935 F.2d 1428 (3rd Cir. 1991), 90-1810, St. Paul Fire and Marine Ins. Co. v. Lewis

Docket Nº:Barbara Lewis, Nya Lewis, Khalid Lewis, Appellants in 90-1810,
Citation:935 F.2d 1428
Party Name:ST. PAUL FIRE AND MARINE INSURANCE COMPANY v. Barbara LEWIS, Nya Lewis, Khalid Lewis, John Mincy, Shahida Mincy, Sheila M. Furey, Administratrix of the Estate of John Charles Furey, Deceased, Delaware River Port Authority of Pennsylvania and New Jersey, Andrew Klinghoffer.
Case Date:June 27, 1991
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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935 F.2d 1428 (3rd Cir. 1991)



Barbara LEWIS, Nya Lewis, Khalid Lewis, John Mincy, Shahida

Mincy, Sheila M. Furey, Administratrix of the Estate of John

Charles Furey, Deceased, Delaware River Port Authority of

Pennsylvania and New Jersey, Andrew Klinghoffer.

Barbara Lewis, Nya Lewis, Khalid Lewis, Appellants in 90-1810,

John Mincy and Shahida Mincy, Appellants in 90-1821,

Delaware River Port Authority of Pennsylvania and New

Jersey, Appellants in 90-1822,

Sheila M. Furey, Administratrix of the Estate of John

Charles Furey, Deceased, Appellant in 90-1823.

Nos. 90-1810, 90-1821 to 90-1823.

United States Court of Appeals, Third Circuit

June 27, 1991

Argued May 15, 1991.

Rehearing and Rehearing In Banc

Denied July 24, 1991.

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Martha J. Fessenden, Mesirov, Gelman, Jaffe, Cramer & Jamieson, Philadelphia, Pa., for appellant Nos. 90-1810/1821/1822/1823 Delaware River Port Authority of Pennsylvania and N.J.

James C. Haggerty (argued), Cynthia E. Covie, Swartz, Campbell & Detweiler, Philadelphia, Pa., for appellee Nos. 90-1810/1821/1822/1823 St. Paul Fire and Marine Ins. Co.

Lawrence A. Katz (argued), Coffey & Kaye, Bala Cynwyd, Pa., for appellant No. 90-1823 Sheila M. Furey.

Ronald A. White, Philadelphia, Pa., for appellants No. 90-1810 Barbara Lewis, Nya Lewis and Khalid Lewis.

Paul R. Sacks, Berkowitz & Leabman, Philadelphia, Pa., for appellants No. 90-1821 John and Shahida Mincy.

Before HUTCHINSON, COWEN and GARTH, Circuit Judges.


COWEN, Circuit Judge.

This appeal arises from a declaratory judgment action in which St. Paul Fire and Marine Insurance Company ("St. Paul") seeks a determination that the adult son of its policy holder is not covered by an insurance policy it issued. The dispute turns on the meaning of the phrase "living with" in the insurance policy. We find the policy to be unambiguous, and hold it requires that a party have some regular, personal contacts with the insured's home in order to be

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covered by the policy. Because there is no evidence of any such contacts here, we will affirm the directed verdict entered in favor of St. Paul.


The incident giving rise to this insurance dispute occurred on October 16, 1983. That evening Andrew Klinghoffer was driving an automobile on the Benjamin Franklin Bridge, which spans the Delaware River between Philadelphia, Pennsylvania and Camden, New Jersey. Klinghoffer swerved out of his lane, crossed the center line, and collided with two cars travelling in the opposite direction. Those cars contained a total of six passengers, four of whom were injured and two of whom were killed in the accident. The injured parties and the estates of the deceased filed a tort action against Klinghoffer and the Delaware River Port Authority, which operates the Benjamin Franklin Bridge, in the Court of Common Pleas of Philadelphia County. That state tort action is still pending resolution.

At the time of the accident, Klinghoffer carried a personal automobile insurance policy with limits of coverage insufficient to meet the injured parties' claims against him. Klinghoffer's father, Leonard Klinghoffer, also carried a personal liability policy, referred to as an "excess" or "umbrella" policy, with St. Paul. That policy, which is the center of the controversy in this action, was in effect from February of 1983 through February of 1984 and had a coverage limit of $1,000,000.00. This umbrella policy provided "we'll cover all relatives living with you and anyone under 21 in your or their care. They're covered for any accidents involving an auto they own, rent or use as a temporary substitute." App. at 167 (emphasis added).

St. Paul initiated this declaratory judgment action pursuant to 28 U.S.C. Sec. 2201 (1988), under the district court's diversity jurisdiction, 28 U.S.C. Sec. 1332 (1991 Supp.), seeking a determination of whether Andrew Klinghoffer was entitled to coverage under his father's umbrella policy. 1 At trial, Klinghoffer testified that he was "living" in an apartment located at 4800 Pine Street in Philadelphia at the time of the accident. App. at 95-99, 126-27. It is uncontested that Klinghoffer and a roommate began leasing the two-bedroom Pine Street apartment in September of 1983. According to Klinghoffer's testimony, he slept and ate his meals at this apartment on a daily basis; kept personal belongings there, including his cat and fish; and received mail and telephone calls there.

