Opinion

JACKSON v. SPINNAKER INSURANCE COMPANY

Court: District Court, W.D. Pennsylvania
Filed: Jan 28, 2025
Cited by: 0 cases
Authority: More cited than 33.8%

finding jury question of “residence” where college student at parents’ home for holidays was injured in fall

How later courts described this case

finding jury question of “residence” where college student at parents’ home for holidays was injured in fall
holding that determination of “whether an individual ‘physically lives’ in a particular place so as to ‘reside’ there”, requires “examin[ing] the facts of the case and com[ing] to a common-sense decision”
where property was being used as a rental (rather than insured’s residence) and insured had moved in with girlfriend, coverage for injury to renter’s guest was disallowed under express policy exclusion
finding it clear that there was no genuine dispute of material fact that the insured was not a resident of the subject property

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

)

DONALD JACKSON

)

Plaintiff,

)

) Civil Action No. 22-1244

) Judge Nora Barry Fischer

)

SPINNAKER INSURANCE COMPANY,

)

Defendant.

)

MEMORANDUM OPINION

I. INTRODUCTION

Currently pending before the Court is Defendant’s Motion for Summary Judgment

(Docket No. 49) in this breach of contract action. Plaintiff’s Complaint seeks coverage allegedly

owed through the homeowners insurance policy (the “Policy”) in effect on June 10, 2021 when

the subject property (the “Property”) was destroyed by fire. (Docket No. 1-4). Defendant Insurer

seeks summary judgment on Plaintiff’s coverage claim on alternative grounds: (a) the Property

was not Plaintiff’s “residence” and thus this loss was not covered under the Policy and/or (b) the

Policy coverage was rendered void by Plaintiff’s misrepresentations during Defendant’s

investigation of said loss (violation of its “Concealment or Fraud” provision).1 Defendant also

seeks summary judgment on Plaintiff’s claim of bad faith.

1 Although Defendant’s Brief in Support of its motion asserts that Plaintiff made “material misrepresentations . . . in

his application and/or during the investigation of the claim”, Defendant clarified during oral argument and in

subsequent briefing that it seeks summary judgment on grounds of material misrepresentation only as to the latter.

(Docket No. 50 at 2; Docket No. 62 at 37-38) (“[F]or summary judgment purposes, we’ve relied upon fraud during

the course of the investigation.”). It intends, however, to pursue its position as to application misrepresentations

(e.g., that the Property was Plaintiff’s “primary residence" and neither “vacant” nor “unoccupied”) at trial. (Docket

No. 62 at 20-21) (“[W]hether or not [Plaintiff] had intent to deceive in his application, we recognize as a disputed

fact and we have not waived that. We will argue that at trial.”). Cf. infra, n. 4.

Upon careful consideration of the parties’ submissions and the evidence of record, and

for the reasons set forth below, Defendant’s motion is granted as to Plaintiff’s claim of bad faith

and otherwise denied.

In brief, the Court observes that Defendant issued to Plaintiff, as insured, a fairly standard

homeowners policy which (a) identifies the Property and (b) insures in its specified amounts and

circumstances a “residence premises” defined in pertinent part as “[t]he one-family dwelling

where [insured] reside[s]”. (Docket No. 57-10 (Insurance Policy for Subject Property)).2 The

Court concludes, in accordance with Pennsylvania law as interpreted and applied by the courts of

this Circuit, that “residence” is itself an unambiguous term, residency was a condition precedent

to Plaintiff’s coverage, and the record presents material fact questions from which the

factfinder(s) could reasonably conclude that the Property was Plaintiff’s residence. It further

concludes that the record presents material fact questions from which the factfinder(s) could also

conclude that, the vagaries and apparent inconsistencies/revisions of some of Plaintiff’s

representations notwithstanding, the Policy coverage was not void by fraudulent

misrepresentation in the investigation (e.g., by willful and knowing misrepresentation of material

fact). However, the Court concludes that the same material fact questions,3 and the related

2 The Policy’s definition alternatively includes “[t]he [two- to four]-family dwelling where [insured] reside[s] in at

least one of the family units” or “that part of any other ‘building’ where [insured] reside[s]” and which is “shown as

the ‘residence premises’ in the Declarations”. The Court notes that the use of hyphenation in the Policy definition of

residence as a “one-family” (or also a “two-, three- or four-family”) dwelling and the Policy’s other provisions

foreclose an assertion that such language covered an insured’s “one family dwelling” (i.e., the sole and/or primary

place of residence) rather than a single- (or, e.g., two- to four-) family dwelling. As the parties’ briefings correctly

reflect, a more restrictive policy generally clearly denotes that it covers its subject property only as the insured’s

“primary residence” and that it is not intended to provide coverage for a “residence” that may be seasonal or

secondary. See also infra, Section VI.

3 The unusually extensive fact questions arise from the (sometimes surprising) (a) absence of supportive evidence

typically provided by parties to residential insurance coverage litigation and (b) gaps and inconsistencies of record,

particularly those pervading Plaintiff’s multiple oral interviews and testimony. Cf. Docket No. 50 at 2 (Defendant’s

“investigation was extensive due [in part] to Plaintiff's changing and evolving story about where he was living [and]

the condition of the subject property.”).

existence of reasonable cause to inquire into both (a) Plaintiff’s residence at the Property and (b)

his many gaps and variations/errors in memory, preclude a finding of bad faith in Defendant’s

investigation or denial of coverage. An appropriate Order will follow.

II. PROCEDURAL BACKGROUND

Plaintiff’s Complaint – filed in the Court of Common Pleas of Allegheny County on

August 17, 2022 and removed by Defendant to this Court shortly thereafter – is comprised of two

counts: Count I, alleging breach of contract regarding his covered loss and Count II, alleging a

statutory bad faith claim pursuant to 42 Pa.C.S. § 8371. (Docket No. 1-4).

