RUTGERS CASUALTY INSURANCE COMPANY v. ALICE KENNEDY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4376-07T24376-07T2

RUTGERS CASUALTY INSURANCE COMPANY,

Plaintiff-Respondent,

V.

ALICE KENNEDY,

Defendant,

and

CHRISTOPHER KENNEDY,

Defendant-Appellant.

_________________________________________

 

Argued September 14, 2009 - Decided

Before Judges Rodr guez, Reisner and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-4219-04.

Elizabeth D. Berenato argued the cause for appellant (Smith, Magram, Berenato & Michaud, attorneys; Ms. Berenato of counsel and on the brief).

Susan L. Moreinis argued the cause for respondent.

PER CURIAM

Defendant-counterclaimant Christopher Kennedy appeals from a May 19, 2008 order, entered after a bench trial, denying his claim for personal injury protection (PIP) benefits. We affirm.

I

This is a companion case to the appeal in Rutgers Casualty Insurance Co. v. Kennedy, No. A-4195-07. Both cases arose from Christopher Kennedy's PIP claim. That claim was premised on his alleged status as a resident relative in the household of his sister-in-law Alice Kennedy, who held an automobile insurance policy issued by plaintiff Rutgers Casualty Insurance Co. (Rutgers). We have filed separate opinions in these two cases, in large part because the cases involve different evidentiary records, and the decision of each appeal rests on the evidence produced in that case.

We briefly review the procedural history and evidence in this appeal. On May 9, 2003, Christopher was a passenger in a vehicle that was involved in a two-car accident. Neither car was owned by Alice or insured under her Rutgers policy. However, Christopher, who did not own a car, filed a claim for PIP benefits under Alice's Rutgers policy. After investigating the claim, Rutgers filed a complaint against Alice and Christopher, seeking damages and a declaratory judgment voiding the policy, based on alleged fraud. Christopher counterclaimed for PIP benefits. Alice counterclaimed for malicious use and abuse of process. The fraud case and Alice's counterclaim were tried first, before a jury which rendered a verdict in Alice's favor. Christopher's PIP claim was tried later in a bench trial.

The following pertinent evidence was produced at the PIP trial. Christopher testified that he had moved into Alice's house in Burlington City a month or two before the May 2003 accident. According to Christopher, he moved in with Alice because he was "between apartments," having recently moved out of an apartment in Burlington. He candidly agreed that at the time he moved in with Alice and her husband Joseph (Christopher's brother), he planned "to ultimately secure another apartment" and live on his own again. However, after the auto accident, he wound up living with Alice and her husband for nearly a year; in 2004 he moved to South Carolina to live with another relative. When he moved into Alice's house, Christopher had a suitcase with his clothing, but no other personal possessions, such as furniture or a television.

According to Christopher, he used Alice's house as his home base, "sometimes" sleeping and eating meals there, but consistently receiving his mail there, including the medical bills associated with the accident. At the time of the accident, Christopher gave the police Alice's address as his home address, and used that address for his PIP claim. He changed his mailing address when he moved to South Carolina in 2004. He testified that when he applied to Rutgers for PIP benefits, he "wasn't really sure" if he was entitled to benefits from Rutgers.

On cross-examination, Christopher admitted that in "May of 2002," before he moved into Alice's house, he nonetheless used her address in obtaining a boat license. He contended that he used that address because he knew he would be moving from his apartment. He also admitted that in the earlier fraud trial, he testified that when he would stay with Alice he was "just visiting" and "would not stay long." He added that he would "come and go." He re-affirmed that on the date of the accident, he was "between addresses and staying at [Alice's house]," but he intended "to leave . . . as soon as [he] found somewhere else to stay."

In response to a question from the court concerning his state of mind at the time he was living at Alice's house, Christopher further admitted that he did not consider himself a "member of the household." He agreed that he was "just staying there . . . temporarily." On re-direct examination, he testified that he considered Alice's house to be his "residence" because that was where he was living at the time and he considered it his "home base" until he could get his own place to live. He moved in with just a suitcase, because that was all he owned at the time. Ultimately, it took him almost a year to find a job in South Carolina and move down there to live with another brother. He also testified that prior to 2003, he had stayed temporarily at Alice's house on other occasions when he was between apartments.

