Ohio Cas. v. Estate of Wittkopp

741 A.2d 619, 326 N.J. Super. 407
CourtNew Jersey Superior Court Appellate Division
DecidedDecember 16, 1999
StatusPublished
Cited by6 cases

This text of 741 A.2d 619 (Ohio Cas. v. Estate of Wittkopp) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ohio Cas. v. Estate of Wittkopp, 741 A.2d 619, 326 N.J. Super. 407 (N.J. Ct. App. 1999).

Opinion

741 A.2d 619 (1999)
326 N.J. Super. 407

OHIO CASUALTY INSURANCE COMPANY, Plaintiff-Respondent,
v.
The ESTATE OF Shannon Kay WITTKOPP, Stanley Eiseman, and Sandra Eiseman, Defendants, and
Hanover Insurance Company, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued September 29, 1999.
Decided December 16, 1999.

*620 Mark S. Hochman, Wall, for defendant-appellant (Stephen E. Gertler, attorney; Mr. Hochman, on the brief).

George A. Prutting, Jr., Audubon, for plaintiff-respondent (Mr. Prutting and Joseph T. Walsh, on the brief).

Before Judges KLEINER, PAUL G. LEVY and CARCHMAN.

The opinion of the court was delivered by

KLEINER, J.A.D.

On May 20, 1995, Shannon Kay Wittkopp ("Shannon"), then age fourteen, was a pedestrian on County Road 620 in Shamong Township when she was struck and killed by an insured driver, Robert A. Kinsel, Jr. Kinsel's automobile liability insurance carrier provided him with $100,000 comprehensive liability coverage.

Shannon's natural parents were divorced in either 1985 or 1986.[1] Under the terms of their divorce decree, physical custody of Shannon and her younger sister was awarded to Shannon's mother, Sandra, who thereafter remarried Stanley Eiseman (the "Eisemans"). Shannon's father, Steven Wittkopp, also remarried (the "Wittkopps"). Pursuant to their parents' agreement, both Shannon and her younger sister visited their father on alternate weekends and on alternate holidays. The Wittkopps' residence provided both daughters with a bedroom that they shared during visitation periods.[2] Both daughters maintained a separate wardrobe at their father's home, apparently to avoid transporting clothing and other personal items between the homes of their respective parents during visitation periods. Steven Wittkopp provided support for his daughters and, as of Shannon's death, was current in the payment of his child support.

The Eisemans were insured under a comprehensive liability policy issued by defendant Hanover Insurance Company ("Hanover"). Hanover's policy provided $500,000 in underinsured motorist coverage.

The Wittkopps were insured under a comprehensive automobile liability policy issued by plaintiff Ohio Casualty Insurance Company ("Ohio"). Ohio's policy provided $300,000 in underinsured motorist coverage.

On February 28, 1998, all claims on behalf of Shannon or her estate were settled for $480,000. The tortfeasor Kinsel's insurer contributed the full extent of its coverage, $100,000. A dispute arose between *621 Hanover and Ohio as to each carrier's respective liability for the $380,000 balance of the settlement. Hanover took the position that it was responsible for 62.5% of the $380,000 balance of the settlement, and it paid that sum to Shannon's Estate. Hanover looked to Ohio to pay 37.5% of the settlement balance, which equaled $142,500.

Ohio denied any responsibility as to the settlement balance. It alternatively argued: (1) Shannon was a resident of the Eiseman household and therefore Shannon was not insured for underinsured coverage by Ohio; and (2) even if Shannon was insured for underinsured coverage under the Wittkopp policy, Ohio was an excess carrier, and thus it had no responsibility to contribute to the settlement claim asserted by Shannon's estate.

To resolve this dispute, Ohio instituted a declaratory judgment action seeking to vindicate its position. Hanover filed an answer and counterclaim. The issue was presented to a motion judge on cross-motions for summary judgment. The motion judge concluded that Shannon was a resident of the Eiseman home, as Sandra Eiseman had both legal and residential custody. He therefore concluded that only Hanover was responsible for the balance of the settlement. Alternatively, the judge concluded that even if it could be said that Shannon was insured for underinsured coverage under the Ohio policy, the policy provided only excess coverage and thus Hanover was still responsible for the entire settlement. Although we concur with the first conclusion respecting residency, we disagree with the ultimate conclusion that the Ohio policy only provided excess coverage. We therefore reverse.

We conclude that, under the facts of this case and based upon the policy terms of both the Hanover and Ohio policies, Shannon was insured for underinsurance coverage by both insurance carriers and each carrier should share responsibility for the settlement balance pro rata. Our conclusion is also guided by the reasonable expectations of each insured and upon recent changes in matrimonial law which give a non-custodial parent a credit against child support obligations where the non-custodial parent visits with a child for more than twenty-four hours per week. See Pressler, Current N.J. Court Rules, App. IX-A (2000); see also Pascale v. Pascale, 274 N.J.Super. 429, 441-42, 644 A.2d 638 (App. Div.1994), aff'd in part, rev'd in part, 140 N.J. 583, 660 A.2d 485 (1995).

I.

It is undisputed that Shannon is insured under the Hanover policy purchased by the Eisemans.

Ohio contends that Shannon was not insured under its policy purchased by the Wittkopps because Shannon was not a resident in the Wittkopps' household. The Ohio policy states in Part-C "uninsured motorist coverage" (which includes underinsured coverage):

We will pay compensatory damages which an "insured" is legally entitled to recover from the owner or operator of an "uninsured motor vehicle" because of "bodily injury."

1. sustained by the "insured."

The policy defines "insured" as "you or a family member" and further defines a "family member" as "a person related to you by blood, marriage or adoption who is a resident of your household."

Hanover asserts that the "family member" language should control the interpretation of the policy. Ohio responds that the definition of "family member" should be construed to mean resident relative, pursuant to the "Definitions" section of the policy. This is the more plausible interpretation of the policy's language. Determining whether someone is a resident relative, obviously, requires that residency and relationship be shown. It is undisputed that Shannon is the biological daughter of Steven Wittkopp; therefore, the only issue is whether she maintained a residence at her father's home.

*622 Residency has a well-documented definition in New Jersey. It is not interpreted as a single place of occupancy, "[a] residence and a domicile are not synonymous." Michaud v. Yeomans, 115 N.J.Super. 200, 205, 278 A.2d 537 (Law 1971). "A person may have more than one residence but he may not have more than one domicile." Ibid. The Ohio policy clearly states that a "family member" is a relative that is a "resident of your [policy holder's] household" (emphasis added). Neither insurer asserts the Ohio policy intended residence to mean domicile. It appears from the plain meaning of the policy that Ohio did not intend to limit its coverage to domiciliaries. Therefore, Shannon is not limited by the policy to one place of residence.

Children of divorce are commonly recognized as maintaining more than one residence. These children often have to live part-time at either parent's home and are considered residents of both homes. Miller v. United States Fidelity & Guar. Co., 127 N.J.Super. 37, 43-44, 316 A.2d 51 (App.Div.1974).

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