On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-4219-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 14, 2009
Before Judges Rodríguez, Reisner and Yannotti.
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.
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).*fn1 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*fn2 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 ...