The first time I can recall asking this question was in 2010 and it involved a claim denial under personal auto uninsured motorists and medical payments coverages for someone who was hit by a car while sitting on a snowmobile on the side of a street.
Medical payments coverage was identical to that under the ISO Personal Auto Policy (PAP) and applied to the named insured(s) and resident family members while occupying “or as a pedestrian when struck by” a motor vehicle designed for use on public roads or a trailer of any type.
The state-specific underinsured motorist coverage, unlike the countrywide ISO coverage, also required that the insured be a “pedestrian” if not occupying a motor vehicle at the time of the accident.
So, in order to recover medical or, in some states, uninsured motorist or no-fault payments, what constitutes being a “pedestrian,” a term not defined in the ISO PAP or most other auto forms.
There are statutes that define “pedestrian” within the governance of said statutes. For example, federal Title 23 U.S.C. 217, which deals with the accommodation of bicycle and pedestrian traffic for transportation projects, defines “pedestrian” to mean “any person traveling by foot and any mobility-impaired person using a ‘wheelchair.'” The term “wheelchair” means a mobility aid, usable indoors, and designed for and used by individuals with mobility impairments, whether operated manually or motorized.
Massachusetts Annotated Laws Title XIV, Chapter 90, 34A, which also governs transportation issues, defines “pedestrian” to include “personal operating bicycles, tricycles and similar vehicles and persons upon horseback or in vehicles drawn by horses or other draft animals.”
One of the reasons often cited for a lack of a definition of “pedestrian” in auto policies is the variety of state and federal laws that define this term. However, few of these statutes appear to directly govern how the term may be defined in an auto insurance contract. So why not define the term?
Why, you say? A Nevada insured was struck by an auto while skateboarding, incurring medical expenses of $24,000. The claim was denied on the basis that he was not a “pedestrian.” The insurer interpreted “pedestrian” to require that the claimant literally be on foot.
A bicyclist in Ohio was hit by an auto and taken to a local hospital. The agent turned in a medical payment claim which was denied because the claimant was not on foot.
According to these carrier interpretations, a “pedestrian” would not include someone sitting down or on a skateboard, bicycle, roller skates, snow skis, horseback, and the list goes on.
What about a scooter, Segway, e-bike, etc.? If, for example, the e-bike is deemed to be a motor vehicle designed for use on public roads and the claimant is “occupying” it, then there would appear to be coverage under many, if not most, auto policies. But not for a regular bicycle? One could argue that this makes no logical sense.
As for the courts, decisions are all over the place.
For example, in State Farm Mut. Auto Ins. Co. v. Stein, 940 P.2d 383 (Colo. 1987) and in Cole v. Auto-Owners, 272 Mich. App. 50, 723 N.W.2d 922 (2006), the courts opined that a bicyclist was not a pedestrian as required to trigger uninsured motorist coverage.
On the other hand, in Tucker v. Fireman’s Fund, 308 Md. 69, 517 A.2d 730 (1986), the court ruled that someone who was sitting on a stool was a pedestrian and that the undefined term “pedestrian” could be ambiguously applied to different sets of facts and circumstances.
That being said, courts often reference dictionaries to determine the common meaning of terms and, if you examine most dictionaries, you’ll find that they define “pedestrian” to mean a person “on foot.” The Cambridge Dictionary defines “pedestrian” to mean “a person who is walking” and gives an example of its use in a sentence: “Bicyclists and pedestrians use the path.” Clearly, this dictionary is distinguishing pedestrians from bicyclists.
No doubt there are dozens, if not hundreds, more judicial examples of how the undefined term “pedestrian” may be interpreted. It is usually a good thing to remove ambiguity from an insurance contract. A good example is the Washington state Supreme Court case of McLaughlin v. Travelers Commercial Ins. Co. In this case, the court considered dictionary definitions, as well as at least two state statutes.
For example, motor vehicle statute RCW 46.04.400 stated that “‘Pedestrian’ means any person who is afoot or who is using a wheelchair, a power wheelchair, or a means of conveyance propelled by human power other than a bicycle.” On the other hand, casualty insurance statute RCW 48.22.005(11) stated that “‘Pedestrian’ means a natural person not occupying a motor vehicle as defined in RCW 46.04.320.”
The court found that this variance in definitions created an ambiguity with regard to the meaning and intent of the word “pedestrian” and, therefore, found in favor of the insured claimant.
Regardless of ambiguity, one would think that an insurance-specific definition should prevail anyway over a motor vehicle definition.
Another issue is, if an insurer interprets “pedestrian” to include someone on foot but not in a wheelchair, is that potentially discriminatory under insurance or Americans with Disability Act-like laws? Not being an attorney, I can’t answer that, but as a matter of fairness and equity, it doesn’t seem right. Even if legal, is it ethical?
Equity and Consistency
My personal opinion, as a matter of equity and consistency, is that auto medical payments coverage should apply in the same way that un(der)insured motorist coverage under the ISO Personal Auto Policy applies — to named insureds and resident family members when struck by a vehicle designed for use on public roads without regard to whether the insured is on foot or occupying a vehicle of any type.
What do you think? Feel free to engage in a conversation about your experience with these types of claims or your opinions on coverage by expressing your thoughts either in the comments section on www.insurancejournal.com or via email.
And, with kids hopefully headed off to college this fall, check out next month’s column about insuring college students so you can address these issues on your upcoming home and auto renewals.
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