On the motorcycle and hit again – Is there coverage?

Key Takeaway

New York no-fault does not pay motorcycle riders or passengers for their own injuries. In Boyson v Kwasowsky the Fourth Department went one step further: a passenger who was thrown from a motorcycle and hit by the same bike seconds later was still “occupying” it, so neither her household’s auto policy nor the pickup truck’s policy owed her first-party benefits. The fight in these cases is almost never about the exclusion itself. It is about the moment a rider stops being an occupant.

Last reviewed: September 2026 (source check against the reported opinion, Insurance Law article 51 and 11 NYCRR 65-1.1). Originally published May 27, 2015. Jason’s original note is preserved below, separate from the later explanation.

Why motorcyclists have no no-fault in New York

New York’s no-fault system is built around the “motor vehicle,” and the statute deliberately leaves motorcycles out of that term. Insurance Law § 5102(f) defines a motor vehicle by reference to the Vehicle and Traffic Law and then says it “shall not include … a motorcycle.” A motorcycle gets its own definition in § 5102(m).

That single drafting choice drives everything else:

• No first-party benefits from any auto policy. § 5103(a)(1) requires an auto policy to pay first-party benefits to “[p]ersons, other than occupants of another motor vehicle or a motorcycle.” The mandatory personal injury protection endorsement in 11 NYCRR 65-1.1 repeats the point as exclusion (e): the coverage does not apply “to a personal injury sustained by any person while occupying a motorcycle.”
• Pedestrians hit by a motorcycle are covered. The motorcycle owner’s own policy carries a first-party endorsement that pays basic economic loss to people injured by the insured motorcycle who were not occupying a motorcycle or motor vehicle. The rider and passenger are the only people the system leaves out.
• The serious-injury threshold usually does not apply to the rider. § 5104(a) bars pain-and-suffering recovery “except in the case of a serious injury” only in actions between “covered persons.” A covered person under § 5102(j) is a pedestrian, owner, operator or occupant of a motor vehicle. Because a motorcycle is not a motor vehicle, a rider suing a negligent driver generally does not have to clear the threshold. That is the trade-off the legislature struck.

It was not always this way. As the Boyson court recounts, former Insurance Law § 672(1)(a) treated motorcyclists “on a par with pedestrians,” and the Court of Appeals confirmed as much in Perkins v Merchants Mut. Ins. Co., 41 NY2d 394 (1977). The legislature amended the statute the same year (L 1977, ch 892, § 9) to stop treating motorcycle occupants “as pedestrians rather than motorists [who] … enjoy the benefits of no-fault at no cost.” Section 5103(a)(1) is the successor to that amendment.

So the exclusion is settled. What is litigated is its edge: at what point in a crash does a person stop “occupying” the motorcycle?

The accident in Boyson

Boyson v Kwasowsky, 129 AD3d 151, 2015 NY Slip Op 03964, was decided May 7, 2015 by the Appellate Division, Fourth Department (Sconiers, J.; Scudder, P.J., Centra, Peradotto and Garni, JJ., concurring).

On April 22, 2011, Karen Boyson was a passenger on a motorcycle owned and operated by her husband, Carl Boyson. They were heading west on Route 49 in the Town of Vienna when he pulled into the eastbound lane to pass a recreational vehicle. A pickup truck owned by Irene Kwasowsky and driven by Bohdan Kwasowsky was coming the other way. The opinion describes what happened next as one continuous sequence:

1. To avoid the pickup, Carl Boyson veered left and dropped the motorcycle on its side, throwing both riders off.
2. The motorcycle slid into the front of the pickup and became airborne.
3. The motorcycle landed on Karen Boyson.

Two policies were in play. The Boysons had two vehicles insured under a Kemper Independence auto policy. The Kwasowsky pickup was insured by Farm and Family Casualty. Each policy excluded no-fault coverage for “personal injury sustained by … [a]ny person while occupying a motorcycle,” and each defined “occupying” as “in or upon or entering into or alighting from.”

Her claim was carefully framed. She conceded she was occupying the motorcycle when it went down and did not seek benefits for the injuries from hitting the ground. She sought first-party benefits only for the injuries from the motorcycle landing on her, arguing that there were two accidents: the first while she was an occupant, the second while she was a pedestrian lying on the pavement. Supreme Court disagreed and granted summary judgment to both carriers.

