Injured Pedestrian Strikes Out on PIP Benefit Because Car She Dodged Never Struck Her

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 to 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 Insurance 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 The Standard Fire Insurance seeking payment for medical services provided to treat a patient.

On November 21, 2019, Alfred Bibby was turning into a shopping center in his car. At the same time, Guerda Henry was attempting to cross a walkway near the entrance to the shopping center on foot. Henry, who said she was startled by Bibby’s car coming toward her, started to run backward, fell to the ground, and was injured. Bibby stopped his car so that it did not 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 thigh. She received medical services from Arbit to treat her injuries.

Bibby’s policy with Standard Fire Insurance included PIP provisions that required the insurer to pay PIP benefits on behalf of a “pedestrian . . . 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 appealed to the state appeals court.

In arguing its case, Arbit cited an uninsured motorist opinion by the state’s high court (Surrey v. Lumbermens Mut. Cas. Co.) in which the court said the term “hit” does not require physical contact. Arbit argued neither should “struck” in his case.

“Such a requirement would obligate pedestrians faced with oncoming motor vehicles to choose between either standing pat and 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.”

Standard Fire and the Municipal Appellate Division discounted Arbit’s citations because they dealt with the term “hit-and-run,” not with “struck,” and because they involved cases where insurance policy language was different from a statute. The insurer stressed that the auto policy in this case takes its wording directly from the statute and, under the plain language of the policy, “being frightened by an approaching vehicle does not constitute being ‘struck by’ the vehicle.”

The insurer maintained that the question presented is a straightforward one of contract interpretation and that the ordinary meaning of “strike” or “struck” is “to come into contact or collision.”

“The text of the standard policy is materially identical to the statute. Arbit improperly asks this Court to rewrite both the policy and the statute,” Standard Fire countered.

On December 18, a three-judge state appeals court panel affirmed the municipal appellate court’s reasoning, the judgments favoring the insurer, and the denial of the PIP benefits. The court concluded that the plain meaning of “struck” in the statute requires physical contact and, therefore, to qualify for PIP benefits, a pedestrian must be “struck” by an insured’s motor vehicle.

“Given the clear and unambiguous language of the statute as currently written, we must affirm,” the appeals court concluded.

The appeals court said the prior Surrey ruling cited by Arbit means that the phrase “hit and run” may have a broader use than the word “struck,” but it does not mean that the court should interpret “struck” beyond its plain meaning. “We further decline to interpret “struck” beyond its plain meaning where doing so would add unnecessary ambiguity to the statute. This case illustrates the problems that could arise,” the opinion states.

The court further noted that it would be up to state lawmakers to change the law if no physical contact is to be required. “[I]nterpreting ‘struck’ according to its plain meaning, and leaving it to the Legislature to amend the statute if it chooses, serves the objectives of the no-fault automobile insurance law,” which it reminded is “intended to provide a prompt, inexpensive means of reimbursing individuals injured in automobile accidents, thereby reducing the number of small motor vehicle tort cases.”