ALLSTATE NEW JERSEY PROPERTY AND CASUALTY INSURANCE COMPANY VS. ESTATE OF SEAN MCBRIDE ESTATE OF GABRIELLE LYNNES, ETC. VS. ESTATE OF SEAN MCBRIDE SCOTT M. LERARIO VS. ESTATE OF GABRIELLE LYNNES (L-1503-16, L-2576-15, AND L-0491-16, ATLANTIC COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-2139-17T2
A-2146-17T2

ALLSTATE NEW JERSEY
PROPERTY AND CASUALTY
INSURANCE COMPANY,

Plaintiff-Respondent,

v.

ESTATE OF SEAN MCBRIDE,

Defendant,

and

ESTATE OF GABRIELLE
LYNNES, by and through its
administratix JULIE GUNN,
and SCOTT M. LERARIO,

Defendants-Respondents.
___________________________

ESTATE OF GABRIELLE
LYNNES, by and through its
administratrix JULIE GUNN,

Plaintiff-Appellant,
v.

ESTATE OF SEAN MCBRIDE,

Defendant,

and

SCOTT M. LERARIO,

Defendant-Respondent.
____________________________

SCOTT M. LERARIO,

Plaintiff-Appellant,

v.

ESTATE OF GABRIELLE
LYNNES, by and through its
administratrix JULIE GUNN
and ESTATE OF SEAN MCBRIDE,

Defendants.
____________________________

Argued April 29, 2019 – Decided August 29, 2019

Before Judge Fasciale, Gooden Brown and Rose.

On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Docket Nos. L-1503-16, L-
2576-15, and L-0491-16.

Robert F. DiStefano argued the cause for appellant in
A-2139-17 and respondent in A-2146-17 Estate of

A-2139-17T2
2
 Gabrielle Lynnes (Clark & DiStefano, PC, attorneys;
Robert F. DiStefano, on the brief).

Stephen M. Van Natten argued the cause for appellant
in A-2146-17 and respondent in A-2139-17 Scott M.
Lerario (D'Amato Law firm, attorneys; Alexa D'Amato
Barrera, of counsel; Stephen M. Van Natten, on the
brief).

Francis X. Ryan argued the cause for respondent
Allstate New Jersey Property and Casualty Insurance
Company (Green, Lundgren & Ryan, PC, attorneys;
Francis X. Ryan, on the briefs).

Dominic R. DePamphilis argued the cause for amicus
curiae New Jersey Association for Justice (D'Arcy
Johnson Day, attorneys; Richard J. Albuquerque and
Dominic R. DePamphilis, on the briefs).

PER CURIAM

In these back-to-back appeals, which we consolidate for the purpose of

issuing a single opinion, the Estate of Gabrielle Lynnes and Scott Lerario,

(collectively, plaintiffs), appeal from the December 1, 2017 Law Division order,

denying their respective motions for reconsideration of the trial court's

September 22, 2017 orders. The September 22 orders denied plaintiffs' motions

for summary judgment, and granted Allstate New Jersey Property and Casualty

Insurance Company (Allstate) summary judgment on its declaratory judgment

action, thereby determining that Allstate was not obligated to provide liability

A-2139-17T2
3
insurance coverage for claims arising out of an automobile accident that

occurred on March 20, 2015. 1

In the March 20 automobile accident, Sean McBride was operating a

vehicle owned and insured by Lynnes, his girlfriend, when he lost control of the

vehicle, veered off the highway into the shoulder, and struck a disabled vehicle

belonging to Lerario, who was then tending to his vehicle. As a result, McBride

and Lynnes were killed when their vehicle went down an embankment and

became engulfed in flames, and Lerario suffered serious bodily injuries. At the

time of the accident, although McBride was living with Lynnes, John Kurz, his

1
At the outset, we point out that plaintiffs' notices of appeal only identified the
December 1, 2017 order, denying their respective motions for reconsideration,
notwithstanding the fact that their case information statements (CIS) referred to
the September 22, 2017 summary judgment order. Ordinarily, if the notice of
appeal "designates only the order entered on a motion for reconsideration, it is
only that proceeding and not the order that generated the reconsideration motion
that may be reviewed." Pressler & Verniero, Current N.J. Court Rules, cmt. 6.1
on R. 2:5-1(e)(1) (2019). However, "[w]e are mindful of the fact that in some
cases a motion for reconsideration may implicate the substantive issues in the
case and the basis for the motion judge's ruling on the summary judgment and
reconsideration motions may be the same." Fusco v. Bd. of Educ. of City of
Newark, 349 N.J. Super. 455, 461 (App. Div. 2002). "In such cases, an appeal
solely from the grant of summary judgment or from the denial of reconsideration
may be sufficient for an appellate review of the merits of the case, particularly
where those issues are raised in the CIS." Ibid. Such is the case here. Thus,
"we will address the propriety of the earlier order," particularly since Allstate
"has not argued against our ruling on its validity." W.H. Indus., Inc. v. Fundicao
Balancins, Ltda, 397 N.J. Super. 455, 459 (App. Div. 2008).
A-2139-17T2
4
step-father, listed McBride as a driver under Kurz' automobile liability insurance

policy issued by Allstate. After plaintiffs filed separate tort actions seeking

damages against McBride's Estate and others, Allstate filed a complaint seeking

a declaratory judgment. Ultimately, with the exception of McBride's Estate,

which did not participate in the proceedings, all parties moved for summary

judgment.

