No Cover if Dwelling is not the Insured’s Residence
Dwelling policies require that the dwelling is the insured’s residence premises. It can’t be a commercial use or vacant and unoccupied. The risk of loss an insurer is asked to take is different when the property is the insured’s residence than when the insured’s residence is elsewhere.
In Thomas Aschmoneit v. Adirondack Insurance Exchange, Index No.: 162391/2014, 2018 NY Slip Op 31909(U), Supreme Court Of The State Of New York County Of New York: IAS Part 15, (August 7, 2018) Plaintiff Thomas Aschmoneit (“plaintiff”) alleged that following a fire at plaintiff’s property (the Subject Premises), Adirondack Insurance Exchange (“Defendant” or “AIE”) improperly disclaimed coverage under his homeowners’ insurance policy’s “residence premises” condition.
On May 24, 2013 (the “Date of Loss”), a fire occurred at the Subject Premises. Plaintiff notified defendant of the loss later that day via a telephone call (the “Loss” or “Claim”). As a result of the fire, plaintiff sustained $150,000.00 of alleged damages. Plaintiff reports first purchasing coverage from defendant in 2012. In March of 2013, defendant renewed the Policy covering the Subject Premises. The renewal policy, also numbered PLS-3H-1C57699, was effective from 3/18/13-3/18/14.
AIE denied Aschmoneit’s claim because Aschmoneit did not reside at the property per the Policy’s “residence premises” requirement. The Policy states that “‘[i]nsured location’ means… the “residence premises”. In the Policy, “you” and “your” refers to the “named insured” shown in the Declarations and the spouse if a resident of the same household. The Policy defines “Residence premises” as “[t]he one family dwelling where you reside… and which is shown as the ‘residence premises’ in the Declarations”. 120 Helms Hill Road, Washingtonville, NY is the “residence premises” listed in the Policy’s Declarations. Thomas K. Aschmoneit is the Policy’s only “named insured.” The Policy contains the following condition in “Section I – Property Coverages” under the heading “Coverage A – Dwelling:” “[w]e cover… [t]he dwelling on the ‘residence premises’ shown in the Declarations, including structures attached to the dwelling”. Additionally, under the heading “Coverage Changes”.
Defendant received correspondence dated November 29, 2012 from HSBC, the mortgagee on the Subject Premises, noting that an inspection of the property was performed on November 26, 2012 and that the Subject Premises appeared vacant. Accordingly, on January 3, 2013, AIE Senior Underwriter Lisa Paradowski (“Paradowski”) called the agent who brokered the Policy to the insured, McCartney Verrino & Rosenberry Group (“MVR Group”), to verify whether or not the Premises was vacant. On January 24, 2013, Paraowski spoke with Sylvia McLoone (“McLoone”) of MVR Group. McLoone explained to Paraowski that she had confirmed with plaintiff that the Subject Premises was not vacant, and that plaintiff was residing in the Premises.
Defendant notes that at this point, it did not cancel (or decline to renew) the Policy due to vacancy, because MVR Group informed defendant that the Subject Premises was not. Plaintiff does not dispute Paradowski’s report.
On May 24, 2013, defendant began investigating the Claim and hired Terrier Claims Service (“Terrier”) to act as its independent adjustor. On May 29, 2013, Ray Mullins (“Mullins”), an investigator for Terrier, met and spoke with plaintiff at the Subject Premises. Mullins attests that plaintiff stated that he had owned the Subject Premises for over a decade, and had been restoring the interior and exterior since purchasing it. Mullins further attests that plaintiff said that he was not residing at Subject Premises on the Date of Loss due to the ongoing restoration work. Instead, he maintained a residence in Orange County or stayed at his wife’s Manhattan apartment.
During his May 29, 2013 visit to the Subject Premises, Mullins performed a physical inspection and took photographs of the property. Mullins observed that the ground floor and kitchen area of the Premises were sparsely furnished. Plaintiff argues that Mullins’ photos did not account for furniture, fixtures, and items stored in the Subject Premises’ garage.