Its core allegation is that Plaintiff is owed policy coverage for the Property, its contents, and his

loss of use. (Id. at ¶¶ 35-41). Defendant’s Answer was filed September 8, 2022 and “significant

discovery ensued”. (Docket No. 49 at ¶ 4).

Defendant’s Motion for Summary Judgment and Brief in Support were filed on August

20, 2024 (Docket Nos. 49-50), followed by the parties’ Brief in Opposition, Replies and Sur-

Replies. (Docket Nos. 54, 59, 60). Defendant’s Concise Statement of Material Facts and

Appendix, together with Plaintiff’s Counterstatement and Appendix, and the parties’ further

responses followed. (Docket Nos. 51-52, 55-58). Evidentiary submissions were also provided as

exhibits to several of the filings; oral argument was heard on October 25, 2024 (Docket No. 62

(Transcript)); and Defendant’s motion is ripe for disposition.

III. FACTUAL BACKGROUND

A. Policy Application and Coverage Denial

Plaintiff completed Defendant’s online Homeowners Insurance Application on November

17, 20204 and Defendant issued a Homeowners Insurance Policy at No. HPA405265900,

4 The application form – completed online during the first year of the pandemic – consists of approximately two

pages of fill-in-the-box basic information and another of coverage elections, together with an additional four pages

effective November 25, 2020 to November 25, 2021, for “residence premises” located at 1000

Blythedale Road, Elizabeth, Pennsylvania. The Policy covers the dwelling and other structures,

personal property and loss of use. The Property, purchased sight-unseen on October 9, 2020 and

conveyed by Sheriff’s sale deed on November 5th, suffered a fire loss on June 10, 2021.5

Plaintiff made a claim under the Policy and met with Defendant’s claim investigator on July 31st.

By letter dated February 25, 2022, Plaintiff’s claim was denied because (a) the Property

did not qualify as his “residence premises”, defined as “the one family dwelling where you

reside”, and (b) the Policy was void due to his material misrepresentations. (ECF No. 1-4, ¶¶ 3-9

and Exhibit B at pp. 102-106). More specifically, Defendant asserted that (a) Plaintiff was living

in Duquesne, Pennsylvania during the relevant time period and that “sporadic visits to the

property do not establish residency” and (2) even if the property were qualified as his “residence

premises”, Plaintiff’s misrepresentations voided coverage, as:

You initially misrepresented . . . that the property was your “primary” residence

and that it was not vacant and not unoccupied. Your testimony that you had been

working to renovate the property and staying there on occasion is not credible.

You initially stated that you were staying at the property a couple of nights per

week. You later stated that you had stayed there a total of eight nights since you

of policy terms. (Docket No. 1-4, Ex. B). The box indicating “Property Information – Primary or

Seasonal/Secondary” was completed with the first of those two choices, and the word “Primary” was also carried

down into the “Occupancy Type” box directly below it. Similarly, the box requesting “# Months Unoccupied (if

seasonal/secondary)” was marked “0”. These and other aspects of the application are discussed in the parties’

filings. The record is unclear as to Plaintiff’s understanding of the distinctions or relationships between these terms

or the extent to which any clarification or direction was provided to him in the application form/process. The same

is true as to his answer of “No” to six successive line item “General Information” questions, the first of which was:

“Is the property under construction, vacant, unoccupied or for sale?”.

A reasonable jury could conclude that Plaintiff, understanding his designation of residence choices to be Primary or

Seasonal and knowing this was not his vacation home, chose Primary, and understanding that “unoccupied” was a

designation intended only for Seasonal homes and/or that the Property was neither “unoccupied” nor “vacant”

because he was sometimes living in/renovating it, chose “No” in response to the General Question noted above.

More generally, as Defendant appears to acknowledge, a reasonable jury could conclude that any misrepresentations

in Plaintiff’s application were not of a nature to render the Policy void.

5 The fire occurred the day before the wake for a son of Plaintiff’s girlfriend, Tamilia Demery. That son, Robert,

had been murdered eight days earlier, on June 1st.

purchased the property. The lack of electricity, lack of sewer system and lack of

water use support the conclusion that the property was unoccupied. You could not

have occupied the property without a permit and it appears that securing a permit

was impossible because of the lack of public sewer and the lack of a septic

system.

(Docket No. 50 at 4) (citing Docket No. 1-4, Ex. B).

B. Acquisition, Renovation, Use and Loss of the Property

As set forth in Section V, under the now applicable summary judgment standard, the

Court considers the evidence in the light most favorable to the non-movant.6 In so doing, it

neither weighs the evidence nor engages in credibility determinations. That said:

Although the Policy was titled in his sole name, Plaintiff in fact purchased and owned the

Property jointly with his girlfriend, Tamilia Demery (“Demery”).7 He did so “with the intent of

making [the Property] his primary residence”. In the months following its Sheriff’s sale

purchase for $28,000, Plaintiff was making gradual improvements and repairs to the Property,

some of which were taking longer than expected and/or revealing additional work which needed

to be done. Progress on renovations/repairs was also limited by Plaintiff’s financial,

employment and transportation circumstances. During this time, Plaintiff kept some portion of

his personal belongings at both (a) the Property and (b) the home at 16 Auriles Street, Duquesne,

Pennsylvania, rented by Demery.8 He also received mail at the Property.9

6 In addition to the citations provided in text, the Court derives these facts from Defendant’s Concise Statement of

Material Facts and Appendix, together with Plaintiff’s Counterstatement and Appendix, and the parties’ further

filings, including evidentiary submissions thereto. See generally, Docket Nos. 51-52, 55-58.

7 Plaintiff and Demery combined their Covid unemployment benefit funds to jointly purchase this home, which met

their criteria as one they could afford and one which was free of liens. (Docket No. 52-1 at 7-8).

8 Demery resided in her Auriles Street rental with some number of her children and intended to move into the

Property when its condition had been improved. Plaintiff considered the insured Property (the home which he

jointly owned) to be his residence in part because he neither owned/rented another residence nor had a legal right to

reside/stay in Demery’s Auriles Street rental. (Docket No. 1-4, ¶¶ 18-19, 44).

