         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1076
CA 11-00922
PRESENT: SCUDDER, P.J., SMITH, CENTRA, GREEN, AND GORSKI, JJ.


FARM FAMILY CASUALTY INSURANCE COMPANY,
PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

GERALD R. NASON, JR., DEFENDANT,
AND BRIGID POMMERENCK, AS ADMINISTRATRIX
OF THE ESTATE OF ERIC POMMERENCK, DECEASED,
DEFENDANT-RESPONDENT.


HURWITZ & FINE, P.C., BUFFALO (DAN D. KOHANE OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

LAW OFFICES OF EUGENE C. TENNEY, BUFFALO (COURTNEY G. SCIME OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Frank A.
Sedita, Jr., J.), entered November 18, 2010 in a declaratory judgment
action. The order, insofar as appealed from, denied the motion of
plaintiff for summary judgment.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without 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 Gerald R. Nason,
     Jr. in the underlying action.

     Memorandum: This litigation arises from an accident allegedly
occurring on farm property (subject property) owned by Gerald Nason,
Sr. (Nason). Nason also owned a separate parcel of property upon
which he maintained his residence and a dairy business, which was
covered by an insurance policy issued by plaintiff. Pursuant to the
terms of the policy, Nason’s relatives were insureds only if they were
residents of his “household.” Eric Pommerenck (decedent) died as the
result of injuries that he sustained on the subject property while
examining a hay elevator that had been offered for sale by Gerald R.
Nason, Jr. (defendant), Nason’s son. Defendant did not reside
exclusively on the subject property but in fact also resided at times
with his girlfriend at another location. The administratrix of
decedent’s estate commenced a wrongful death action against, inter
alia, Nason and defendant, and plaintiff commenced this action seeking
a declaration that it owed no duty to defend or indemnify defendant in
                                 -2-                          1076
                                                         CA 11-00922

the underlying action on the ground that he was not an insured under
its policy. We agree with 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 similar contexts . . . and, as such, its
interpretation requires an inquiry into the intent of the parties . .
. The interpretation must reflect the reasonable expectation and
purpose of the ordinary business [person] when making an insurance
contract . . . and the meaning which would be given it by the average
[person] . . . Moreover, the circumstances particular to each case
must be considered in construing the meaning of the term” (General
Assur. Co. v Schmitt, 265 AD2d 299, 300 [internal quotation marks
omitted]). In addition, “the term should . . . be interpreted in a
manner favoring coverage, as should any ambiguous language in an
insurance policy” (Rohlin v Nationwide Mut. Ins. Co., 26 AD3d 749,
750).

     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 policy
inasmuch as defendant lived separately from Nason, either in a trailer
on the subject property or with a girlfriend. The trailer was not
listed in the policy as an alternate residence. Furthermore, members
of the Nason family testified at their respective depositions that
defendant did not reside with the other members of the family and,
indeed, was not welcome in the family home. Consequently, plaintiff
established as a matter of law that defendant was not a member of
Nason’s household within the meaning of the policy (see Matter of
Hartford Ins. Co. of Midwest v Casella, 278 AD2d 417, 418, lv denied
96 NY2d 710; Walburn v State Farm Fire & Cas. Co., 215 AD2d 837; cf.
Korson v Preferred Mut. Ins. Co., 55 AD3d 879, 880-881), and
defendants failed to raise a triable issue of fact (see generally
Zuckerman v City of New York, 49 NY2d 557, 562).




Entered:   November 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
