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Nunag v. Pennsylvania National Mutual Casualty Insurance Co.

Decided: May 17, 1988.

NICOLE NUNAG, AN INFANT BY HER GUARDIAN AD LITEM, NEMESIO NUNAG, AND NEMESIO NUNAG, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS,
v.
PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, DEFENDANT-APPELLANT



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

Shebell, Gaynor and Arnold M. Stein. The opinion of the court was delivered by Shebell, J.A.D.

Shebell

[224 NJSuper Page 754] Defendant Pennsylvania National Mutual Casualty Insurance Company (Company) appeals from an order of the Law Division requiring it to pay personal injury protection (PIP) benefits related to injuries sustained by plaintiff Nicole Nunag while she

was on a moped which was involved in a collision with an automobile.

Plaintiff, a member of her mother's household, sought PIP benefits on the premise that she was a pedestrian, under a standard automobile policy issued to her mother which covered her mother's car. Defendant denied that plaintiff was a pedestrian and asserted that she therefore was not entitled to PIP benefits.

During the non-jury trial, the parties stipulated certain facts. Plaintiff testified that on the day of the accident she used her moped to visit a friend who lived about two miles away, requiring her to travel about two miles on Route 202, Ramapo Valley Road, in Oakland. On the trip home, plaintiff testified that she drove on the shoulder of Route 202 until she reached the point when she had to make a left turn. She then moved into the left lane and waited for cars to pass so that she could turn. While waiting the moped stalled. Plaintiff proceeded to make her left turn by pedalling the moped so it would start up again. Plaintiff was then hit by an automobile, which she did not see approaching. Plaintiff described the only procedure for starting the moped as requiring that the operator pedal until the motor engages. It was plaintiff's intention to continue the rest of her trip home under power of the motor. Defendant offered into evidence the deposition testimony of the automobile operator which asserted that plaintiff was operating under power and traveling about 25 to 30 mph when the moped suddenly came into the automobile's path of travel. The judge determined plaintiff's testimony to be credible and found that she was pedalling the moped at the time of impact with the automobile.

The issue is whether plaintiff was properly classified as a "pedestrian" within the meaning of the New Jersey Automobile Reparation Reform Act [No Fault Act], N.J.S.A. 39:6A-1 et seq., and specifically in the context of N.J.S.A. 39:6A-4, which states in pertinent part:

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 personal injury protection coverage, as defined hereinbelow, 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 while occupying, entering into, alighting from or using an automobile, or as a pedestrian, being struck by an automobile or by an object propelled by or from an automobile, to other persons sustaining bodily injury while occupying, entering into, alighting from or using the automobile of the named insured, 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. [Emphasis supplied].

It is conceded that plaintiff, in these circumstances, is entitled to PIP benefits under her mother's policy only if she was occupying the status of a pedestrian when struck by the automobile. The trial judge concluded that plaintiff was a pedestrian and therefore entitled to PIP benefits.

"Pedestrian" is defined generally in N.J.S.A. 39:1-1 as "a person afoot." The Act further defines pedestrian as

any person who is not occupying, entering into, or alighting from a vehicle propelled by other than muscular power and designed primarily for use on highways, rails and tracks. [ N.J.S.A. 39:6A-2h].

Under this definition, in order for a person to be declared a pedestrian, either the person must not be utilizing a vehicle which is propelled by other than muscular power or, if the vehicle is propelled by other than muscular power, it ...


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