Amica Mut. Ins. Co. v. Donegal Mut. Ins. Co.

• Decision Date: 11 July 1988
• Citation: 545 A.2d 343,376 Pa.Super. 109
• Parties: AMICA MUTUAL INSURANCE COMPANY, v. DONEGAL MUTUAL INSURANCE COMPANY and as Interested Parties: Elizabeth Hagerty; Carol Applegate; Tracey Applegate Commonwealth of Pennsylvania, Dept. of Transportation; Peter Kweller, a Minor, by Mark Kweller His Guardian; Mark Kweller and Judy Kweller, His Wife; and Dr. Robert W. Hagerty Appeal of: Peter Kweller, a Minor, by Mark Kweller, His Guardian, Mark Kweller and Judy Kweller, His Wife, Appellant. AMICA MUTUAL INSURANCE COMPANY, Appellant, v. DONEGAL MUTUAL INSURANCE COMPANY and as Interested Parties Elizabeth Hagerty, Carol Applegate, Tracy Applegate Commonwealth of Pennsylvania Dept. of Transportation Peter Kweller a Minor by Mark Kweller, His Guardian Mark Kweller and Judy Kweller, His Wife and Dr. Robert W. Hagerty.
• Court: Pennsylvania Superior Court

Page 343

545 A.2d 343

376 Pa.Super. 109

AMICA MUTUAL INSURANCE COMPANY, v. DONEGAL MUTUAL INSURANCE COMPANY and as Interested Parties:

Elizabeth Hagerty; Carol Applegate; Tracey Applegate

Commonwealth of Pennsylvania, Dept. of Transportation;

Peter Kweller, a Minor, by Mark Kweller His Guardian; Mark

Kweller and Judy Kweller, His Wife; and Dr. Robert W.

Hagerty Appeal of: Peter Kweller, a Minor, by Mark Kweller,

His Guardian, Mark Kweller and Judy Kweller, His Wife, Appellant.

AMICA MUTUAL INSURANCE COMPANY, Appellant, v. DONEGAL MUTUAL INSURANCE COMPANY and as Interested Parties

Elizabeth Hagerty, Carol Applegate, Tracy Applegate

Commonwealth of Pennsylvania Dept. of Transportation Peter

Kweller a Minor by Mark Kweller, His Guardian Mark Kweller

and Judy Kweller, His Wife and Dr. Robert W. Hagerty.

Superior Court of Pennsylvania.

Argued Feb. 11, 1988.

Filed July 11, 1988.

Patrick J. Reilly, Allentown, for appellants (at 2524).

Michael E. Moyer, Asst. Dist. Atty., Allentown, for AMICA Mut., appellant (at 2564) and appellee (at 2524).

Rick Long, Wyomissing, for Donegal, appellees (at 2524 and 2564)

Before TAMILIA, HOFFMAN and HESTER, JJ.

HESTER, Judge:

Amica Insurance Company (appellant at No. 2564 Philadelphia 1987) and Peter Kweller, a minor by his parents Mark and Judy Kweller (appellants at No. 2524 Philadelphia 1987), filed these cross-appeals from an order entered pursuant to a declaratory judgment action, holding that appellee-Donegal Mutual Insurance Company is not responsible for coverage of Elizabeth Hagerty in connection with an automobile accident. We affirm.

On June 1, 1984, eighteen year-old Elizabeth Hagerty was operating an automobile with two passengers in Lehigh Township, Northampton County, Pennsylvania, when an accident occurred causing the three to sustain injuries. One of the passengers, Peter Kweller, a minor, instituted suit through his parents, naming Elizabeth Hagerty as one of the defendants. This action is not presently before us. Appellee-Donegal Mutual Insurance Company ("Donegal") which had issued a $500,000.00 liability policy to Elizabeth's father, Dr. Robert Hagerty, refused to provide liability coverage for Elizabeth. Appellant-Amica Mutual Insurance Company ("Amica"), which had issued a policy to Elizabeth's mother, filed a declaratory judgment action against Donegal seeking to have the latter declared liable for coverage of the accident.

A non-jury hearing was held on January 21, 1987. The major issue was whether the Donegal policy provided coverage for Elizabeth. In pertinent part, the policy provided coverage for family members of the insured, Dr. Hagerty, who were residents of his household. ¹ On March 20, 1987, a decree nisi and adjudication were entered by the court holding that Elizabeth was not a resident of Dr. Hagerty's household at the time of the accident, June 1, 1984, but that she resided with her mother, Elizabeth Douglas. Therefore, Donegal had no duty to provide coverage. Appellants filed post-trial motions which were denied by the order of August 11, 1987. These timely cross-appeals followed.

In reviewing an adjudication in a non-jury proceeding, we must determine whether the trial court's findings are supported by competent evidence and whether the trial court committed error in any application of the law. Brenna v. Nationwide Insurance Co., 294 Pa.Super. 564, 440 A.2d 609 (1982). Any ambiguity in insurance policy terms must be construed in favor of the insured. State Farm Insurance Co. v. Bullock, 316 Pa.Super. 475, 483, 463 A.2d 463 (1983); Krager v. Foremost Insurance Co., 304 Pa.Super. 390, 450 A.2d 736 (1982). If a court is to err in ascertaining the legislative intent behind the No-Fault Act in close, doubtful cases, it should do so in favoring of extending coverage. Steppling v. Pennsylvania Manufacturers Assoc. Ins. Co., 328 Pa.Super. 419, 477 A.2d 515 (1984).