After examining the policy language, determining that there was no

dispute that McBride was not a resident relative of the Kurz household as

defined under the policy, and distinguishing Lehrhoff v. Aetna Casualty and

Surety Company, 271 N.J. Super. 340 (App. Div. 1994), the court granted

summary judgment in favor of Allstate. On appeal, plaintiffs raise the following

identical arguments for our consideration:

POINT ONE - . . . THE TRIAL COURT ERRED IN
CONCLUDING THAT THE APPELLATE DIVISION
DECISION IN [LEHRHOFF] . . . IS NOT
CONTROLLING UNDER THE FACTS OF THIS
CASE.

POINT TWO - . . . THE TRIAL COURT ERRED BY
RELYING EXCLUSIVELY ON THE SUBJECTIVE
EXPECTATIONS OF JOHN KURZ MORE THAN
TWO YEARS AFTER THE DATE OF THE
ACCIDENT RATHER THAN THE OBJECTIVE
EXPECTATIONS OF A TYPICAL POLICY HOLDER
AT THE TIME OF INCEPTION OF THE POLICY.

A-2139-17T2
5
 POINT THREE - . . . THE TRIAL COURT ERRED BY
RELYING UPON TWO CASES CITED BY
ALLSTATE IN ITS EFFORT TO MINIMIZE THE
RELEVANCE OF THE [LEHRHOFF] DECISION.

POINT FOUR - THE TRIAL COURT ERRED IN
DETERMINING AS A MATTER OF LAW THAT
SEAN MCBRIDE WAS NOT A DUAL RESIDENT
OF HIS PARENTS' HOUSEHOLD ON THE DATE OF
THE ACCIDENT.

We granted the New Jersey Association for Justice's (NJAJ) motion to

appear in these appeals as amicus curiae. NJAJ raises the following points for

our consideration:

POINT I

A GENUINE DISPUTE OF FACT CONCERNING
JOHN KURZ'[] EXPECTATIONS PRECLUDES THE
ENTRY OF SUMMARY JUDGMENT[.]

POINT II

THE REASONABLE EXPECTATION DOCTRINE
APPLIES BECAUSE THE ALLSTATE POLICY IS
AMBIGUOUS AND MCBRIDE IS THEREFORE
ENTITLED TO EXCESS COVERAGE.

Because we agree there were genuine issues of material fact sufficient to

withstand summary judgment, we reverse.

A-2139-17T2
6
 I.

We derive the following facts from evidence submitted by the parties in

support of, and in opposition to, the summary judgment motions, viewed in the

light most favorable to the non-moving parties. Angland v. Mountain Creek

Resort, Inc., 213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co.,

142 N.J. 520, 523 (1995)). Prior to the fatal accident, McBride, born January 8,

1980, had resided with his mother, Colleen Kurz, and her husband, John Kurz,

at 18 Stoney Creek Drive in Egg Harbor Township (the Kurz residence or Kurz

household) since December 2010 when he moved from Pennsylvania. At his

deposition, John 2 testified that McBride moved in after "he got divorced"

because "he was pretty distraught over his divorce" and "wanted to . . . be with

his mother." While residing with the Kurzes, McBride did not pay for any of

his living expenses.

In January 2013, McBride moved to John's rental property located at 27

East Rivere Avenue in Northfield (the Northfield residence). Although McBride

"was supposed to [pay] $700 a month" in rent, because of his ongoing financial

problems, he was in debt to John, who continued to pay for the majority of his

2
We refer to the Kurzes by their first names to avoid confusion caused by their
common surname and intend no disrespect by this informality.
A-2139-17T2
7
living expenses, including his automobile insurance expenses. In addition to

living in John's house, McBride also worked at a diner owned by John. When

Lynnes was hired at the diner, McBride and Lynnes began a dating relationship.

In June 2014, McBride moved out of the Northfield residence and moved

in with Lynnes at 21 Allendale Road in Marmora (the Marmora residence). The

Marmora residence was owned by Lynnes' mother, Julie Gunn, and was listed

on the market for sale while the couple lived there. Despite his new living

arrangement, McBride's driver's license, voter registration profile, and child

support/probation account listed the Kurz residence as his address of record.

According to the Kurzes' deposition testimony, McBride continued to receive

mail at the Kurz residence on occasion. Colleen testified that after McBride

moved to the Marmora residence, he would occasionally ask if any mail had

arrived for him, and advised her that he would "swing by and get it . . . because

[he was] changing [his] address" to the Marmora residence.