Joseph testified that at the time of the accident, Christopher was visiting, or staying with them temporarily, against Alice's wishes, because he had lost his apartment. He testified that Christopher lived with them sporadically after the accident: "[H]e'd be with us for a couple weeks and then stay with my brother, my daughters, you know. So off and on for a year."

Like her husband, Alice testified that Christopher stayed at their house on a transient basis: "He'd come stay for days, weeks, then he would go and go to a girlfriend's, go to his other brother, go to wherever." He also stayed with a friend in Moorestown. While Christopher had a key to the house, so did Alice's daughters and her brother, all of whom had their own homes. In her deposition testimony, Alice likewise described Christopher as transient: "He never actually lived with us. He came to visit. He was a transient. He would just come and stay and then leave and come and stay. I mean, with the clothes on his back, maybe a spare outfit or something, but he didn't actually ever live with us." Christopher's deposition testimony, read to the judge during the trial, confirmed he would not stay at Alice's house for "long" periods of time. He would stay there when he was "between apartments."

In an oral opinion placed on the record on April 9, 2008, the trial judge concluded that Christopher was not a "resident relative" in Alice's household, for purposes of PIP coverage under N.J.S.A. 39:6A-4.2. He did not credit Christopher's testimony concerning his residence at Alice's house:

The facts support the conduct of the claimant that it was not his intention to be a resident household member of the Allice and Joseph Kennedy residence. His presence was transient in nature, although he had no identifiable personal residence.

He would often stay with another relative, i.e. his brother or his sister. . . .

. . . It is clear from the testimony that he was an occasional visitor, and not a resident of the household. . . . I am satisfied that the testimony of Joseph Kennedy and Allice Kennedy . . . was truthful and honest. I am satisfied that, while they extended an opportunity for Christopher Kennedy during the transient nature of his existence, that benefit was not extended on a permanent basis . . . .

II

Our review of the trial court's decision is limited. We are bound by the trial court's factual findings so long as they are supported by substantial credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). We owe particular deference to the trial court's credibility determinations. State v. Locurto, 157 N.J. 463, 472-74 (1999). However, we owe no special deference to the trial court's interpretation of the law. Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The PIP statute provides in relevant part that an auto insurance policy must provide PIP coverage for the resident relatives of an insured:

[E]very standard automobile liability insurance policy . . . shall contain personal injury protection benefits for the payment of benefits without regard to negligence, liability or fault of any kind, to the named insured and members of his family residing in his household who sustain bodily injury as a result of an accident while occupying, entering into, alighting from or using an automobile. . . .

[N.J.S.A. 39:6A-4.]

Where such coverage exists, it is primary for any resident relative who does not have other coverage:

Except as provided in [N.J.S.A. 39:6A-4.3d], the personal injury protection coverage of the named insured shall be the primary coverage for the named insured and any resident relative in the named insured's household who is not a named insured under an automobile insurance policy of his own. No person shall recover personal injury protection benefits under more than one automobile insurance policy for injuries sustained in any one accident.

[N.J.S.A. 39:6A-4.2.]

Consequently, although Christopher was a passenger in a vehicle that, according to the police report was insured, and that vehicle was hit by an apparently insured vehicle, if he was covered under Alice's policy her policy's PIP coverage was primary.

We have previously recognized that a person may have more than one residence, and application of the PIP statute must be determined based on the individual facts of the claimant's living situation:

The terms "residing" and "household" do not have "any absolute meaning." Miller v. United States Fidelity and Guar. Co., 127 N.J.Super. 37, 41 (App. Div. 1974). These words were used by the Legislature to describe the extent of PIP coverage, and they must be given liberal interpretation so as to include all persons the Legislature intended to be covered by the umbrella of PIP protection.

[Sjoberg v. Rutgers Cas. Ins. Co., 260 N.J. Super. 159, 162 (App. Div. 1992).]

In Sjoberg, we held that, due to the parents' legal and moral support obligations, and their visitation and custody rights, the dependent teenage daughter of divorced parents was a resident of both of the parents' households. Id. at 163-64. Hence, she was covered under the father's policy even though she was living with the mother in Florida at the time of the accident.

