Pedestrian coverage unavailable to man injured while riding electric scooter
The policyholder argued that New Jersey law recognizes bicyclists as ‘pedestrians’ for purposes of no-fault coverage.
The Superior Court of New Jersey granted summary judgment in favor of an insurer defending the denial of a PIP claim for an insured riding a low-speed electric scooter (LSES). The case is Goyco v. Progressive Ins. Co., 2023 N.J. Super. Unpub. LEXIS 1117 (N.J. Super Ct. App. Div., 2023). Please note that this case is unpublished and therefore has limited precedential value.
David Goyco was hit by a car while riding his LSES. He filed a claim for PIP benefits with his auto insurer, Progressive. The company denied his claim because Goyco’s scooter “[did] not meet the definition of a qualifying automobile” under New Jersey law. Progressive also said Goyco was precluded from consideration as a pedestrian because he had been riding a scooter when he was injured.
Goyco sued, claiming New Jersey law recognized bicyclists as “pedestrians” for purposes of no-fault coverage. He argued those riding an LSES should also be considered pedestrians under N.J. Stat. 39:4-14.16(g), which stated:
“Except as otherwise provided by this section, all statutes, including the provisions of chapter 4 of Title 39 of the Revised 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.”
The trial judge noted that an LSES is not considered a motor vehicle under the Progressive policy, and that New Jersey motor vehicle law specifically excluded low-speed electric scooters from the definition of “motor vehicle” for coverage purposes (see N.J.S.A. 39:6A-2(h) and N.J.S.A. 39:1-1). Therefore, since an LSES was not considered a “motor vehicle” by statute or in the policy, Goyco’s only option for coverage was as a pedestrian. The judge agreed with Progressive that Goyco couldn’t have been a pedestrian because he was riding an LSES when he was injured.
Goyco’s argument to expand the meaning of “pedestrian” to include LSES riders was not persuasive. For the purposes of the no-fault statute, a “pedestrian” meant “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.” (N.J. Stat. §39:6A-2, emphasis added). An LSES is powered by an electric motor, not muscle power, so LSES riders are not considered pedestrians. Goyco was riding an LSES at the time of injury, so he did not fall within the statutory definition of a “pedestrian.” The lower court dismissed Goyco’s complaint, and Goyco appealed.
On appeal, Goyco argued the trial court had not enforced the plain language of N.J. Stat. 39:4-14.16(g), and the basis for denying his claim was flawed due to the court’s misinterpretation of the statute. The judges of the Superior Court were not swayed. They pointed out that the no-fault statute did not specifically reference bicycles; rather, it incorporated the definition of “pedestrian” for purposes of No-Fault coverage.
Even if Goyco was correct that LSES riders should be considered pedestrians, the court explained that the exception in N.J. Stat. §39:4-14.16(g) specifically excluded any statutes that “by their very nature may have no application to…low-speed electric scooters” from its scope. As discussed above, an LSES rider is not within the scope of a pedestrian. Since an LSES didn’t fall within the scope of the no-fault statute, coverage for Goyco would have been precluded anyway.
The verdict in favor of Progressive was affirmed.
FC&S editor’s note: As this case shows, an LSES is not a “motor vehicle” that could be covered under a traditional auto policy. LSES fall into a unique category of vehicle that is difficult to cover. It’s also difficult to find LSES coverage under the standard homeowners policy.
Over the past several years these vehicles and electric bicycles have grown in popularity, presenting a coverage dilemma. In light of this, the most recent version of the Incidental Low Power Recreational Motor Vehicle Liability Coverage endorsement from ISO has removed the specific exclusion for electric scooters and electric bikes. Eliminating this exclusion means the endorsement will provide coverage for any recreational vehicle that meets the speed requirements of the endorsement and is not specifically excluded.
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