Pedestrians and Under Insurance Cases

Pedestrian injuries are, unfortunately, too common in Massachusetts. When it comes to compensating an injured pedestrian, if there is a party at fault, we look to that party’s insurance coverage. When that coverage is insufficient, we look to the pedestrian’s motor vehicle insurance for “underinsurance coverage.”

Springfield Dirt Bike Pedestrian

In a recent case in Springfield, the definition of pedestrian was tested. In that case, the “pedestrian” was riding a dirt bike. At 35 miles per hour. On a public street. The driver of the other vehicle was presumably at fault and his or her insurance company paid the policy for Mr. Norberto Perez’ injuries.

From our understanding, Mr. Perez then filed an under insurance claim against his own family’s insurance company, Metropolitan Property and Casualty Insurance Company. Metropolitan, as you might expect, denied the claim. They argued that the policy said it would pay if you “occupied your auto” (the motor vehicle you own and inform your insurance company you are driving regularly) or an “auto not owned by you” (a motor vehicle that you are legally using such as a friend or family member’s vehicle) or, and this is the part of the insurance contract that was litigated, “if insured is a pedestrian.”

Underinsurance Law and Pedestrians

Thus, Mr. Perez’s attorney argued that his client was clearly not in any “auto” or a friend’s “auto” because “auto” is very clearly defined in the insurance contract; that definition says a dirt bike is not an “auto.” Interestingly, there were no dirt bike cases on point. Thus, the Court looked at the legislative history which established the standard Massachusetts insurance policy. The judge in Springfield found that the 1968 legislative intent was for the insurance contracts to be “very broad” in providing protection for victims of under insured motor vehicle collisions.

The Court analyzed the differences between Personal Injury Protection (PIP) insurance, and direct liability insurance coverage, and underinsured motorist coverage and found that it was “not illogical” to “view pedestrians differently depending on the type of coverage at issue.” Was the Court trying to stretch the law here? Not really. Often a law has holes and it is the job of the Courts to fill the holes. Here, the Court pointed out that there was no insurance for Mr. Perez to buy – you cannot buy underinsurance coverage for a dirt bike. Thus, a person on a road who cannot buy insurance for the thing he is in…is a pedestrian!

Injuries and the Underinsured Case

We don’t know Mr. Perez’ injuries. We can only surmise that they are significant. Otherwise, the vehicle that caused the accident would have had sufficient insurance to cover him. Minimal liability insurance in Massachusetts is $20,000. Insurance companies don’t offer the full policy unless there are significant damages. Mr. Perez, in this case had presumably already collected the full insurance policy from the person responsible. This case is with regard to his own family’s insurance.

What Should Massachusetts Pedestrians Do?

First, drive and walk carefully. Motor vehicles are big and dangerous. Drivers don’t always see pedestrians. Second, use dirt bikes in designated dirt bike areas, not roads. Third, retain an experienced underinsurance injury lawyer. Finally, go back to your insurance carrier and buy significant underinsurance coverage. It worked for Mr. Perez. It works for our clients year in and year out.

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