Lane v. Prudential Property & Casualty Insurance
Lane v. Prudential Property & Casualty Insurance
Opinion of the Court
The opinion of the Court was delivered by
Plaintiffs, William E. Lane, an Infant by his Guardian Ad Litem, Rembert Lane, and Rembert Lane, Individually, appeal from a judgment of the Law Division in favor of defendant Prudential Property & Casualty Insurance Company. Plaintiffs sought reimbursement under the Basic Personal Injury Protection Endorsement (PIP) provisions of an automobile policy issued to Willie Barr (Barr), the owner and operator of a passenger vehicle with which the infant plaintiff collided while riding his minibike. Plaintiff claimed entitlement to PIP benefits on the ground that he was a pedestrian because he was not
The facts essential to a resolution of the question involved have been stipulated. The accident occurred on March 30, 1981 when the infant plaintiff, who was operating a two-wheeled motorized vehicle, commonly known as a minibike, on a public street in Newark collided with a private passenger vehicle owned and operated by Barr. Barr’s motor vehicle was covered by a policy of insurance issued by defendant. The minibike in question was being propelled by a motor at the time of the accident and, indeed, could not be propelled other than by use of the motor. This motor, an internal combustion engine, was activated by a pull chain. The proofs established that minibikes such as the one involved in this accident, can travel 30 to 40 miles per hour on public streets. Plaintiffs’ minibike, however, had no speedometer at the time of the accident. Moreover, although the vehicle was equipped with a handbrake, it had been disconnected some time prior to the accident; and it bore no license plate, headlights, taillight or turn signals. The proofs did not show whether the minibike was manufactured in that condition or had been subsequently modified.
Defendant denied coverage, contending that the infant plaintiff was not eligible for PIP benefits because he was not a pedestrian. Defendant argued that the infant was occupying a motor vehicle propelled by other than muscular power and which was designed primarily for use on highways and therefore did not fall within the definition of a “pedestrian” contained in the New Jersey Automobile Reparation Reform Act, commonly referred to as the “No Fault Law.” N.J.S.A. 39:6A-1 et seq. Following a bench trial, Judge Loftus in the Law Division held that plaintiffs failed to sustain their burden of proving that the infant was a “pedestrian” within the meaning or intendment of the definition of that term as contained in the No Fault Law. We agree and affirm.
Every automobile liability insurance policy insuring an automobile as defined in this act against loss resulting from liability imposed by law for bodily injury, death and property damage sustained by any person arising out of ownership, operation, maintenance or use of an automobile shall provide additional coverage, as defined herein below, under provisions approved by the Commissioner of Insurance, 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 sustained bodily injury as a result of an accident involving an automobile, to other persons sustaining bodily injury while occupying the automobile of the named insured or while using such automobile with the permission of the named insured and to pedestrians, sustaining bodily injury caused by the named insured’s automobile or struck by an object propelled by or from such automobile. 1 4 '
The purpose of our No Fault Law, as of most no fault legislation, is to afford reparation or at least partial reparation for the objectively provable economic losses resulting from automobile accidents. Our law requires prompt payment of
Here, plaintiffs seek PIP benefits under the automobile policy issued to Barr by defendant, not under any policy issued to them. Consequently this entitlement to benefits is dependent upon the infant plaintiff being classified as a “pedestrian.” In this respect, the theory of recovery here is different from that advanced in Hoglin v. Nationwide Mut. Ins. Co., 144 N.J.Super. 475, and Harlan v. Fidelity & Casualty Co., 139 N.J.Super. 226 (Law Div. 1976), wherein PIP benefits were sought either by the insured or a member of his family residing in his household.
N.J.S.A. 39:6A-2.h of the No Fault Law in effect at the time of the accident defined the term “pedestrian” as follows:
h. “Pedestrian” means any person who is not occupying a vehicle propelled by other than muscular power and designed primarily for use on highways, rails and tracks and includes any person who is entering into or alighting from such a vehicle.
I am satisfied that based upon the evidence that has been introduced in this court that the only reasonable use that this could be considered to be for was for transportation under the circumstances. And for me to conclude that it wasn’t intended for that use would be just a conjecture.
Certainly, the vehicle with the internal combustion engine that goes 30 to 40 miles per hour is intended to be used on a public street, although it may not technically at the time it is found meet all the safety requirements that are contained in the particular statutory law.
The findings and conclusions of the trial court that the infant plaintiff was not a pedestrian within the meaning of our No Fault Law and therefore not entitled to PIP benefits because he was operating a vehicle propelled by other than muscular power and designed primarily for use on the highways is amply supported by the proofs and there is no sound reason or justification for disturbing them. Leimgruber v. Claridge Associates, Ltd., 73 N.J. 450, 455-456 (1977).
Moreover, the conclusions reached by the trial judge are legally sound and consistent with the principles discussed in Laino v. Nationwide Mutual Fire Ins. Co., 169 N.J.Super. 65 (App.Div. 1979). There we held that a minibike was a “motorcycle” within the meaning of N.J.S.A. 39:3-4, and as such was a motor vehicle designed for travel on public roads and subject to motor vehicle registration. See also McKenna v. Wiskowski,
Finally, we point out that Government Employees’ Ins. Co. v. Daniels, 180 N.J.Super. 227 (App.Div. 1981), relied upon by plaintiffs, is readily distinguishable and does not compel a conclusion contrary to that reached by the trial judge. In the Daniels case we were dealing with the issue of whether a dirt bike was an uninsured motor vehicle embraced by the mandatory coverage provisions of N.J.S.A. 17:28-1.1 and N.J.S.A. 39:6-62, not whether the PIP coverage provisions of our No Fault Law applied. More importantly, the dirt bike, as distinguished from the minibike here involved, could not be used on the highway because it was equipped with spiked, deep-knobbed tires that would cause it to slide out of control on a paved highway. Additionally, we held that the dirt bike was strictly an off-highway recreational vehicle, and not a vehicle primarily
Accordingly, the judgment is affirmed.
NJ.S.A. 39:6A-4 was most recently amended by L. 1983, c. 362, § 7, effective October 4, 1983, to read as follows:
Every automobile liability insurance policy insuring an automobile as defined in this act against loss resulting from liability imposed by law for bodily injury, death and property damage sustained by any person arising out of ownership, operation, maintenance or use of an automobile shall provide personal injury protection coverage as defined hereinbelow, under provisions approved by the Commissioner of Insurance, 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 sustained bodily injury as a result of an accident while occupying, entering into, alighting from or using an automobile, or, as a pedestrian, being struck by an automobile, to other persons sustaining bodily injury while occupying, entering into, alighting from or using the automobile of the named insured with the permission of the named insured and to pedestrians, sustaining bodily injury caused by the named insured’s automobile or struck by an object propelled by or from such automobile ...
The definition of the term "pedestrian" contained in N.J.S.A. 39:6A-2.h was amended by £.1983, c. 362, § 6, effective October 4, 1983 to read as follows:
h. "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.
Reference
- Full Case Name
- WILLIAM E. LANE, AN INFANT BY HIS GUARDIAN AD LITEM, REMBERT LANE AND REMBERT LANE, INDIVIDUALLY v. PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY, DEFENDANT-RESPONDENT
- Cited By
- 2 cases
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- Published