The uncontradicted evidence also indicates that Klinghoffer maintained certain contacts with his parents' condominium located at 1820 Rittenhouse Square in Philadelphia. Specifically, Klinghoffer frequented his parents' condominium to visit, eat meals, and celebrate the holidays; he considered his parents' Rittenhouse Square condominium to be his "home," App. at 26; his parents maintained a separate room for him there, where he kept some personal belongings; he recorded his address as 1820 Rittenhouse Square on his drivers license, bank deposit slips, personal checks, 1982 and 1983 tax returns, job applications, and Federal Aviation Administration pilot's records; and he received mail at his parents' condominium. In addition, the emergency room records from the night of the accident, listed 1820 Rittenhouse Square as Klinghoffer's address. During the policy period, Klinghoffer's parents were also giving him some sporadic financial support of an unspecified amount.

After a two-day trial, the district court found that the only issue to be resolved was whether Klinghoffer was "living with" his father within the meaning of the St. Paul insurance policy. The court entered a directed verdict in favor of St. Paul, concluding that, under the law of Pennsylvania, the phrase "living with" in an insurance

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contract requires a person to physically reside with the insured and there was no evidence indicating that Klinghoffer satisfied that requirement. This consolidated appeal followed. We have jurisdiction under 28 U.S.C. Sec. 1291 (1988). 2

Our review of the district court's granting of a directed verdict is plenary; we engage in the same inquiry as the district court in deciding the motion. Gay v. Petstock, 917 F.2d 768, 771 (3d Cir.1990). A directed verdict is appropriate only where the evidence, when viewed in a light most favorable to the party opposing the motion, is insufficient for a reasonable jury to find in favor of the opposing party. Id.


At issue in our review of this directed verdict is whether Klinghoffer was living with his father for purposes of coverage under his father's umbrella insurance policy. Resolution of this issue requires us to decide the meaning of the phrase "living with" in the insurance contract. We apply Pennsylvania law to this contract. 3 In construing an insurance policy, unambiguous terms are to be given their "plain and ordinary meaning." Pennsylvania Mfrs. Ass'n Ins. Co. v. Aetna Casualty & Sur. Ins. Co., 426 Pa. 453, 457, 233 A.2d 548, 551 (1967). Ambiguous terms, however, are to be construed strictly against the insurer, in favor of the insured. Mohn v. American Casualty Co of Reading, 458 Pa. 576, 586, 326 A.2d 346, 351 (1974). If the phrase living with is ambiguous, the defendants would automatically prevail under Pennsylvania law but if the phrase is not ambiguous, it must be given its plain meaning. Our initial inquiry, therefore, is whether the phrase is ambiguous.


Determining whether the terms of a contract are ambiguous is a question of law. See, e.g., International Union, UAW v. Mack Trucks, Inc., 917 F.2d 107, 111 (3d Cir.1990). We have recognized a contract ambiguity to be "intellectual uncertainty; ... the condition of admitting of two or more meanings, of being understood in more than one way, or referring to two or more things at the same time...." Id. (quoting Mellon Bank N.A. v. Aetna Business Credit, 619 F.2d 1001, 1011 (3d Cir.1980)). In determining whether a contract term is ambiguous, we must consider the actual words of the agreement themselves, as well as any alternative meanings offered by counsel, and extrinsic evidence offered in support of those alternative meanings. Id. In making the ambiguity determination, however, we must remember that "[t]he language of the policy may not be tortured ... to create ambiguities where none exist." Pacific Indem. Co. v. Linn, 766 F.2d 754, 761 (3d Cir.1985).

Applying these principles here, we find that the phrase living with in this insurance contract is not ambiguous. Moreover, we find that no reasonable jury could have found that the phrase does not require at least some regular, personal contacts with the insured's home. The verb "to live," in the sense of to live with someone in their home is defined as follows: "to occupy a home: dwell, reside" Webster's Third New International Dictionary 1323 (3d Ed.1986). The synonym "reside" is defined as "to settle oneself or thing in a place; to be stationed; remain; stay." Id. at 1931. These definitions indicate that the concept of living with someone contemplates, at a minimum, some consistent, personal

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contact with that person's home. Occasional, sporadic, and temporary contacts are insufficient.

Although Pennsylvania courts have not decided the meaning of the exact phrase at issue here, their consideration of a similar term leads us to predict that Pennsylvania courts would probably require some regular, personal contact in order for a party to be living with the insured for purposes of insurance coverage. In Amica Mut. Ins. Co. v. Donegal Mut. Ins. Co., 376 Pa.Super. 109, 545 A.2d 343 (1988), the Pennsylvania Superior Court held that the insured's daughter was not a...

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