Nonetheless, Colleen believed McBride's stay at the Marmora residence

was a temporary arrangement that would end once the house was sold. She

confirmed that despite having a falling out with McBride in November 2014,

after both McBride and Lynnes were fired from the diner due to chronic lateness

and unexcused absences, she would have allowed McBride to resume living with

A-2139-17T2
8
her if necessary. In contrast, initially, John expressed reluctance to allowing

McBride to return to the Kurz residence. However, ultimately, he acknowledged

that he may have allowed it. 3

On January 23, 2014, while McBride was still living at the Northfield

residence, John applied for an automobile insurance policy with Allstate through

Lieberman Financial, an authorized agent of Allstate. In the application, John

listed the Kurz residence as the address of record, and identified three drivers

and three vehicles to be insured under the policy: a 2007 Honda Element, to be

driven primarily by Colleen; a 2011 Infiniti G37, to be driven primarily by John;

and a 1991 Honda Civic, to be driven primarily by McBride. Although McBride

had moved from the Kurz residence to the Northfield residence when John

applied for the policy, John testified that he still listed McBride as a resident of

his household "because [McBride] lived in [his] other house right around the

corner" and "[he] wanted [McBride] to be insured." Allstate ultimately issued a

policy to John, effective January 30, 2014. 4

3
According to the Kurzes, they had very little contact with McBride after he
and Lynnes were fired.
4
Around the same time, John also applied for motorcycle liability insurance
with Allstate, identifying McBride as a resident relative of his household and an
operator of the motorcycle. According to John, although he had purchased the

A-2139-17T2
9
 Over the next eighteen months, the policy was automatically renewed

every six months, extending coverage until June 30, 2015, based on John's

continuous payment of the required premiums. During that time, on two

separate occasions, John requested the removal of vehicles from the policy. The

first occurred on October 16, 2014, when John requested the removal of the 2011

Infiniti G37. The second occurred on November 6, 2014, when John requested

the removal of McBride's vehicle, the 1991 Honda Civic. Based on these

requests, Allstate issued a new declarations sheet reflecting these changes.

Although the declarations sheet no longer listed McBride's vehicle, it still

identified McBride as a listed driver on the policy. However, John testified at

his deposition that in November 2014, when he learned that the 1991 Honda

Civic had been damaged and requested its removal from his policy, he had also

requested the removal of McBride from his policy since he no longer resided at
5
the Kurz residence. Although two Allstate representatives testified during

depositions that there was no record of any request by John to remove McBride

motorcycle, it was used almost exclusively by McBride. Like the automobile
insurance policy, the motorcycle insurance policy was issued by Allstate,
effective January 30, 2014.
5
John never removed McBride's name from the motorcycle insurance policy
during this time period.
A-2139-17T2
10
from the policy, John testified he was under the impression that McBride had

been removed from the policy given the premium reduction, and only learned

otherwise after the accident. Because the Kurzes never reported the accident,

Allstate had no notice of its occurrence until a representative of Esurance, the

company that insured Lynnes' vehicle at the time of the accident, contacted

Allstate about its policy.

Allstate's seven-page declarations sheet covering the period of the

accident indicated that coverage was effective from January 30, 2015, through

July 30, 2015. On the first page, John was listed as the "[n]amed [i]nsured[]" at

the Kurz residence address, and John, Colleen, and McBride were identified as

"[l]isted drivers on [the] policy." A notice on the declarations sheet explained

that "[s]ome or all of the information on [the] [p]olicy [d]eclarations [was] used

in the rating of [the] policy or . . . could affect . . . eligibility for certain

coverages[,]" and requested immediate notification if "any information on [the]

[p]olicy [d]eclarations [was] incorrect" or "any coverages [were] not listed

or . . . inaccurately listed."

Accompanying the declarations sheet were "policy documents," including

Allstate's thirty-five page "Standard Auto Insurance Policy" (policy) and

"[p]olicy [e]ndorsement[s]." Generally, the policy was divided into five

A-2139-17T2
11
separate parts: part one outlined its general coverage provisions; part two dealt

with personal injury protection (PIP); part three addressed "[a]dded [PIP]

[c]overage"; part four covered uninsured motorists (UM) coverage; and part five

explained "[p]rotection[s] [a]gainst [l]oss [t]o [t]he [a]uto."

Explaining the general coverage provisions, part one provided:

If a premium is shown on the [p]olicy [d]eclarations for
Bodily Injury Liability and Property Damage Liability,
we will pay damages which an [i]nsured person is
legally obligated to pay because of:

1. bodily injury sustained by any person; and
2. property damage.

Under these coverages, your policy protects an
[i]nsured person from liability for damages arising out
of the ownership, maintenance or use, loading or
unloading of an [i]nsured auto. . . .

....

We will defend an [i]nsured person sued as a result of
a covered accident involving an [i]nsured auto.

On page nine of the policy, "[i]nsured person[]" was defined as follows:

a. While using any [i]nsured auto, except a non-owned
auto:
1. you;
2. any resident relative; and
3. any other person using it with your
permission; or
4. any civil union partner under New Jersey
law.

A-2139-17T2
12
 b. While using a non-owned auto:
1. you; and
2. any resident relative or
3. any civil union partner under New Jersey
law.

Page three of the policy defined "[n]on-owned [a]uto" as "an auto used by

you or a resident relative with the owner's permission but which is not" "owned

by you or a resident relative[,]" or "available or furnished for the regular use of

you or a resident relative." On the same page, "[y]ou" or "[y]our" is defined as

"the policyholder named on the [p]olicy [d]eclarations6 and that policyholder's

resident spouse, including civil union partner under New Jersey law."

"Resident" included "a person who physically resides in your household with

the intention to continue residence there[,]" or "your unmarried dependent

children while temporarily away from home . . . if they intend to resume residing

in your household."

