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Sheridan v. Proformance Insurance Co.

May 5, 2010

FRANCIS C. SHERIDAN AND CHRIS LUNER, PLAINTIFFS-APPELLANTS,
v.
THE PROFORMANCE INSURANCE COMPANY, KIMBERLY A. HANNIGAN, DEFENDANTS-RESPONDENTS, AND MARTHA CUCINOTTA AS ADMINISTRATRIX OF THE ESTATE OF JOHN CUCINOTTA, DECEASED, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1385-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 19, 2010

Before Judges Lisa and Coburn.

Plaintiffs Francis Sheridan and Chris Luner brought an action for injuries arising out of a two-car automobile accident. They occupied one vehicle. Defendant Kimberly A. Hannigan was the driver of the other vehicle, which was owned by her grandfather, John Cucinotta. The Cucinotta vehicle was insured by The Proformance Insurance Company. It is undisputed that Hannigan was a permissive user of her grandfather's vehicle, and the basic liability coverage under the policy is available to cover any loss for which she is found responsible. However, Proformance denies that the excess liability coverage in the policy applies because it alleges that Hannigan was not a member of Cucinotta's household at the time of the accident.

Plaintiffs initiated this declaratory judgment action, seeking a determination that Hannigan was a member of her grandfather's household and that the excess coverage applies. The trial court granted summary judgment in favor of Proformance, and plaintiffs now appeal. They argue that material facts are in dispute which require a jury determination as to whether Hannigan was a member of Cucinotta's household, and therefore the court erred in granting summary judgment in favor of Proformance. We disagree with plaintiffs and affirm.

Applying the Brill*fn1 standard, these are the facts in the motion record in the light most favorable to plaintiffs. John Cucinotta, either alone or together with his brother, Joe Cucinotta, owned land on Sun Haven Drive in Clayton. John Cucinotta and his immediate family lived in a home on 611 (later renumbered as 613) Sun Haven Drive. Cucinotta was in the construction business. At some point, he sold the home in which he lived and built a new one on property he owned along side of it, designated as 619 Sun Haven Drive, into which he and his wife moved.

In about 1992, Hannigan and her two-year-old daughter were living in a different community. Cucinotta built or caused to be built a house intended for her occupancy on part of the property he owned on the opposite side of Sun Haven Drive from where he lived. The home is designated as 650 Sun Haven Drive. Hannigan lived continuously at 650 Sun Haven Drive until after June 20, 2005, the date of the accident in the underlying litigation.

The Cucinotta brothers apparently built several houses along Sun Haven Drive for occupancy by various extended family members. When Hannigan was asked in her deposition whether, when she was growing up, this was "all one piece of property [where] all these houses were," she responded: "I think they were already divided as I was growing up." The house in which Hannigan lived at 650 Sun Haven Drive was on a separate tax lot than either of the houses her grandfather occupied over the years on the opposite side of the street. The house in which she lived was not directly across the street from her grandfather's house; it was offset by three houses.

Hannigan never lived in either of her grandfather's houses, and he never lived at 650 Sun Haven Drive. Cucinotta did not collect rent from Hannigan, and he paid the real estate taxes on 650 Sun Haven Drive during most of the time that Hannigan lived there. Hannigan paid some of the utilities, and Cucinotta paid some.

Hannigan had her own key to 650 Sun Haven Drive. There is no evidence in the record suggesting in any way that she and her grandfather moved freely between the two houses in which they respectively lived, kept any clothing or other personal effects in each other's residences, received mail at the other's residence, or in any way had any more access to each other's residence than any other invitee.

Cucinotta was the named insured in the Proformance policy. The excess coverage provision defines "Covered Person(s)" as residents of the insured's household who are his family members. "Family Member" is defined to include a person related by blood "who is a resident of [the insured's] household." The term "household" is not defined in the policy.

Plaintiffs correctly argue that the term "household," when undefined in an insurance policy, does not always require that the individuals involved live under the same roof. Plaintiffs rely primarily upon Gibson v. Callaghan, 158 N.J. 662 (1999), and Mazzilli v. Accident & Casualty Insurance Company of Winterthur, Switzerland, 35 N.J. 1 (1961), in support of their argument that the factual circumstances in this case render the term "household" in the Proformance policy ambiguous, thus requiring a jury determination as to whether Hannigan was a member of Cucinotta's household. This argument is unpersuasive for two reasons. First, the cases upon which plaintiffs rely do not support their argument because of significant factual distinctions. Second, plaintiffs point to no facts which are in dispute which might lead a jury to find in their favor on the "household" issue.

In Mazzilli, a husband and wife lived in a home on a single 2.46-acre tract of land which was a single lot on the local tax map. Mazzilli, supra, 35 N.J. at 3. Without subdividing the lot, they built a second house on the property about 150 feet away from the original house, which was intended for their own use. Ibid. Therefore, no new lot lines were ever "marked out on the tax map or otherwise; no fence or other physical boundaries were created. The 2.46-acre tract remained as a unit which contained the two houses." Id. at 3-4. When marital difficulties arose, the husband moved into the new house and the wife remained in the original house. Id. at 4. The parties had a young son, who moved freely between the two houses and "apparently had the freedom of both places." Ibid. The parties viewed this overall property as "all one place where ...


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