In what continues to be heavily followed case, the New Jersey Supreme Court has just agreed to review whether or not auto insurance companies are required to provide personal injury protection coverage for motor vehicle crashes involving low-speed electric scooters.
On November 22, 2021, David Goyco was operating a Segway Ninebot KickScooter Max (which has a maximum speed of 15.5 miles per hour) when he was struck by a vehicle. As a result of the crash, Goyco sustained injuries and incurred medical expenses for his treatments.
At the time of the accident, Goyco was insured under an automobile insurance policy issued by Progressive Insurance Company. The policy provided No-Fault Benefits Coverage ("NFBC"), which provides personal injury protection ("PIP") coverage, regardless of fault.
This coverage was provided pursuant to N.J.S.A. 39:6A-4 which requires every standard automobile liability insurance policy to contain PIP benefits "for the payment of benefits without regard to negligence, liability or fault of any kind, to the named insured and members of his family residing in his household who sustain bodily injury as a result of an accident while occupying, entering into, alighting from or using an automobile, or as a pedestrian, caused by an automobile."
Goyco filed a claim with Progressive for PIP benefits.
Progressive denied the claim, stating:
Unfortunately, you are ineligible for P.I.P. benefits under this policy. New Jersey No-Fault benefits are only available if the accident involves a qualifying automobile. The Segway Ninebot Scooter you were occupying at the time of the accident does not meet the definition of a qualifying automobile pursuant to N.J.S.A. 39:6A-2(a) of the New Jersey Auto Insurance Law. Therefore, New Jersey No-Fault benefits are denied.
Furthermore, pursuant to N.J.S.A. 39:6A-2(h) of the New Jersey Auto Insurance Law, the Segway Ninebot Scooter you were occupying at the time of the accident disqualifies you from meeting the definition of a pedestrian as "pedestrian" is defined as "any person who is not occupying, entering into, or alighting from a vehicle propelled by other than muscular power and designed primarily for use on highways, rails and tracks."
Goyco filed a lawsuit in Superior Court challenging Progressive's denial of his claim, arguing that Darel v. Pennsylvania Mfgrs. Ass’n Ins. Co., established that New Jersey law does recognize bicyclists as pedestrians for purpose of no-fault coverage, and by extension, an low-speed electric scooters ("LSES") should be considered the equivalent of a bicycle pursuant to N.J.S.A. 39:4-14.16(g), which provides: all statutes... rules, and regulations applicable to bicycles, . . . shall apply to low-speed electric bicycles and LSES, except those provisions which by their very nature may have no application to low-speed electric bicycles or low-speed electric scooters.
Superior Court Judge John G. Hudak dismissed the complaint, saying:
Here, plaintiff was operating a scooter powered by motor at the time of the incident. As the scooter is clearly not considered a motor vehicle, neither in statute nor in the insurance policy, it must be determined if plaintiff would be considered a pedestrian.
Plaintiff asserts that under N.J.S.A. 39:4-14.16(g), "all statutes... rules and regulations applicable to bicycles... shall apply to low-speed electric bicycles and low-speed electric scooters." This reasoning is misplaced, however, as that Statue is not a part of the No-Fault statute and is not controlling over the New Jersey Auto Insurance Law.
Further, the No-Fault Statute contains zero reference to "bicycles," but rather defines what constitutes a "Pedestrian" for purposes of the No-Fault Statute.
The plain language and nature of the definition of a "pedestrian" in accordance with N.J.S.A. 39:6A-4 clearly has no application to an LSES either. Further, this statute also fails to even reference "bicycles." These uncontroverted facts clearly exclude Plaintiff from the definition of a "pedestrian" under NJ.S.A. 39:6A-2(h) which is "any person who is not occupying, entering into, or alighting from a vehicle propelled by other than muscular power and designed primarily for use on highways, rails and tracks." Muscular power being the operative phrase in this statute. The plain meaning of the statute leads this court to find that the LSES does not fall under the statute allowing for PIP coverage. The LSES was not muscular powered thus does not meet the requirements of the statute. If the Legislature intended to amend the statute to include low-powered bicycles and scooters they would have done so. Therefore, Plaintiff is not entitled to recovery of PIP benefits under since he does not qualify under any of the categories of coverage.
As previously reported here on FAA News, back in July 2023, Appellate Division Judges Gooden Brown and Mitterhoff affirmed this decision.
The judges noted that N.J.S.A. 39:1-1 expressly defines an LSES - in part - as having "an electric motor that is capable of propelling the device with or without human propulsion."
As an LSES is a vehicle propelled by other than muscular power, it fails to meet N.J.S.A. 39:6A-2(h)'s definition of "pedestrian" which is "any person who is not occupying, entering into, or alighting from a vehicle propelled by other than muscular power...
"As Judge Hudak found, the definition of pedestrian under N.J.S.A. 30A:6-4 is incompatible with the definition of an LSES and, therefore, N.J.S.A. 39:4-14.16(g), by its terms, has no application here," Judges Gooden Brown and Mitterhoff wrote.
The Appellate judges were also not persuaded that an LSES operator can be equated to a bicyclist, noting that the statute's exception defeats this argument:
All statutes . . . rules and regulations applicable to bicycles. . . shall apply to an LSES except those provisions which by their very nature may have no application to . . . an LSES.
This current ruling is expected to have long range ramifications statewide.
The state's highest court has just agreed to review this ruling and establish whether or not the operator of a low-speed electric scooter is a ‘pedestrian’ under N.J.S.A. 39:6A-2(h), and therefore entitled to Personal Injury Protection benefits?”
The court will hold a hearing on the case in 2024.
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