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Miller v. United States Fidelity and Guaranty Co.

Decided: February 20, 1974.

CARLTON MILLER AND JUDITH MILLER, PLAINTIFFS-RESPONDENTS,
v.
UNITED STATES FIDELITY AND GUARANTY COMPANY, DEFENDANT-RESPONDENT, AND CUMBERLAND MUTUAL FIRE INSURANCE COMPANY, DEFENDANT-APPELLANT



Lynch, Mehler and Michels. The opinion of the court was delivered by Michels, J.s.c., Temporarily Assigned.

Michels

[127 NJSuper Page 38] This appeal involves the construction of the clause of a liability policy of insurance

commonly referred to as a "homeowner's policy," which extends coverage to relatives of the named insured or his spouse if the relatives are residents of the named insured's household. The court below, on a motion for summary judgment brought by plaintiffs, relying upon the two policies of insurance involved and depositions of the involved persons, held that the infant who started the fire which caused plaintiffs' property damage was a resident of his mother's household, not of his father's household, and imposed liability on her insurance carrier, Cumberland Mutual Fire Insurance Company (Cumberland). Summary judgment thereupon was entered against Cumberland in favor of plaintiffs and the father's insurance carrier, United States Fidelity & Guaranty Company (U.S.F.&G.). Cumberland appeals.

Plaintiffs originally instituted suit to recover damages to their barn which was caused by a fire set by the infant Daryl Lewis. The suit was instituted against Daryl, his natural mother, Phoebe Hackett, and his natural father, Albert Lewis. Subsequently his stepmother, Hilda Lewis, was joined as a defendant. Daryl was nine years old at the time of the fire. His parents were divorced, and each had remarried, setting up separate homes about one-half mile apart. Pursuant to a custody decree which was in effect at the time of the fire, Daryl's natural mother retained custody of Daryl, and his natural father was granted visitation rights three out of four weekends. However, in spite of the terms of the custody decree, the undisputed evidence establishes that Daryl was picked up by his father each Saturday morning at his mother's home, and taken to his father's home where he slept each Saturday. Daryl was then returned to his mother's home each Sunday. This arrangement between the mother and father was followed every weekend. Daryl lived with his mother during the week and lived with his father on weekends. In fact, in response to the question: "Who do you live with?", Daryl replied: "My dad and my mom."

On the day of the fire Daryl's father picked him and his brother up at nine o'clock in the morning and brought them to his home as was customary. One of Daryl's chores at his father's home was to burn the trash, which he did on that day. Thereafter he started a fire in plaintiffs' barn which resulted in extensive damage, giving rise to the original suit brought against him and his natural parents and stepmother. Neither Cumberland, his mother's insurance carrier, nor U.S.F. & G., his father's insurance carrier, would provide a defense to that suit on behalf of Daryl. Consequently, Daryl was unrepresented until pretrial conference, when the court appointed a guardian ad litem to represent him. Thereafter, following completion of discovery, a consent judgment was entered in favor of plaintiffs and against the infant Daryl in the amount of $43,000. This action was then instituted by plaintiffs against Cumberland and U.S.F. & G. Plaintiffs contended that both policies provided coverage to Daryl for this incident.

The court below disagreed and held that only Cumberland's policy provided Daryl with coverage. The court reasoned that Daryl could not live in two places: his domicile and residence were with his mother, not his father.

Each of the policies of insurance contained the following identical provisions:

2. DEFINITIONS:

(a) Insured: The unqualified word "Insured" includes (1) the Named Insured and (2) if residents of his household, his spouse, the relatives of either, and any other person under the age of twenty-one in the care of an Insured.

Cumberland contends that the court below erred in granting summary judgment because the question of whether Daryl was a resident within the meaning of the clause under review was one of fact for a jury. We disagree. A motion for summary judgment will be granted where the pleadings and depositions do not show the existence of a genuine issue of material fact requiring disposition at trial.

See Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74 (1954); Sokolay v. Edlin, 65 N.J. Super. 112, 120 (App. Div. 1961); Eisen v. Kostakos, 116 N.J. Super. 358, 370 (App. Div. 1971); R. 4:46-2. The pertinent facts involved in this appeal are not in dispute. They were fully developed through depositions and stand uncontroverted. The court is not precluded from adjudicating the legal consequences to be drawn from undisputed facts. Cf. United States v. General Instrument Corp., 87 F. Supp. 157, 165 (D.N.J. 1949); Fox v. Johnson & Wimsatt, 75 U.S. ...


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