By letter dated March 4, 2005, TIC disclaimed coverage under the policy based on the exclusion for liability for bodily injury where the construction accident occurs in premises in which the insured does not reside. Notwithstanding the disclaimer, TIC appointed counsel to defend the Prospers in the underlying action, pending this court’s ruling on the propriety of the disclaimer.
TIC commenced this action on October 20, 2005. The complaint seeks a judgment declaring that TIC has no duty to defend or indemnify the Prospers in the underlying action based on the exclusion for bodily injury that occurs in a premises in which the insured does not reside.
On June 5, 2007, Joseph Prosper appeared for an examination before trial in this action. Mrs. Prosper has repeatedly failed to appear, and has been precluded from offering evidence in this matter.
In his deposition, Mr. Prosper confirmed that his February 22, 2005 statement accurately reflects what he told the investigator on that date. Prosper confirmed that the investigator wrote out the statement as Prosper spoke to him. The statement was given to Prosper to read. Prosper glanced at it, did not see any errors, and did not ask that any changes be made. He signed each page. He wrote at the end of his statement in his own handwriting I read this statement and it’s true.
Although he did not make this claim in his initial statement to the insurance investigator, Mr. Prosper testified during his deposition that, while 3456 Eastchester Avenue was the Prospers’ primary residence on February 28, 2004, the Premises was their secondary residence at the same time. Specifically, Mr. Prosper testified that, after purchasing the Premises in 1996, he moved with his wife and three daughters into the Premises’ basement apartment. They stayed for approximately one year, but in 1997 moved back to their old address because his daughters suffered from dog bite.
Although Mr. Prosper never told the insurance broker that the family moved back to their old address, he testified that, since that time, he and Mrs. Prosper have used the basement apartment to have private sessions, to talk, and to mingle. He alleges that he and his wife slept there two to three times per month. However, Mr. Prosper also testified that the Prospers kept no personal property in the apartment,
Mr. Prosper’s driver’s license lists his address as 3456 Eastchester Road. Although Mr. Prosper claimed in his deposition that he is registered to vote at both the Premises and 3456 Eastchester Road, his voter registration record shows that he has been registered to vote at 3456 Eastchester Road since 1993. Similarly, Mrs. Prosper’s voter registration record shows that she has been registered to vote at 3456 Eastchester Road since November 14, 1995. In addition, Mr. Prosper confirmed that the Premises is listed as an investment property on the Prospers’ 2003 income tax return.