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AMICA MUTUAL INSURANCE COMPANY v. DONEGAL MUTUAL INSURANCE COMPANY AND AS INTERESTED PARTIES ELIZABETH HAGERTY CAROL APPLEGATE TRACEY APPLEGATE COMMONWEALTH PENNSYLVANIA (07/11/88)

filed: July 11, 1988.

AMICA MUTUAL INSURANCE COMPANY,
v.
DONEGAL MUTUAL INSURANCE COMPANY AND AS INTERESTED PARTIES: ELIZABETH HAGERTY; CAROL APPLEGATE; TRACEY APPLEGATE COMMONWEALTH OF PENNSYLVANIA, DEPT. OF TRANSPORTATION; PETER KWELLER, A MINOR, BY MARK KWELLER HIS GUARDIAN; MARK KWELLER AND JUDY KWELLER, HIS WIFE; AND DR. ROBERT W. HAGERTY APPEAL OF: PETER KWELLER, A MINOR, BY MARK KWELLER, HIS GUARDIAN, MARK KWELLER AND JUDY KWELLER, HIS WIFE, APPELLANT. AMICA MUTUAL INSURANCE COMPANY, APPELLANT, V. DONEGAL MUTUAL INSURANCE COMPANY AND AS INTERESTED PARTIES ELIZABETH HAGERTY, CAROL APPLEGATE, TRACY APPLEGATE COMMONWEALTH OF PENNSYLVANIA DEPT. OF TRANSPORTATION PETER KWELLER A MINOR BY MARK KWELLER, HIS GUARDIAN MARK KWELLER AND JUDY KWELLER, HIS WIFE AND DR. ROBERT W. HAGERTY



Appeal From The Order Entered August 11, 1987, In The Court Of Common Pleas Of Northampton County, Civil Division, At No. 1985-C-3170

COUNSEL

Patrick J. Reilly, Allentown, for appellants (at 2524).

Michael E. Moyer, Assistant District Attorney, Allentown, for AMICA Mut., appellant (at 2564) and appellee (at 2524).

Rick Long, Wyomissing, for Donegal, appellees (at 2524 and 2564)

Tamilia, Hoffman and Hester, JJ.

Author: Hester

[ 376 Pa. Super. Page 111]

Amica Insurance Company (appellant at No. 2564 Philadelphia 1987) and Peter Kweller, a minor by his parents Mark and Judy Kweller (appellants at No. 2524 Philadelphia 1987), filed these cross-appeals from an order entered pursuant

[ 376 Pa. Super. Page 112]

    to a declaratory judgment action, holding that appellee-Donegal Mutual Insurance Company is not responsible for coverage of Elizabeth Hagerty in connection with an automobile accident. We affirm.

On June 1, 1984, eighteen year-old Elizabeth Hagerty was operating an automobile with two passengers in Lehigh Township, Northampton County, Pennsylvania, when an accident occurred causing the three to sustain injuries. One of the passengers, Peter Kweller, a minor, instituted suit through his parents, naming Elizabeth Hagerty as one of the defendants. This action is not presently before us. Appellee-Donegal Mutual Insurance Company ("Donegal") which had issued a $500,000.00 liability policy to Elizabeth's father, Dr. Robert Hagerty, refused to provide liability coverage for Elizabeth. Appellant-Amica Mutual Insurance Company ("Amica"), which had issued a policy to Elizabeth's mother, filed a declaratory judgment action against Donegal seeking to have the latter declared liable for coverage of the accident.

A non-jury hearing was held on January 21, 1987. The major issue was whether the Donegal policy provided coverage for Elizabeth. In pertinent part, the policy provided coverage for family members of the insured, Dr. Hagerty, who were residents of his household.*fn1 On March 20, 1987, a decree nisi and adjudication were entered by the court holding that Elizabeth was not a resident of Dr. Hagerty's household at the time of the accident, June 1, 1984, but that she resided with her mother, Elizabeth Douglas. Therefore, Donegal had no duty to provide coverage. Appellants filed post-trial motions which were denied by the order of August 11, 1987. These timely cross-appeals followed.

[ 376 Pa. Super. Page 113]

In reviewing an adjudication in a non-jury proceeding, we must determine whether the trial court's findings are supported by competent evidence and whether the trial court committed error in any application of the law. Brenna v. Page 113} Nationwide Insurance Co., 294 Pa. Super. 564, 440 A.2d 609 (1982). Any ambiguity in insurance policy terms must be construed in favor of the insured. State Farm Insurance Co. v. Bullock, 316 Pa. Super. 475, 483, 463 A.2d 463 (1983); Krager v. Foremost Insurance Co., 304 Pa. Super. 390, 450 A.2d 736 (1982). If a court is to err in ascertaining the legislative intent behind the No-Fault Act in close, doubtful cases, it should do so in favoring of extending coverage. Steppling v. Pennsylvania Manufacturers Assoc. Ins. Co., 328 Pa. Super. 419, 477 A.2d 515 (1984).

Elizabeth Hagerty was born in 1966. Her parents separated in 1972 and were divorced in 1974. From 1972 to February 28, 1982, Elizabeth was in the custody of her mother; they lived in Allentown, Pennsylvania. On February 28, 1982, Elizabeth went to live with her father, Dr. Robert Hagerty, in Bethlehem, Pennsylvania. During the time she lived with her father, Elizabeth continued to attend a high school near her mother in Allentown. Her father transported her to and from school daily. Elizabeth moved back with her mother for the school year of 1983 to 1984, her senior year in high school. Although Elizabeth stated that she would have preferred to remain with her father since she got along better with him, she moved back to her mother's house due to its proximity to her high school. Elizabeth's mother lived twelve blocks from the school while her father lived six to eight miles from it. Elizabeth's involvement in extracurricular activities at school made it inconvenient for her to live with her father, as the travel time between his house and the school was approximately one-half hour under light traffic conditions.

During the 1983 to 1984 school year when she lived at her mother's house, Elizabeth testified that she stayed overnight at her father's house three to five times a month. Elizabeth's father testified that she stayed overnight only twice during the entire school year. The trial court found that Elizabeth made "sporadic" visits to her father's house, Trial Court opinion of 3/20/87, at 3, and that "she did not spend a substantial amount of time at her father's house."

[ 376 Pa. Super. Page 114]

Trial Court opinion of 8/11/87, at 6. During that time, Elizabeth had a closet or two full of clothes at her father's house, approximately forty pairs of shoes, books, cosmetics, stuffed animals, tennis equipment, and a pet rabbit. She received mail there as well.

At the time of the accident, June 1, 1984, Elizabeth was still residing at her mother's house. Elizabeth planned to leave the state to attend college at the end of June; she intended to live with her father in the time between graduation and her departure. Following the accident, she stayed with her mother for two weeks, then moved to her father's house. However, she stayed there only a short time as her injuries made moving about very difficult and the house had no bathroom on the floor where she ...


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