NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NOS. A-2139-17T2 A-2146-17T2
ALLSTATE NEW JERSEY PROPERTY AND CASUALTY INSURANCE COMPANY,
Plaintiff-Respondent,
v.
ESTATE OF SEAN MCBRIDE,
Defendant,
and
ESTATE OF GABRIELLE LYNNES, by and through its administratix JULIE GUNN, and SCOTT M. LERARIO,
Defendants-Respondents. ___________________________
ESTATE OF GABRIELLE LYNNES, by and through its administratrix JULIE GUNN,
Plaintiff-Appellant, v.
SCOTT M. LERARIO,
Defendant-Respondent. ____________________________
Plaintiff-Appellant,
ESTATE OF GABRIELLE LYNNES, by and through its administratrix JULIE GUNN and ESTATE OF SEAN MCBRIDE,
Defendants. ____________________________
Argued April 29, 2019 – Decided August 29, 2019
Before Judge Fasciale, Gooden Brown and Rose.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket Nos. L-1503-16, L- 2576-15, and L-0491-16.
Robert F. DiStefano argued the cause for appellant in A-2139-17 and respondent in A-2146-17 Estate of
A-2139-17T2 2 Gabrielle Lynnes (Clark & DiStefano, PC, attorneys; Robert F. DiStefano, on the brief).
Stephen M. Van Natten argued the cause for appellant in A-2146-17 and respondent in A-2139-17 Scott M. Lerario (D'Amato Law firm, attorneys; Alexa D'Amato Barrera, of counsel; Stephen M. Van Natten, on the brief).
Francis X. Ryan argued the cause for respondent Allstate New Jersey Property and Casualty Insurance Company (Green, Lundgren & Ryan, PC, attorneys; Francis X. Ryan, on the briefs).
Dominic R. DePamphilis argued the cause for amicus curiae New Jersey Association for Justice (D'Arcy Johnson Day, attorneys; Richard J. Albuquerque and Dominic R. DePamphilis, on the briefs).
PER CURIAM
In these back-to-back appeals, which we consolidate for the purpose of
issuing a single opinion, the Estate of Gabrielle Lynnes and Scott Lerario,
(collectively, plaintiffs), appeal from the December 1, 2017 Law Division order,
denying their respective motions for reconsideration of the trial court's
September 22, 2017 orders. The September 22 orders denied plaintiffs' motions
for summary judgment, and granted Allstate New Jersey Property and Casualty
Insurance Company (Allstate) summary judgment on its declaratory judgment
action, thereby determining that Allstate was not obligated to provide liability
A-2139-17T2 3 insurance coverage for claims arising out of an automobile accident that
occurred on March 20, 2015. 1
In the March 20 automobile accident, Sean McBride was operating a
vehicle owned and insured by Lynnes, his girlfriend, when he lost control of the
vehicle, veered off the highway into the shoulder, and struck a disabled vehicle
belonging to Lerario, who was then tending to his vehicle. As a result, McBride
and Lynnes were killed when their vehicle went down an embankment and
became engulfed in flames, and Lerario suffered serious bodily injuries. At the
time of the accident, although McBride was living with Lynnes, John Kurz, his
1 At the outset, we point out that plaintiffs' notices of appeal only identified the December 1, 2017 order, denying their respective motions for reconsideration, notwithstanding the fact that their case information statements (CIS) referred to the September 22, 2017 summary judgment order. Ordinarily, if the notice of appeal "designates only the order entered on a motion for reconsideration, it is only that proceeding and not the order that generated the reconsideration motion that may be reviewed." Pressler & Verniero, Current N.J. Court Rules, cmt. 6.1 on R. 2:5-1(e)(1) (2019). However, "[w]e are mindful of the fact that in some cases a motion for reconsideration may implicate the substantive issues in the case and the basis for the motion judge's ruling on the summary judgment and reconsideration motions may be the same." Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 461 (App. Div. 2002). "In such cases, an appeal solely from the grant of summary judgment or from the denial of reconsideration may be sufficient for an appellate review of the merits of the case, particularly where those issues are raised in the CIS." Ibid. Such is the case here. Thus, "we will address the propriety of the earlier order," particularly since Allstate "has not argued against our ruling on its validity." W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 459 (App. Div. 2008). A-2139-17T2 4 step-father, listed McBride as a driver under Kurz' automobile liability insurance
policy issued by Allstate. After plaintiffs filed separate tort actions seeking
damages against McBride's Estate and others, Allstate filed a complaint seeking
a declaratory judgment. Ultimately, with the exception of McBride's Estate,
which did not participate in the proceedings, all parties moved for summary
judgment.
After examining the policy language, determining that there was no
dispute that McBride was not a resident relative of the Kurz household as
defined under the policy, and distinguishing Lehrhoff v. Aetna Casualty and
Surety Company, 271 N.J. Super. 340 (App. Div. 1994), the court granted
summary judgment in favor of Allstate. On appeal, plaintiffs raise the following
identical arguments for our consideration:
POINT ONE - . . . THE TRIAL COURT ERRED IN CONCLUDING THAT THE APPELLATE DIVISION DECISION IN [LEHRHOFF] . . . IS NOT CONTROLLING UNDER THE FACTS OF THIS CASE.
