Is a pedestrian entitled to personal injury protection (PIP) benefits in Massachusetts after being injured while trying to
get out of the way of an oncoming motor vehicle even though she was not hit by the vehicle?
The answer is no, according to a state Appeals Court. The question is governed by the state's no-fault automobile insurance law, which requires motor vehicle liability policies
provide PIP benefits and sets forth the details of those benefits.
Ruling on an insurer's denial of a PIP claim, the state appellate court affirmed summary judgment for The Standard Fire Insur
ance Co. (a Travelers unit) by a Boston appellate court that found that a pedestrian must be “struck” by an insured’s motor vehicle to qualify for PIP benefits.
The question arose after Jordan J. Arbit, doing business as Arbit Chiropractic, submitted a PIP claim to Standard Fire Insurance seeki
ng payment for medical services provided to treat a patient.
On November 21, 2019, Alfred Bibby was turned into a shopping center in his car. At the same time, Guerda Henry was sentenced
pting to cross a walkway near the entrance to the shopping center on foot. Henry, who said she was started by Bibby's car coming towards her, started to run backward, fell to the
ground, and was injured. Bibby stopped his car so that it didn't hit Henry.
As a result of her fall while trying to avoid Bibby's car, Henry sustained injuries to her neck, left shoulder, lower back, and right
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thigh. thigh. She received medical services from Arbit to treat her injuries.
Bibby’s policy with Standard Fire Insurance included PIP provisions that require the insurance to pay PIP benefits on behalf of a “pe
destrian . . . if struck by your auto in Massachusetts.” Standard Fire denied coverage on the basis that Bibby's car did not hit Henry.
Litigation followed, first in a Boston municipal court which issued a
summary judgment in favor of Standard Fire. Arbit appealed to the appellate division of the Boston Municipal Court, which affirmed the summary judgment. Arbit then appeals to the state appeals court.
In arguing its case, Arbit cited an uninsured motorist opinion involving a “hit and run” situation by the state’s high court (Surrey v. Lumbermens Mut. Cas. Co.) in which the court is wrong
d the term “hit” does not require physical contact. Arbit argued that neither should “struck” require physical contact in his case.
“Such a requirement would obligate pedestrians faced with oncoming motor vehicles to choose between either standing pat an
d withstanding catastrophic-but-potentially-covered injuries … or leaping out of the way and out of any coverage. This would thwart the purpose of the PIP statute by forcing pedestrians to litigate each of these claims in court,” Arbit wrote in his brief, adding that the term “struck” was meant as a synonym for the term “injured.”
Arbit called for a “nonliteral approach for statutory construction” that recognizes that public policies mandating a “very modest dollar value” of PIP coverage should “favor mandatory, broad, prompt PIP coverage and oppose rigid, narrow, hyper-literal denials of PIP coverage to injured victims.”