| Farm Family Cas. Ins. Co. v Nason |
| 2011 NY Slip Op 07964 [89 AD3d 1401] |
| November 10, 2011 |
| Appellate Division, Fourth Department |
| Farm Family Casualty Insurance Company, Appellant, v GeraldR. Nason, Jr., Defendant, and Brigid Pommerenck, as Administratrix of the Estate of EricPommerenck, Deceased, Respondent. |
—[*1] Law Offices of Eugene C. Tenney, Buffalo (Courtney G. Scime of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), enteredNovember 18, 2010 in a declaratory judgment action. The order, insofar as appealed from, denied themotion of plaintiff for summary judgment.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on the lawwithout costs, plaintiff's motion is granted and judgment is granted in favor of plaintiff as follows:
It is adjudged and declared that plaintiff is not obligated to defend or indemnify defendant GeraldR. Nason, Jr. in the underlying action.
Memorandum: This litigation arises from an accident allegedly occurring on farm property (subjectproperty) owned by Gerald Nason, Sr. (Nason). Nason also owned a separate parcel of propertyupon which he maintained his residence and a dairy business, which was covered by an insurancepolicy issued by plaintiff. Pursuant to the terms of the policy, Nason's relatives were insureds only ifthey were residents of his "household." Eric Pommerenck (decedent) died as the result of injuries thathe sustained on the subject property while examining a hay elevator that had been offered for sale byGerald R. Nason, Jr. (defendant), Nason's son. Defendant did not reside exclusively on the subjectproperty but in fact also resided at times with his girlfriend at another location. The administratrix ofdecedent's estate commenced a wrongful death action against, inter alia, Nason and defendant, andplaintiff commenced this action seeking a declaration that it owed no duty to defend or indemnifydefendant in the underlying action on the ground that he was not an insured under its policy. We agreewith plaintiff that Supreme Court erred in denying its motion for summary judgment.
"The term household has been characterized as ambiguous or devoid of any fixed meaning in similarcontexts . . . and, as such, its interpretation requires an inquiry into the intent [*2]of the parties . . . The interpretation must reflect thereasonable expectation and purpose of the ordinary business [person] when making an insurancecontract . . . and the meaning which would be given it by the average [person]. . . Moreover, the circumstances particular to each case must be considered in construingthe meaning of the term" (General Assur. Co. v Schmitt, 265 AD2d 299, 300 [1999] [internalquotation marks omitted]). In addition, "the term should . . . be interpreted in a mannerfavoring coverage, as should any ambiguous language in an insurance policy" (Rohlin v Nationwide Mut. Ins. Co., 26AD3d 749, 750 [2006]).
Here, plaintiff established that Nason did not consider defendant to be a member of his household,nor would he have anticipated that defendant would be afforded coverage under his insurance policyinasmuch as defendant lived separately from Nason, either in a trailer on the subject property or with agirlfriend. The trailer was not listed in the policy as an alternate residence. Furthermore, members of theNason family testified at their respective depositions that defendant did not reside with the othermembers of the family and, indeed, was not welcome in the family home. Consequently, plaintiffestablished as a matter of law that defendant was not a member of Nason's household within themeaning of the policy (see Matter of Hartford Ins. Co. of Midwest v Casella, 278 AD2d 417,418 [2000], lv denied 96 NY2d 710 [2001]; Walburn v State Farm Fire & Cas. Co.,215 AD2d 837 [1995]; cf. Korson vPreferred Mut. Ins. Co., 55 AD3d 879, 880-881 [2008]), and defendants failed to raise atriable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562[1980]). Present—Scudder, P.J., Smith, Centra, Green and Gorski, JJ.