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Ohio Casualty Insurance Company v. Estate of Wittkopp

December 16, 1999

OHIO CASUALTY INSURANCE COMPANY, PLAINTIFF-RESPONDENT,
v.
THE ESTATE OF SHANNON KAY WITTKOPP, STANLEY EISEMAN, AND SANDRA EISEMAN, DEFENDANTS, AND HANOVER INSURANCE COMPANY, DEFENDANT-APPELLANT.



Before Judges Kleiner, P.G. Levy and Carchman.

The opinion of the court was delivered by: Kleiner, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 29, 1999

On appeal from Superior Court of New Jersey, Law Division, Burlington County.

On May 20, 1995, Shannon Kay Wittkopp ("Shannon"), then age fourteen, was a pedestrian on County Road 620 in Shamong Township when she was struck and killed by an insured driver, Robert A. Kinsel, Jr. Kinsel's automobile liability insurance carrier provided him with $100,000 comprehensive liability coverage.

Shannon's natural parents were divorced in either 1985 or 1986. *fn1 Under the terms of their divorce decree, physical custody of Shannon and her younger sister was awarded to Shannon's mother, Sandra, who thereafter remarried Stanley Eiseman (the "Eisemans"). Shannon's father, Steven Wittkopp, also remarried (the "Wittkopps"). Pursuant to their parents' agreement, both Shannon and her younger sister visited their father on alternate weekends and on alternate holidays. The Wittkopps' residence provided both daughters with a bedroom that they shared during visitation periods. *fn2 Both daughters maintained a separate wardrobe at their father's home, apparently to avoid transporting clothing and other personal items between the homes of their respective parents during visitation periods. Steven Wittkopp provided support for his daughters and, as of Shannon's death, was current in the payment of his child support.

The Eisemans were insured under a comprehensive liability policy issued by defendant Hanover Insurance Company ("Hanover"). Hanover's policy provided $500,000 in underinsured motorist coverage.

The Wittkopps were insured under a comprehensive automobile liability policy issued by plaintiff Ohio Casualty Insurance Company ("Ohio"). Ohio's policy provided $300,000 in underinsured motorist coverage.

On February 28, 1998, all claims on behalf of Shannon or her estate were settled for $480,000. The tortfeasor Kinsel's insurer contributed the full extent of its coverage, $100,000. A dispute arose between Hanover and Ohio as to each carrier's respective liability for the $380,000 balance of the settlement. Hanover took the position that it was responsible for 62.5% of the $380,000 balance of the settlement, and it paid that sum to Shannon's Estate. Hanover looked to Ohio to pay 37.5% of the settlement balance, which equaled $142,500.

Ohio denied any responsibility as to the settlement balance. It alternatively argued: (1) Shannon was a resident of the Eiseman household and therefore Shannon was not insured for underinsured coverage by Ohio; and (2) even if Shannon was insured for underinsured coverage under the Wittkopp policy, Ohio was an excess carrier, and thus it had no responsibility to contribute to the settlement claim asserted by Shannon's estate.

To resolve this dispute, Ohio instituted a declaratory judgment action seeking to vindicate its position. Hanover filed an answer and counterclaim. The issue was presented to a motion judge on cross-motions for summary judgment. The motion judge concluded that Shannon was a resident of the Eiseman home, as Sandra Eiseman had both legal and residential custody. He therefore concluded that only Hanover was responsible for the balance of the settlement. Alternatively, the judge concluded that even if it could be said that Shannon was insured for underinsured coverage under the Ohio policy, the policy provided only excess coverage and thus Hanover was still responsible for the entire settlement. Although we concur with the first conclusion respecting residency, we disagree with the ultimate conclusion that the Ohio policy only provided excess coverage. We therefore reverse.

We conclude that, under the facts of this case and based upon the policy terms of both the Hanover and Ohio policies, Shannon was insured for underinsurance coverage by both insurance carriers and each carrier should share responsibility for the settlement balance pro rata. Our conclusion is also guided by the reasonable expectations of each insured and upon recent changes in matrimonial law which give a non-custodial parent a credit against child support obligations where the non-custodial parent visits with a child for more than twenty-four hours per week. See Pressler, Current N.J. Court Rules, App. IX-A (2000); see also Pascale v. Pascale, 274 N.J. Super. 429, 441-42 (App. Div. 1994), aff'd in part, rev'd in part, 140 N.J. 583 (1995).

I.

It is undisputed that Shannon is insured under the Hanover policy ...


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