POINT TWO - . . . THE TRIAL COURT ERRED BY RELYING EXCLUSIVELY ON THE SUBJECTIVE EXPECTATIONS OF JOHN KURZ MORE THAN TWO YEARS AFTER THE DATE OF THE ACCIDENT RATHER THAN THE OBJECTIVE EXPECTATIONS OF A TYPICAL POLICY HOLDER AT THE TIME OF INCEPTION OF THE POLICY.
A-2139-17T2 5 POINT THREE - . . . THE TRIAL COURT ERRED BY RELYING UPON TWO CASES CITED BY ALLSTATE IN ITS EFFORT TO MINIMIZE THE RELEVANCE OF THE [LEHRHOFF] DECISION.
POINT FOUR - THE TRIAL COURT ERRED IN DETERMINING AS A MATTER OF LAW THAT SEAN MCBRIDE WAS NOT A DUAL RESIDENT OF HIS PARENTS' HOUSEHOLD ON THE DATE OF THE ACCIDENT.
We granted the New Jersey Association for Justice's (NJAJ) motion to
appear in these appeals as amicus curiae. NJAJ raises the following points for
our consideration:
POINT I
A GENUINE DISPUTE OF FACT CONCERNING JOHN KURZ'[] EXPECTATIONS PRECLUDES THE ENTRY OF SUMMARY JUDGMENT[.]
POINT II
THE REASONABLE EXPECTATION DOCTRINE APPLIES BECAUSE THE ALLSTATE POLICY IS AMBIGUOUS AND MCBRIDE IS THEREFORE ENTITLED TO EXCESS COVERAGE.
Because we agree there were genuine issues of material fact sufficient to
withstand summary judgment, we reverse.
A-2139-17T2 6 I.
We derive the following facts from evidence submitted by the parties in
support of, and in opposition to, the summary judgment motions, viewed in the
light most favorable to the non-moving parties. Angland v. Mountain Creek
Resort, Inc., 213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co.,
142 N.J. 520, 523 (1995)). Prior to the fatal accident, McBride, born January 8,
1980, had resided with his mother, Colleen Kurz, and her husband, John Kurz,
at 18 Stoney Creek Drive in Egg Harbor Township (the Kurz residence or Kurz
household) since December 2010 when he moved from Pennsylvania. At his
deposition, John 2 testified that McBride moved in after "he got divorced"
because "he was pretty distraught over his divorce" and "wanted to . . . be with
his mother." While residing with the Kurzes, McBride did not pay for any of
his living expenses.
In January 2013, McBride moved to John's rental property located at 27
East Rivere Avenue in Northfield (the Northfield residence). Although McBride
"was supposed to [pay] $700 a month" in rent, because of his ongoing financial
problems, he was in debt to John, who continued to pay for the majority of his
2 We refer to the Kurzes by their first names to avoid confusion caused by their common surname and intend no disrespect by this informality. A-2139-17T2 7 living expenses, including his automobile insurance expenses. In addition to
living in John's house, McBride also worked at a diner owned by John. When
Lynnes was hired at the diner, McBride and Lynnes began a dating relationship.
In June 2014, McBride moved out of the Northfield residence and moved
in with Lynnes at 21 Allendale Road in Marmora (the Marmora residence). The
Marmora residence was owned by Lynnes' mother, Julie Gunn, and was listed
on the market for sale while the couple lived there. Despite his new living
arrangement, McBride's driver's license, voter registration profile, and child
support/probation account listed the Kurz residence as his address of record.
According to the Kurzes' deposition testimony, McBride continued to receive
mail at the Kurz residence on occasion. Colleen testified that after McBride
moved to the Marmora residence, he would occasionally ask if any mail had
arrived for him, and advised her that he would "swing by and get it . . . because
[he was] changing [his] address" to the Marmora residence.
Nonetheless, Colleen believed McBride's stay at the Marmora residence
was a temporary arrangement that would end once the house was sold. She
confirmed that despite having a falling out with McBride in November 2014,
after both McBride and Lynnes were fired from the diner due to chronic lateness
and unexcused absences, she would have allowed McBride to resume living with
A-2139-17T2 8 her if necessary. In contrast, initially, John expressed reluctance to allowing
McBride to return to the Kurz residence. However, ultimately, he acknowledged
that he may have allowed it. 3
On January 23, 2014, while McBride was still living at the Northfield
residence, John applied for an automobile insurance policy with Allstate through
Lieberman Financial, an authorized agent of Allstate. In the application, John
listed the Kurz residence as the address of record, and identified three drivers
and three vehicles to be insured under the policy: a 2007 Honda Element, to be
driven primarily by Colleen; a 2011 Infiniti G37, to be driven primarily by John;
and a 1991 Honda Civic, to be driven primarily by McBride. Although McBride
had moved from the Kurz residence to the Northfield residence when John
applied for the policy, John testified that he still listed McBride as a resident of
his household "because [McBride] lived in [his] other house right around the
corner" and "[he] wanted [McBride] to be insured." Allstate ultimately issued a
policy to John, effective January 30, 2014. 4
3 According to the Kurzes, they had very little contact with McBride after he and Lynnes were fired. 4 Around the same time, John also applied for motorcycle liability insurance with Allstate, identifying McBride as a resident relative of his household and an operator of the motorcycle. According to John, although he had purchased the
A-2139-17T2 9 Over the next eighteen months, the policy was automatically renewed
every six months, extending coverage until June 30, 2015, based on John's
continuous payment of the required premiums. During that time, on two
separate occasions, John requested the removal of vehicles from the policy. The
first occurred on October 16, 2014, when John requested the removal of the 2011
Infiniti G37. The second occurred on November 6, 2014, when John requested
the removal of McBride's vehicle, the 1991 Honda Civic. Based on these
requests, Allstate issued a new declarations sheet reflecting these changes.
