Ejected Motorcycle Passenger Was “Occupying” the Bike and Hence Not Entitled to First-Party Benefits Under New York’s No-Fault System

Under New York’s “No Fault” automobile insurance system, first-party no-fault insurance benefits are not available to “occupants” of a motorcycle. But what exactly does it mean to be a motorcycle “occupant”?

Consider, for example, the following accident scenario: a motorcycle passenger is ejected from her motorcycle, the motorcycle becomes airborne, and then lands on the passenger, injuring her. These are the facts of Boyson v. Kwasowsky, decided by the Appellate Division, Fourth Department on May 8, 2015.

Plaintiff alleged that she was entitled to first-party benefits becasue she was injured as a pedestrian (rather than a motorcycle “occupant”). Specifically:

Plaintiff acknowledges that, at the inception of the events that produced her injuries, she was “occupying” the motorcycle within the meaning of those [insurance policy] exclusions. She therefore does not seek first-party benefits for all of the injuries she sustained during the incident. In particular, she does not seek such benefits with respect to the injuries she sustained when Boyson veered off the road and dropped the motorcycle, causing her to strike the ground. Instead, plaintiff seeks first-party benefits only for the injuries she sustained after the pickup truck collided with the motorcycle, propelling the latter into the air and causing it to land on her. Plaintiff postulates that there were two distinct accidents, the first occurring when she struck the ground and the second when the motorcycle landed on her. She contends that she was an occupant of the motorcycle only during the first accident and became a pedestrian during the second. Kemper and Farm and Family counter that plaintiff remained an occupant of the motorcycle throughout an unbroken chain of events that constituted a single accident.

No, said the court:

Case law in New York does not address the question whether a person in plaintiff’s position, who sustains injury after being thrown from a motorcycle, nevertheless continues “occupying” the motorcycle, and authority from other jurisdictions on that question is divided. …

In those cases holding that the occupancy of the motorcycle by the injured person had ceased, the facts supported a conclusion that there were two accidents, i.e., the first when the injured person was thrown to the pavement, and the second when that person was struck by another vehicle unconnected to the first accident. Here, however, plaintiff was injured by an impact with the motorcycle she was occupying, immediately following her accidental ejection from it. Her ejection, moreover, was the result of Boyson’s attempt to avoid a collision with the very pickup truck that propelled the motorcycle in plaintiff’s direction. Given those circumstances, we conclude that there was a single accident and that plaintiff was continuously “occupying” the motorcycle within the meaning of the exclusions of the Kemper and Farm and Family insurance policies. Although plaintiff was briefly separated from the motorcycle during the incident, she remained “vehicle oriented.” Her separation from the motorcycle did not transform her status from an occupant of the motorcycle to a pedestrian during the brief interval between striking the ground and being struck by the motorcycle.

Therefore, the insurance company defendants were entitled to judgment declaring that plaintiff is not entitled to first-party no-fault insurance benefits under either insurance policy.

Share This:
(212) 227-2100