Prior to moving in (and sharing some expenses) with Demery, Plaintiff shared a McKeesport residence with a

former spouse. After he moved out of that residence and into Demery’s, Plaintiff kept some furniture in a storage

Over the approximately seven months between purchase/insurance of the Property and its

loss to fire, Plaintiff not only spent substantial daytime hours working on its restoration (and

sometimes employed others to assist him or perhaps work independently there), but also

occasionally slept there. (Docket No. 1-4, ¶¶ 12-17, 27).10 Because he owned no vehicle and

unit until he jointly purchased the Blythedale Road Property. The items he then moved from storage to the Property

included an old bedroom set, miscellaneous chairs and other furniture (the “normal stuff that would be in a house”),

clothes and computer equipment. Docket No. 52-1 at 5-6. Plaintiff also attests to keeping variously-identified

pieces of computer equipment and televisions, as well as gold and diamond jewelry, at the Property. See e.g., id. at

52-1 at 11-12; 52-2 at 11-12.

9 The mail received included Plaintiff’s cell phone, banking, insurance and dog-ownership-related statements, as

well as statements for the water account held in Demery’s name.

10 Plaintiff’s accounts/averments regarding both the frequency/duration of daytime hours and the nights spent at the

Property vary; and the utility bills (in Demery’s name) and other evidence of record (including other witness

testimony) fails to provide significant substantiation of (and sometimes arguably calls into question) Plaintiff’s

testimony as to more substantial amounts of time spent. For example, monthly utility bills reflect little use of water

or electricity at the Property, and the status of its septic system is unclear. (Heating during the winter months was

assertedly provided by a full oil tank, occasional use of space heaters, and perhaps a woodburning stove. (Plaintiff’s

averments differ as to the latter.)) See e.g., Docket No. 52-1 at 9-10.

Although there were no kitchen appliances (e.g., refrigerator, stove, microwave) at the Property, Plaintiff kept water

there and occasionally brought food to eat meals there. Plaintiff’s testimony regarding nights spent has ranged from

“a couple nights” per week (i.e., approximately eight per month) to 8-10 nights in total during the approximately

seven month window. See e.g., Docket No. 51 at ¶¶ 16-17 (citing Plaintiff’s investigation statements that he lived

with Demery at the time of the fire but also was living at the Property, staying two days a week and “trying to get

the work done”); id. at ¶18 (citing Plaintiff’s subsequent investigation statement that he stayed overnight at the

property approximately eight to ten times while renovating it); see generally Docket No. 52 (Defendant’s Appendix

to CSMF). These fact questions (and credibility determinations) are material to Plaintiff’s entitlement to coverage,

e.g., whether the Property was Plaintiff’s “residence”.

Plaintiff’s accounts/averments regarding (a) the nature and extent of materials purchased for and improvements or

repairs made to the Property (and by whom), or (b) the personal property it contained at the time of the fire, are also

varyingly imprecise/ambiguous and/or sometimes contradictory. For example: Plaintiff recalls little of the locations

from which renovation materials were obtained and, as to, e.g., Ebay, Craig’s List, FaceBook and salvage-type

location acquisitions, provides little corroboration or documentation (e.g., receipts, electronic communication

records, or photographs). Plaintiff’s accounts of (usually unnamed) individuals paid (usually in cash) to work at the

Property (e.g., a plumber, kitchen cabinet and counter installer(s)) generally lack means of further identification and

evidence of transactions/payment. (For example, “Frank”, who transported Plaintiff, moved purchases/materials in

his truck and worked on the kitchen, is deceased. (Docket No. 52-1 at 6, 9, 16; 52-2 at 4).) Plaintiff’s initial mis-

remembering of second-floor bathroom renovation work performed by Demery’s son, D’Andre Thornton, was

contradicted by Thornton’s own testimony. Docket No. 52-12 (July 11, 2023 Deposition (succinctly recounting that

the only work he performed, on his two visits to the Property, was some first-floor drywall)). And Plaintiff’s

representations regarding the size, features and age of televisions/electronics in the Property at the time of loss are

neither fully consistent nor fully supported by the record’s relatively scant documentation of contents. These wide-

ranging fact questions (and credibility determinations) are material to the Policy coverage amount, if any, due (and

perhaps less directly to the determination of “residence” to the extent they inform, e.g., Plaintiff’s time spent at the

Property).

was not licensed to drive, Plaintiff hired a jitney to take him to the Property, which cost

approximately $15-20 per trip.11 Throughout this time, Plaintiff continued to live in, and

primarily spent his nights in, Demery’s Auriles Street rental.12 The Property and its contents

were lost to fire on June 10, 2021; and the facts of Defendant’s subsequent investigation(s) and

denials of Plaintiff’s claim are fully set forth in the parties’ briefings. (Docket Nos. 49-52, 54-

60). See also Section II, supra.

IV. RELEVANT POLICY PROVISIONS

The provisions of the Policy include, in pertinent part:

AGREEMENT

We will provide the insurance described in this policy in return for the premium and

compliance with all applicable provisions of this policy. You agree that the policy has been

issued in reliance upon the statements and the Declarations and the application.

While these variances give rise to questions of material fact and credibility, their resolution is for the factfinder(s).

As discussed infra, the Court must reject Defendant’s assertions – in support of the pending motion - that Plaintiff’s

material statements and/or other representations/evidence during its investigation have been so vague, “unreliable

and imprecise” or “unworthy of belief” as to remove those determinations from the province of the jury. See Section

VI, infra (citing other “residence” insurance coverage cases in which the policy holder’s representations raised

significant questions of material fact and credibility); see also Section V at n. 16, infra. Compare Docket No. 62 at

6-7; id. at 4 (Defendant’s assertion that “this case has such weak implausibilities [sic] that it should not proceed to a

jury trial”); id. at 39 (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)); Docket No. 50 at 12 (“[Plaintiff’s] lack

of candor and convoluted explanations concerning his alleged contact with the property are so untrustworthy and

false such that no reasonable juror could possibly lend any credence to them.”).