Elizabeth Hagerty was born in 1966. Her parents separated in 1972 and were divorced in 1974. From 1972 to February 28, 1982, Elizabeth was in the custody of her mother; they lived in Allentown, Pennsylvania. On February 28, 1982, Elizabeth went to live with her father, Dr. Robert Hagerty, in Bethlehem, Pennsylvania. During the time she lived with her father, Elizabeth continued to attend a high school near her mother in Allentown. Her father transported her to and from school daily. Elizabeth moved back with her mother for the school year of 1983 to 1984, her senior year in high school. Although Elizabeth stated that she would have preferred to remain with her father since she got along better with him, she moved back to her mother's house due to its proximity to her high school. Elizabeth's mother lived twelve blocks from the school while her father lived six to eight miles from it. Elizabeth's involvement in extracurricular activities at school made it inconvenient for her to live with her father, as the travel time between his house and the school was approximately one-half hour under light traffic conditions.

During the 1983 to 1984 school year when she lived at her mother's house, Elizabeth testified that she stayed overnight at her father's house three to five times a month. Elizabeth's father testified that she stayed overnight only twice during the entire school year. The trial court found that Elizabeth made "sporadic" visits to her father's house, Trial Court opinion of 3/20/87, at 3, and that "she did not spend a substantial amount of time at her father's house." Trial Court opinion of 8/11/87, at 6. During that time, Elizabeth had a closet or two full of clothes at her father's house, approximately forty pairs of shoes, books, cosmetics, stuffed animals, tennis equipment, and a pet rabbit. She received mail there as well.

At the time of the accident, June 1, 1984, Elizabeth was still residing at her mother's house. Elizabeth planned to leave the state to attend college at the end of June; she intended to live with her father in the time between graduation and her departure. Following the accident, she stayed with her mother for two weeks, then moved to her father's house. However, she stayed there only a short time as her injuries made moving about very difficult and the house had no bathroom on the floor where she slept. She moved back to her mother's house and planned to stay there only until she was physically able to move back with her father.

Dr. Hagerty did not list Elizabeth as a resident of his household in either his 1983 or 1984 tax returns. Elizabeth's school records for the 1983-1984 school year listed her as a resident of her mother's house.

In holding that Donegal is not responsible for providing coverage or defending Elizabeth with respect to the accident, the trial court reasoned, "The question of residency is not a question of intention, but rather a question of physical fact, and the court found it a physical fact that Elizabeth resided with her mother at the time of the accident and for at least ten months prior thereto." Trial Court opinion 8/11/87, at 5.

Appellants-Kwellers argue that the trial court erred in holding that "residence" is a matter of physical fact and not intention.

We find no merit to this contention. In determining the meaning of the word "residence," both its object and context must be kept in view. Robinson v. Robinson, 362 Pa. 554, 67 A.2d 273 (1949). Donegal argues that the policy language, providing coverage to family members of the insured who are residents of the insured's household, evidences that the objective of the policy was to limit coverage to those family members who actually live in the same household as the insured. We find this persuasive. In Krager v. Foremost Insurance Co., 304 Pa.Super. 390, 450 A.2d 736 (1982), an insurance policy issued to plaintiffs' mother provided coverage to relatives of the insured who were residents of her household. Plaintiff lived in his own mobile home from November to April of each year and with his mother from April to November. Plaintiff was involved in an automobile accident while living with his mother. We found that he was clearly a resident-relative of the insured and was, therefore, covered by his mother's policy. We wrote:

The Courts of this Commonwealth have historically recognized the classical definitions of the words domicile and residence. Domicile being that place where a man has his true, fixed and permanent home and principal establishment, and to which whenever he is absent he has the intention of returning.

Residence being a factual place of abode. Living in a particular place, requiring only physical presence.

Though the two words may be used in the same context, the word resident as used in the policy, without additional words of refinement, i.e., permanent, legal, etc., would carry the more transitory meaning.

The appellant having written the contract, any ambiguity in its terms will be construed against it. Miller v. Prudential, 239 Pa. Superior Ct. 467, 362 A.2d 1017 (1976).

Id. at 393-394, 450 A.2d at 738.

See also Greenwood v. Hildebrand, 357 Pa.Super. 253, 515 A.2d 963 (1986); Laird v. Laird, 279 Pa.Super. 517, 421 A.2d 319 (1980).

Instantly, we find the common law definition of "resident" applicable to the policy language in question. The policy provides coverage for family members of the insured who are residents of his household. This language contains no words of refinement, such as "legal" or "permanent" which might suggest a less transitory meaning. Rather, we construe the language to limit coverage to those who actually reside in the household of the insured.

We find no error in the trial court's determination that, as a matter of physical fact, Elizabeth resided at her mother's house at the time of the accident. The evidence clearly shows that Elizabeth lived with her mother over the course of the school year up to and including the date of the accident. We see no reason to find erroneous the trial court's finding that...