Although the declarations sheet no longer listed McBride's vehicle, it still
identified McBride as a listed driver on the policy. However, John testified at
his deposition that in November 2014, when he learned that the 1991 Honda
Civic had been damaged and requested its removal from his policy, he had also
requested the removal of McBride from his policy since he no longer resided at 5 the Kurz residence. Although two Allstate representatives testified during
depositions that there was no record of any request by John to remove McBride
motorcycle, it was used almost exclusively by McBride. Like the automobile insurance policy, the motorcycle insurance policy was issued by Allstate, effective January 30, 2014. 5 John never removed McBride's name from the motorcycle insurance policy during this time period. A-2139-17T2 10 from the policy, John testified he was under the impression that McBride had
been removed from the policy given the premium reduction, and only learned
otherwise after the accident. Because the Kurzes never reported the accident,
Allstate had no notice of its occurrence until a representative of Esurance, the
company that insured Lynnes' vehicle at the time of the accident, contacted
Allstate about its policy.
Allstate's seven-page declarations sheet covering the period of the
accident indicated that coverage was effective from January 30, 2015, through
July 30, 2015. On the first page, John was listed as the "[n]amed [i]nsured[]" at
the Kurz residence address, and John, Colleen, and McBride were identified as
"[l]isted drivers on [the] policy." A notice on the declarations sheet explained
that "[s]ome or all of the information on [the] [p]olicy [d]eclarations [was] used
in the rating of [the] policy or . . . could affect . . . eligibility for certain
coverages[,]" and requested immediate notification if "any information on [the]
[p]olicy [d]eclarations [was] incorrect" or "any coverages [were] not listed
or . . . inaccurately listed."
Accompanying the declarations sheet were "policy documents," including
Allstate's thirty-five page "Standard Auto Insurance Policy" (policy) and
"[p]olicy [e]ndorsement[s]." Generally, the policy was divided into five
A-2139-17T2 11 separate parts: part one outlined its general coverage provisions; part two dealt
with personal injury protection (PIP); part three addressed "[a]dded [PIP]
[c]overage"; part four covered uninsured motorists (UM) coverage; and part five
explained "[p]rotection[s] [a]gainst [l]oss [t]o [t]he [a]uto."
Explaining the general coverage provisions, part one provided:
If a premium is shown on the [p]olicy [d]eclarations for Bodily Injury Liability and Property Damage Liability, we will pay damages which an [i]nsured person is legally obligated to pay because of:
1. bodily injury sustained by any person; and 2. property damage.
Under these coverages, your policy protects an [i]nsured person from liability for damages arising out of the ownership, maintenance or use, loading or unloading of an [i]nsured auto. . . .
....
We will defend an [i]nsured person sued as a result of a covered accident involving an [i]nsured auto.
On page nine of the policy, "[i]nsured person[]" was defined as follows:
a. While using any [i]nsured auto, except a non-owned auto: 1. you; 2. any resident relative; and 3. any other person using it with your permission; or 4. any civil union partner under New Jersey law.
A-2139-17T2 12 b. While using a non-owned auto: 1. you; and 2. any resident relative or 3. any civil union partner under New Jersey law.
Page three of the policy defined "[n]on-owned [a]uto" as "an auto used by
you or a resident relative with the owner's permission but which is not" "owned
by you or a resident relative[,]" or "available or furnished for the regular use of
you or a resident relative." On the same page, "[y]ou" or "[y]our" is defined as
"the policyholder named on the [p]olicy [d]eclarations6 and that policyholder's
resident spouse, including civil union partner under New Jersey law."
"Resident" included "a person who physically resides in your household with
the intention to continue residence there[,]" or "your unmarried dependent
children while temporarily away from home . . . if they intend to resume residing
in your household."
On page seventeen of the policy, "[r]elative" was defined as "a person
related to the named [i]nsured by blood, marriage, civil union partner under New
Jersey law or adoption . . . who is a resident of the same household as the named
[i]nsured." Additionally, "[n]amed [i]nsured" was defined in the policy as "the
6 The declarations sheet did not identify "the policyholder." A-2139-17T2 13 person . . . named as the insured in the [p]olicy [d]eclarations and an individual's
spouse or civil union partner under New Jersey law if the spouse or civil union
partner under New Jersey law is a resident of the household of the named
[i]nsured."
