25 Fla. L. Weekly Supp. 195c
Online Reference: FLWSUPP 2502ABREInsurance — Personal injury protection — Coverage — Resident of household — Daughter of insured was resident relative residing in her parents’/insureds’ household at time of automobile accident, although she was also associated with her boyfriend’s address at the time — Factors considered include close kinship and fact that daughter maintained key to residence and enjoyed unrestricted use of her bedroom, entire house, and all of its utilities
ADVANCED CHIROPRACTIC & MEDICAL CENTERS, INC. (a/a/o Tamara Debarros Abreu), v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 10-7343 COCE 51. April 4, 2017. Kathleen McCarthy, Judge. Counsel: Sisy A. Mukerjee, Mukerjee Law Group, P.A., Coral Springs, for Plaintiff. Rashad El-Amin, Miami, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT AS TO RESIDENCY
THIS CAUSE came before the Court upon Plaintiff’s Motion for Summary Judgment as to the issue of Coverage, based upon Residency, and the Court having reviewed the Motion and all summary judgment evidence, reviewed the relevant legal authorities, having heard argument of Counsel, and the Court having been fully advised in the premises, the Court finds as follows:
Tamara Abreu was involved in an auto accident in December of 2009. She submitted a claim for PIP benefits under her policy of insurance with United Automobile Insurance Co, in which she is listed as an insured of the subject policy as a resident relative. The named insured on the policy is her father, Ceasar Abeu. It is well established Florida law that a person may be a “resident” of more than one household for insurance purposes. See General Guarantee Ins. Co., v. Broxsie, 239 So. 595 (Fla. 1st DCA 1970). See also Southerland v. Glens Falls Ins. Co., 493 So.2d 87 (Fla 4th DCA 1986), Alava v. Allstate Insurance Co., 497 So.2d 1286 (Fla. 3rd DCA 1986); Row v. USAA, 474 So.2d 348 (Fla. 1st DCA 1985) wherein the Court held that it is possible to have a residence, as opposed to a domicile, in more than one place at the same time for purposes of insurance coverage. Moreover, where the facts are essentially undisputed, whether those facts with within the policy definition is a question of law that may be decided by the trial court. See Trezza v. State Farm Mutual Ins. Co., 519 So.2d 649 (Fla 2nd DCA 1988). Sutherland v. Glens Falls Ins., 493 So.2d 87 (4th DCA 1986); Seitlin & Co., v. Phoenix Ins., 650 So.2d 624(3rd DCA 1995).
Pursuant to a plethora of caselaw in Florida, where the Court is tasked with determining whether or not a claimant can still be considered a resident relative of the insured’s home, the Court is to make such a determination based upon whether the claimant’s ties to the parents’ [insured’s] home is sufficient to qualify her as a resident relative, at the time of the accident. In so doing the Court must consider the following three factors in establishing residence under an insurance policy: “(1) close ties of kinship, (2) fixed dwelling unit, and (3) enjoyment of all living facilities.” See Dwelle v. State Farm Mut. Ins. Co., 839 So.2d 897 (Fla. 1st DCA 2003) [28 Fla. L. Weekly D730a]; General Guaranty Ins. Co. v. Broxsie, 239 So.2d 595 (1st DCA 1970); Seitlin & Co., v. Phoenix Ins., 650 So.2d 624 (3rd DCA 1995). In regards to Abreu, her affidavit, her deposition transcript, and deposition of Wanderlan Cavalho, filed in support of Plaintiff’s Motion, at the time of the accident in December 2009, it is undisputed that she was the biological child of her parents/named insured on the policy, maintained a key to their residence, enjoyed the use of her bedroom, as well as the entire house and all of its utilities (unrestricted access to socializing, eating, bathing, laundering, etc.). It is undisputed that during and post accident, Abreu was also associated with her boyfriend, Wanderlan Cavalho’s address.
In following the holding of General Guaranty Ins. Co. v. Broxsie, 239 So.2d 595 (1st DCA 1970); Seitlin & Company v. Phoenix Insurance, 650 So.2d 624 (Fla. 3rd DCA 1995), this Court finds that Abreu maintained sufficient ties to her familial residence at the time of accident, establishing her as a resident of the named insured/Ceasar Abreu for purposes of insurance coverage.
In the instant case, the Defendant’s policy of insurance defines a resident relative as any relative who resides with the named insured. The Court must construe the policy definition of the word resident in conformity with the general rule that ambiguities are construed against the insurer and in favor of coverage. See Washington National Ins. Corp. v. Ruderman, 117 So.3d 943 (July 2013) [38 Fla. L. Weekly S616b] citing to State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So.3d 566 (Fla. 2011) [36 Fla. L. Weekly S469a]. United Auto’s policy definition for resident relative states “any relative who resides with the name insured.” See Page 2 of the subject policy under Definitions. Pursuant to F.S. §627.732 (2009) Definitions, (6), “Relative residing in the same household,” means a relative of any degree by blood or by marriage who usually makes his or her home in the same family unit, whether or not temporarily living elsewhere.” According to the plain meaning of the statute and policy, Abreu meets the definition of a resident relative for purposes of coverage. There is nothing within this policy nor statute that prohibits Abreu from being a resident of more than one household. Defendant’s policy does not define resident as living continuously in the same house, nor does it limit a household to one residence to the exclusion of all others. See Alava v. Allstate Ins. Co., 497 So.2d 1286, at 1287 (Fla. 3rd DCA 1986). Any ambiguities in the contract are construed against the insurer/drafter. See Washington National Ins. Corp. v. Ruderman, 117 So.3d 943 (July 2013) [38 Fla. L. Weekly S616b] Therefore the Court must construe “resident of your household,” as liberally as those words may reasonably permit in common usage, so as to give effect to the intentions of the parties and purposes of the insurance. See Row v. USAA, 474 So.2d 348 (Fla. 1st DCA 1985), citing to US. Fidelity & Guaranty Co., v. Williams, 375 So.2d 328 (Fla. 1st DCA 1979); Inter-Ocean Casualty Co., v. Hunt, 138 Fla. 167, 189 So. 240 (1939).
Florida law dictates that the burden is on the party preparing a contract to make its terms precise and clear, and that the ambiguous terms in an insurance policy are construed favorably to the insured. Based upon the foregoing discussion, the PIP statute, Defendant’s policy, and established case law, this Court finds Abreu was, a resident relative residing with the named insured at the time of the automobile accident that occurred on December 19, 2009.
Accordingly, it is hereby ORDERED and ADJUDGED that Plaintiff’s Motion for summary judgment is GRANTED as to residency, in which Plaintiff qualifies for coverage as a resident relative of the insured, as a matter of law.