To clarify its understanding of plaintiff’s living situation, defendant requested that plaintiff appear for an examination under oath (“EUO”). On September 11, 2013, the EUO of Plaintiff occurred. Plaintiff testified that he currently resided at 8 Brian Court, Salisbury Mills, New York with his wife, that he had been renting since 2009 or 2010. Plaintiff also occasionally stays at his wife’s Manhattan apartment. Plaintiff has not lived in the Subject Premises since 2005, and his ex-wife moved out of the Subject Premises in 2009.
Further, tenants occupied the Subject Premises until November 2012. Although the tenants left the home in habitable condition, in late 2012, plaintiff began renovating the Subject Premises to conform to his occupancy standards. Plaintiff never moved into the Subject Premises.
The construction of terms and conditions of an insurance policy that are clear and unambiguous presents a question of law to be determined by the court when the only issue is whether the terms as stated in the policy apply to the facts. Further, where the provisions of an insurance policy are clear and unambiguous, they must be given their plain and ordinary meaning, and courts should refrain from rewriting the agreement.
The standard for determining residency requires something more than temporary or physical presence and requires at least some degree of permanence and intention to remain. Although courts have recognized that a person may have more than one residence for the purposes of insurance coverage that does not mean that every place in which a person spends time constitutes a residence.
A plaintiff’s unsupported and conclusory assertions of permanence and an intent to remain cannot defeat an insurer’s summary judgment motion premised on a “residence premises” exclusion. Moreover, the meaning of the “one family dwelling where [the plaintiff] reside[s]” is not ambiguous if the insured plaintiff did not reside at the insured property during the policy period, but rented it to others and then left it vacant. Courts typically enforce “residence premises” policy provision if an insured admits that he did not reside at the vacant insured premises on the date of loss.
Aschmoneit’s alleged intention to reside at the Subject Premises is insufficient to satisfy the policy’s “residence premises” requirement. Ashmoneit vacated the Subject Premises approximately eight years before the loss occurred, leased the Subject Premises to tenants, began a cosmetic renovation project after the tenant’s departure, and began using the Subject Premises’ garage area for storage on an unspecified date.
Aschmoneit fails to produce evidence to buttress his assertions that he spent “most weekends” at the Subject Premises or that his belongings indicate his intent to reside at that location. Storing a limited number of items in the Subject Premises’ garage does not establish an intent to establish residency at 120 Helm Hills Road.
Ashmoneit did not reside at the Subject Premises the day of the fire. Ashmoneit attested that he primarily lived at two other locations, 412 East 73rd Street and 8 Brian Court, on the Date of Loss. Aschmoneit never avers to have slept or eaten meals at the Subject Premises subsequent to the Tenant Exit Date. In fact, Aschmoneit never quantified the number of days he spent at the property. Instead, he simply contends that spent “most weekends” there . Accordingly, Ashmoneit’s mere future intention to reside at Subject Premises is not sufficient.
Aschmoneit fails to reconcile the discrepancy between his purported weekend use of the Subject Premises and the lack of gas service during the winter months of his reported occupancy. Aschmoneit claims to have spent most weekends at the insured premises during the winter of 2012-2013. However, the utility bill show no gas was consumed at the Subject Premises during the winter months between Tenant Exit Date and the Date of Loss. In light of the lack of gas usage, without anything more than plaintiff’s self-serving statements, the record does not support plaintiff’s purported winter occupancy.
Plaintiff’s affidavit stating that he spent “most weekends” at the Subject Premises while making repairs to the premises must be viewed as presenting a feigned factual issue designed to avoid the consequences of the plaintiff’s statements to investigator Mullins that he did not reside at the Subject Premises on the Date of Loss.
For the foregoing reasons, defendant’s motion for summary judgment is granted because Ashmoneit did not “reside” at the Subject Premises within the context of the Policy’s residence premises condition.
It never pays to lie to an insurance company. Obtaining a policy as the insured’s residence premises when he actually lived elsewhere and the dwelling was vacant or unoccupied, is a misrepresentation of a material fact sufficient to allow the insurer to void the coverage or simply, as here, deny the claim. There are coverages available for a vacant or under construction property but they are more expensive than the policy Ashmoneit purchased. He saved premium and lost his claim.
© 2018 – Barry Zalma
This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States. The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at http://www.zalma.com and email@example.com.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
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