Appeals Court to decide if ‘struck’ requires contact in PIP context

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Without a moment to spare, a pedestrian takes evasive action as a vehicle is headed directly toward her. She avoids the vehicle but falls, injuring herself in the process. Should a medical professional who treats her injuries be paid through the mandatory personal injury protection coverage in the Massachusetts standard automobile policy?

Under the plain language of G.L.c. 90, §§34A and 34M, the answer would seem to be “no,” the pedestrian must be “struck.”

That is the position of the defendant insurance company in Arbit v. The Standard Fire Insurance Company, one with which judges in Boston Municipal Court and the District Court Appellate Division have agreed.

But the plaintiff in Arbit — a chiropractor seeking payment for treating the pedestrian — maintains that the physical contact requirement is both arbitrary and contrary to legislative history and sound judicial, legislative and regulatory policy.

In the plaintiff’s view, to endorse the defendant’s reading of the standard insurance policy would create an odd incentive, as noted by a motion judge in a case that reached the District Court Appellate Division for the Northern District in 2011, Baum v. Norfolk & Dedham Ins. Co.

That judge wrote that if a pedestrian who is injured while escaping an oncoming insured vehicle is not considered to have been “struck,” “the pedestrian, rather than jumping clear and mitigating her damages, would have to stand fast, suffer the blow, and, if she survives, face a regular civil action and even risk the possible diminution or outright elimination of recovery against the tortfeasor under the comparative negligence rules, G.L.c. 231, §85 — but her PIP claim would be preserved.”

The judge in Baum continued: “The end result is not just unreasonable. It is perverse.”

But to the defendant, the only thing “perverse” about that hypothetical is the suggestion that a pedestrian would even consider no more than $8,000 worth of PIP benefits while a vehicle is bearing down on her, especially given that most Massachusetts residents have health insurance.

“While perhaps a legislator might consider this hypothetical scenario in deciding whether to amend the PIP statutes, it is not a proper basis for construing the standard auto policy or the statutes,” the defendant in Arbit states in its brief.

The language in G.L.c. 90, §34A, is hardly new. The plaintiff’s attorney in Arbit, Kevin J. Powers of Mansfield, suggests that part of the reason that the issue is just now reaching the Appeals Court is that “most insurance companies, when faced with a situation like this, simply pay as they should.”

In addition, PIP in all instances involves modest sums of money, meaning that the cases originate in the BMC or the state’s District Court, interposing another level of appellate review — the District Court Appellate Division — before reaching a higher court.

“There’s another step in the process in order for it to advance further,” Powers noted. “Sometimes, it just takes longer for these cases to percolate all the way up.”

But now, with oral argument in Arbit held on Oct. 1, the Appeals Court will finally get to resolve what “struck” means in the PIP context.

Focus on ‘Surrey’

The rhetoric in the footnote in Baum notwithstanding, the real battleground in Arbit centers on the application of the Supreme Judicial Court’s 1981 decision in Surrey v. Lumbermens Mut. Cas. Co., which involved an unidentified vehicle forcing another vehicle off the road into a guardrail.

In Surrey, rather than “struck,” the operative word was “hit-and-run.” In other words, the issue was whether the word “hit” in the insured’s motor vehicle insurance policy embodied a physical contact requirement or whether construing it that way would be a “perversion of the aims of the uninsured motorist statute, G.L.c. 175, §113L.”

The SJC held that, in the absence of an explicit legislative statement on the matter, it was the latter, that it could “attribute no such connotation” of a physical contact requirement to the term “hit-and-run.”

Similarly, if it wanted there to be a physical contact requirement to access PIP coverage, the onus was on the Legislature to make that clear, the plaintiff argues.

Surrey established a “nonliteral approach” for statutory construction in this context, which has come to represent the “policy” across New England and followed by a “legion of other jurisdictions,” the plaintiff notes.

But Surrey is distinguishable, the defendant in Arbit counters. In Surrey, when the SJC looked both at dictionary definitions and how the Legislature defined “hit-and-run” in other statutes, they all pointed in the same direction: that “physical contact is not part of the usual and accepted meaning of the term ‘hit-and-run.’”

“Strike” or “struck” are the opposite, with physical contact unquestionably “part of the usual and accepted meaning” in dictionaries and other statutes, the defendant in Arbit argues.

To the defendant, the plaintiff’s lengthy string of cases has limited relevance, given that none involved the “struck by” policy or statutory language at issue in Arbit.

“They all construe different policy language under different statutory schemes applicable to a different type of insurance coverage,” its brief reads.

Given that, none of those cases support the plaintiff’s position that the words “struck by” in G.L.c. 90, §34A, should either be “judicially removed” or amended to include “in fear of being struck by,” the defendant argues.

J. Michael Conley of Braintree said that the briefs in Arbit “capture the interesting quandary of the case.”

“On the one hand, the meaning and connotation of ‘struck by’ suggests a need for contact,” he said. “On the other hand, how different is ‘struck’ from ‘hit’ in the Surrey ‘hit-and-run’ decision? And it is hard to envision why the Legislature would purposefully exclude PIP for such near-miss injuries or cases of indirect contact.”

The defendant’s attorney, Wystan M. Ackerman of Hartford, Connecticut, declined to comment in advance of the oral argument in Arbit.

