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The separated father of a boy killed by a motorist cannot get underinsured motorist benefits under his motor vehicle policy because his son did not reside with him, the Superior Court has ruled in an apparent case of first impression. Writing for the unanimous three-judge panel, Superior Court Senior Judge Patrick R. Tamilia said that even though the boy’s separated parents had joint custody of him, he could not be claimed under his father’s underinsured motorist policy because the boy lived full time with his mother and did not physically live with his father, did not attend school near his father’s residence and did not regularly spend the night at his father’s residence. The court noted in Erie v. Insurance Exchange v. Weryha that it is not yet a settled matter in Pennsylvania law if minors living under a joint custody order can be considered residents of both of their parents’ households. But the court said it was clear in this case that the boy did not reside with his father and could not be considered a relative under the Erie Exchange policy. According to the opinion, David Weryha, the father of the boy, argued that his son was a resident of his home because he was an unmarried, unemancipated child under the age of 24 and that the case was a matter of the insurance rights of children subject to a shared custody agreement. He also argued that the only limitation on the amount of time his son spent with him was because David was unable to find acceptable employment in order to be able to live in the same location as his estranged wife and their children, the opinion said. “While we are sympathetic to Mr. Weryha’s economic difficulties, and more so to the family for their tragic loss, we cannot rely on these difficulties to create a legal fiction that contradicts the clear and in most cases, undisputed facts of record. Timothy did not reside with his father and, as such, was not a relative covered under the Erie Exchange underinsured motorist policy,” Tamilia said. Judge Joan Orie Melvin and Senior Judge Justin M. Johnson joined in the decision. Timothy Weryha was hit by a car driven by Lindsay S. Bedrow and killed June 12, 2001, while crossing the road in front of his Erie County residence. Timothy’s parents, David and Rita, were separated at the time, and David lived over 60 miles away with his parents in Oil City, the opinion said. Erie Insurance Exchange denied the UIM claim made by David because Timothy was neither a “named insured” nor a “resident” under David’s policy, the opinion said. A settlement was reached with Bedrow’s insurance company, and an underinsured motorist claim was settled under Reta’s Erie policy. Craig Murphey, an Erie attorney with MacDonald Illig Jones & Britton, representing Erie Insurance, said it was clear from the case law that children of separated parents can have two legal residences, but it also was clear in this case that Timothy was almost exclusively living with his mother and did not qualify under his father’s policy. Each case under this area of law does not involve a “bright line test,” but must be examined for the reality of where a child was living, Murphey said. Timothy’s parents appealed the trial court’s Sept. 15 order granting Erie Insurance’s motion for summary judgment in its complaint that David was not eligible to recover UIM benefits for Timothy’s death. The Weryhas and the Pennsylvania Trial Lawyers Association in an amicus curiae brief said Timothy should have been considered a “relative” under David’s policy “as a matter of contract interpretation, statute, and public policy,” the decision said. The trial lawyers’ association felt an amicus brief was important because there is not clear law for the insurance rights regarding minor children who are subject to joint custody orders and do not have a lot of liberty to choose which parent they live with, said David Harrison, the Philadelphia attorney who wrote the brief. “The other cases deal with very young adults who had far more control over where they lived and their relationship with their parents,” Harrison said. “(Minors are) pretty much buffeted by the wind, so to speak. Since (David Weryha) was a custodial parent, I thought we had a shot. But the court disagreed.” Louis Long, a Pittsburgh attorney with Pietragallo Bosick & Gordon who wrote an amicus brief on behalf of the Pennsylvania Defense Institute, said the court’s strict construction of the insurance policy’s language and the language Motor Vehicle Financial Responsibility Law – which motor insurance carriers have written their policies to comply with � was appropriate. Any change to the law to address the public policy concerns raised by the Weryhas and the PaTLA should only be undertaken by the General Assembly, Long said. Long agreed with Murphey that the court’s decision indicated some children subject to joint custody orders can have dual residences and qualify for insurance coverage, but the facts of the Weryha case were of a child with a solitary residence who did not have enough ties to his father’s residence to qualify for coverage under his father’s policy. Thomas Myers, the Erie attorney representing the Weryhas, did not respond in time for publication. The appellate court considered if the terms “relative” and “resident” were ambiguous under the policy and could be understood in more than one way; if Timothy could be considered a member of his father’s household because of the amount of time spent with his father; if the definition of resident in Erie’s policy conflicted with the MVFRL; and if the trial court erred in not finding Erie violated David’s reasonable expectations of receiving underinsured motorist coverage for his minor children. David’s Erie Insurance Exchange policy defined “relative” as a resident of a policyholder’s household who is a person related by blood marriage or adoption, or a ward or any other person under the age of 21 in the policy holder’s care. The insurer also defined “resident” as a person who physically lives in the policyholder’s household, but unmarried, unemancipated children under the age of 24 attending school full-time are still considered residents of the policyholders’ household. The Weryhas argued that the policy terms of relative and resident do not define if a child of divorced or separated parents can be considered a resident of both parents’ homes. Erie Insurance said the policy language was plain and unambiguous and complied with the MVFRL, Murphey said. “Clearly the contacts the boy had with his father fall well short of proving he was physically living with his dad, which is what the policy requires,” Murphey said. The court agreed the policy was not ambiguous. The policy does not prohibit dual residency of insured minors, but Timothy’s living arrangements did not provide the “quantity or the quality that would give rise to a finding of residency under the policy,” the court said. “While we do not doubt Timothy loved his father and enjoyed visiting his father, the terms ‘residence’ and ‘living’ require, at the minimum, some measure of permanency or habitual repetition,” Tamilia said. Copies of the 13-page opinion in Erie v. Insurance Exchange v. Weryha, PICS No. 07-1261, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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