In Arents v. General Accident, 280 N.J. Super. 423 (App. Div. 1995), we likewise recognized that an adult could have two places of residence. However, in Arents, the adult offspring had a small New York apartment, but he had also maintained a bedroom in his parents' New Jersey home, kept his cars garaged there and slept at his parents' house two nights a week for a period of fifteen years. Id. at 425-26. Under those circumstances, we concluded that he had a dual residency for purposes of providing his father underinsured motorist coverage under the son's insurance policy. Id. at 428-29.

However, in the context of a claim for benefits under the Unsatisfied Claim and Judgment Fund (UCJF), the Supreme Court has construed residency in New Jersey as requiring an intent to remain here for an extended time, rather than as a transient.

[P]ursuant to the UCJF, the concept of residency connotes a "degree of permanence in contrast with the situation which obtains when a person is merely transiently staying at a given address and with the formed intention of shortly going elsewhere."

[Caballero v. Martinez, 186 N.J. 548, 559 (2006)(quoting Continos v. Parsekian, 68 N.J. Super. 54, 60 (App. Div. 1961)).]

In Caballero, a young Mexican immigrant moved to New Jersey with the intention of staying here for at least five years in order to work and send money home to his family. After he had been here for about five months, he was involved in an auto accident. Under those circumstances, the Court concluded that he was a resident of New Jersey for purposes of the UCJF. Id. at 561-62. On the other hand, in Continos, we concluded that a Greek student who came to the United States to study in New York and Oklahoma was not a resident of New Jersey, where his visits to this State were sporadic and evinced no intent to live here for any extended period of time. We observed:

Although undoubtedly there is a well recognized distinction between "domicile" and "residence," and the former has a fixed and permanent quality which does not obtain in the concept of "residence," implicit in the latter term, nevertheless, is a degree of permanence in contrast with the situation which obtains when a person is merely transiently staying at a given address and with the formed intention of shortly going elsewhere. "Mere presence in a place unaccompanied with any intention to remain there for any length of time" does not constitute a residence. Plaintiff's proofs fall short of establishing that the situation in the case at bar is any more than that. We determine that plaintiff failed to prove that he was a "resident" of this State within the meaning of the aforesaid statute. He was simply a sojourner here. As such he is not entitled to the relief he seeks.

[Continos, supra, 68 N.J. Super. at 60-61 (citations omitted).]

Based on the applicable case law and the evidence in this record, we find no basis to disturb the trial judge's decision. We conclude that the judge's findings of fact are amply supported by the record, including Christopher's own testimony. At the time of the accident, he had no plans to remain at Alice's house on a long-term basis. In that respect, he was far more analogous to the Greek student in Continos than to the Mexican immigrant in Caballero or the plaintiff in Arents. Further, unlike the minor plaintiff in Sjoberg, Christopher was an adult, to whom Alice and Joseph owed no duty of support or shelter.

Even if the PIP statute does not require an intent to permanently live with the insured relative, Christopher's situation would not satisfy the statutory standard. As the judge found, Christopher was a transient. He had lost his apartment and only intended to stay with his brother and sister-in-law temporarily until he found a new residence. Moreover, he did not even stay at their house all the time but rather drifted back and forth between their house and the various homes, respectively, of his girlfriend, another brother, his sisters, and a friend in Moorestown. Under these circumstances, he was a sojourner, not a resident of Alice's household. See Continos, supra, 68 N.J. Super. at 60-61.

Affirmed.

 

To avoid confusion, we will refer to Christopher Kennedy and Alice Kennedy by their first names. We note that Alice's name is spelled "Allice" in some portions of the record.

According to Christopher, this house had been the Kennedy family home, where he grew up. We refer to it as "Alice's house" although there is no dispute that at the time of the auto accident, her father-in-law owned the house and rented it to Alice and her husband.

The record does not clearly indicate whether Christopher applied to either of the other insurers for PIP benefits, and at oral argument counsel provided us with conflicting representations on the issue. It is further not clear why, if Christopher's residential situation was ambiguous, he did not make simultaneous applications to all potential sources of insurance (noting the residence issue) and let the insurers determine which of them was responsible for payment.

(continued)

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A-4376-07T2

September 30, 2009