Gerow v. State Auto Prop. & Cas. Co.

Gerow v. State Auto Prop. & Cas. Co.

Opinion

 [*772]  MEMORANDUM OPINION

I. Introduction

Pending before the Court is the Motion for Summary Judgment (ECF No. 24) filed by State Auto Property and Casualty Insurance Company ("Defendant")¹ and James and Susan Gerow's ("Plaintiffs") Cross Motion for Partial Summary Judgment (ECF No. 33). This Motion has been fully briefed (see ECF Nos. 24, 25, 26,30, 31, 32, 33, 34, 35, 36, 39, 41, 42) and is ripe for disposition.

In this breach of contract action, Plaintiffs are suing Defendant, their insurer, for Defendant's failure to pay a property damage claim that arose when Plaintiffs were no longer living full-time at the insured property. Defendant argues that it properly denied coverage for Plaintiffs' claim under the insurance [**2]  policy's residence premises condition, which conditions coverage on Plaintiffs residing at the insured property. Plaintiffs disagree that the policy contains such a condition and also contest Defendant's conclusion that Plaintiffs did not reside at the insured property.

The resolution of the pending Motions thus involves three major issues, which are discussed more fully below: (1) whether the Policy conditions coverage on Plaintiffs residing at the insured property; (2) whether Plaintiffs did reside at the insured property at the time their claim arose; and (3) whether Defendant waived or is estopped from asserting the residence premises condition as a defense.

For the reasons that follow, Defendant's Motion for Summary Judgment (ECF No. 24) is GRANTED and Plaintiffs' Cross Motion for Partial Summary Judgment (ECF No. 33) is DENIED.

II. Jurisdiction and Venue

The Court has diversity jurisdiction over this case pursuant to 28 U.S.C. § 1332(a)(1)  [*773]  because Plaintiffs are citizens of different states than Defendant and the amount in controversy exceeds $75,000. (See ECF No. 1 ¶¶ 8-17; ECF No. 1-3 ¶¶ 1-2, 5.)

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