Jason’s original note: May 2015

The original facts and question are preserved below, with paragraph breaks added. The note uses “Farm Family” as shorthand; the opinion identifies Farm and Family Casualty Insurance Co.

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.

That answer belongs to this case and this sequence. The rest of this page explains why the court reached it and where its reasoning stops.

”Occupant” versus “occupying”: the distinction the case turns on

The Fourth Department started where every New York occupancy case starts, with Colon v Aetna Cas. & Sur. Co., 48 NY2d 570 (1980). Mr. Colon had gotten out of his disabled car and spent about twenty minutes standing six or seven feet behind it, waving oncoming traffic away, when he was struck by another vehicle. The Court of Appeals held he was not an “occupant” of his own car. For the no-fault statute, the word “occupant” gets “its normal, dictionary meaning,” and a man standing on the highway is not, in ordinary English, occupying a car. He was therefore not excluded from the striking vehicle’s no-fault coverage.

Colon also rejected an argument that matters enormously in Boyson. Aetna wanted the statutory word “occupant” read the way the MVAIC statute defines “occupying”: “in or upon or entering into or alighting from” (former § 617, now § 5217). That broader phrase had long been held to reach anyone who is “vehicle oriented.” Under Matter of Rice v Allstate Ins. Co., 32 NY2d 6, 11 (1973), a person can be vehicle oriented without touching the vehicle, as long as the separation is temporary and brief and “there has been no severance of connection with it.” The Court of Appeals refused to import that expansive reading into the statute.

Here is the twist. The Kemper and Farm and Family policies did not use the statute’s “unembellished word ‘occupant.’” They used the MVAIC formula, word for word. So the Fourth Department acknowledged that Ms. Boyson arguably was not an occupant of the motorcycle “within the ordinary and customary meaning of that term when she was lying on the ground.” The question under the policies was different: was she still “occupying” the motorcycle in the broader, vehicle-oriented sense?

That is why the earlier version of this note went wrong when it described a statutory “vehicle-oriented test.” The test comes from the policy definition and from Rice, not from § 5103. Reading the statute and the endorsement together is the whole exercise.

How the court answered it

No New York case had addressed a rider thrown from a motorcycle and hurt again moments later, and the opinion candidly surveys a split elsewhere. Florida and Washington courts had held that a thrown rider continued to occupy the motorcycle (Dunlap v United States Auto. Assn., 470 So 2d 98; Farmers Ins. Co. of Washington v Clure, 702 P2d 1247). Pennsylvania, New Hampshire, a later Washington Supreme Court decision and Colorado had gone the other way (Swarner v Mutual Benefit Group, 72 A3d 641; Miller v Amica Mut. Ins. Co., 931 A2d 1180; Mid-Century Ins. Co. v Henault, 905 P2d 379).

The Fourth Department found the organizing principle in the facts of those cases. Where occupancy was held to have ended, “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.”

Ms. Boyson’s case did not fit that pattern:

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.

Three facts carried the decision: the thing that hit her was the same motorcycle she had been riding, it hit her immediately, and the same pickup that caused the ejection is what launched the bike. One cause, one chain, one accident.

One procedural note for practitioners. The court agreed with the carriers on coverage but held that Supreme Court should have declared the parties’ rights rather than dismissing the complaint (Pless v Town of Royalton, 185 AD2d 659, affd 81 NY2d 1047). The judgment was modified to declare that Ms. Boyson was not entitled to first-party benefits, additional PIP or optional basic economic loss under the Kemper policy, and not entitled to first-party benefits under the Farm and Family policy. In a declaratory judgment action, the losing party gets a declaration, not a dismissal.

What Boyson decides, and what it leaves open

Boyson is narrower than it is sometimes cited for. It holds that a rider who is ejected and then struck by the same motorcycle, immediately, in a chain set off by the same third vehicle, is continuously occupying the motorcycle under a policy that defines “occupying” as “in or upon or entering into or alighting from.”