On page four of the policy, Allstate also instructed policyholders about
their "[d]uty [t]o [r]eport [p]olicy [c]hanges," explaining:
Your policy was issued in reliance on the information you provided concerning autos, persons [i]nsured by the policy and your place of residence. To properly insure your auto, you must promptly notify us:
a. when you change your address or the address where any of your autos are garaged; or
b. whenever any resident operators insured by your policy are added or deleted; or
c. whenever the driver's license of a resident operator [i]nsured by your policy is suspended or revoked.
After plaintiffs filed separate tort actions, Allstate filed a complaint for
declaratory judgment against McBride's Estate, plaintiffs, and others. Allstate
sought a declaration that it was "not obligated to provide liability insurance
coverage to [McBride's Estate] for the claims arising out of the [a]ccident," not
obligated to provide "a defense of the [t]ort [a]ctions," nor "indemnification
against any judgments . . . entered." In the complaint, Allstate alleged the
A-2139-17T2 14 vehicle McBride "was operating at the time of the accident was furnished and
available for his regular use and, therefore, was not a 'non-owned auto' nor an
'insured auto' as defined in the [p]olicy." Allstate alleged further that "McBride
was not a resident of the [Kurz] household . . . at the time of the accident," and,
therefore, his estate was "not entitled to liability insurance coverage under the
[p]olicy." Thereafter, an order was entered consolidating all three actions "for
purposes of [c]ase [m]anagement and discovery."
Following discovery, plaintiffs moved for summary judgment and
dismissal of Allstate's complaint with prejudice.7 In support, the Lynnes Estate
submitted deposition transcripts of the Kurzes and Allstate representatives,
David Lieberman and Patricia Selock, as well as numerous documentary
exhibits. In accordance with Rule 4:46-2(a), the Lynnes Estate provided a
statement of material facts, comprised of sixty numbered paragraphs detailing
the undisputed facts. According to the Lynnes Estate, it was undisputed that
both Lieberman and Selock acknowledged in their deposition testimony that
"McBride was a listed insured person under the policy issued by Allstate" at the
time of the accident and "met the definition of a 'named insured'" as defined in
the policy. Further, based on the deposition testimony of the Kurzes, McBride
7 The Lynnes Estate filed the formal motion and Lerario joined. A-2139-17T2 15 would have been permitted to move back into the Kurz residence. Moreover,
the Kurzes testified McBride "never paid any rent, utilities, or made any other
significant contributions while he resided at [the Kurz residence,]" and primarily
drove vehicles owned by John.
Allstate opposed plaintiffs' motions, and cross-moved for summary
judgment. In support, Allstate submitted numerous documentary exhibits,
including a transcript of a telephonic statement given by the Kurzes to an
Allstate representative on April 6, 2015. In the telephonic statement, Colleen
referred to documents she had found after the accident among McBride's
belongings, evidencing his change of address after he moved out of the Kurz
residence. Among those documents were a phone service contract, a utility bill,
and an invoice addressed to McBride at the Marmora residence; a credit card
statement and change of address acknowledgement addressed to McBride at a
Woodbine, New Jersey, address; and a repair shop invoice addressed to McBride
at the Northfield residence. In Allstate's counter-statement of material facts,
Allstate recounted John's deposition testimony, during which John testified that
McBride "took all of his belongings with him" when he moved out of the Kurz
residence, and, similarly, removed "all of his belongings" when he moved out
of the Northfield residence.
A-2139-17T2 16 On September 22, 2017, the judge conducted oral argument on the
motions. Following oral argument, the judge entered two orders dated
September 22, 2017, one denying plaintiffs' motions and the other granting
Allstate summary judgment. On September 28, 2017, the judge issued a
supporting memorandum of decision, detailing the respective arguments,
describing the undisputed facts, citing the applicable legal principles, and
explaining her rationale. According to the judge, Allstate's position was
straightforward: "Allstate assert[ed] that . . . McBride was not a resident of the
Kurz household and accordingly . . . [was] not entitled to coverage under the
Allstate [p]olicy."
In contrast,
[p]laintiffs argue that because . . . McBride was listed as a driver on the declaration[s] page of the policy, he had a reasonable expectation that he was entitled to all of the coverages and protections afforded by the policy. Plaintiffs further argue that the declaration[s] page did not specifically advise John Kurz, Colleen Kurz[,] or Sean McBride that coverage would not be available to . . . McBride as a listed driver if he was not a resident relative of [the Kurz] household. Plaintiffs rely on [Lehrhoff] in support of their assertion that Allstate must provide coverage and a defense to the Estate of Sean McBride because . . . McBride was a listed driver on the Allstate [p]olicy.
A-2139-17T2 17 The judge pointed out that the issue in Lehrhoff "was whether the
reasonable expectation of the insured raised by the declarations page of the
policy may be defeated by express policy limitations to the contrary."
According to the judge,
The [Lehrhoff c]ourt held that under the circumstances of that case, the policy's fine print qualification of the definition of the persons entitled to UM coverage was insufficient to overcome the reasonable expectation of coverage raised by the declaration[s] page and by the express terms of the UM coverage.