On page seventeen of the policy, "[r]elative" was defined as "a person

related to the named [i]nsured by blood, marriage, civil union partner under New

Jersey law or adoption . . . who is a resident of the same household as the named

[i]nsured." Additionally, "[n]amed [i]nsured" was defined in the policy as "the

6
The declarations sheet did not identify "the policyholder."
A-2139-17T2
13
person . . . named as the insured in the [p]olicy [d]eclarations and an individual's

spouse or civil union partner under New Jersey law if the spouse or civil union

partner under New Jersey law is a resident of the household of the named

[i]nsured."

On page four of the policy, Allstate also instructed policyholders about

their "[d]uty [t]o [r]eport [p]olicy [c]hanges," explaining:

Your policy was issued in reliance on the information
you provided concerning autos, persons [i]nsured by
the policy and your place of residence. To properly
insure your auto, you must promptly notify us:

a. when you change your address or the address where
any of your autos are garaged; or

b. whenever any resident operators insured by your
policy are added or deleted; or

c. whenever the driver's license of a resident operator
[i]nsured by your policy is suspended or revoked.

After plaintiffs filed separate tort actions, Allstate filed a complaint for

declaratory judgment against McBride's Estate, plaintiffs, and others. Allstate

sought a declaration that it was "not obligated to provide liability insurance

coverage to [McBride's Estate] for the claims arising out of the [a]ccident," not

obligated to provide "a defense of the [t]ort [a]ctions," nor "indemnification

against any judgments . . . entered." In the complaint, Allstate alleged the

A-2139-17T2
14
vehicle McBride "was operating at the time of the accident was furnished and

available for his regular use and, therefore, was not a 'non-owned auto' nor an

'insured auto' as defined in the [p]olicy." Allstate alleged further that "McBride

was not a resident of the [Kurz] household . . . at the time of the accident," and,

therefore, his estate was "not entitled to liability insurance coverage under the

[p]olicy." Thereafter, an order was entered consolidating all three actions "for

purposes of [c]ase [m]anagement and discovery."

Following discovery, plaintiffs moved for summary judgment and

dismissal of Allstate's complaint with prejudice.7 In support, the Lynnes Estate

submitted deposition transcripts of the Kurzes and Allstate representatives,

David Lieberman and Patricia Selock, as well as numerous documentary

exhibits. In accordance with Rule 4:46-2(a), the Lynnes Estate provided a

statement of material facts, comprised of sixty numbered paragraphs detailing

the undisputed facts. According to the Lynnes Estate, it was undisputed that

both Lieberman and Selock acknowledged in their deposition testimony that

"McBride was a listed insured person under the policy issued by Allstate" at the

time of the accident and "met the definition of a 'named insured'" as defined in

the policy. Further, based on the deposition testimony of the Kurzes, McBride

7
The Lynnes Estate filed the formal motion and Lerario joined.
A-2139-17T2
15
would have been permitted to move back into the Kurz residence. Moreover,

the Kurzes testified McBride "never paid any rent, utilities, or made any other

significant contributions while he resided at [the Kurz residence,]" and primarily

drove vehicles owned by John.

Allstate opposed plaintiffs' motions, and cross-moved for summary

judgment. In support, Allstate submitted numerous documentary exhibits,

including a transcript of a telephonic statement given by the Kurzes to an

Allstate representative on April 6, 2015. In the telephonic statement, Colleen

referred to documents she had found after the accident among McBride's

belongings, evidencing his change of address after he moved out of the Kurz

residence. Among those documents were a phone service contract, a utility bill,

and an invoice addressed to McBride at the Marmora residence; a credit card

statement and change of address acknowledgement addressed to McBride at a

Woodbine, New Jersey, address; and a repair shop invoice addressed to McBride

at the Northfield residence. In Allstate's counter-statement of material facts,

Allstate recounted John's deposition testimony, during which John testified that

McBride "took all of his belongings with him" when he moved out of the Kurz

residence, and, similarly, removed "all of his belongings" when he moved out

of the Northfield residence.

A-2139-17T2
16
 On September 22, 2017, the judge conducted oral argument on the

motions. Following oral argument, the judge entered two orders dated

September 22, 2017, one denying plaintiffs' motions and the other granting

Allstate summary judgment. On September 28, 2017, the judge issued a

supporting memorandum of decision, detailing the respective arguments,

describing the undisputed facts, citing the applicable legal principles, and

explaining her rationale. According to the judge, Allstate's position was

straightforward: "Allstate assert[ed] that . . . McBride was not a resident of the

Kurz household and accordingly . . . [was] not entitled to coverage under the

Allstate [p]olicy."

In contrast,

[p]laintiffs argue that because . . . McBride was
listed as a driver on the declaration[s] page of the
policy, he had a reasonable expectation that he was
entitled to all of the coverages and protections afforded
by the policy. Plaintiffs further argue that the
declaration[s] page did not specifically advise John
Kurz, Colleen Kurz[,] or Sean McBride that coverage
would not be available to . . . McBride as a listed driver
if he was not a resident relative of [the Kurz] household.
Plaintiffs rely on [Lehrhoff] in support of their
assertion that Allstate must provide coverage and a
defense to the Estate of Sean McBride because . . .
McBride was a listed driver on the Allstate [p]olicy.