11 Docket No. 52-2 at 7.

12 The Court notes although Plaintiff has no driver’s license, he has possessed a State ID. The State ID first

provided to the Claims Investigator was issued in January 2021, a few months after the Property’s purchase, and

showed his address as McKeesport. The State ID later provided was issued in March 2023 and showed his address

as the Blythedale Road property. Plaintiff avers that he lost a previous ID, for which this was a replacement.

(Docket No. 52-2 (Plaintiff’s May 25, 2023 Deposition Testimony)). Cf. Docket No. 52-13 (Demery’s May 25,

2023 Deposition Testimony) (attesting that Demery and Plaintiff leased a residence in Hazelwood in May 2022 and

still resided there as of May 2023).

DEFINITIONS

9. “Insured” means: a. You and residents of your household who are: (1) your relatives;

or (2) other persons under the age of 21 and in your care or the care of a resident of your

household who is your relative;

10. “Insured location” means: a. The “residence premises”: b. The part of other

premises, other structures and grounds used by you as a resident; and (1) which is shown in the

Declarations; or (2) which is acquired by you during the policy period for your use as a residence

and reported to us within thirty (30) days of its acquisition; c. Any premises used by you in

connection with a premises described in a. and b. above; d. Any part of a premises, not used for

“business” and “purposes”: (1) not owned by an “insured”; and (2) where an “insured” is

“temporarily residing”; e. Vacant land, not used for “business” purposes, other than farm land,

owned by or rented to an “insured”;

17. “Residence premises” means: a. The one-family dwelling where you reside;

b. The two-, three- or four- family dwelling where you reside in at least one of the family units;

or c. That part of any other “building” where you reside; and which is shown as the “residence

premises” in the Declarations. “Residence premises” also includes other structures and grounds

at that location.13

18. “Temporarily residing” means residence in a hotel, motel, vacation residence or

similar facility. It does not include any residence that an “insured” has occupied, rented or leased

for 60 days or longer, or that an “insured” intended to occupy for 60 days or longer.

13 The Court notes that this definition of “residence premises”, by insuring only (a) that dwelling in which insured

resides which is (b) also the one identified in the Declarations, anticipates the possible existence of more than one

dwelling in which an insured resides - as do other provisions of the Policy.

COVERAGE PROVISIONS

1. We cover: a. The dwelling on the “residence premises” shown in the Declarations,

including structures attached to the dwelling; and b. Materials and supplies located on or next to

the “residence premises” used to construct, alter or repair the dwelling or other structures on the

“residence premises”.

EXCLUSIONS

R. Concealment or Fraud: 1. With respect to loss caused by fire, we do not provide

coverage to the “insured” who has: a. Intentionally concealed or misrepresented any material fact

or circumstance; b. Engaged in fraudulent conduct; or c. Made false statements; relating to this

insurance.

(Docket No. 1-4, Exhibit A).

V. APPLICABLE STANDARD OF REVIEW

Summary judgment is appropriate if, drawing all inferences in favor of the nonmoving

party,14 the “materials in the record, including depositions, documents, electronically stored

information, affidavits or declarations, stipulations (including those made for purposes of the

motion only), admissions, interrogatory answers, or other materials,” show “that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” FED.R.CIV.P. 56(a) & (c)(1)(A).15 Summary judgment may be granted against a party who

fails to adduce facts sufficient to establish the existence of any element essential to that party’s

case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477

14 See e.g., Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir. 2007) (noting that the court must interpret the facts

in the light most favorable to the non-moving party and draw all reasonable inferences in its favor).

15 A fact is “material” if proof of its existence or non-existence might affect the outcome of the suit under applicable

law. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986); see also Lamont v. New Jersey, 637 F.3d 177, 181

(3d Cir. 2011).

U.S. 317, 322 (1986). The moving party bears the initial burden of identifying evidence which

demonstrates the absence of a genuine issue of material fact; that is, the movant must show that

the evidence of record is insufficient to carry the non-movant’s burden of proof. Id. Once that

burden has been met, the nonmoving party must set forth “specific facts showing that there is a

genuine issue for trial” or the factual record will be taken as presented by the moving party and

judgment will be entered as a matter of law. Matsushita Elec. Indus. Corp. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986) (quoting FED.R.CIV.P. 56(e)) (emphasis added by Matsushita

Court).

An issue is genuine only “if the evidence is such that a reasonable jury could return a

verdict for the non-moving party.” Anderson v. Liberty-Lobby, Inc., 477 U.S. 242, 248 (1986);

id. at 249 (“If the evidence is merely colorable, or is not significantly probative, summary

judgment may be granted.”); see also McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005).

But as the United States Supreme Court further directed: “[A]t the summary judgment stage the

judge’s function is not . . . to weigh the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 250. Thus, in

reviewing a motion for summary judgment, the court does not make credibility determinations,

and summary judgment is “inappropriate when a case will turn on credibility determinations.”

Isenberg v. State Farm Fire & Cas. Co., 604 F.Supp.3d 322, 324–25 (W.D. Pa. 2022) (quoting

El v. Southeastern Pennsylvania Transp. Authority, 479 F.3d 232 (3d Cir. 2007)).16

16 Defendant’s Brief in Support provides a more extensive discussion of the standard of review, in support of its

assertion that Plaintiff’s evidence is too inadequate and/or flawed to merit a jury’s consideration:

[T]he Supreme Court has repeatedly stated that "[e]vidence which [is] merely colorable or not

significantly probative" is not sufficient to defeat a motion for summary judgment. Bragdon v.