It does not decide:

• The second-vehicle scenario. A rider goes down, lies in the road, and is then hit by a different car that had nothing to do with the first crash. The Fourth Department grouped the out-of-state cases finding no continued occupancy under exactly that “two accidents” description. A New York rider hurt that way has a genuine argument for pedestrian status and first-party benefits from the second vehicle’s policy. The question remains open in this state.
• A rider who walks away. Someone who dismounts after a crash, moves off the roadway and is struck minutes later is closer to Colon than to Boyson. Distance, time and purpose all matter, as the Second Department’s later decisions in Nakhla and J. Lawrence Constr. show for car occupants.
• A policy with different wording. The result depended on the policies’ MVAIC-style definition. An endorsement that uses the statute’s bare “occupant,” or a SUM endorsement that says “exiting from” instead of “alighting from,” has to be read on its own terms. Jason’s 2010 note on whether the SUM endorsement should be read differently from the no-fault endorsement is still the right starting point for that comparison.

The lesson for anyone reading a denial letter: find the definition of “occupying” in the actual endorsement, then map each injury to the exact moment and mechanism that caused it. Labels like “pedestrian” do no work on their own.

What this means if you were hurt on a motorcycle in New York

Your medical bills and lost wages are not no-fault’s problem. Neither your household auto policy nor the other driver’s policy owes you PIP for injuries you sustained while occupying the motorcycle. Health insurance, any medical-payments coverage on the motorcycle policy itself, and workers’ compensation if you were riding for work are the first-party sources to check.

Your real recovery is the liability claim. The claim against the negligent driver is where the injury is compensated, and because you are ordinarily not a “covered person,” you generally do not have to prove a serious injury under § 5104(a) to recover for pain and suffering. The motorcycle settlement guide walks through how those claims are valued, and the motorcycle accident practice page explains how we handle them.

Look at the motorcycle policy’s own uninsured and underinsured coverage. A hit-and-run or a minimally insured driver makes the motorcycle policy’s UM/SUM endorsement the most important document in the file.

If there is any chance you were a pedestrian when you were hurt, file for no-fault anyway. The mandatory endorsement requires written notice “as soon as reasonably practicable, but in no event more than 30 days after the date of the accident,” with late notice excused only on “clear and reasonable justification.” A carrier can deny; you can then litigate the denial, as Ms. Boyson did. A missed deadline is far harder to fix.

Lock down the sequence. Every one of these cases is decided on the order of impacts. Preserve the police report and any reconstruction, photographs of the scene and resting positions, dash-camera or surveillance video, and the accounts of every witness, including which vehicle struck you, how long after you went down, and where you were.

Documents that make a coverage review useful

• The declarations page and every endorsement for each policy that could respond: your household auto policy, the motorcycle policy, and the other vehicle’s policy.
• Each denial letter, with the provision the carrier relied on.
• The police accident report and any supplemental reports.
• Photographs, video and the identity of each witness.
• Medical records that tie specific injuries to specific impacts where that is possible.

These materials let counsel test whether Boyson actually fits your facts or whether you are in the open second-vehicle scenario. They do not promise coverage or establish liability.

For a coverage dispute of this kind, see our no-fault work. For an injury claim after a crash, request a Free Case Review. This historical note is educational, not individual legal advice.

Related reading

• What to do after a motorcycle accident in New York
• New York motorcycle helmet laws
• Motorcycle accident settlement amounts in New York
• Use and occupation: GEICO v Nakhla on the taxi driver hit while checking damage (2016)
• Occupied? Pedestrian? J. Lawrence Constr. v Republic Franklin (2016)
• The buckling knee when exiting (2015)
• Use, operation and proximate cause liberally construed to afford coverage (2013)
• Should the SUM endorsement be read differently than the no-fault endorsement? (2010)
• Occupation of a vehicle while rearranging items inside it from outside (2010)
• New York No-Fault Insurance Law hub

Sources

• Boyson v Kwasowsky, 129 AD3d 151 (4th Dept 2015)
• Insurance Law § 5102 (definitions), § 5103 (first-party benefits), § 5104 (covered persons and the serious-injury threshold), § 5217 (MVAIC definition of “occupying”)
• 11 NYCRR 65-1.1 (mandatory PIP endorsement: exclusions, definition of “occupying,” 30-day notice)
• Colon v Aetna Cas. & Sur. Co., 48 NY2d 570 (1980); Matter of Rice v Allstate Ins. Co., 32 NY2d 6 (1973); Perkins v Merchants Mut. Ins. Co., 41 NY2d 394 (1977), as discussed in Boyson