In an unpublished decision issued July 5, 2023, the Appellate Division held that a plaintiff injured while operating a low-speed electronic scooter did not qualify for Personal Injury Protection (“PIP”) benefits. See Goyco v. Progressive Insurance Co., No. A-3471-21, 2023 WL 4345423 (N.J. App. Div. Jul. 5, 2023).
In New Jersey, motorized scooters are generally considered in the same category as motorcycles, and therefore not subject to statutory PIP benefits. See Muto v. Kemper Reinsurance Co., 189 N.J.Super.417 ,422 (App. Div. 1983) (“A motorcycle does not fall within the definition of an automobile…”); see also Gerber v. Allstate Ins. Co., 161 N.J.Super. 543, 391 A.2d 1285 (Law Div. 1978) (holding that a motor scooter is a motorcycle); Bingham v. Home Indem. Co., 146 N.J.Super. 166, 369 A.2d 47 (Law Div.1976) (holding that a motorcycle is not an “automobile” and its operator is barred from PIP recovery).
One using a bicycle, on the other hand, fits the definition of “pedestrian” for the purposes of pedestrian PIP. See Harbold v. Olin, 287 N.J. Super. 35 (App. Div. 1996) (“A person riding a bicycle is considered a pedestrian for purposes of [New Jersey] automobile insurance laws.”). That is, as long as the bicycle was not motorized or self-propelled. Nunag by Nunag v. Pennsylvania Nat. Mut. Cas. Ins. Co., 224 N.J. Super. 753, 758, 541 A.2d 306, 308 (App. Div. 1988) (holding that mopeds are always to be considered as being vehicles propelled by other than muscular power).
In May of 2019, N.J.S.A. 39:1-1 definitions were modified to include “low-speed electric bicycles” and “low-speed electronic scooters,” in addition to motorized scooters. On May 13, 2019, New Jersey Governor Phil Murphy issued a press release explaining the bill S731 (N.J.S.A. 39:4-14.16) was passed so that “motorized scooters and e-bikes capable of traveling 20 miles per hour or slower [could] be regulated much the same as ordinary bicycles, allowing their operation on streets, highways, and bicycle paths in this State.” The press release further states that such bicycles and scooters will not require registration, insurance, or a driver’s license. Importantly, Governor Murphy stated that “[t]he bill further provides that all statutes, rules and regulations that apply to ordinary bicycles will apply to low-speed electric bicycles and motorized scooters.”
In Goyco, the plaintiff had sustained injury on November 22, 2021, when his Segway Ninebot KickScooter Max collided with a motor vehicle. He sought PIP benefits from his household automobile insurer. Progressive determined that he was ineligible as he was not in an automobile and he was not a pedestrian at the time of the accident. The plaintiff argued that a low-speed electronic scooter is equivalent to a bicycle, and he is therefore entitled to pedestrian PIP.
The Appellate Division noted that N.J.S.A. 39:6A-2(h) 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.” The Appellate Division placed emphasis on muscular power and that a low-speed electronic scooter is, by definition at N.J.S.A. 39:1-1, electronic and capable of being propelled without human propulsion.
The Appellate Division also dismissed plaintiff’s argument that the legislature applies PIP to low-speed electronic bicycles and scooters in N.J.S.A. 39:4-14.16:
The Court found that “by their very nature,” a low-speed electronic scooter does not qualify for PIP benefits.
Of interest, the Appellate Division did not discuss or give much effect to the second part of N.J.S.A. 39:6A-2(h) with regard to whether a scooter is “designed primarily for use on highways, rails and tracks.” Pursuant to the definition in N.J.S.A. 39:1-1, a low-speed electronic scooter cannot go faster than 19 miles per hour, and the device used by the plaintiff on November 22, 2021, specifically could not go faster than 15 miles per hour. While one may argue that such a scooter can technically operate on a highway, it would be a stretch to argue that a low-speed vehicle incapable of moving faster than 15 miles per hour is primarily designed to operate on one. This distinction is important as it is what separates motorcycles and bicycles, in addition to the use of human propulsion. Therefore, the rationale behind excluding both motorcycles and high speed motorized scooters may not apply to low-speed electronic scooters, which are primarily not driven on highways.
Comment: The unpublished decision in Goyco v. Progressive Insurance Co., No. A-3471-21, 2023 WL 4345423 (N.J. App. Div. Jul. 5, 2023) signals the New Jersey Court’s reluctance to fully embrace low speed electronic scooters and, likely, low speed electronic bikes under the pedestrian PIP provisions for No Fault Insurance. However, as this is a decision of first impression and it is not published, there may be further developments in this area of the law, including more explicit language in legislation in the near future.