Abbott, 524 U.S. 624, 653 (1998) (citing Liberty Lobby, 477 U.S. at 249-250); accord New Jersey

Turnpike Auth. v. PPG Industries, Inc., 197 F.3d 96, 108-09, 110, 112 (3d Cir. 1999); Blackburn

v. UPS, 179 F.3d 81, 103 (3d Cir. 1999). Testimony that is "unreliable and imprecise . . . does not

constitute evidence sufficient to create a genuine issue of material fact to withstand [Defendant's]

VI. ANALYSIS

A. “Residence Premises” and Relevant Factors Under Pennsylvania Law

The applicable law has been well and clearly set forth by this Court in its previous

decisions. More particularly, as to consideration of the existence of coverage in general:

In determining whether coverage exists under the policy at issue, the Court looks

to the language of that policy to ascertain the parties’ intent. Morton v. Gardner,

488 F. Supp. 3d 200, 207 (W.D. Pa. 2020) citing Standard Venetian Blind Co. v.

Am. Empire Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 (1983); see also Donegal

Mut. Ins. Co. v. Baumhammers, 595 Pa. 147, 938 A.2d 286, 290 (2007). In so

doing, “[w]ords of ‘common usage’ . . . are to be construed in their natural, plain,

and ordinary sense, and a court may inform its understanding of these terms by

considering their dictionary definitions.” Gerow v. State Auto Prop. & Cas. Co.,

346 F. Supp. 3d 769, 778 (W.D. Pa. 2018), citing Wall Rose Mut. Ins. Co. v.

Manross, 939 A.2d 958, 962 (Pa. Super. Ct. 2007). In addition, “courts must

construe the terms of an insurance policy as written and may not modify the plain

meaning of the words under the guise of ‘interpreting’ the

policy.” Id., citing, Lucker Mfg., A Unit of Amclyde Engineered Prods., Inc. v.

Home Ins. Co., 23 F.3d 808, 814 (3d Cir. 1994). Finally, when considering

definitions and terms, the Court must also determine whether a provision at issue

is ambiguous. If so, it is to be construed in favor of the insured and against the

insurer. Morton, 488 F. Supp. 3d at 207. A term is ambiguous if there is more

than one reasonable interpretation of the term. If the term is unambiguous, the

Court must ascribe the plain meaning of that term. Gerow, 346 F. Supp. 3d at 778.

Isenberg, 604 F.Supp.3d at 325.

summary judgment motion . . . ." New Jersey Turnpike Auth., 197 F.3d at 110. Testimony that is

"vague and imprecise, of questionable reliability [is] therefore not sufficiently probative to create

an issue for trial." Id. at 112. A nonmovant's beliefs and/or speculations cannot defeat summary

judgment. Lexington Ins. Co. v. Western Pa. Hosp., 423 F.3d 318, 332-33 (3d Cir. 2005). A

"scintilla of evidence is clearly inadequate to create a genuine issue of material fact . . . ."

Blackburn, 179 F.3d at 103. Moreover, evidence that is immaterial or irrelevant cannot defeat a

motion for summary judgment. Id. at 97, 98. . . . A fortiori, "in considering a motion for summary

judgment the court should believe uncontradicted testimony unless it is inherently implausible

even if the testimony is that of an interested witness." Lauren W. v. DeFlaminis, 480 F.3d 259, 272

(3d Cir. 2007); accord Walter v. Pike County, 544 F.3d 182, 193 n. 2 (3d Cir. 2008).

(Docket No. 50 at 8). In short, the Court finds that Plaintiff’s submissions (and the record) on the whole – despite

their deficiencies – are not so singularly or exclusively imprecise, unreliable, speculative and/or wanting that no

reasonable jury could find sufficient material facts for a verdict, in some amount, in Plaintiff’s favor. See Section VI,

infra (discussing analogous cases).

And as to construction of the term, and inquiry into the fact question of, “residence”, this

Court has held that:

“Pursuant to Pennsylvania law, construction of the term ‘resident’ in an insurance

policy is a matter of law.” Mu'Min v. Allstate Prop. & Cas. Ins. Co., Civil Action

No. 10-7006, 2011 WL 3664301, at *9 (E.D. Pa. Aug. 17, 2011). Pennsylvania

courts have held that the word “resident” in an insurance policy, even if

undefined, is unambiguous. [citing Wall Rose, supra]. “Residence” refers to “a

factual place of abode evidenced by a person's physical presence in a particular

place.” In re Residence Hearing Before the Bd. of Sch. Dirs., Cumberland Valley

Sch. Dist., 560 Pa. 366, 744 A.2d 1272, 1275 (2000) (citations and internal

quotations omitted). The term “requires, ‘at the minimum, some measure of

permanency or habitual repetition.’ ” Wall Rose, 939 A.2d at 965 (quoting Erie

Ins. Exch. v. Weryha, 931 A.2d 739 (Pa. Super. Ct. 2007)). “Also, ‘[s]ince

resident status is a question of physical fact,’ intention is not a relevant

consideration.” Id. (citing Amica Mut. Ins. Co. v. Donegal Mut. Ins. Co., 376

Pa.Super. 109, 545 A.2d 343, 348 (1988)); see also Campbell [v. State Farm Fire

and Casualty Company], 2018 WL 3468214, at *1 [(W.D. Pa. July 18,

2018)] (“Plaintiff's reliance on her intention to return to the dwelling at a future

date ... does not establish ‘residence.’”).

When inquiring into residency, courts look at objective indicators “such as where

an individual sleeps, takes her meals, receives mail, and stores personal

possessions.” Allstate Ins. Co. v. Naskidashvili, Civil Action No. 07-4282, 2009

WL 399793, at *3 (E.D. Pa. Feb. 16, 2009); see [Chong] Chen [v. Allstate Ins.

Co.], 2012 WL 460416, at *6 [ (E.D. Pa Feb. 14, 2012) ]; Mu'Min, 2011 WL

3664301, at *9. “[W]hen a person actually lives in one location, and sporadically

visits, or keeps certain personal items at, another location, it is the location where

he lives that is his residence,” not the location he sporadically visits. Gardner [v.