A-2139-17T2
17
 The judge pointed out that the issue in Lehrhoff "was whether the

reasonable expectation of the insured raised by the declarations page of the

policy may be defeated by express policy limitations to the contrary."

According to the judge,

The [Lehrhoff c]ourt held that under the circumstances
of that case, the policy's fine print qualification of the
definition of the persons entitled to UM coverage was
insufficient to overcome the reasonable expectation of
coverage raised by the declaration[s] page and by the
express terms of the UM coverage.

However, the judge reasoned that "[t]he facts in [Lehrhoff] [were]

distinguishable from the facts of this case."

According to the judge, in Lehrhoff,

Steven Lehr[h]off was the adult son of Arthur
Lehr[h]off. Defendant Aetna issued a standard
automobile policy to Arthur . . . that included uninsured
and underinsured motorist coverage. Steven . . . was
listed on the declaration[s] page of the policy as a
regular driver of the insured vehicle. During the policy
period, Steven . . . , while a pedestrian, was injured in
California in a traffic accident he attributed to a
phantom driver. Steven claimed UM benefits under the
policy. Aetna rejected the claim on the ground that
Steven was no longer a resident of his father's
household when the injuries were sustained. The
Lehr[h]off family lived in Short Hill[s], New Jersey.
Following Steven's graduation from college in June
1990[,] he planned to apply to law school in the fall of
1991. Steven wanted to work in a law[-]related job
prior to going to law school, so in September 1990,

A-2139-17T2
18
 Steven took a law[-]related job in Los Angeles,
California for an initial ninety[-]day probationary
period. The automobile Steven had with him in
California was a family automobile, owned by his
father, registered in New Jersey, and insured by Aetna
under the New Jersey [p]olicy at issue in the case. The
accident occurred . . . approximately seven weeks after
Steven arrived in California . . . . At the time the policy
was issued, . . . Steven was a resident member of his
father's household. The [c]ourt found that nothing in
the declaration[s] page which listed Steven as a regular
driver of the insured vehicle and nothing in the UM
coverage section of the policy suggested that the listed
drivers were not protected by all of the coverages of the
policy. [271 N.J. Super. at 349]. The [c]ourt found the
UM section of the policy was confusing. "Only a
determined, persistent[,] and experienced reader
knowing precisely what information he is seeking
would be able to even find the applicable sections of
the policy[.]" Id. at 344.

In contrast, in this case, the judge found

It [was] undisputed that on the date of the
accident, Sean McBride was living with Gabrielle
Lynnes at her mother's home . . . . He was not a resident
at John and Colleen Kurz'[] home . . . and he had not
been a resident at that home since 2013. In order for
Sean McBride to be an insured person under the
Allstate [p]olicy[,] he had to be a resident of the Kurz
household. He clearly and undisputedly was not a
resident of the Kurz household.

It is also undisputed that John Kurz believed that
Sean McBride was removed from his Allstate [p]olicy
in November 2014 when the 1991 Honda Civic was
removed from the Allstate [p]olicy. John Kurz had no
expectation that Sean McBride was insured under the

A-2139-17T2
19
 Allstate [p]olicy on the date of the accident. John Kurz
testified that he did not know that Sean McBride was a
listed driver on the Allstate [p]olicy until after the . . .
accident.

The definition section of the Allstate [p]olicy is
straightforward when it comes to defining an "insured
person[,"] "resident[,]" and "non-owned auto[."] There
was nothing confusing or misleading about those
definitions or their location in the policy. Despite the
fact that Sean McBride was listed as a driver on the
declaration[s] page of John Kurz'[] Allstate [p]olicy on
the date of the accident, [John] Kurz did not believe or
assert that Sean McBride was entitled to any coverage
under the policy. Moreover, because Sean McBride
resided in Marmora with Gabrielle Lynnes from . . .
2014 to the date of the accident, he was not an insured
person under the Allstate [p]olicy issued to John Kurz.

Thus, the judge concluded that because "[t]he material and uncontroverted

facts . . . clearly show[ed]" that "Sean McBride was not a resident relative of

John Kurz on the date of the accident, he [was] not entitled to coverage under

the Allstate [p]olicy[,]" and "[t]he fact that he was a listed driver on the

declaration[s] page of the policy [did] not change that result." The judge

expressly rejected plaintiffs' reliance on Lehrhoff, finding it "distinguishable"

and "not controlling under the facts of this case."

The judge reasoned:

In [Lehrhoff], the insured had a reasonable expectation
that his son, [who] just graduated from college and had
taken an insured family vehicle to California for a

A-2139-17T2
20
 temporary job, would be fully covered under the Aetna
insurance policy. Moreover, the [c]ourt found that a
cursory review of the policy [reinforced] that belief. It
was only after a full, careful, sophisticated, and
experienced reading of the full policy that the insured
would have been informed otherwise. In the case at
hand, the insured, John Kurz, had no expectation that
Sean McBride would be covered under the Allstate
policy because he believed Sean McBride was removed
as a listed driver in November 2014. Further, Sean
McBride had not resided with John and Colleen Kurz
from at least November 2014. For that reason, Sean
McBride was not covered under the Allstate
[p]olicy . . . on March 20, 2015.