However, the judge reasoned that "[t]he facts in [Lehrhoff] [were]
distinguishable from the facts of this case."
According to the judge, in Lehrhoff,
Steven Lehr[h]off was the adult son of Arthur Lehr[h]off. Defendant Aetna issued a standard automobile policy to Arthur . . . that included uninsured and underinsured motorist coverage. Steven . . . was listed on the declaration[s] page of the policy as a regular driver of the insured vehicle. During the policy period, Steven . . . , while a pedestrian, was injured in California in a traffic accident he attributed to a phantom driver. Steven claimed UM benefits under the policy. Aetna rejected the claim on the ground that Steven was no longer a resident of his father's household when the injuries were sustained. The Lehr[h]off family lived in Short Hill[s], New Jersey. Following Steven's graduation from college in June 1990[,] he planned to apply to law school in the fall of 1991. Steven wanted to work in a law[-]related job prior to going to law school, so in September 1990,
A-2139-17T2 18 Steven took a law[-]related job in Los Angeles, California for an initial ninety[-]day probationary period. The automobile Steven had with him in California was a family automobile, owned by his father, registered in New Jersey, and insured by Aetna under the New Jersey [p]olicy at issue in the case. The accident occurred . . . approximately seven weeks after Steven arrived in California . . . . At the time the policy was issued, . . . Steven was a resident member of his father's household. The [c]ourt found that nothing in the declaration[s] page which listed Steven as a regular driver of the insured vehicle and nothing in the UM coverage section of the policy suggested that the listed drivers were not protected by all of the coverages of the policy. [271 N.J. Super. at 349]. The [c]ourt found the UM section of the policy was confusing. "Only a determined, persistent[,] and experienced reader knowing precisely what information he is seeking would be able to even find the applicable sections of the policy[.]" Id. at 344.
In contrast, in this case, the judge found
It [was] undisputed that on the date of the accident, Sean McBride was living with Gabrielle Lynnes at her mother's home . . . . He was not a resident at John and Colleen Kurz'[] home . . . and he had not been a resident at that home since 2013. In order for Sean McBride to be an insured person under the Allstate [p]olicy[,] he had to be a resident of the Kurz household. He clearly and undisputedly was not a resident of the Kurz household.
It is also undisputed that John Kurz believed that Sean McBride was removed from his Allstate [p]olicy in November 2014 when the 1991 Honda Civic was removed from the Allstate [p]olicy. John Kurz had no expectation that Sean McBride was insured under the
A-2139-17T2 19 Allstate [p]olicy on the date of the accident. John Kurz testified that he did not know that Sean McBride was a listed driver on the Allstate [p]olicy until after the . . . accident.
The definition section of the Allstate [p]olicy is straightforward when it comes to defining an "insured person[,"] "resident[,]" and "non-owned auto[."] There was nothing confusing or misleading about those definitions or their location in the policy. Despite the fact that Sean McBride was listed as a driver on the declaration[s] page of John Kurz'[] Allstate [p]olicy on the date of the accident, [John] Kurz did not believe or assert that Sean McBride was entitled to any coverage under the policy. Moreover, because Sean McBride resided in Marmora with Gabrielle Lynnes from . . . 2014 to the date of the accident, he was not an insured person under the Allstate [p]olicy issued to John Kurz.
Thus, the judge concluded that because "[t]he material and uncontroverted
facts . . . clearly show[ed]" that "Sean McBride was not a resident relative of
John Kurz on the date of the accident, he [was] not entitled to coverage under
the Allstate [p]olicy[,]" and "[t]he fact that he was a listed driver on the
declaration[s] page of the policy [did] not change that result." The judge
expressly rejected plaintiffs' reliance on Lehrhoff, finding it "distinguishable"
and "not controlling under the facts of this case."
The judge reasoned:
In [Lehrhoff], the insured had a reasonable expectation that his son, [who] just graduated from college and had taken an insured family vehicle to California for a
A-2139-17T2 20 temporary job, would be fully covered under the Aetna insurance policy. Moreover, the [c]ourt found that a cursory review of the policy [reinforced] that belief. It was only after a full, careful, sophisticated, and experienced reading of the full policy that the insured would have been informed otherwise. In the case at hand, the insured, John Kurz, had no expectation that Sean McBride would be covered under the Allstate policy because he believed Sean McBride was removed as a listed driver in November 2014. Further, Sean McBride had not resided with John and Colleen Kurz from at least November 2014. For that reason, Sean McBride was not covered under the Allstate [p]olicy . . . on March 20, 2015.
Pursuant to Rule 4:49-2, plaintiffs moved for reconsideration of the
September 22, 2017 orders,8 arguing "that the [c]ourt erred in concluding that
[Lehrhoff was] not controlling" and that John "had no expectation that Sean
McBride would be covered under the Allstate policy because he believed that
Sean McBride was removed as a listed driver in November 2014." Plaintiffs
also asserted that the court's decision was "contrary to years of long -standing
case law" interpreting insurance "coverage provisions broadly and constru[ing]
exclusions of coverage strictly against the insurer." On December 1, 2017,
following oral argument, the judge denied the motions in an oral decision, citing
plaintiffs' failure to "show[] that the [c]ourt based its decision upon a palpably
8 Once again, the Lynnes Estate filed the formal motion and Lerario joined. A-2139-17T2 21 incorrect or irrational basis, or . . . did[ not] consider or failed to appreciate the
significance of probative competent evidence." In an accompanying
memorandum of decision, the judge recited and rejected plaintiffs' arguments as
recounted above, and reiterated her conclusion. The judge entered a
memorializing order and these appeals followed. 9
II.