State Farm Fire and Cas. Co.], 544 F.3d [553] at 560 [(3d Cir. 2008)].

Gerow v. State Auto Prop. & Cas. Co., 346 F. Supp. 3d 769, 779 (W.D. Pa. 2018) (quoted in

Isenberg, 604 F.Supp.3d at 325).

In addition, “Pennsylvania courts and federal courts within [this] Circuit applying

Pennsylvania law have agreed or at least assumed that a person is not limited to one residence.”

Isenberg, 604 F.Supp.3d at 329 (citing Hillmer v. Esurance Prop. & Cas. Ins. Co., 559

F.Supp.3d 402, 412 (E.D. Pa. 2021). See also GEICO Cas. Co. v. Alicea, 417 F.Supp.3d 425,

432 (W.D. Pa. 2019) (“It is certainly possible that one can have only one domicile, which as a

person’s principal establishment, implies a certain unique status. Residence though has always

been regarded as something more fluid and less permanent that a domicile, and there is no reason

to believe one cannot have a sufficient physical presence at more than one place to establish a

residence.”). Cf. Bloxham v. Allstate Ins. Co., 2020 WL 6710427, at *5 (M.D. Pa. Nov. 16,

2020) (noting that “the word ‘resident’ as used in the policy, without additional words of

refinement, i.e., permanent, legal, etc., [carries a] more transitory meaning” than “domicile” (a

“fixed and permanent home and principal establishment”)).

In summary then, under applicable law “residence” is evidenced by an insured’s physical

presence in the subject property and requires “some measure of permanency or habitual

repetition”. “Sporadically visit[ing]” is therefore distinguished from “liv[ing] in” a place. The

objective indicia to be considered include: sleeping, taking meals, receiving mail and storing

personal property. Intention is expressly excluded as a relevant factor; and the possibility of

more than one “residence” is clearly contemplated.17

B. Material Fact Questions Exist From Which a Reasonable Jury Could Find the

Property To Be the “Residence” Insured Under the Policy

As a threshold matter, to the extent Defendant suggests that Plaintiff’s expressions of

belief and/or intention – e.g., in his application for insurance, statement of loss, and/or this

litigation – that the Property was his “primary residence” render the Policy void absent a finding

that the Property was in fact his primary residence, the Court must disagree. The salient fact, of

course, is that the Policy does not restrict its coverage to Plaintiff’s primary residence. To the

contrary, the Policy, i.e., the operative contract, unambiguously insures the dwelling which is (a)

17 Defendant may misapprehend the law’s recognition of a residence which is (a) less than continuous and more than

sporadic, and (b) one of the particular places in which an insured lives. See, e.g., Docket No. 62 at 4 (“Now,

residency has been defined under Pennsylvania law as where an individual sleeps, eats, receives mail, and stores

personal possessions. The residency also has to be continuous and not sporadic. One has to be living in a particular

place.”) (emphasis added).

Plaintiff’s residence and (b) identified in the Declarations. See Section III, supra; Docket No. 50

at 1-2 (Defendant “issued a Homeowners Insurance Policy . . . for ‘residence premises’ located at

1000 Blythedale Road, Elizabeth, PA 15037”) (citing Docket No. 1-4, ¶ 3, Exhibit A); see also

Docket No. 60 at 1-2 (noting that Defendant cannot ask the “court to broaden the definition of a

key insurance term . . . As such, primary is not a factor in the interpretation of the policy . . . .”).

Cf. Isenberg, 604 F.Supp.3d at 324 (rejecting insurer’s “implicit [argument] that a person may

only have one ‘residence’” in denying its motion for summary judgment on grounds that Plaintiff

continued to reside in rented apartment while extensively renovating insured property).

This Court finds its most recent decision, in Isenberg, not only a cogent presentation of

the law but also a case persuasively both analogous and distinguishable on its facts. Isenberg, a

single mother, continued to reside in an annual-lease rental apartment with her children for two

years while extensively renovating a home purchased, similarly to Plaintiff’s, for what she could

afford (i.e., $30,000, obtained from an automobile settlement). During the interval prior to its

loss by fire, Isenberg visited the property “almost daily” to do rehabilitation/renovation work.

She also “ate some meals”, kept “numerous” personal belongings for herself and her daughters,

and “from time to time” slept there. Id. at 324, 328-29. On these facts, the Court not only denied

the insurer’s motion for summary judgment on grounds that the property was not Isenberg’s

residence, but held on its consideration of the record that the evidence “support[ed] a finding”,

made “on the undisputed facts”, that the property “was also her residence – albeit a second

residence” under Pennsylvania law. Id. at 324, 328-29.18

18 Cf. Docket No. 50 at 16-17 (asserting that Isenberg “is not at all analogous” because “the insured was living in an

apartment two minutes away and had daily contact with the property, including performance of manual labor”, while

Plaintiff lived a substantial distance away and, based on the evidence of utility usage, “it is inconceivable that [the

Property] could have been under active renovation”, leaving “no genuine issue of fact to present to a jury concerning

whether the property could qualify as ‘residence premises’”). Compare, e.g. Docket No. 62 at 19-20 (noting that

Defendant introduced no evidence of an expected electricity usage correlated to Plaintiff’s highly limited use of

electric lighting (vs. daylight) and non-battery power tools in a property without appliances or electric heat). Cf.