Pursuant to Rule 4:49-2, plaintiffs moved for reconsideration of the

September 22, 2017 orders,8 arguing "that the [c]ourt erred in concluding that

[Lehrhoff was] not controlling" and that John "had no expectation that Sean

McBride would be covered under the Allstate policy because he believed that

Sean McBride was removed as a listed driver in November 2014." Plaintiffs

also asserted that the court's decision was "contrary to years of long -standing

case law" interpreting insurance "coverage provisions broadly and constru[ing]

exclusions of coverage strictly against the insurer." On December 1, 2017,

following oral argument, the judge denied the motions in an oral decision, citing

plaintiffs' failure to "show[] that the [c]ourt based its decision upon a palpably

8
Once again, the Lynnes Estate filed the formal motion and Lerario joined.
A-2139-17T2
21
incorrect or irrational basis, or . . . did[ not] consider or failed to appreciate the

significance of probative competent evidence." In an accompanying

memorandum of decision, the judge recited and rejected plaintiffs' arguments as

recounted above, and reiterated her conclusion. The judge entered a

memorializing order and these appeals followed. 9

II.

We review a ruling on a motion for summary judgment de novo, applying

the same standard governing the trial court. Templo Fuente De Vida Corp. v.

Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016) (citation omitted). Thus, we

consider, as the motion judge did, "whether the competent evidential materials

presented, when viewed in the light most favorable to the non-moving party, are

sufficient to permit a rational factfinder to resolve the alleged disputed is sue in

favor of the non-moving party." Brill, 142 N.J. at 540. If there is no genuine

issue of material fact, we must then "decide whether the trial court correctly

interpreted the law." DepoLink Court Reporting & Litig. Support Servs. v.

9
On January 2, 2018, Allstate's declaratory judgment action was severed from
plaintiffs' tort actions, which remained consolidated for discovery purposes. On
January 23, 2018, plaintiffs executed a consent order, "agree[ing] to dismiss
without prejudice the[ir respective] actions" to allow them to proceed with their
appeals. On June 7, 2018, we granted the Lynnes Estate's motion to consider
the September 22 and December 1, 2017 orders as final orders, appealable as of
right pursuant to Rule 2:2-3(a).
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22
Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting Massachi v. AHL

Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)). We review issues of

law de novo and accord no deference to the trial judge's legal conclusions.

Nicholas v. Mynster, 213 N.J. 463, 478 (2013). "[F]or mixed questions of law

and fact, [we] give[] deference . . . to the supported factual findings of the trial

court, but review[] de novo the lower court's application of any legal rules to

such factual findings." State v. Pierre, 223 N.J. 560, 577 (2015) (first and fourth

alterations in original) (quoting State v. Harris, 181 N.J. 391, 416 (2004)).

This standard compels the grant of summary judgment "if the pleadings,

depositions, answers to interrogatories[,] and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact

challenged and that the moving party is entitled to a judgment or order as a

matter of law." R. 4:46-2(c). Thus, "[t]o defeat a motion for summary judgment,

the opponent '"must come forward with evidence" that creates a genuine issue

of material fact.'" Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014)

(quoting Horizon Blue Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32

(App. Div. 2012)). However, "conclusory and self-serving assertions by one of

the parties are insufficient to overcome the motion," Puder v. Buechel, 183 N.J.

428, 440-41 (2005), and a party opposing the motion must "do more than 'point[]

A-2139-17T2
23
to any fact in dispute' in order to defeat summary judgment." Globe Motor Co.

v. Igdalev, 225 N.J. 469, 479 (2016) (alteration in original) (emphasis omitted)

(quoting Brill, 142 N.J. at 529).

In other words, disputes about facts that are "immaterial or of an

insubstantial nature" provide no basis to deny the moving party summary

judgment. Id. at 480 (quoting Brill, 142 N.J. at 529). Rather, "[a]n issue of fact

is genuine only if, considering the burden of persuasion at trial, the evidence

submitted by the parties on the motion, together with all legitimate inferences

therefrom favoring the non-moving party, would require submission of the issue

to the trier of fact." R. 4:46-2(c). "The practical effect of [Rule 4:46-2(c)] is

that neither the motion court nor an appellate court can ignore the elements of

the cause of action or the evidential standard governing the cause of action."

Bhagat v. Bhagat, 217 N.J. 22, 38 (2014).

In that regard, pertinent to these appeals are two well-settled principles

governing insurance contract interpretation.

First, in enforcing an insurance policy, courts will
depart from the literal text and interpret it in accordance
with the insured's understanding, even when that
understanding contradicts the insurer's intent, if the text
appears overly technical or contains hidden pitfalls,
cannot be understood without employing subtle or
legalistic distinctions, is obscured by fine print, or
requires strenuous study to comprehend.

A-2139-17T2
24
 [Zacarias v. Allstate Ins. Co., 168 N.J. 590, 601 (2001)
(citations omitted).]

"On this score, under the longstanding 'doctrine of reasonable expectations,'

courts should give effect to 'the objectively reasonable expectations of

applicants and intended beneficiaries regarding the terms of insurance

contracts.'" Cassilli v. Soussou, 408 N.J. Super. 147, 153 (App. Div. 2009)

(quoting Zacarias, 168 N.J. at 595). Under the reasonable expectations doctrine,

"an objectively reasonable interpretation of the average policyholder is accepted

so far as the language of the insurance contract in question will permit." Di Orio

v. N.J. Mfrs. Ins. Co., 79 N.J. 257, 269 (1979).