We review a ruling on a motion for summary judgment de novo, applying
the same standard governing the trial court. Templo Fuente De Vida Corp. v.
Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016) (citation omitted). Thus, we
consider, as the motion judge did, "whether the competent evidential materials
presented, when viewed in the light most favorable to the non-moving party, are
sufficient to permit a rational factfinder to resolve the alleged disputed is sue in
favor of the non-moving party." Brill, 142 N.J. at 540. If there is no genuine
issue of material fact, we must then "decide whether the trial court correctly
interpreted the law." DepoLink Court Reporting & Litig. Support Servs. v.
9 On January 2, 2018, Allstate's declaratory judgment action was severed from plaintiffs' tort actions, which remained consolidated for discovery purposes. On January 23, 2018, plaintiffs executed a consent order, "agree[ing] to dismiss without prejudice the[ir respective] actions" to allow them to proceed with their appeals. On June 7, 2018, we granted the Lynnes Estate's motion to consider the September 22 and December 1, 2017 orders as final orders, appealable as of right pursuant to Rule 2:2-3(a). A-2139-17T2 22 Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting Massachi v. AHL
Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)). We review issues of
law de novo and accord no deference to the trial judge's legal conclusions.
Nicholas v. Mynster, 213 N.J. 463, 478 (2013). "[F]or mixed questions of law
and fact, [we] give[] deference . . . to the supported factual findings of the trial
court, but review[] de novo the lower court's application of any legal rules to
such factual findings." State v. Pierre, 223 N.J. 560, 577 (2015) (first and fourth
alterations in original) (quoting State v. Harris, 181 N.J. 391, 416 (2004)).
This standard compels the grant of summary judgment "if the pleadings,
depositions, answers to interrogatories[,] and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact
challenged and that the moving party is entitled to a judgment or order as a
matter of law." R. 4:46-2(c). Thus, "[t]o defeat a motion for summary judgment,
the opponent '"must come forward with evidence" that creates a genuine issue
of material fact.'" Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014)
(quoting Horizon Blue Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32
(App. Div. 2012)). However, "conclusory and self-serving assertions by one of
the parties are insufficient to overcome the motion," Puder v. Buechel, 183 N.J.
428, 440-41 (2005), and a party opposing the motion must "do more than 'point[]
A-2139-17T2 23 to any fact in dispute' in order to defeat summary judgment." Globe Motor Co.
v. Igdalev, 225 N.J. 469, 479 (2016) (alteration in original) (emphasis omitted)
(quoting Brill, 142 N.J. at 529).
In other words, disputes about facts that are "immaterial or of an
insubstantial nature" provide no basis to deny the moving party summary
judgment. Id. at 480 (quoting Brill, 142 N.J. at 529). Rather, "[a]n issue of fact
is genuine only if, considering the burden of persuasion at trial, the evidence
submitted by the parties on the motion, together with all legitimate inferences
therefrom favoring the non-moving party, would require submission of the issue
to the trier of fact." R. 4:46-2(c). "The practical effect of [Rule 4:46-2(c)] is
that neither the motion court nor an appellate court can ignore the elements of
the cause of action or the evidential standard governing the cause of action."
Bhagat v. Bhagat, 217 N.J. 22, 38 (2014).
In that regard, pertinent to these appeals are two well-settled principles
governing insurance contract interpretation.
First, in enforcing an insurance policy, courts will depart from the literal text and interpret it in accordance with the insured's understanding, even when that understanding contradicts the insurer's intent, if the text appears overly technical or contains hidden pitfalls, cannot be understood without employing subtle or legalistic distinctions, is obscured by fine print, or requires strenuous study to comprehend.
A-2139-17T2 24 [Zacarias v. Allstate Ins. Co., 168 N.J. 590, 601 (2001) (citations omitted).]
"On this score, under the longstanding 'doctrine of reasonable expectations,'
courts should give effect to 'the objectively reasonable expectations of
applicants and intended beneficiaries regarding the terms of insurance
contracts.'" Cassilli v. Soussou, 408 N.J. Super. 147, 153 (App. Div. 2009)
(quoting Zacarias, 168 N.J. at 595). Under the reasonable expectations doctrine,
"an objectively reasonable interpretation of the average policyholder is accepted
so far as the language of the insurance contract in question will permit." Di Orio
v. N.J. Mfrs. Ins. Co., 79 N.J. 257, 269 (1979).
To that end, in Lehrhoff, we held that a policy holder's "reasonable
expectations of coverage raised by the declaration[s] page cannot be
contradicted by the policy's boilerplate," whether or not in plain language,
"unless the declaration[s] page itself clearly so warns the insured." 271 N.J.