The Court observes that the Isenberg record - of plaintiff’s “living in” the insured

property - included both stronger objective indicia of “habitual repetition” and markedly fewer

gaps/ambiguities/contradictions as to related facts than the record before this Court.19 In the

record sub judice, however, the Court finds sufficient questions of material fact from which a

reasonable jury could find the Property to be – or, in the alternative, to not be – the insured’s

residence. It therefore denies Defendant’s request for summary judgment on this basis, as other

courts have done in factual circumstances similarly removed from Isenberg’s. See, e.g.,

Bloxham v. Allstate Insur. Co., 2020 WL 6710427 (W.D. Pa. November 16, 2020) (denying

defendant’s motion for summary judgment - on basis of “residence” and/or fraudulent and

material misrepresentations - in presence of substantial questions regarding evidentiary record

and credibility);20 Allstate Insur. Co. v. Naskidashvili, 2009 WL 399793 (E.D. Pa. Feb. 16, 2009)

(denying summary judgment where “record contained evidence . . . tending to permit a jury to

Isenberg, 604 F.Supp.3d at 327 (finding residency while noting that at time of loss two years later, “the water had

not yet been turned on at the property [but] the electricity was working and had been used by [plaintiff]”).

19 Id. at 327-28 (Plaintiff’s aunt visited the property and observed the progress on all three floors; the record

contained a “complete, detailed list of Plaintiffs’ personal property located at the property and states” – e.g.,

“cookware, flatware, china, most of her furniture, electronics, children’s toys, two televisions, family picture

albums, . . .”).

20 In Bloxham, plaintiff’s complaint alleged that he had been living at the insured property for more than ten years,

kept his personal belongings and slept there, and was present every day “making ongoing and continuous repairs and

renovations . . . .” 2020 WL 6710427, at *2. Plaintiff varyingly testified that he stayed there one to two weeks per

month. In contrast, the post-fire investigator reported a “lack of furnishing” and other personal possessions, and the

presence of “a large amount of graffiti” in/on the property, as well as an overgrowth of weeds. Affiliates of the

church across the street had not observed activity at or anyone living in the property for many years and believed it

to be vacant/abandoned, as did the mailman. Id. at **3-4. Plaintiff’s mother testified that he lived with her for 10

years, and at the time of loss no one had lived in the property for seven years; but she also testified that plaintiff

stayed at the property “often” and was there when not with her. Id. at *6. The Court noted (a) some plausible

explanations for some contradictions in testimony, and (b) objective indicia of residence, including that plaintiff

received mail at the property; listed it on his tax filings and driver’s license; kept clothes, some furniture and a bed

there; and was the only one with keys to the property. Id. at *7. It found “the record contain[ed] evidence sufficient

for a reasonable juror to conclude that plaintiff resided at the property.” Id. at *5.

reach [opposite] conclusions” such that “court [could] not find as a matter of law that [visiting

elder relative on sixth-month visa] was or was not a resident” of insured property).21

In asserting that no “reasonable interpretation of the facts could find” that the Property

was anyone’s “residence at the time of the fire” (Docket No. 62 at 5), Defendant places

significant reliance on this Court’s 2018 decision in Gerow, 346 F. Supp. 3d 769, which, as cited

supra, informed the analysis provided in Isenberg a few years later. The Gerow Court, however,

concluded that a home which the insureds had left for another was not a residence at the time of

loss. More specifically, the Gerow family relocated from Pennsylvania to Connecticut to live

with a recently-widowed grandmother, and the father spent his time between that residence and

his apartment in Washington, D.C., his place of employment. The Court found that the latter’s

“visits” to the insured property – which remained serviced by utilities and otherwise unoccupied

- were insufficient to “residence” for homeowners insurance purposes. Id. at 780-81.22

The Isenberg Court distinguished Gerow and other cases finding for defendant where

“the policyholders were leaving or had already left the insured properties for another property”

and were “visiting” the former residence, from circumstances where “the opposite is true”, i.e.,

the policyholder had habitual contact with the insured premises “for the express purpose of

completing renovations . . . so the insured’s family could move into [it] on a full-time basis.”

21 Id. at **3-5 (citing Quincy Mut. Fire Ins. Co. v. Clyman, 910 F.Supp. 230 (E.D. Pa. 1996) (finding jury question

of “residence” where college student at parents’ home for holidays was injured in fall). In Naskidashvili, the insured

homeowner’s mother sustained serious personal injuries in a fall and insurer denied coverage for bodily injury under

the policy’s “guest medical protection” provision.

22 In so holding, the Court observed that Gerow visited the former residence two to four times a month, “sometimes

simply [went] into the house to check on it” and continued on his way to Connecticut or D.C., and sometimes also

visited the local country club while there. And it noted that much of Plaintiffs’ furniture and property was moved to

Connecticut. Finally, the Court observed that Plaintiffs’ intention to reside at the insured property again in the

future was irrelevant, and their identification of it as “home” was “in itself not sufficient to establish residency.” Id.

(citing Wall Rose, 939 A.2d at 962).

Isenberg, 604 F.Supp.3d at 329.23 The Court also observes and concurs in the distinction made

in these cases between “sporadic visits”, on one hand, and the “presence”, “personal contacts”

and/or “living”/“spending time” in a physical place denoted by an insured’s being there with

habitual purpose (such as renovation work), on the other. See Gerow, 346 F.Supp.3d at 780.24

Finally, the Court notes that the evidence regarding the number of nights Plaintiff spent at

the Property and his maintenance of sleep accommodations there are indicia to be considered,

together with others, by the factfinder(s). They lend support to, but do not in isolation compel, a

conclusion. Compare Docket No. 50 at 15 (asserting that “one of the most critical factors in

determining residency is how often the insured spent the night at the subject premises. Courts

have commonly found that those who sleep at a place no more than once a week or so are not

residents. Therefore, even if it could be true that Plaintiff had spent eight to ten nights at the

property from November 2020 to June 2021, the residency condition cannot be established as a

matter of law.”) (citing Chong Chen, distinguished at n. 23, supra; GEICO Cas. Co. v. Alicea,

416 F.Supp.3d 425, 433 (W.D. Pa. 2019)) with Wall Rose, 939 A.2d at 965 (holding that

determination of “whether an individual ‘physically lives’ in a particular place so as to ‘reside’

there”, requires “examin[ing] the facts of the case and com[ing] to a common-sense decision”).25

23 See also, as cited in Isenberg: Gardner v. State Farm Fire and Cas. Co., 544 F.3d 553 (3d Cir. 2008) (where

property was being used as a rental (rather than insured’s residence) and insured had moved in with girlfriend,

coverage for injury to renter’s guest was disallowed under express policy exclusion); Chong Chen v. Allstate Ins.

