I’ve been a little remiss lately in my blogging. I’m currently on a two-week road trip and, of course, we’re in the midst of the biggest holiday season of the year. So, I’ll limit this week’s blog to one post and it happens to be a subject I’ve written about twice before but it raised its head this week when I spoke to a meeting of the National Association of Public Insurance Adjusters.
The ISO Personal Auto Policy extends medical payments to the named insured and resident spouse and family members as pedestrians if struck by a vehicle designed mainly for use on public roads or by a trailer. The term “pedestrian” is not defined in the policy. Similar coverage is provided by most other auto policies I’ve seen and the same is true for some state-specific un(der)insured motorist coverage endorsements.
Over the years, I’ve received questions and consulted on claim denials that indicate that there is a wide discrepancy in the interpretation of this term within the same jurisdiction by different insurers. For example, an Ohio agent advised that, “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 for him 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.”
In another instance, a Nevada agent advised 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.”
It makes little sense that these people would be fully covered while walking but not while on a bicycle, skateboard, roller skates, etc. In fact, what would be the logic that someone on foot would be covered but not someone confined to a wheel chair? Does that raise issues of discrimination under any ADA-type laws? Does it conflict with an insurer’s obligation to deal with all insureds in a good faith manner?
There appears to be a wide variation in case law and actual claims as to whether “pedestrian” refers only to someone on foot or if it applies to non-motorized vehicles such as bicycles, wheel chairs, scooters, roller skates, etc. if the person using such locomotive devices is struck by a vehicle designed mainly for use on public roads.
In fact, this exposure extends to certain types of motorized vehicles that are designed for use off public roads such as motorized wheel chairs and scooters, riding lawn mowers, Segways, etc. In addition, there have been cases involving people on horseback and even sitting in chairs where the term “pedestrian” was considered.
My research has found authorities who support the premise that, for example, a bicyclist is a pedestrian and others who insist that “pedestrian” only applies, with apologies to Little Eva, to locomotion by direct foot power.
Title 23 U.S.C. 217 (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, 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.”
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.
In my past research on this issue, while I could not find an actual ISO document, an educational article from a Big “I” state association publication referenced ISO Circular PP-79-181 which was purported to say that it was the intent for pedestrian status to embrace all situations other than occupancy of a motorized vehicle. Doesn’t that make sense?
My recommendation to the industry would be to define “pedestrian” or otherwise clarify the intent of medical coverage (and other impacted coverages such as UM and PIP) as to its application when “you” or a “family member” is struck by a vehicle designed mainly for use on public roads or a trailer when not occupying a motor vehicle. My suggestion would be to consider anyone not in or on a motor vehicle to be a “pedestrian.” What do you think?
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