Super. at 347. Thus, we "regard[ed] the declaration page as having signal
importance" in "defin[ing] the insured's reasonable expectations of coverage."
Id. at 346. In Zacarias, our Supreme Court "share[d] the sentiments" expressed
in Lehrhoff that "the one page most likely to be read and understood by the
insured [was] the declarations sheet" and urged insurers "to explore ways to
A-2139-17T2 25 incorporate as much information as may be reasonably included in the
declarations sheet." Zacarias, 168 N.J. at 602-04.
Thus, the average policyholder does not have a duty to "chart his own way
through the shoals and reefs of exclusions, exceptions to exclusions, conditions
and limitations," and may rely instead on "the declaration page, the one page of
the policy tailored to the particular insured and not merely boilerplate," to
"define coverage and the insured's expectation of coverage." Lehrhoff, 271 N.J.
Super. at 347. "Of course, for a policyholder's expectations to govern over the
plain language of an insurance contract, his or her expectations must be
objectively reasonable." Cassilli, 408 N.J. Super. at 154 (citing Clients' Sec.
Fund of the Bar of N.J. v. Sec. Title & Guar. Co., 134 N.J. 358, 372 (1993)).
Second, "the words of an insurance policy are to be given their plain,
ordinary meaning[,]" Zacarias, 168 N.J. at 595, and the plain terms of the
contract will be enforced as long as the "entangled and professional
interpretation of an insurance underwriter is [not] pitted against that of an
average purchaser of insurance," or the provision is not so "confusing that the
average policyholder cannot make out the boundaries of coverage[.]" Id. at 601
(first alteration in original) (first quoting Di Orio, 79 N.J. at 270; then quoting
Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 247 (1979)). Thus, where an
A-2139-17T2 26 ambiguity exists, "courts will construe ambiguous language in favor of coverage
for the insured." Cassilli, 408 N.J. Super. at 154 (alterations in original) (citing
Doto v. Russo, 140 N.J. 544, 556 (1995)). "An ambiguity exists in an insurance
contract '[w]hen an insurance policy's language fairly supports two meanings,
one that favors the insurer, and the other that favors the insured . . . .'" Ibid.
(alterations in original) (quoting President v. Jenkins, 180 N.J. 550, 563 (2004)).
However, "[i]n the absence of ambiguity, . . . a court must enforce the policy as
written." Ibid. (citing Priest v. Roncone, 370 N.J. Super. 537, 544 (App. Div.
2004)).
These general rules of construction have spawned a universal recognition
that "where the policy provision under examination relates to the inclusion of
persons other than the named insured within the protection afforded, a broad and
liberal view is taken of the coverage extended." Mazzilli v. Accident & Cas.
Ins. Co., 35 N.J. 1, 8 (1961). "But, if the clause in question is one of exclusion
or exception, designed to limit the protection, a strict interpretation is applied."
Ibid. We have previously distinguished the two classes of covered individuals
in an insurance contract as follows:
[T]he term "named insured" is self-defining. The term refers only to the names so appearing in the declaration[s sheet].
A-2139-17T2 27 On the other hand, an insured is any one who is entitled to coverage. This coverage may result by virtue of a person's status as an operator or occupier of a covered auto. In addition, a "family member" of a "named insured" may be an insured.
[Botti v. CNA Ins. Co., 361 N.J. Super. 217, 226 (App. Div. 2003) (citations omitted).]
"In other words, those listed as 'named insureds' are not necessarily the
only individuals covered under the policy[,]" and "[o]ther individuals not listed
as 'named insureds' may be entitled to liability coverage under certain
circumstances enumerated by the policy." Cassilli, 408 N.J. Super. at 155.
"Thus, being an 'insured' under a policy 'is a combination of status and
circumstance[,]'" ibid. (quoting Webb v. AAA Mid-Atl. Ins. Grp., 348 F. Supp.
2d 324, 331 (D.N.J. 2004)), and, undoubtedly, being "a 'family member' residing
in the same household as [the policyholder]" would render one "a potential
'insured[,]'" entitled to coverage under the policy. Ibid. (emphasis omitted).
Here, the judge determined McBride was not entitled to coverage under
the Allstate policy on the date of the accident because he "was not a resident
relative of John Kurz" and "[t]he fact that he was a listed driver on the
declaration[s] page of the policy [did] not change that result." While we agree
there was strong evidence McBride no longer physically resided in the Kurz
residence, as we stated in Lehrhoff, "we would not exclude, as a factual
A-2139-17T2 28 proposition requiring plenary evidential resolution," McBride's continued
residence in the Kurz residence "by reason of application of the doctrine of dual
residency." 271 N.J. Super. at 346.
"Residency has a well-documented definition in New Jersey" and "is not
interpreted as a single place of occupancy[.]" Ohio Cas. Ins. Co. v. Estate of
Wittkopp, 326 N.J. Super. 407, 412 (App. Div. 1999). "Our courts recognize
that a person may have more than one residence but may not have more than one
domicile" and "a person may be a resident of more than one household for
purposes of the availability of insurance coverage." Arents v. Gen. Accident
Ins. Co., 280 N.J. Super. 423, 428 (App. Div. 1995). The concept of "dual
household residency" has arisen in insurance cases to expand insurance coverage
to children who are residents, if not domiciliaries, of their parents' homes. See
Roman v. Correa, 352 N.J. Super. 124, 128-29 (App. Div. 2002).