Co., 2012 WL 460416 (E.D. Pa. Feb. 14, 2012) (granting defendant summary judgment where one-family three

bedroom Philadelphia property damaged by fire was being used as a rental for multiple (transient) tenants and

treated as a business by insured, who “gave multiple conflicting statements” about his time at property (which was

“at most, only . . . on weekends”) while appearing to reside and pay taxes in Maryland); Naskidashvili, 2009 WL

399793.

24 Cf. Docket No. 50 at 16 (asserting that “Plaintiff’s claim that he allegedly frequented the property, even if it could

be proven, also fails to satisfy the [Policy] condition of residency. Courts have consistently found that visiting a

property is not the same as residing at a property . . . .”).

25 See also Bloxham, 2020 WL 6710427, at *6 (“Important indicators of residence are that the person: (1) stays

overnight for a significant amount of time and on a consistent basis, even if not full-time; and (2) has a space

devoted solely to his or her sleep.”) (citing Lebanon Mut. Ins. Co. v. Lopresti, 2013 WL 11256828, at *3 (Pa. Super.

In sum, it is not for the Court to weigh the evidence or adjudge credibility. Rather “if a

reasonable juror could look at the record and decide that [P]laintiff resided at the Property, then

summary judgment on the issue of residence must fail.” Bloxham, 2020 WL 6710427, *7. The

Court concludes - based upon (a) the above case law, (b) the unambiguous meaning and multiple

objective indicia of “residence” to be examined under Pennsylvania law, and (c) the competing

evidence in the record - that there are genuine disputes of material fact as to whether the

Blythedale Road property was a residence of the insured.26 Defendant’s motion on this ground is

therefore denied.

C. Defendant Has Failed to Evidence Entitlement to Summary Judgment on Grounds

of Fraudulent Misrepresentation in the Investigation

Defendant’s second ground for summary judgment on Count I, breach of contract, is that

its duty to cover losses was rendered void by Plaintiff’s misrepresentations of material fact. As

Defendant notes, a violation of the “concealment or fraud” provision of an insurance policy bars

an insured's recovery under that policy. (Docket No. 50 at 9) (citing State Auto Prop. & Cas.

Ins. Co. v. Sigismondi Foreign Car Specialists, Inc., 533 F. Supp. 3d 268, 273 (E.D. Pa. 2021),

aff'd, 2022 WL 17076035 (3d Cir. Nov. 18, 2022); Lavin v. Fireman’s Ins. Co. of Newark, N.J.,

1992 WL 157691, at *2 (E.D. Pa. June 29, 1992)). And Defendant must prove a violation of its

concealment or fraud condition only by a preponderance of the evidence. (Id.) (citing Am. Nat'l

Prop. & Cas. Co. v. Felix, 2018 WL 1747697, at *9 (W.D. Pa. Apr. 11, 2018)).

2013) (adopting the holding that “sleeping on a couch, rather than on one's own bed in one's own bedroom, is more

indicative of a temporary arrangement for convenience than residence,” even if . . . every night)). Cf. Docket No.

No. 51 at 18 (citing Plaintiff’s investigation statement that he had a dresser and wooden bed frame with an air

mattress for overnights at the property).

26 Compare, e.g., Gerow, 346 F.Supp.3d at 780 (finding it clear that there was no genuine dispute of material fact

that the insured was not a resident of the subject property); Isenberg, 604 F.Supp.3d at 328-29 ((finding it clear that

there was no genuine dispute of material fact that the insured was not a resident of the subject property).

Be that as it may, as the District Court for the Middle District of Pennsylvania has

explained:

For an insurance carrier to avoid coverage due to misrepresentation, the insurer

must establish that the insured's representation: (1) was false, (2) was made with

the knowledge that the representation was false when made or was made in bad

faith, and (3) was material to the risk being insured. New York Life Insurance Co.

v. Johnson, 923 F.2d 279, 281 (3d Cir. 1991). The insurer must show that the

insured made the misrepresentation with a deliberate intent to deceive. Donaldson

v. Farm Bureau Mutual Automobile Insurance Co., 14 A.2d 117, 118 (Pa. 1940).

Bloxham, 2020 WL 6710427, at *8.

As indicated in Section III, supra, Plaintiff’s representation that the Property was his

“primary” residence, in an application form or elsewhere, cannot support summary judgment in

Defendant’s favor on a basis of fraudulent misrepresentation under a policy unambiguously

insuring his “residence”. See n. 4, supra. Nor are Defendant’s invocations of similar

misrepresentations – e.g., that Plaintiff submitted an August 23, 2021 proof of loss form falsely

averring that that the Property was occupied as primary at the time of loss, while knowing it was

not his “number one” or “main” residence - material to its coverage obligations under the plain

terms of the Policy issued. (Docket No. 50 at 10). See Section VI(B), supra.27 Moreover, as to

Plaintiff’s “residence”, Defendant has not established that Plaintiff made any statements that he

resided at the Property with knowledge of their falsity or with a deliberate intent to deceive. The

27 The Court also notes that the Proof of Loss form - comprised as it is of lines sized for one-word answers where an

explanation might be called for, reading as a form intended to be completed by the insurer, and appearing to require

yet failing to provide direction – reflects such mistaken responses by the preparer as, e.g.: “At the time of the loss

the interest of your insured in the property was __” completed in writing as “NA”. The objected-to answer of

“Primary” is written in reply to the question: “The building described, or containing the property described, was

occupied at the time of the loss as follows, and for no other purpose whatever: ___”. (Docket No. 52-1, SIC-0432).