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SHISHKO v. STATE FARM INS. CO.

December 21, 1982

TIMOTHY SHISHKO
v.
STATE FARM INSURANCE COMPANY



The opinion of the court was delivered by: LORD

 Lord, S.J., District Judge.

 I. Facts

 On November 2, 1979, in Chester, Pennsylvania, plaintiff was struck by a car operated by defendant's insured, Gregory P. Schreder. Plaintiff filed a claim under Schreder's Pennsylvania no-fault insurance policy with State Farm. Defendant has admitted that plaintiff is covered by the policy and has paid the first $50,000 of plaintiff's medical expenses, but has refused to pay for any medical expenses incurred by the plaintiff exceeding $50,000. The only question at issue is whether plaintiff is entitled to unlimited medical benefits under the policy. Presently, plaintiff lives with his family in Plainview, New York, although at the time of the accident he was attending Widener College in Chester, Pennsylvania.

 II. Procedural Setting

 The procedural posture of this case defies normal description. The case was scheduled for a non-jury trial on September 24, 1982. On September 23, 1982, plaintiff filed a motion for summary judgment. The next day at trial, I heard argument on whether Section 110(c) *fn1" of the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101 et seq., as incorporated into the insurance contract, requires New York's Comprehensive Automobile Insurance Reparations Act, 27 McKinney's C.L.N.Y. § 670 et seq., to govern the medical benefits Mr. Shishko can recover. Both sides agreed that section 671.1 *fn2" of the New York statute, if applicable, would limit plaintiff's medical benefits to fifty thousand dollars. Defendant argued that if plaintiff were a New York domiciliary at the time of the accident the choice of law provision of the Pennsylvania act would require that section 671.1 of the New York act would apply. Plaintiff disagreed. He argued that the contract, not the statutes, governs and even if plaintiff were a New York domiciliary the contract clearly would provide unlimited medical benefits.

 Both sides agreed that if Mr. Shishko were a Pennsylvania domiciliary on the date of the accident, the defendant would be liable for unlimited medical benefits. From the evidence produced at trial I have decided that plaintiff was a New York domiciliary on the date of the accident. Therefore, I must decide the more difficult question of whether the contract, as it incorporates the Pennsylvania act, provides unlimited medical benefits to a New York domiciliary.

 Because I had decided that plaintiff was a New York domiciliary, on December 10, 1982, I heard reargument in light of Swezey v. The Home Indemnity Company, 691 F.2d 163 (3d Cir., 1982).

 In this opinion, I will first set forth the findings of fact and conclusions of law I have reached after considering the domicile evidence presented on September 24, 1982. Next, by consent of the parties, I will treat the contract issue as an action for declaratory judgment.

 III. Domicile

 At birth, a child acquires the domicile of his father. Restatement (Second) of Conflicts, § 14 (1971). Once the individual has reached the age of majority, he may change his domicile by voluntarily establishing a new residence "with a present intention to make it either his permanent home or his home for the indefinite future." In re Estate of McKinley, 461 Pa. 731, 734, 337 A.2d 851, 853 (1975). See also Krasnov v. Dinan, 465 F.2d 1298 (3d Cir. 1972). *fn3"

 Because a domicile continues until a new domicile is established, an individual asserting a change of domicile has the burden of proving both physical presence and an intent to remain indefinitely. Restatement (Second) of Conflicts, § 19 (1971), Petition of Wagner, 381 Pa. 107, 112 A.2d 352 (1955).

 Mr. Shishko has not met this burden. Shishko's uncontroverted testimony that he lived in Chester, Pennsylvania while he attended Widener College satisfies the first requirement of domicile: he had taken up residence in Pennsylvania before the accident. He has not proven, however, that he had the intent to remain in Pennsylvania indefinitely. Besides the individual's assertion of an intent to remain, a court must consider objective factors, Blue v. National Fuel Gas Distribution Corp., 437 F. Supp. 715 (W.D. Pa.) aff'd 601 F.2d 573 (3d Cir. 1977). Moreover, an out-of-state student is presumed to lack the intention necessary to establish a new domicile. 13 Wright, Miller & Cooper, Federal Practice and Procedure, § 3619 (1975). Although Mr. Shishko stated at trial that at the time of the accident he intended to finish school and seek employment "in the area," objective factors strongly suggest that Mr. Shishko had no intention of remaining in Pennsylvania. Shishko's trial testimony established that he was a twenty-year-old college junior when the accident occurred. He had lived in the college dormitories during his freshman and sophomore years and had returned "home" (his word) to his parents' house in Plainview, New York, to work during the summers of 1978 and 1979. During his junior year, when the accident occurred, Shishko was living in a university-owned apartment complex. His parents were paying for his education. His student bills were ...


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