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Rosner v. Liberty Mutual Insurance Co.

March 31, 2009

ROBERTA KIMBEL ROSNER, INDIVIDUALLY, WENDY ROSNER, INDIVIDUALLY AND AS CO-EXECUTRIX OF THE ESTATE OF ERWIN ROSNER, AND STEPHANIE PANASCI, INDIVIDUALLY AND AS CO-EXECUTRIX OF THE ESTATE OF ERWIN ROSNER, PLAINTIFFS-RESPONDENTS,
v.
LIBERTY MUTUAL INSURANCE COMPANY, DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT,
v.
GOVERNMENT EMPLOYEES INSURANCE COMPANY, THIRD-PARTY DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-3161-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 3, 2009

Before Judges Winkelstein, Gilroy and Chambers.

On February 13, 2003, Erwin Rosner was involved in a motor vehicle accident in Burlington County. He died on May 29, 2003 from injuries sustained in the accident. Plaintiffs, Rosner's estate; his wife, Roberta Kimbel Rosner (Kimbel); and his daughters, filed a third-party complaint against the driver of the other motor vehicle, Christina Lubeck, and a first-party claim for underinsured motorist (UIM) benefits against Rosner's insurance carrier, Liberty Mutual Insurance Company.

Liberty Mutual filed a third-party complaint against Government Employees Insurance Company (Geico), which insured Kimbel at the time of the accident. Liberty Mutual claimed that Kimbel's UIM coverage with Geico was primary to that of Rosner's UIM coverage with Liberty Mutual. After plaintiffs filed a direct claim against Geico for UIM coverage, Geico denied the claim on the ground that Rosner was not a "resident relative" under Kimbel's policy and was thus not entitled to coverage.

On December 18, 2007, following cross-motions for summary judgment, Judge Suter ordered Geico to provide UIM coverage to plaintiffs. On appeal, Geico claims that the trial court incorrectly applied New Jersey law; Rosner was not a resident spouse under the Geico policy; and Pennsylvania law precludes payment of UIM benefits to a resident family member operating a vehicle not covered by the insurance policy. We reject Geico's arguments and affirm substantially for the reasons expressed by Judge Suter.

Kimbel met Rosner in 1993. They married in 1998. Kimbel resided in a home that she owned in Merion, Pennsylvania. Rosner lived in an apartment he owned in New York City, where he operated two businesses. While dating, and during the first several years of their marriage, Kimbel and Rosner lived in their respective homes during the week and stayed together at either the Merion residence or New York apartment from Thursday to Monday. After they married, Rosner sold the apartment he owned, and he and Kimbel bought another New York apartment together. Kimbel retained sole ownership of the house in Merion.

In a deposition, Kimbel testified that before Rosner's death, he "slowed down his work," going to the New York office two or three days a week, and began spending more time in Merion. In 2001 or 2002, approximately a year to a year and a half before his accident, Rosner stopped working and lived "fulltime" in Merion with Kimbel. They spent their weekends during the summer at Kimbel's house on Long Beach Island or at their apartment in New York. While at the Merion residence, Rosner garaged his vehicle there. His two adult daughters, plaintiffs Wendy Rosner and Stephanie Panasci, both testified that if they wished to contact their father, they first tried to reach him at the Merion residence because they knew that was where he spent most of his time.

During the marriage, Rosner paid all bills associated with his New York apartment and the apartment he owned with Kimbel, while Kimbel paid all bills associated with the Merion and Long Beach Island homes. Several legal documents, including a durable power of attorney signed by Rosner and a healthcare proxy that Kimbel and Rosner both signed, listed the couple's address as New York.

At the time of the automobile accident, Rosner, who had a New York driver's license, was driving a vehicle that he owned and was registered in New York. His insurance policy with Liberty Mutual, issued in New York, listed his residence and the place where the vehicle was principally garaged as the New York residence that he owned with Kimbel. Kimbel's Geico policy had been issued in Pennsylvania. It listed a Pennsylvania address as her residence. The policy did not list Rosner as a resident relative.

Following the accident, the admission papers at Cooper Hospital from February 14, 2003, listed Rosner's New York address. A registration record from Kindred Hospital, where Rosner stayed for approximately three and a half months after his accident, listed the Merion, Pennsylvania address as his residence.

The motion judge found that, as a matter of law, Rosner was a resident of Kimbel's Merion home, as evidenced by the testimony of Kimbel and Rosner's daughters; Rosner and Kimbel's marriage certificate; Rosner's death certificate; a Paine Webber account dated April 2003; cremation approval; and registration records from Kindred Hospital listing Rosner's residence as the Merion home. We agree with that analysis.

The Geico policy defines an insured to include the named insured's spouse, if the spouse is a resident of the same household. The laws of both Pennsylvania, where the Geico policy was issued and Kimbel resided, and New Jersey, where the accident occurred, recognize that an individual may have dual residences for purposes of insurance coverage. See Arents v. Gen. Accident Ins. Co., 280 N.J. Super. 423, 428 (App. Div. 1995); Wall Rose Mut. Ins. Co. v. Manross, 939 A.2d 958, 968 (Pa. Super. Ct. 2007), appeal denied by Wall Rose Mut. Ins. Co. v. Manross, 946 A.2d 688 (Pa. 2008). Although it is arguable that Rosner was a resident of New York at the time of the accident, the record also supports the motion judge's conclusion that Rosner was a resident of Pennsylvania. Put simply, the ...


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