schools" and was therefore moving between the three households. At his deposition on October 18, 1999, he stated under oath that he had been continuously residing in the Plaintiff's home for over two years (though the bulk of this time would have been subsequent to the collision).
The threshold question to be answered is whether or not Mr. Macchiarola was residing with the Plaintiff for the purposes of determining coverage. It is axiomatic that in order to establish residency, one must show some evidence of an intent to remain in a particular location copupled with some degree of permanence, Government Employees Insurance Company v. Paolicelli 303 AD2d 633 (2nd Dept. 2003) citing New York Central Mutual Fire Insurance Co. v. Kowalski 195 AD2d 940 (3rd Dept. 1993). Even where an individual has used a particular address for the purposes of registration to vote, filing of tax returns and for one's driver's license, those incidents, standing alone, do not establish residency at the given address, American National Property and Casualty Co. v. Chulack 265 AD2d 550 (2nd Dept. 1999). In the matter of State Farm Mutual Automobile Insurance Company v. Nicoletti 11 AD3d 702 (2nd Dept. 2004) the Appellate Division, Second Department, in a unanimous and succinct opinion found that the Defendant at issue was not a resident of the insured's home, even where she kept some belongings at the home, received mail there and was in possession of a key to the premises. The Second Department, In the matter of Biundo v. New York Central Mutual 14 AD3d 559 (2nd Dept. 2005) found that the petitioner had been residing with her parents while her residence was undergoing a great deal of renovation and that she intended to remain there for an indefinite and permanent period of time.
Based upon all of the evidence adduced and upon the application of the foregoing authority, this Court is unable to conclude that Michael Macchiarola was a resident of the Plaintiff's household. Therefore, the Defendants' disclaimer upon the basis of Mr. Macchiarola residing with the Plaintiff cannot be sustained.
The Court next turns to the issue of whether or not the vehicle would qualify as a "non owned vehicle" or a "temporary substitute vehicle" as those terms are defined by the policy (contract) issued by the Defendants. This Court has reviewed the same, received into evidence as Plaintiff's Exhibit 1. A careful examination of the document reveals it to be fraught with conflicts and ambiguities, both in the definitions and within the terms thereof. This is especially so when one reads it in the posture of a lay person and not as one who is learned in the law. [*4]Since an insurance contract is, in effect, a contract of adhesion, any ambiguity or any term subject to more than one reasonable interpretation must be construed against the insurer and in favor of the insured, Belt Painting Corp. v. TIG Insurance Co. 100 NY2d 377 (2000), Ace Wire & Cable Company Inc. v. Aetna Casualty 60 NY2d 390 (1983), Thomas J. Lipton Inc. v. Liberty Mutual Insurance Co. 34 NY2d 356 (1974). Moreover, where an insurer seeks to invoke the provisions of an exclusion in the policy, the insurer has the burden of proving that the incident or occurrence falls within the exclusion, thus entitling the insurer to disclaim coverage, Continental Casualty Co. v. Rapid-American Corp. 80 NY2d 640 (1993).
Since there are sufficient and unresolved ambiguities contained within the express language of the policy herein, this Court has no alternative but to invoke the rules of construction and interpret the same as against the Defendants. This is so especially since the Defendants have failed to sustain their affirmative burden with respect to the exclusions upon which they have relied in disclaiming coverage herein.
In a matter such as this one, it is the province and indeed the obligation of the trial court to assess and determine all matters of credibility, Morgan v. McCaffrey, 14 AD3d 670 (2nd Dept. 2005), Matter of Liccione v. Michael A., 65 NY2d 826 (1985). Here, in this civil matter, the burden is upon the Plaintiff to plead and prove his direct case by a fair preponderance of the credible, relevant and material evidence while the Defendants have the same burden imposed upon them with respect to the exclusionary clauses in the policy, Prince-Richardson On Evidence, § 3-210, Torem v. Central Ave Rest, 133 AD2d 25 (1st Dept. 1987). This Court is persuaded that the Plaintiff has satisfied his burden although the Defendants have failed to meet theirs.
It is, therefore,
ORDERED, ADJUDGED and DECREED that automobile insurance policy no. 7276603-A09-32D issued by the Defendants affords coverage up to the stated policy amounts in favor of the Plaintiff with respect to the automobile accident of September 2, 1997 wherein the Plaintiff struck a pedestrian; and it is further
ORDERED, ADJUDGED and DECREED that in accordance with the said policy of insurance, the Defendants are legally obligated to indemnify and defend the Plaintiff in the action or actions arising form the automobile accident of September 2, 1997, the same to be limited only to the extent of the available insurance coverage thereunder and to include all costs, disbursements, expenses and counsel fees.
Dated, 28 August 2006
Riverhead, New York
_____________________________________
JEFFREY ARLEN SPINNER, J.S.C.
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