Hollander v. Nationwide Mut. Ins. Co.

• Decision Date: 13 January 1978
• Citation: 60 A.D.2d 380,401 N.Y.S.2d 336
• Parties: Patricia HOLLANDER, Respondent, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 336

401 N.Y.S.2d 336

60 A.D.2d 380

Patricia HOLLANDER, Respondent, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Jan. 13, 1978.

Brennan, Centner, Palermo & Blauvelt, Rochester, for appellant (John Clapper, III, Rochester, of counsel).

Woods, Oviatt, Gilman, Sturman & Clarke, Rochester, for respondent (Robert E. Ganz, Rochester, of counsel).

Before MARSH, P. J., and MOULE, DILLON, DENMAN and WITMER, JJ.

DENMAN, Justice.

While operating a vehicle owned by her sister and insured by defendant, plaintiff was involved in a serious accident giving rise to extensive potential liability. Plaintiff's own automobile was also insured with defendant under a policy which provided excess coverage for operation of non-owned vehicles, provided that such other vehicle:

"(i) is not owned by . . . any member of the same household * * * ;

(ii) is not furnished for regular use to . . . a member of the same household, * * * ;"

On the date of the accident, plaintiff was living at the home of her parents with her sister. Plaintiff obtained declaratory relief determining that the clause excluding coverage of non-owned vehicles when owned by a "member of the same household" did not apply in the circumstances presented here. We affirm that determination.

Preliminarily, defendant urges that commencement of this action was premature inasmuch as the policy in question provides excess coverage only and the liability actions pending against the plaintiff have not yet proceeded to judgment in excess of the primary coverage under her sister's policy. "(T)he policy in this state has been to deny the declaratory judgment where the matter in dispute can be determined in the basic negligence action but to permit the action when the dispute is such that it depends on matters outside of the negligence action or will not arise in the negligence action as a part of the lawsuit." (Nationwide Mut. Ins. Co. v. Dennis, 14 A.D.2d 188, 217 N.Y.S.2d 680). The matter in dispute here requires judicial interpretation of an exclusionary provision which will not arise in the pending negligence actions. Furthermore, where resolution of the matter in dispute is determinative of the insurer's liability to its insured for potential judgments, declaratory relief is appropriate (Aetna Cas. & Sur. Co. v. Lauria, 54 A.D.2d 183, 388 N.Y.S.2d 432). This is true even where, as here, the insurance company is an excess liability insurer (Post v. Metropolitan Casualty Ins. Co., 227 App.Div. 156, 237 N.Y.S. 64, affd., 254 N.Y. 541, 173 N.E. 857). Resolution of the disputed clause here should not await adjudication of the principal actions. (See, Prashker v. United States Guaranty Co., 1 N.Y.2d 584, 154 N.Y.S.2d 910, 136 N.E.2d 871; Everlast Sporting Goods Mfg. Co. v. Aetna Ins. Co., 23 A.D.2d 641, 256 N.Y.S.2d 991.)

The disputed phrase, "member of the same household," is not defined in the policy but defendant relies on the facts that plaintiff had been living at her parents' home with her sister prior to the accident; that at the time of the accident she had not established a new residence; and that she indicated in a motor vehicle accident report and in a conversation with defendant's adjuster that her home address was that of her parents. Defendant argues that she was still a member of her sister's and parents' household when the accident occurred, and is thereby excluded from the excess coverage.

Physical presence in the home alone is insufficient to establish a residence, particularly where, as here, plaintiff had previously established other legal residences. (Appleton v. Merchants Mut. Ins. Co., 16 A.D.2d 361, 228 N.Y.S.2d 442; Allstate Ins. Co. v. Jahrling, 16 A.D.2d 501, 229 N.Y.S.2d 707, app. dism. 12 N.Y.2d 943, 238 N.Y.S.2d 517, 188 N.E.2d 791.) The record indicates that, except for a period of a few months, plaintiff had not been a member of her parents' household for at least two years prior to the accident. While she stayed with her parents, she continually sought another apartment. A few days prior to the accident, she had signed a lease for an apartment and had obtained permission to move in earlier than the date provided in the lease. She had had telephone service installed in that apartment and, on the morning of the accident, paid her first month's rent, obtained the keys to the apartment and commenced moving. At the very time of the accident, she was engaged in moving her belongings to the new apartment. She was self-supporting at this time and received no money from her parents.

The question of whether a person is a member of the same household as another is a question of fact for the trier of the facts. (Matter of Highsmith (MVAIC), 31 A.D.2d 424, 298 N.Y.S.2d 648; Helou v....