The New Jersey Supreme Court, after hearing arguments, determined that a claimant operating a low speed electric scooter (LSES) is not a “pedestrian” for purposes of receiving PIP benefits.  In Goyco v. Progressive Insurance Company, the plaintiff was the operator of a low-speed electric scooter that was struck by an automobile.  He filed an Order to Show Cause and Verified Complaint alleging that he suffered injuries and incurred medical expenses for his treatment and cure.  He further claimed he had a personal automobile liability insurance policy that covered him for personal injury protection (PIP) benefits.  Plaintiff claimed he was entitled to those PIP benefits as a qualified “pedestrian” under his policy.  By filing the order to show cause, he sought to compel his insurance carrier to provide those benefits.  The insurance carrier denied his claim for PIP benefits arguing that he was not a “pedestrian” within the meaning of his insurance policy or as the law defined “pedestrian” for purposes of receiving those benefits.

The trial court denied plaintiff the relief he sought, agreeing with the insurance company that plaintiff was not a “pedestrian” for purposes of PIP.  The Appellate Division affirmed the trial court’s decision.  The plaintiff argued that because operators of traditional bikes are considered pedestrians, so too was he.  The plaintiff’s argument was rooted in a statute that became effective in 2019.  That statute, N.J.S.A. 39:4-14.16, provides that persons operating low speed electric scooters are to be treated as “bicycles” for the purpose of the motor vehicle code.

Patricia W. Holden, Esq., a partner in Cipriani & Werner, P.C.’s Mt. Laurel office, represented the insurance company and argued that this definition could not be read into the No Fault Act as the definition of a “pedestrian” has not been changed by the Legislature.  Moreover, N.J.S.A. 39:6A-2(h) provides that as used in the No Fault Act, “pedestrian” means 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.  Consequently, according to Attorney Holden, the insurance company found support in the statutory definition of “pedestrian” for its argument that the low speed electric scooter which plaintiff was operating at the time of the accident could not be propelled by muscle power, thus removing plaintiff from the category of individuals who qualified for PIP benefits under the policy and the law.

In a unanimous decision, the Supreme Court affirmed the lower courts’ decisions and found in favor of the insurance company.  It held the LSES rider does not fall within the definition of “pedestrian” for purposes of the No-Fault Act and therefore, the plaintiff was not entitled to PIP benefits.  The Court found that the definitions contained in N.J.S.A. 39:1-1 upon which plaintiff also relied were inapplicable to the No Fault Act.  The Court concluded that the LSES fit within the ordinary meaning of what is a “vehicle” for purposes of the No Fault Act.  Because the plaintiff’s low speed electric scooter was “propelled by other than muscle power” – as it had an electric motor – and was designed primarily for use on the highways based on its features, plaintiff was occupying a “vehicle” and was therefore, not a “pedestrian”.  Finally, the Court rejected plaintiff’s reliance on N.J.S.A. 39:4-14.16(g) as it was not clear that statute was intended to affect the provisions of Subtitle 2.  The Court stated that bicyclists are pedestrians is rooted in the definitions of the No Fault Act, which by their very nature have no application to low speed electric bikes and scooters.  The Court stated that including these in the definition of “pedestrian” is a policy decision with insurance cost implications that is properly for the Legislature, not the Court.

A copy of the Supreme Court decision and a link to the webcast of the oral arguments may be found on NJ Courts Online: https://www.njcourts.gov/courts/supreme

If you have any questions about this case, please contact Patricia Holden, Esq. at pholden@c-wlaw.com or (856) 761-3800.