On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
Brody and Skillman. The opinion of the court was delivered by Brody, J.A.D.
[239 NJSuper Page 198] The issue in this appeal is whether plaintiff Brian Sprague (plaintiff) was a pedestrian and therefore entitled to personal injury protection (PIP) benefits from defendant Niagara Fire Insurance Company (Niagara) for serious injuries he received when he was struck by an automobile. The trial judge found that when plaintiff was struck, he was wheeling a moped off the road just after having driven it accidentally against a stationary van. Concluding that plaintiff was not a pedestrian when his moped collided with the van, the judge reasoned that although he was no longer operating the moped when he was struck by the automobile, plaintiff nevertheless remained an
occupant of the moped because the second accident was proximately caused by the first. The trial judge's reasoning was mistaken and we reverse.
Plaintiff, who was 15 years old at the time of the accident, was operating his moped along the shoulder of a highway, against the flow of traffic, when he struck the front of a stationary van whose operator was awaiting an opportunity to enter the highway. The moped bounced off the van and both plaintiff and his moped landed on the roadway. Plaintiff got to his feet and was wheeling the moped off the roadway when he was struck by an automobile whose operator was intoxicated. Niagara afforded PIP coverage to plaintiff under a standard automobile policy that it had issued to his mother.
The trial judge found from the conflicting testimony of three eye witnesses that when plaintiff was struck by the automobile, he was wheeling the moped off the highway in the following manner and with the following intent:
Within an instant or within moments of this collision [with the van] occurring and the ultimate position reached by the plaintiff and his moped, the plaintiff driver of the moped rose, had his hand on the handlebars of the moped with one leg, his left leg planted on the ground and his right leg partially across the moped attempting to push it off the highway onto the shoulder.
For the purpose of any Appellate Review, the Court would specifically find that there was no factual basis upon which the Court could find any intention to start up the moped again, other than the plaintiff's desire to push or get the moped and himself off the highway as quickly as possible, albeit unfortunately under the circumstances too late to avoid that second accident which did occur.
We must sustain the judge's findings because they are "supported by adequate, substantial and credible evidence." Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-484, 323 A.2d 495 (1974).
Consistent with the requirements of the New Jersey Automobile Reparation Reform Act, N.J.S.A. 39:6A-1 et seq., Niagara's automobile liability insurance policy afforded plaintiff PIP coverage if he was a "pedestrian" when struck by the
automobile. N.J.S.A. 39:6A-4. The Act 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 ...