GWENDOLYN A. SWIFT, APPELLANT,
v.
CENTURY INSURANCE COMPANY OF NEW YORK AND ROSELYN A. GILLINGHAM, D/B/A GILLINGHAM INSURANCE COMPANY, APPELLEES
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Swift appeals a summary judgment denying her claim for uninsured motorist coverage under an auto insurance policy issued to her alleged common law husband, Jimmy Milton. The court affirmed the summary judgment, holding that Swift was not a resident of Milton's household at the time of the accident, which was a requirement for coverage under the policy's family protection provision.
The court held that Swift was not entitled to coverage because the insurance policy's definition of 'insured' required family members to be residents of the same household as the named insured at the time of loss, and Swift was living with Charles Dawkins rather than Jimmy Milton at the time of the accident.
[1] A party claiming coverage under an automobile liability policy as a resident spouse must demonstrate that they were, in fact, residing in the same household as the named…
[2] Summary judgment is appropriate when the pleadings, depositions, affidavits, and other evidence clearly show the absence of a genuine issue of material fact.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“insured means : '(1) The named insured as stated in the policy (herein also referred to as the 'principal named insured') and any person designated as named insured in the schedule and, while residents of the same household, the spouse of any such named insured and relatives of either.'”
The policy language establishing the household residency requirement for coverage of family members
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSwift was injured in a car accident on September 10, 1970, while driving an automobile owned by Charles Dawkins, with whom she was living at the time.…
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This is an appeal by plaintiff Gwendolyn A. Swift from a final summary judgment entered for the defendants in an action by plaintiff for damages against defendant Gillingham Insurance Company and for compulsory arbitration against defendant Century Insurance Company of New York.
The plaintiff’s action was for injuries sustained while driving an automobile of a “friend” when it collided with the automobile of an uninsured motorist. At the time of the accident, plaintiff claimed that she was the common law wife of Jimmy Milton who was a named insured in a policy issued to him by Century Insurance pursuant to an application with Gillingham Insurance Company for a standard form automobile liability policy with uninsured motorist coverage. Milton, in his application for insurance, listed the plaintiff as a driver and as his wife.
The injuries complained of occurred on September 10, 1970, six to eighteen months after Milton and plaintiff had ceased to live together. She was living with Charles Dawkins, the owner of the automobile which she was driving when she was injured.
Plaintiff claimed coverage under the policy in question based on the contract of insurance issued to Jimmy Milton that provided for family protection coverage for all sums to which the insured would be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury. The policy states that insured means :
“(1) The named insured as stated in the policy (herein also referred to as the ‘principal named insured’) and any person designated as named insured in the schedule and, while residents of the same household, the spouse of any such named insured and relatives of either.”
Defendant’s main defense as set forth in the answer was that the plaintiff was not a resident of the household of Jimmy Milton at the time of the accident in question.
The defendants moved for a summary final judgment and made it clearly to appear by the pleadings, depositions, exhibits and affidavits that the plaintiff was living with Charles Dawkins and not Jimmy Milton, her alleged common law husband. The trial court granted defendants’ motion. *90It is appellant’s contention that the court erred in granting summary final judgment. We reject this contention; she was not a resident of Jimmy Milton’s household.
A motion for summary judgment may be granted when it is made to appear from the pleadings, depositions, affidavits or other evidence before the court that there exists no genuine issue of material fact to be tried. We think the trial court was correct in finding the absence of any genuine issue of a material fact to be determined by trial.
Accordingly, the judgment appealed is affirmed.
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