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Danze v. Katz

March 9, 2009

DOLORES L. DANZE AND PHILIP A. DANZE, PLAINTIFFS,
v.
ADAM KATZ, ROBERT KATZ, DR. SANDRA CONNOLLY, AND CENTRA STATE MEDICAL CENTER, DEFENDANTS.
DOLORES L. DANZE AND PHILIP A. DANZE, PLAINTIFFS-RESPONDENTS,
v.
LIBERTY MUTUAL FIRE INSURANCE COMPANY AND ALLSTATE INSURANCE COMPANY, DEFENDANTS-APPELLANTS,
AND ADAM KATZ, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5261-03 and L-2508-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 14, 2009

Before Judges Fisher and Baxter.

By finding that defendant Adam Katz resided in his stepfather's household when the auto accident in question occurred, the trial court granted plaintiffs summary judgment, thus compelling the insurers of Adam's mother and stepfather to provide coverage. Because Adam's residency was determined only by resort to the mother's sworn statements, and failed to consider the prior representation of the mother's attorney that Adam was not a member of the stepfather's household, we reverse.

I.

On November 2, 2002, plaintiffs Dolores and Philip Danze suffered personal injuries when their vehicle was struck by a 1996 Honda Prelude titled in the name of defendant Robert Katz and driven by his son, Adam, who was then seventeen years old.

The Prelude was covered by a policy issued to Robert Katz by defendant Liberty Mutual Fire Insurance Company. The applicability of this policy with regard to the accident in question is not in dispute here.

Contending Adam was also a resident of his mother and stepfather's household, plaintiffs filed a declaratory judgment action against Liberty Mutual and Allstate Insurance Company. The record reveals that, in 1991, Robert Katz and Adam's mother, Janis, divorced. Initially, Janis was designated the primary custodial parent of Adam. However, Janis married Ross Goldberg in June 1999, and, a few months later, the parties agreed that Adam would thereafter primarily reside with his father, with Janis retaining visitation rights.

Notwithstanding that Adam was primarily a resident of his father's household at the time of the accident, plaintiffs sought coverage against Liberty Mutual, which was the automobile insurer for Janis and Ross Goldberg, and Allstate, which provided umbrella coverage to Ross Goldberg, asserting that Adam was also a resident of the Goldberg household. This declaratory judgment action was consolidated with plaintiffs' negligence action against Adam and his father.

Motions for summary judgment were filed regarding the Liberty Mutual policy. The motion judge granted plaintiffs' motion, holding that Adam was covered by this policy because he was a resident of the Goldberg household; the judge also rejected Liberty Mutual's contention that coverage was excluded by way of Exclusion B-3.*fn1 Later, another judge granted summary judgment in favor of plaintiffs regarding the Allstate policy, primarily holding that the law of the case doctrine bound him to the other judge's finding that Adam was a resident of the Goldberg household.

Eventually, all parties entered into a settlement. The insurers agreed that if all their options for appeal proved unsuccessful, Allstate would pay plaintiffs $1,000,000, and Liberty Mutual would pay Dolores Danze $250,000 and Philip Danze $225,000. With this final disposition of all remaining issues, Liberty Mutual and Allstate filed timely appeals from the orders that granted summary judgment against them.

II.

...


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