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Lane v. Prudential Property & Casualty Insurance Co.

Decided: October 25, 1984.

WILLIAM E. LANE, AN INFANT BY HIS GUARDIAN AD LITEM, REMBERT LANE AND REMBERT LANE, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY, DEFENDANT-RESPONDENT



On appeal from the Superior Court of New Jersey, Law Division, Essex County.

Michels, Petrella and Baime. The opinion of the Court was delivered by Michels, P.J.A.D.

Michels

[196 NJSuper Page 505] Plaintiffs, William E. Lane, an Infant by his Guardian Ad Litem, Rembert Lane, and Rembert Lane, Individually, appeal from a judgment of the Law Division in favor of defendant Prudential Property & Casualty Insurance Company. Plaintiffs sought reimbursement under the Basic Personal Injury Protection Endorsement (PIP) provisions of an automobile policy issued to Willie Barr (Barr), the owner and operator of a passenger vehicle with which the infant plaintiff collided while riding his minibike. Plaintiff claimed entitlement to PIP benefits on the ground that he was a pedestrian because he was not

an occupant of a vehicle designed primarily for use on the highway.

The facts essential to a resolution of the question involved have been stipulated. The accident occurred on March 30, 1981 when the infant plaintiff, who was operating a two-wheeled motorized vehicle, commonly known as a minibike, on a public street in Newark collided with a private passenger vehicle owned and operated by Barr. Barr's motor vehicle was covered by a policy of insurance issued by defendant. The minibike in question was being propelled by a motor at the time of the accident and, indeed, could not be propelled other than by use of the motor. This motor, an internal combustion engine, was activated by a pull chain. The proofs established that minibikes such as the one involved in this accident, can travel 30 to 40 miles per hour on public streets. Plaintiffs' minibike, however, had no speedometer at the time of the accident. Moreover, although the vehicle was equipped with a handbrake, it had been disconnected some time prior to the accident; and it bore no license plate, headlights, taillight or turn signals. The proofs did not show whether the minibike was manufactured in that condition or had been subsequently modified.

Defendant denied coverage, contending that the infant plaintiff was not eligible for PIP benefits because he was not a pedestrian. Defendant argued that the infant was occupying a motor vehicle propelled by other than muscular power and which was designed primarily for use on highways and therefore did not fall within the definition of a "pedestrian" contained in the New Jersey Automobile Reparation Reform Act, commonly referred to as the "No Fault Law." N.J.S.A. 39:6A-1 et seq. Following a bench trial, Judge Loftus in the Law Division held that plaintiffs failed to sustain their burden of proving that the infant was a "pedestrian" within the meaning or intendment of the definition of that term as contained in the No Fault Law. We agree and affirm.

At the time of the accident N.J.S.A. 39:6A-4 mandated that a motor vehicle liability policy with respect to an automobile registered or primarily garaged in New Jersey would provide additional personal injury protection coverage as provided in the New Jersey Automobile Reparation Reform Act. N.J.S.A. 39:6A-4 of the No Fault Law, which was in effect at the time of the accident, provided, in pertinent part:*fn1

Every automobile liability insurance policy insuring an automobile as defined in this act against loss resulting from liability imposed by law for bodily injury, death and property damage sustained by any person arising out of ownership, operation, maintenance or use of an automobile shall provide additional coverage, as defined herein below, under provisions approved by the Commissioner of Insurance, for the payment of benefits without regard to negligence, liability or fault of any kind, to the named insured and members of his family residing in his household who sustained bodily injury as a result of an accident involving an automobile, to other persons sustaining bodily injury while occupying the automobile of the named insured or while using such automobile with the permission of the named insured and to pedestrians, sustaining bodily injury caused by the named insured's automobile or struck by an object propelled by or from such automobile. * * *

The purpose of our No Fault Law, as of most no fault legislation, is to afford reparation or at least partial reparation for the objectively provable economic losses resulting from automobile accidents. Our law requires prompt payment of

medical expenses, loss of wages, essential services, survivor benefits, and funeral expenses to certain classes of persons injured in an automobile accident without regard to negligence, liability or fault and without having to await the outcome of protracted litigation. N.J.S.A. 39:6A-4 and N.J.S.A. 39:6A-5. See Hoglin v. Nationwide Mut. Ins. Co., 144 N.J. Super. 475, 479-480 (App.Div.1976). The classification of injured persons covered by the law was limited to (1) the named insured and members of his family residing in his household, (2) passengers occupying the automobile of the named insured, (3) persons using the automobile of the named insured with his permission, and (4) pedestrians injured by the named insured's automobile or by being struck by objects propelled by or from that automobile. N.J.S.A. 39:6A-4; Hoglin v. Nationwide Mut. Ins. Co., 144 N.J. Super. at 480.

Here, plaintiffs seek PIP benefits under the automobile policy issued to Barr by defendant, not under any policy issued to them. Consequently this entitlement to benefits is dependent upon the infant plaintiff being classified as a "pedestrian." In this respect, the theory of recovery here is different from that advanced in Hoglin v. Nationwide Mut. Ins. Co., 144 N.J. Super. 475, and Harlan v. Fidelity & Casualty Co., 139 N.J. Super. 226 (Law ...


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