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October 13, 1988

ANTHONY EVANGELISTA, Admin. of the Estate of Vincent Evangelista

James T. Giles, United States District Judge.

The opinion of the court was delivered by: GILES



 United Services Automobile Association (USAA), seeks a declaratory judgment determining its rights and obligations and those of defendant under an automobile insurance policy as it pertains to a fatal car accident of September 2, 1984. In that accident, the insured's brother was the victim. The parties have filed cross-motions for summary judgment.

 Relative to the policy language, there are three issues for resolution: (1) where was the "household" of USAA's insured, an enlisted serviceman as of the date of the accident; (2) what effect, if any, should be given to an "exclusionary clause"; and (3) what effect should be given to an "excess clause." For the following reasons, defendant's motion for summary judgment shall be denied and plaintiff's motion for summary judgment shall be granted.


 On April 4, 1983, Mark Evangelista left his childhood home in Hazelton, Pennsylvania, and entered active duty in the United States Air Force. Prior to enlistment, he had continuously maintained residence at his parents' Hazelton home. He was first stationed at Lackland Air Force Base in San Antonio, Texas. In July, 1983, he was transferred to a military station in St. Louis, Missouri, so that he could participate in a one-year education program at St. Louis University.

 In November, 1983, while living in St. Louis, Mark Evangelista bought a new car and purchased the USAA policy in question. USAA is headquartered in Texas and issues policy coverage applicable in all fifty states, Puerto Rico and Canada. At approximately the same time, Mark Evangelista also purchased a household goods policy for his St. Louis apartment from USAA. He renewed the car insurance policy for the period August 1, 1984 to November 23, 1984. The address listed on the policy is St. Louis, Missouri. In August, 1984, after completing the education program, Mark Evangelista was transferred by the Air Force to the Elmendorf Air Force Base in Alaska. His car insurance policy was subsequently amended to reflect this move, effective September 30, 1984.

 By affidavit, Mark Evangelista testifies that throughout his military career he considered Hazelton, Pennsylvania his home. He asserts that he deliberately maintained his Pennsylvania driver's license, voter's registration, and listed the Hazelton address as his permanent residence in all military records to retain his Pennsylvania citizenship and residency.

 On September 2, 1984, Vincent Evangelista, brother of Mark Evangelista, was fatally injured in a motor vehicle accident in Luzerne County, Pennsylvania. An unknown vehicle made a sudden lane change and Chris Evangelista, the driver and owner of the car in which the decedent was a passenger, lost control of his car. Like Vincent Evangelista, Chris Evangelista was a brother of Mark Evangelista. Both Vincent and Chris Evangelista were legal residents of the Hazelton household.

 State Farm Mutual Automobile Insurance Company had insured Chris Evangelista's car and Erie Insurance Company (Erie) had insured a vehicle owned by Vincent Evangelista. Both companies paid to the estate of Vincent Evangelista the maximum uninsured motorist benefits allowed under their policies. *fn1"

 Anthony Evangelista, the father of Vincent and Mark, resided at the Hazelton home. He was the owner of another vehicle insured by Erie. Under that policy, Erie paid another $ 90,000.00 in uninsured motorist benefits to the Estate of Vincent Evangelista.

 USAA now alleges that the Estate of Vincent Evangelista fails to meet three essential criteria to collect benefits under Mark Evangelista's policy. First, it claims that the decedent was not a person related by blood, marriage or adoption who was a resident of the same household as its insured. Second, it alleges that a specific provision in the policy excludes Vincent Evangelista from uninsured motorist coverage. Finally, USAA claims that its uninsured motorist coverage is excess coverage to all other coverage, and that since the Estate of Vincent Evangelista settled for less than the maximum coverage available from Erie under Anthony Evangelista's policy, that USAA owes no benefits.

 The defendant contends that a serviceman retains the residency maintained prior to enlistment when his actions suggest that indeed the prior residence continues to be the home. Defendant also claims that Vincent Evangelista was not excluded under the policy, and that even though USAA's policy contains an excess clause, since the Erie policy of Anthony Evangelista also ...

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