Uninsured Motorist or Supplemental Underinsurance Motorist Insurance

Residency Requirement

In New York, when you sustain an injury in a car accident where the tortfeasor (or the person at fault for the accident) was uninsured, or a hit-and-run car accident, or the tortfeasor does not have sufficient liability insurance to cover the extent of your injuries, you may seek a recover from your own insurance carrier under the uninsured motorist (UM) or supplemental underinsured motorist (SUM) provisions of the policy.

If you do not own a car, you may seek a UM or SUM recovery from any automobile insurance policy of any family member that you reside within the same household.  This is called the residency requirement.

UM SUM provisions will usually provide the following restriction relating to the residency requirement:

Definitions.  For purposes of this UM (or SUM) endorsement, the following terms have the following meanings.
Insured.  The unqualified term “insured” means: You, as the named insured and, while residents of the same household, your spouse and the relatives of either you or your spouse.

If the UM SUM insurance carrier has reason to believe that the claimant or the injured party was not a resident of the relative’s household, they will seek to disclaim, or reject the claim.

The term “resident” or “residency” generally requires something more than temporary or physical presence and involves at least some degree of permanence and intention to remain.”  Kradjian v. American Mfrs. Mut. Ins. Co., 206 A.D.2d 801, 615 N.Y.S.2d 129 (3^rd Dept. 1994).

The term “household” has been traditionally characterized as an ambiguous term “devoid of any fixed meaning.”  Kradjian, supra, citing Schaut v. Firemen’s Ins. Co. of Newark, 130 A.D.2d 477, 478, 515 N.Y.S.2d 60; Foley v. Foley, 158 A.D.2d 666, 669, 552 N.Y.S.2d 127; Wrigley v. Potomac Ins. Co., 122 A.D.2d 361, 362, 504 N.Y.S.2d 324.

Further, where an insurer attempts to limit liability by use of an ambiguously worded provision in its policy of insurance which is subject to more than one reasonable construction, the courts will construe it strictly against the insurer.  Dutkanych v. U.S. Fidelity and Guar. Co., 252 A.D.2d 537, 675 N.Y.S.2d 623 (2^nd Dept. 1998); citing Hollander v. Nationwide Mut. Ins. Co., 60 A.D.2d 380, 384, 401 N.Y.S.2d 336; Ruder & Finn v. Seaboard Sur. Co., 52 N.Y.2d 663, 671, 439 N.Y.S.2d 858; Sekulow v. Nationwide Mut. Ins. Co., 193 A.D.2d 395, 396, 597 N.Y.S.2d 60; and Schaut, supra.

An individual can have more than one residence for insurance coverage purposes.  In re Prudential Property & Cas. Ins. Co. v. Galioto, 266 A.D.2d 926, 697 N.Y.S.2d 415 (4^th Dept. 1999); Walburn v. State Farm Fire & Cas. Co., 215 A.D.2d 837, 626 N.Y.S.2d 315 (3^rd Dept. 1995).

The Election Law § 1-104 [22] defines “residence” as “that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return.

New York State Courts have long recognized that mere physical presence at a location does not establish residency in-and-of-itself.  Likewise, temporary stays away from home for college, vacation and military service do not rise to abandonment of one’s residence.

“If mere physical presence is sufficient to establish a residence, without more, one could change his residence by taking a vacation.”  Appletonv. Merchants Mut. Ins. Co., 16 A.D.2d 361, 228 N.Y.S.2d 442 (4^th Dept. 1962).

The Court in Appleton noted that:

“In the present state of world affairs, there are few families which do not at some time have children temporarily absent serving their country.  Many families also have children temporarily away at college or on vacation trips. These are everyday facts of life of which insurance companies are, or should be, cognizant when writing policies; this is especially true when they label and sell them as ‘Family’ policies. Restriction of coverage could have been stated very simply, if that was the intent of the draftsman.” (Emphasis supplied).  Id.

Accordingly, the law provides that persons on vacation trips do not abandon their home residence.  It is understood that these are temporary situations that do not divest one of their residency.

In the case of Dutkanych, plaintiff at the time of the accident was a student at college and resided there. However, at all relevant times a room was maintained for him in his mother’s household, his driver’s license, school documents, and selective service registration listed his mother’s home as his address, he stored clothing and personal belongings there, he had a key to her house, he received mail there, and he spent school breaks in his mother’s household.  In this case, the Appellate Division held that the lower Court properly concluded that plaintiff was a resident of his mother’s household and hence, an insured under the policy.

The mere fact of an additional residence is not conclusive to divest one of his primary residence.  In re Prudential Property & Cas. Ins. Co. (Galioto), supra.

Personal Injury Lawyer

If you sustain an injury in a car crash where the other car was not insured, or the accident was a hit-and-run accident, or the other car does not have adequate insurance to cover the extent of you injuries, you should speak to a New York personal injury lawyer as soon as possible to protect your interests.

You may be entitled to bring a claim under the uninsured motorist (UM) or supplemental underinsured motorist (SUM) provisions of the insurance policy covering your car, or of the car of any relative that resides with you.