A customer was riding his bicycle along a public street and was hit by a car and killed (actual Iowa claim). Under an auto policy (probably personal auto but possibly business auto), is there coverage for medical payments and, if the other party is at fault but un(der)insured, for UM/UIM recovery?
Well, using either the ISO PAP or BAP to illustrate, both can cover certain insureds while occupying vehicles or as a pedestrian if hit by a vehicle designed for use on public roads. The question is, what is a “pedestrian”? Is it only someone literally on foot or could it include someone on a bicycle, roller skates, skateboard, scooter, Segway, snow skis, horseback, or even a mobility vehicle or wheelchair?
ISO does not define “pedestrian” in their PAP and BAP forms. While we could not find the actual ISO documents, we found a reference to ISO Circular PP-79-181 which allegedly advised that it was the intent for pedestrian status to embrace all situations other than occupancy of a motorized vehicle. Again, we could not locate the actual document to confirm this.
Our research has found authorities who support the premise that, for example, a bicyclist is a pedestrian and other authorities who insist that “pedestrian” only applies, with apologies to Little Eva, to locomotion by direct foot power. Case law also varies.
For example, in In State Farm Mut. Auto Ins. Co. v. Stein, 940 P. 2d 383 (Colo. 1987), the court held that a bicyclist was not a pedestrian within the meaning of the UM coverage section. In Cole v. Auto-Owners, 272 Mich. App. 50, 723 N.W.2d 922 (2006), the court reached the same conclusion about cyclists as Stein.
On the other hand, in Tucker v. Fireman’s Fund, 308 Md. 69, 517 A.2d 730 (1986), the court found that someone who was stationary on a stool was a pedestrian and that the term could be ambiguous when applied to a particular set of facts.
What about statutory law? Federal Title 23 U.S.C. x217 (Bicycle Transportation and Pedestrian Walkways) defines a pedestrian to mean “any person traveling by foot and any mobility impaired person using a wheelchair.” This applies to manual and motorized wheelchairs. This code makes a distinction between pedestrians and bicyclists but is silent as to other means of locomotion.
Massachusetts Annotated Laws Chapter 90, x 34A says that “pedestrian” includes “personal operating bicycles, tricycles and similar vehicles and persons upon horseback or in vehicles drawn by horses or other draft animals.”
These types of incidents are not isolated. An Ohio agent advised, “My client was riding his bicycle on a park trail that crosses a public street and was hit by a car. I turned in a medical payment claim after the claim manager said he would be considered a pedestrian. The adjuster then declined, saying that they had decided a bike rider is not a pedestrian and not covered.”
A Nevada agent reported that, “We have an insured who was hit while skate boarding by a UM driver. Her medical expenses to date are $24,000. The insurance company will not pay under UM coverage since she was not on foot.”
One issue that comes to mind beyond the varying interpretations from a coverage standpoint is whether denying a claim from someone in a wheelchair or mobility vehicle, while covering a claim from someone on foot, would violate any discrimination laws.
What do you think? If you work for a carrier, how does your claims department view this issue? If you work for an agency, try polling your carrier claim departments. Feel free to post your feedback in the Comments section below.
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