Indeed, a child's dual residency can extend far into his adult years, even
after the child has become emancipated and moved to another state, where he
works, pays taxes, and owns property. See Arents, 280 N.J. Super. at 425-26
(determining that a forty-one-year-old son had a dual residency with his parents
for insurance purposes). Further, a finding that a person is a resident of one
household does not necessarily preclude, as a matter of law, that person's
A-2139-17T2 29 residence in another household as well. Miller v. U.S. Fid. & Guar. Co., 127
N.J. Super. 37, 43 (App. Div. 1974). Thus, "[e]xclusivity of residences . . . is
not demanded by the cases." Arents, 280 N.J. Super. at 429.
Here, the facts show that in the five years preceding the accident, McBride
was in a state of transition, having lived in at least four different residences over
that time period. Even his occupancy at the Marmora residence was temporary,
given the fact that the house was listed for sale. Indeed, Colleen acknowledged
the temporary nature of the arrangement and testified she would have permitted
McBride to return to her residence when the house sold. Likewise, John
grudgingly made the same acknowledgement. Although Colleen produced
documents showing alternate addresses, McBride continued to receive mail at
the Kurz residence on occasion, and his driver's license, voter registration
profile, and child support/probation account listed the Kurz residence as his
address of record. Thus, there was a genuine issue of material fact regarding
whether McBride maintained dual residency, entitling him to coverage under the
Allstate policy as a resident relative of the Kurzes.
In Lehrhoff, we did not "explore" the issue of dual residency "because we
[were] satisfied that Steven [was] entitled to . . . coverage for other reasons,
namely, his inclusion on the declaration[s] page as a driver of the insured
A-2139-17T2 30 vehicle." 271 N.J. Super. at 346. Thus, we determined as a matter of law that
"the reasonable expectation doctrine" was dispositive. Id. at 351. Here, there
is a genuine issue of material fact regarding McBride's dual residency.
Accordingly, given the evidence adduced in the motion record, we conclude that
the judge erred in granting summary judgment to Allstate based on a finding, as
an undisputed fact, that McBride was not a resident relative of the Kurz
residence.
We also disagree with the judge's finding that John "had no expectation
that . . . McBride would be covered under the . . . policy because he believed
. . . McBride was removed as a listed driver" prior to the accident. Based on the
motion record, the Allstate representatives disputed John's account, testifying
that there was no record of John making such a request. John's testimony was
also contradicted by the undisputed fact that McBride's name remained on the
declarations page as a listed driver. As we posited in Lehrhoff, "[t]he question
then . . . is whether the typical automobile policyholder would understand and
expect from the declarations page . . . that each of the listed drivers was entitled
to all of the coverages and all of the protections afforded by the policy." 271
N.J. Super. at 348.
A-2139-17T2 31 In Lehrhoff, we answered that question "in the affirmative." Ibid. We
explained that "look[ing] at the declaration page from the point of view of the
insured[,]"
[a]ll that really appears on it is identity of coverages and identity of drivers. The natural, sensible and wholly justifiable inference is that by listing the drivers using the vehicle, including the insured himself, the purchaser of the policy is protecting all of them equally and, presumably, protecting them equally in respect of all the stated coverages without qualification and without limitation. Nothing in the declaration page suggests to the contrary . . . .
[Id. at 349.]
Here, in reaching a contrary conclusion, the judge credited the disputed
subjective expectation of John, rather than the objectively reasonable
expectation of "the typical automobile policyholder[,]" id. at 348, or the
"intended beneficiar[y]." Cassilli, 408 N.J. Super. at 153. The judge also
determined there was no ambiguity in the policy's requirement that an "insured
person" using "a non-owned auto" had to be a "resident" relative, which
McBride was not. However, the judge overlooked the fact that nothing in the
declarations page "clearly so warn[ed] the insured." Lehrhoff, 271 N.J. Super.
at 347. As we acknowledged in Lehrhoff, "'[t]he interpretation of insurance
contracts to accord with the reasonable expectations of the insured, regardless
A-2139-17T2 32 of the existence of any ambiguity in the policy, constitutes judicial recognition
of the unique nature of contracts of insurance.'" Id. at 348 (quoting Sparks v.
St. Paul Ins. Co., 100 N.J. 325, 338 (1985)).
Here, contrary to the judge's finding, the doctrine of dual residency,
reinforced by the reasonable expectations of the typical policyholder and
intended beneficiary, created genuine issues of material fact "requiring plenary
evidential resolution," Lehrhoff, 271 N.J. Super. at 346, and precluded summary
judgment. Because the judge's factual findings are not supported by the motion
record, her application of Lehrhoff to those findings is flawed. Accordingly, we
reverse the order granting summary judgment to Allstate. Based on our
decision, we need not address the parties' remaining arguments.
Reversed. We do not retain jurisdiction.
A-2139-17T2 33