To that end, in Lehrhoff, we held that a policy holder's "reasonable

expectations of coverage raised by the declaration[s] page cannot be

contradicted by the policy's boilerplate," whether or not in plain language,

"unless the declaration[s] page itself clearly so warns the insured." 271 N.J.

Super. at 347. Thus, we "regard[ed] the declaration page as having signal

importance" in "defin[ing] the insured's reasonable expectations of coverage."

Id. at 346. In Zacarias, our Supreme Court "share[d] the sentiments" expressed

in Lehrhoff that "the one page most likely to be read and understood by the

insured [was] the declarations sheet" and urged insurers "to explore ways to

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25
incorporate as much information as may be reasonably included in the

declarations sheet." Zacarias, 168 N.J. at 602-04.

Thus, the average policyholder does not have a duty to "chart his own way

through the shoals and reefs of exclusions, exceptions to exclusions, conditions

and limitations," and may rely instead on "the declaration page, the one page of

the policy tailored to the particular insured and not merely boilerplate," to

"define coverage and the insured's expectation of coverage." Lehrhoff, 271 N.J.

Super. at 347. "Of course, for a policyholder's expectations to govern over the

plain language of an insurance contract, his or her expectations must be

objectively reasonable." Cassilli, 408 N.J. Super. at 154 (citing Clients' Sec.

Fund of the Bar of N.J. v. Sec. Title & Guar. Co., 134 N.J. 358, 372 (1993)).

Second, "the words of an insurance policy are to be given their plain,

ordinary meaning[,]" Zacarias, 168 N.J. at 595, and the plain terms of the

contract will be enforced as long as the "entangled and professional

interpretation of an insurance underwriter is [not] pitted against that of an

average purchaser of insurance," or the provision is not so "confusing that the

average policyholder cannot make out the boundaries of coverage[.]" Id. at 601

(first alteration in original) (first quoting Di Orio, 79 N.J. at 270; then quoting

Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 247 (1979)). Thus, where an

A-2139-17T2
26
ambiguity exists, "courts will construe ambiguous language in favor of coverage

for the insured." Cassilli, 408 N.J. Super. at 154 (alterations in original) (citing

Doto v. Russo, 140 N.J. 544, 556 (1995)). "An ambiguity exists in an insurance

contract '[w]hen an insurance policy's language fairly supports two meanings,

one that favors the insurer, and the other that favors the insured . . . .'" Ibid.

(alterations in original) (quoting President v. Jenkins, 180 N.J. 550, 563 (2004)).

However, "[i]n the absence of ambiguity, . . . a court must enforce the policy as

written." Ibid. (citing Priest v. Roncone, 370 N.J. Super. 537, 544 (App. Div.

2004)).

These general rules of construction have spawned a universal recognition

that "where the policy provision under examination relates to the inclusion of

persons other than the named insured within the protection afforded, a broad and

liberal view is taken of the coverage extended." Mazzilli v. Accident & Cas.

Ins. Co., 35 N.J. 1, 8 (1961). "But, if the clause in question is one of exclusion

or exception, designed to limit the protection, a strict interpretation is applied."

Ibid. We have previously distinguished the two classes of covered individuals

in an insurance contract as follows:

[T]he term "named insured" is self-defining. The term
refers only to the names so appearing in the
declaration[s sheet].

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27
 On the other hand, an insured is any one who is
entitled to coverage. This coverage may result by
virtue of a person's status as an operator or occupier of
a covered auto. In addition, a "family member" of a
"named insured" may be an insured.

[Botti v. CNA Ins. Co., 361 N.J. Super. 217, 226 (App.
Div. 2003) (citations omitted).]

"In other words, those listed as 'named insureds' are not necessarily the

only individuals covered under the policy[,]" and "[o]ther individuals not listed

as 'named insureds' may be entitled to liability coverage under certain

circumstances enumerated by the policy." Cassilli, 408 N.J. Super. at 155.

"Thus, being an 'insured' under a policy 'is a combination of status and

circumstance[,]'" ibid. (quoting Webb v. AAA Mid-Atl. Ins. Grp., 348 F. Supp.

2d 324, 331 (D.N.J. 2004)), and, undoubtedly, being "a 'family member' residing

in the same household as [the policyholder]" would render one "a potential

'insured[,]'" entitled to coverage under the policy. Ibid. (emphasis omitted).

Here, the judge determined McBride was not entitled to coverage under

the Allstate policy on the date of the accident because he "was not a resident

relative of John Kurz" and "[t]he fact that he was a listed driver on the

declaration[s] page of the policy [did] not change that result." While we agree

there was strong evidence McBride no longer physically resided in the Kurz

residence, as we stated in Lehrhoff, "we would not exclude, as a factual

A-2139-17T2
28
proposition requiring plenary evidential resolution," McBride's continued

residence in the Kurz residence "by reason of application of the doctrine of dual

residency." 271 N.J. Super. at 346.

