On the motorcycle and hit again – Is there coverage?May 27, 2015

Boyson v. Kwasowsky, 2015 N.Y. Slip Op. 03964 (4th Dept. 2015)

Facts: Woman (a passenger) is dropped from motorcycle.  Vehicle that motorcycle avoided from hitting collided with the motorcycle, and the motorcycle went into the woman.  Woman sought no-fault benefits from vehicle that collided into motorcycle.
Question: Did this no-fault carrier (Kemper and Farm Family) have to provide coverage?
Answer: No.
(1) 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. Courts in other jurisdictions have held that the injured person continued to occupy the motorcycle for no-fault insurance purposes after being thrown from it.    Other courts have held that the injured motorcycle operator or passenger ceased occupying the motorcycle after being thrown from it.

(2) 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.

(3) We therefore agree with the court that plaintiff is not entitled to first-party no-fault insurance benefits under the Kemper and Farm and Family insurance policies

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