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Labracio v. Northern Insurance Co.

Decided: February 27, 1961.

BEATRICE LABRACIO, AN INFANT, BY HER GUARDIAN AD LITEM, ANTHONY LABRACIO AND ANTHONY LABRACIO, INDIVIDUALLY, PLAINTIFFS,
v.
NORTHERN INSURANCE COMPANY OF NEW YORK, A FOREIGN CORPORATION AUTHORIZED TO DO BUSINESS IN NEW JERSEY, DEFENDANT



Labrecque, J.s.c.

Labrecque

This matter comes on before me on plaintiffs' motion for summary judgment.

The facts are not in dispute. Defendant is a foreign corporation authorized to transact business in the State of New Jersey. On March 22, 1960 it issued to Anthony LaBracio its policy of insurance known as a "Family Combination Automobile Policy" whereby it insured him and each relative residing in the same household with him, for medical payments arising from bodily injury sustained while occupying or being struck by an automobile. The policy was for one year and provided for payment of medical expenses of up to $2,000.

On May 11, 1960 Beatrice LaBracio, a minor daughter of Anthony LaBracio, was residing in his household. On that day, while riding on a motor scooter owned and operated by a third person, the motor scooter was struck by an automobile whereby she was severely injured. The present suit is for the expenses of her subsequent hospitalization and

medical treatment. The hospital bill alone exceeded $2,000. The defendant contends that its policy does not cover the mishap since plaintiff was neither occupying nor struck by an automobile.

The medical payments provision in the policy reads as follows:

"PART II -- EXPENSES FOR MEDICAL SERVICES

COVERAGE C -- MEDICAL PAYMENTS: To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, x-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services:

Division 1. To or for the named insured and each relative who sustains bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury,' caused by accident, while occupying or through being struck by an automobile." (Emphasis added.)

The questions presented are: (1) Is a motor scooter included within the term "an automobile" in the medical payments provision of the policy? (2) Is a passenger on a motor scooter which is struck by an automobile "struck by an automobile" under the terms of the policy?

It is urged by the plaintiff that the word "automobile" connotes a self-propelled vehicle suitable for use on a street or roadway, and that a motor scooter comes within the purview of this definition. It is further urged that from the policy it appears that the company had no difficulty in confining its liability in other clauses to cases where a four-wheel automobile was involved, and that, therefore, the plaintiff here was not restricted to a recovery only when occupying a four-wheel automobile. The word "occupying" is defined in the policy as meaning "in or upon or entering into or alighting from."

A motor scooter has been held to be nothing more than a motorcycle. Standifer v. Inter-Ocean Ins. Co. Co. , 37 Ala. App. 393, 69 So. 2 d 300 (Ct. App. 1953). N.J.S.A. 39:1-1 defines a ...


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