"Residency has a well-documented definition in New Jersey" and "is not

interpreted as a single place of occupancy[.]" Ohio Cas. Ins. Co. v. Estate of

Wittkopp, 326 N.J. Super. 407, 412 (App. Div. 1999). "Our courts recognize

that a person may have more than one residence but may not have more than one

domicile" and "a person may be a resident of more than one household for

purposes of the availability of insurance coverage." Arents v. Gen. Accident

Ins. Co., 280 N.J. Super. 423, 428 (App. Div. 1995). The concept of "dual

household residency" has arisen in insurance cases to expand insurance coverage

to children who are residents, if not domiciliaries, of their parents' homes. See

Roman v. Correa, 352 N.J. Super. 124, 128-29 (App. Div. 2002).

Indeed, a child's dual residency can extend far into his adult years, even

after the child has become emancipated and moved to another state, where he

works, pays taxes, and owns property. See Arents, 280 N.J. Super. at 425-26

(determining that a forty-one-year-old son had a dual residency with his parents

for insurance purposes). Further, a finding that a person is a resident of one

household does not necessarily preclude, as a matter of law, that person's

A-2139-17T2
29
residence in another household as well. Miller v. U.S. Fid. & Guar. Co., 127

N.J. Super. 37, 43 (App. Div. 1974). Thus, "[e]xclusivity of residences . . . is

not demanded by the cases." Arents, 280 N.J. Super. at 429.

Here, the facts show that in the five years preceding the accident, McBride

was in a state of transition, having lived in at least four different residences over

that time period. Even his occupancy at the Marmora residence was temporary,

given the fact that the house was listed for sale. Indeed, Colleen acknowledged

the temporary nature of the arrangement and testified she would have permitted

McBride to return to her residence when the house sold. Likewise, John

grudgingly made the same acknowledgement. Although Colleen produced

documents showing alternate addresses, McBride continued to receive mail at

the Kurz residence on occasion, and his driver's license, voter registration

profile, and child support/probation account listed the Kurz residence as his

address of record. Thus, there was a genuine issue of material fact regarding

whether McBride maintained dual residency, entitling him to coverage under the

Allstate policy as a resident relative of the Kurzes.

In Lehrhoff, we did not "explore" the issue of dual residency "because we

[were] satisfied that Steven [was] entitled to . . . coverage for other reasons,

namely, his inclusion on the declaration[s] page as a driver of the insured

A-2139-17T2
30
vehicle." 271 N.J. Super. at 346. Thus, we determined as a matter of law that

"the reasonable expectation doctrine" was dispositive. Id. at 351. Here, there

is a genuine issue of material fact regarding McBride's dual residency.

Accordingly, given the evidence adduced in the motion record, we conclude that

the judge erred in granting summary judgment to Allstate based on a finding, as

an undisputed fact, that McBride was not a resident relative of the Kurz

residence.

We also disagree with the judge's finding that John "had no expectation

that . . . McBride would be covered under the . . . policy because he believed

. . . McBride was removed as a listed driver" prior to the accident. Based on the

motion record, the Allstate representatives disputed John's account, testifying

that there was no record of John making such a request. John's testimony was

also contradicted by the undisputed fact that McBride's name remained on the

declarations page as a listed driver. As we posited in Lehrhoff, "[t]he question

then . . . is whether the typical automobile policyholder would understand and

expect from the declarations page . . . that each of the listed drivers was entitled

to all of the coverages and all of the protections afforded by the policy." 271

N.J. Super. at 348.

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31
 In Lehrhoff, we answered that question "in the affirmative." Ibid. We

explained that "look[ing] at the declaration page from the point of view of the

insured[,]"

[a]ll that really appears on it is identity of coverages
and identity of drivers. The natural, sensible and
wholly justifiable inference is that by listing the drivers
using the vehicle, including the insured himself, the
purchaser of the policy is protecting all of them equally
and, presumably, protecting them equally in respect of
all the stated coverages without qualification and
without limitation. Nothing in the declaration page
suggests to the contrary . . . .

[Id. at 349.]

Here, in reaching a contrary conclusion, the judge credited the disputed

subjective expectation of John, rather than the objectively reasonable

expectation of "the typical automobile policyholder[,]" id. at 348, or the

"intended beneficiar[y]." Cassilli, 408 N.J. Super. at 153. The judge also

determined there was no ambiguity in the policy's requirement that an "insured

person" using "a non-owned auto" had to be a "resident" relative, which

McBride was not. However, the judge overlooked the fact that nothing in the

declarations page "clearly so warn[ed] the insured." Lehrhoff, 271 N.J. Super.

at 347. As we acknowledged in Lehrhoff, "'[t]he interpretation of insurance

contracts to accord with the reasonable expectations of the insured, regardless

A-2139-17T2
32
of the existence of any ambiguity in the policy, constitutes judicial recognition

of the unique nature of contracts of insurance.'" Id. at 348 (quoting Sparks v.

St. Paul Ins. Co., 100 N.J. 325, 338 (1985)).

Here, contrary to the judge's finding, the doctrine of dual residency,

reinforced by the reasonable expectations of the typical policyholder and

intended beneficiary, created genuine issues of material fact "requiring plenary

evidential resolution," Lehrhoff, 271 N.J. Super. at 346, and precluded summary

judgment. Because the judge's factual findings are not supported by the motion

record, her application of Lehrhoff to those findings is flawed. Accordingly, we

reverse the order granting summary judgment to Allstate. Based on our

decision, we need not address the parties' remaining arguments.

Reversed. We do not retain jurisdiction.

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33