What, then, does it take to qualify one's home as one's “residence?” The case law unfortunately does not provide much certainty. There are a couple well-established principles.

First,”[t]he standard for determining residence requires something more than temporary or physical presence and requires at least some degree of permanence and retention to remain.” Dean, Dean v. Tower Ins. Co. of NY, 19 N.Y.3d 704, 708 (2012). And second, a person can have more than one “residence” for purpose of insurance coverage. See, e.g, Allstate v. Rapp, 7 A.D. 3d 302, 303 (2004). But that's about it.

Subject to interpretation

Both of these principles are subject to interpretation and leave much room for argument. As a result, courts have in most instances left the sorting out to a jury. The leading case is the Court of Appeal's 2012 Dean v. Tower Ins. Co. of NY, 19 N.Y.3d 704. The Deans bought a house in May 2005. Shortly after closing, they discovered what must have been a massive termite infestation. They insured the home with Tower and spent the next year and change repairing the termite damage before it burnt down. Mr. Dean was at the property about five days a week, ate there routinely, and slept there at least occasionally.

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The Court of Appeals held that the Supreme Court had been wrong to grant summary judgment to Tower because “there are issues of fact as to whether [Mr. Dean's] daily presence in the house every day, coupled with his intent to eventually move in with his family, is sufficient to satisfy the insurance policy's requirements” and because the lack of a definition of “residence premises” made that term at least arguably ambiguous. Id. at 708-09.

Sleeping in home periodically

The most recent appellate court pronouncement is the August decision in Craft v. New York Central Mutual, in which the Third Department reversed a Supreme Court decision granting summary judgment to the insurer. The story there begins in 1967, when Mrs. Craft and her late husband built a house in Saugerties. She lived there full-time until approximately 2006 when she moved in with a boyfriend. Her son's family moved in when she moved out and she returned frequently to watch her grandchildren, sleeping there periodically.

She kept a key to the house, stored some personal property and furniture there, and never intended to fully move out of the house. In 2014, the house burned down. The insurer showed up, obtained a statement that she had moved “about 9 years [prior to the fire] because [her] son wanted to live in the home … so she rented it to him,” and denied coverage for the fire under the dwelling clause.

Public trial of one's living situation

The unfortunate fact pattern in Harrison v. Allstate Indemnity Co., 2017 N.Y. Misc. LEXIS 791 (Sup. Ct. Steuben Cty. March 3, 2017), is also a familiar one. Three years before the fire that burned down their house, the Harrisons had moved in with Mrs. Harrison's elderly mother to care for her. They initially expected to return to their home soon, but the mother's illness did not resolve and weeks turned to months and then to years. The Harrisons' son continued to live at the house, and Mr. Harrison returned on a periodic though decreasing basis. As in Dean and Craft, the court denied summary judgment, leaving the question for a jury to decide.

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mIf summary judgment is intrusive, a public trial of one's living situation is even more so. But this was the situation our client, Dolores Cotillis, faced last year in Broome County. Cotillis v. New York Central Mutual Fire Ins. Co., Index No. 2262/2014. The plaintiff's home burnt down on Sept. 5, 2013. At the time, Ms. Cotillis was generally splitting her time between the home she owned and that of a son where she watched her grandchildren.

A second son lived in Ms. Cotillis' own home. She had moved the bed out of her home to that of her son and was spending most nights there, but still returned regularly to her house. After a three-day trial, the jury agreed that Ms. Cotillis' home was also her residence. That judgment is currently on appeal.

Little firm guidance

Each of these cases, and many more denials, share some broad similarities — the homeowner is no longer living full-time at the residence — but also great differences. There is little in the way of firm guidance about when a home ceases to be a residence. In the place of such clear rules, insurers have sought to fill the gap with their own interpretations, which have more than a little of the flavor of Justice Potter Stewart's “I know it when I see it.” Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).

This flexible interpretation of residency has obvious value for insurers. In theory it allows for disclaimers over a wide range of fact patterns. For example, Dean and Craft present in some ways mirror image cases: The Deans indisputably had an intention to remain in the home but had never really lived there, while Mrs. Craft had a long-term relationship to the house but had no clear intention to return full-time to it. Their respective insurance companies nonetheless denied both claims.

But there is a danger to this refusal to define the contours of residency. The August decision in Gulati v. Allstate (in which we represent the plaintiff) shows how this tactical vagueness can work against the insurance company. Gulati v. Allstate Insurance Co., Index No. 2014-1031 (Chenango Cty. Sup. Ct. Aug. 10, 2017). In 2000, Dr. Gulati bought a house in Ferndale, N.Y., which he insured with Allstate. In 2004 he moved to Elmira for his medical residency, first renting and then buying a house in Elmira. He insured both the Ferndale and Elmira homes with Allstate, through the same Allstate agent, who he told he was moving to Elmira.

Allstate continued to insure both houses for years, changed the mailing address for both policies to the Elmira address, and paid a claim on the Ferndale residence in 2011 after meeting with a housesitter. The Ferndale home burned down in 2013, while insured by Allstate. Allstate refused to cover, insisting that the home that it had ensured for eight years since Dr. Gulati moved to Elmira was not a qualifying residence.

Imprecision of residence requirement

In granting summary judgment for the plaintiff, Supreme Court made three distinct holdings. First, the policy's residence premises requirement was ambiguous, as its ostensible requirement that the plaintiff “reside” at the house conflicted with the policy's express permission to leave the premises unoccupied indefinitely. Second, “Defendant continued to accept Plaintiff's premium payments for several years after it knew, or should have known that Plaintiff was not residing at the Ferndale property” and accordingly was estopped from relying on that information to deny coverage. Finally, Allstate had ratified the policy by continuing to accept premiums for 17 months after denying coverage for the loss.

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The ratification holding is unique to Dr. Gulati's situation, but observe how both the residence and estoppel holdings stem from the imprecision of the residence requirement. Without a clear definition, residence must be interpreted in the context of a longer and at times contradictory policy. And because there is no clear definition, the insurer cannot deny that it had information putatively disqualifying the plaintiff from coverage long before the loss.

While insureds are riding a winning streak in these disputes, insurance companies continue to deny claims on the basis of residency. Homeowners, insurance companies, courts, and often juries will accordingly continue to find themselves counting how many nights were spent at a home.

Kelsey Shannon ([email protected]) and Martin Lynn ([email protected]) are attorneys at Lynn Law Firm in Syracuse, New York.