Policy considerations

By its nature, PIP coverage is modest, the plaintiff in Arbit notes. Initially set at only $2,000 in total coverage in 1970, the PIP statute was amended in 1988 to provide up to $8,000, though if the victim has health, sickness or disability insurance, PIP coverage will not exceed $2,000 before that health, sickness or disability insurance becomes the primary insurance, and PIP will cover only deductibles and co-payments, the plaintiff’s brief explains.

“The whole function of PIP is to provide, within that small pool of money, a very prompt, almost no-questions-asked source of immediate payment of medical expenses and a couple of other types of expenses,” Powers said. “The PIP philosophy is: ‘For your immediate medical treatment, we’re going to make it very, very easy for you to be paid so that you don’t have to run around worrying about what insurance is going to pay for it and what kinds of co-pays or deductibles do I have to deal with.’”

The parties’ dispute here is not over whether there was an ‘accident’ within the meaning of the policy but whether [the injured pedestrian] was ‘struck by’ [the insured’s] automobile.

— defendant’s brief in Arbit

That “paltry” limit and the prevalence of health insurance will limit the impact of the Arbit decision on Massachusetts consumers, Conley noted.

However, if the plaintiff in Arbit loses and there is no PIP coverage, anybody who suffers an injury by virtue of a car coming at them without striking them would still be able to bring a negligence case, and there would be no tort threshold because the PIP does not apply, said Lowell attorney Michael C. Najjar, co-author of an amicus letter on behalf of the Massachusetts Academy of Trial Attorneys in Arbit.

“Policy-wise, you would think that you’d want to have the PIP apply,” Najjar said.

Because PIP is so modest, PIP coverage should be broad and prompt, and “rigid, narrow, hyper-literal denials” of PIP coverage are disfavored, the plaintiff in Arbit argues.

The Appeals Court has adopted such an approach in construing G.L.c. 90, §§34A and 34M, and the standard policy in cases such as White v. American Cas. Ins. Co., in which the court reversed summary judgment for an insurer in a case in which a driver honked his car’s horn seconds before a dog attacked him.

In reaching that decision, the court in White rejected a hyper-literal interpretation of the words “accident” and “arising out of the ownership, maintenance, or use of an auto,” the plaintiff in Arbit suggests.

If you mitigate your damages by diving out of the way and narrowly avoiding physical contact, are you supposed to be penalized from having quick and speedy payment for your initial medical expenses?

— Kevin J. Powers, Mansfield

But White has nothing to do with the Arbit case, the defendant counters.

“The parties’ dispute here is not over whether there was an ‘accident’ within the meaning of the policy but whether [the injured pedestrian] was ‘struck by’ [the insured’s] automobile,” the defendant’s brief states.

In the uninsured motorist context, the Appeals Court in cases like Commerce Ins. Co. v. Mendonca in 2003 has shown concern for not leaving “coverage gaps,” the plaintiff notes.

“PIP doesn’t just cover walking pedestrians,” Powers said. “It covers equestrians. It covers bicyclists. It’s regardless of fault. It’s regardless of negligence. It’s regardless of recklessness. It’s regardless of intentionality. The whole function of PIP is, because it’s this very, very small pool of money, we’re not going to get into the long and tortured road of traditional tort litigation in order for these initial expenses to be paid.”

But even if the plaintiff is right about the policy underlying PIP coverage, that would not give the Appeals Court license to disregard or alter the plain language of the policy and G.L.c. 90, §34A, the defendant argues.

“Vague and general legislative goals — and Arbit cites nothing specific in Section 34M — cannot trump the specific, unambiguous text of the PIP statute and policy,” the defendant’s brief states.

Unintended consequences, irony

If PIP is construed as requiring direct physical contact with a vehicle, there would be numerous unintended consequences, the Massachusetts Academy of Trial Attorneys argues in its letter in support of the plaintiff in Arbit.

“The injured person would have restricted treatment options, the vehicle operator (exposed to liability with or without PIP) would lose $8,000 of an offset, and the medical provider who assumed PIP was primary when the word ‘automobile’ came up in the patient’s history, might well run afoul of time limitations when billing the health insurer and would either have worked for free or charge the patient personally,” MATA’s letter reads.

“I’m guessing there are a lot of medical providers who’ve always billed [against PIP] and gotten it,” Najjar said. “They’re going to have to be very alert.”

The person injured in Arbit was, in fact, “struck,” just by the ground and not by the vehicle, MATA’s letter notes.

The letter also highlights the standard and supplemental jury instructions on assault and battery, which do not limit the touching element to direct contact between the assailant and an alleged victim. Under those instructions, assault can include a circumstance in which the assailant puts someone in fear of bodily harm and that person is then injured trying to escape.

In Arbit, the injured person dove out of the way of the car, and “it would be ironic if PIP benefits were voided by her athleticism, but available if she were less agile and had been struck by the vehicle,” the MATA letter states.

Powers agrees and hopes the Appeals Court will as well.

“If you mitigate your damages by diving out of the way and narrowly avoiding physical contact, are you supposed to be penalized from having quick and speedy payment for your initial medical expenses as a result of the fact that you did the right thing and managed to just barely get out of the way, but you happened to be injured in the process?” he asked rhetorically. “I don’t think that that result makes sense.”