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DeVincentis v. Amica Mutual Insurance Co.

July 12, 2010

ALBERT DEVINCENTIS, PLAINTIFF,
v.
AMICA MUTUAL INSURANCE COMPANY, DEFENDANT-RESPONDENT, AND NEW JERSEY MANUFACTURERS INSURANCE COMPANY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-000732-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 25, 2010

Before Judges Carchman and Parrillo.

This dispute between two insurance carriers raises the issue as to where plaintiff Albert M. DeVincentis was a resident and which carrier is responsible for his underinsured motorist (UIM) coverage. Following a bench trial, the judge determined that plaintiff was not a resident of his sister Diane Shannon's household and that her carrier, defendant Amica Mutual Insurance Company (Amica), was not obligated to provide coverage to plaintiff. The judge determined that plaintiff's carrier, defendant New Jersey Manufacturers Insurance Company (NJM), was responsible for UIM coverage. NJM appeals, and we affirm.

The underlying cause of action arose as a result of an automobile accident on October 28, 2004, in Lodi, at which time plaintiff sustained personal injuries. The other driver, Duane Ingala, was insured to a limit of $15,000, and plaintiff settled his claim against him for that amount. Plaintiff was insured by NJM with UIM coverage of $100,000. At the same time, plaintiff's sister, Diane Shannon, was insured with Amica and maintained UIM coverage of $300,000, which was "stepped-down" to plaintiff's policy limit of $100,000.

At the time of the settlement, plaintiff's counsel sent a Longworth*fn1 letter to Amica. Amica responded and ultimately denied UIM coverage, relying on that portion of its policy that includes coverage for family members "who [are] resident[s] of your household." To resolve the coverage issue, plaintiff filed a declaratory judgment action against NJM and Amica seeking a determination as to which carrier was to provide UIM coverage.

The issue was simply whether plaintiff was a resident of his sister's home and therefore covered by Amica. Judge Rand took extensive testimony from plaintiff and his sister and thereafter, made factual findings concluding that plaintiff was not a "resident" of his sister's residence. He found that Amica was not obligated to provide coverage, and NJM was responsible for UIM coverage.

These are the facts on which he based his findings.

In 1998, Shannon (and family) bought and moved into a home located in Wyckoff, New Jersey (hereinafter "Wyckoff home" and/or "Shannon household"). From the date of purchase until January 28, 2002, plaintiff resided at the Wyckoff home. During the aforementioned period, plaintiff was paying rent to Shannon.

In January 2002, plaintiff moved out of the Wyckoff home to attend the police academy, residing with his girlfriend in Roxbury, New Jersey. Plaintiff graduated from the police academy in June 2002 and became employed as a state trooper. Plaintiff continued to reside in Roxbury until August 2004.

In August 2004, after breaking up with his girlfriend, plaintiff rented an apartment in North Haledon. Plaintiff placed a deposit on the apartment. Plaintiff also acquired items for the apartment such as rugs and shower curtains and moved personal items into the apartment.

Plaintiff's father became terminally ill in August 2004. Plaintiff stayed at the Wyckoff home occasionally as an overnight guest in order to assist his sister in the care of their terminally ill father. On December 3, 2004, plaintiff's father died, after which plaintiff never stayed at the Wyckoff home. Thereafter, plaintiff moved in with his then girlfriend.

Plaintiff stopped paying rent in January 2002 and never paid rent thereafter. Plaintiff maintained the Wyckoff home as a mailing address purely for convenience sake. After plaintiff moved out of the Wyckoff home in January 2002, plaintiff's former room became a nursery for Shannon's son. Shannon did not consider plaintiff a resident of the Wyckoff home after January 2002. Around the time of the accident, plaintiff occasionally stayed at the Wyckoff as an overnight guest, sleeping on a futon located in the sun porch. To summarize, at the time of the ...


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