In courts across New York, homeowners find themselves litigatingthe most intimate details of their lives — where they sleep, whothey live with, how they cook their dinner — all in the name ofinsurance.

More specifically, in the name of the “residence” or “dwelling”provision in their homeowners' policies, which insurance companiesincreasingly contend limit the homes eligible for coverage to thosehomes in which the insured “resides.” In this article, we examinehow courts have addressed this almost existential question. Wefurther argue that insurers' unwillingness to settle on aconsistent — or even articulable — definition of the term has beena double-edged sword, at once providing for disclaimers over abroad swath of behavior but also planting the seeds of defeat.

Related: The dilemma of residence premises

'Where you reside' requirement

Your homeowners insurance contains a provision that sayssomething very close to this: Property loss will be covered onlyfor damage to your “dwelling,” defined as “a one family buildingstructure, identified as the insured property on the PolicyDeclarations, where you reside and which is typically used as aprivate residence.” Usually the dispute will come down to that“where you reside” requirement.

For most people most of the time, it's very clear what thisprovision means: it's the house we live in seven days a week. Butlife's strange paths takes people in unpredictable directions, andfew of us imagine our insurance policy has much to say about wherewe spend our evenings or our mornings.

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

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

Subject to interpretation

Both of these principles are subject to interpretation and leavemuch room for argument. As a result, courts have in most instancesleft the sorting out to a jury. The leading case is the Court ofAppeal's 2012 Dean v. Tower Ins. Co. of NY, 19 N.Y.3d704. The Deans bought a house in May 2005. Shortly after closing,they discovered what must have been a massive termite infestation.They insured the home with Tower and spent the next year and changerepairing the termite damage before it burnt down. Mr. Dean was atthe property about five days a week, ate there routinely, and sleptthere at least occasionally.

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

Sleeping in home periodically

The most recent appellate court pronouncement is the Augustdecision in Craft v. New York Central Mutual, inwhich the Third Department reversed a Supreme Court decisiongranting summary judgment to the insurer. The story there begins in1967, when Mrs. Craft and her late husband built a house inSaugerties. She lived there full-time until approximately 2006 whenshe moved in with a boyfriend. Her son's family moved in when shemoved out and she returned frequently to watch her grandchildren,sleeping there periodically.

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

Public trial of one's living situation

The unfortunate fact pattern in Harrison v. AllstateIndemnity Co., 2017 N.Y. Misc. LEXIS 791 (Sup. Ct. SteubenCty. March 3, 2017), is also a familiar one. Three years before thefire that burned down their house, the Harrisons had moved in withMrs. Harrison's elderly mother to care for her. They initiallyexpected to return to their home soon, but the mother's illness didnot resolve and weeks turned to months and then to years. TheHarrisons' son continued to live at the house, and Mr. Harrisonreturned on a periodic though decreasing basis. Asin Dean and Craft, the courtdenied summary judgment, leaving the question for a jury todecide.

Related: Traditional homeowners coverage may not fitnon-traditional households

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

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

Little firm guidance

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

This flexible interpretation of residency has obvious value forinsurers. In theory it allows for disclaimers over a wide range offact patterns. Forexample, Dean and Craft presentin some ways mirror image cases: The Deans indisputably had anintention to remain in the home but had never really lived there,while Mrs. Craft had a long-term relationship to the house but hadno clear intention to return full-time to it. Their respectiveinsurance companies nonetheless denied both claims.

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

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

Imprecision of residence requirement

In granting summary judgment for the plaintiff, Supreme Courtmade three distinct holdings. First, the policy's residencepremises requirement was ambiguous, as its ostensible requirementthat the plaintiff “reside” at the house conflicted with thepolicy's express permission to leave the premises unoccupiedindefinitely. Second, “Defendant continued to accept Plaintiff'spremium payments for several years after it knew, or should haveknown that Plaintiff was not residing at the Ferndale property” andaccordingly was estopped from relying on that information to denycoverage. Finally, Allstate had ratified the policy by continuingto accept premiums for 17 months after denying coverage for theloss.

Related: Homeowners coverage can be affected by residencylapses

The ratification holding is unique to Dr. Gulati's situation,but observe how both the residence and estoppel holdings stem fromthe imprecision of the residence requirement. Without a cleardefinition, residence must be interpreted in the context of alonger and at times contradictory policy. And because there is noclear definition, the insurer cannot deny that it had informationputatively disqualifying the plaintiff from coverage long beforethe loss.

While insureds are riding a winning streak in these disputes,insurance companies continue to deny claims on the basis ofresidency. Homeowners, insurance companies, courts, and oftenjuries will accordingly continue to find themselves counting howmany nights were spent at a home.

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