A pedestrian suddenly sees a speeding vehicle and scrambles to get out of the way. In avoiding being hit, they fall and suffer serious injury, but the speeding vehicle never touches them.
In such situations, the Massachusetts auto insurers have assumed that their policies’ Personal Injury Protection (PIP) benefits require physical contact between the vehicle and the pedestrian. In a recent appellate case, a plaintiff tested this, arguing that a “near miss” causing injury should trigger no-fault benefits just as a direct collision would.
In a decision that reinforces the strict textual interpretation of the state’s mandatory PIP insurance, the Appeals Court ruled there was no coverage absent contact.
In the case of Jordan J. Arbit, D.C., d/b/a Arbit Chiropractic v. The Standard Fire Insurance Company, the Court affirmed that under G.L. c. 90, § 34A, a pedestrian must be physically impacted by a vehicle to be considered “struck.” The ruling upholds the denial of PIP benefits for non-contact injuries, clarifying that while “close” may count in horseshoes, it does not count for no-fault auto benefits.
On January 8, 2016, the plaintiff filed an application for further appellate review with the Supreme Judicial Court, requesting the state’s highest court to review the Appeals Court’s decision. Standard Fire has twenty days to file its opposition to the Plaintiff’s application.
The Incident: A Fall Without Contact
The facts of the case, from November 21, 2019, are largely undisputed but legally distinct. Alfred Bibby was driving toward the entrance of a shopping center. At the same time, Guerda Henry was walking across the entrance.
According to the record, Henry saw the vehicle approaching, became startled, and “ran backward” to avoid being hit. In doing so, she fell and was injured. Bibby stopped his vehicle before reaching her; all parties agreed the vehicle never made contact with Henry.
Henry sought treatment for her injuries from the plaintiff, Jordan J. Arbit, D.C., who then submitted a claim for PIP benefits to Bibby’s insurer, The Standard Fire Insurance Company (a Travelers company). Standard Fire denied the claim because the pedestrian was not “struck by” the insured vehicle, a condition required for PIP coverage under both the standard Massachusetts Auto Policy and the statute.
The “Spirit of the Law” vs. The Letter of the Law
The plaintiff’s case argues for a broader, functional interpretation of the PIP statute. Attorney Kevin Powers, representing Arbit Chiropractic, urged the Court to adopt a “non-literal approach.” He argued that because the vehicle’s operation was the proximate cause of the pedestrian’s evasive action and injury, the legal requirement of being “struck” should be satisfied.
During oral arguments, Attorney Powers contended that the court should value “the purpose of the law, the spirit of the law over a hyper-literal letter of the law.”
The plaintiff anchored this argument heavily on the 1981 Supreme Judicial Court decision in Surrey v. Lumbermens Mut. Cas. Co. In Surrey, the SJC ruled that physical contact was not required to trigger “hit-and-run” coverage under the uninsured motorist statute. The plaintiff argued that just as “hit-and-run” was interpreted broadly to include non-contact accidents that caused injury, “struck” should receive similar treatment to avoid a coverage gap.
The Court’s Ruling: Plain Meaning Prevails
Writing for the panel, Justice Grant rejected the Surrey analogy and affirmed the insurer’s summary judgment. The Court drew a clear distinction between the idiomatic noun phrase “hit-and-run” and the transitive verb “struck.”
The Court reasoned that “hit-and-run” is a colloquial term that focuses on the driver’s conduct—fleeing the scene—rather than the mechanics of the impact. In contrast, the word “struck” carries a specific, plain meaning implying physical impact.
“We further decline to interpret ‘struck’ beyond its plain meaning where doing so would add unnecessary ambiguity to the statute,” Justice Grant wrote.
To support this textual analysis, the Court examined the legislative history of the No-Fault Act. In 1970, an early draft proposed coverage for “pedestrians injured by the insured’s… motor vehicle.” The final statute replaced “injured by” with “struck by.”
The Court saw this change as deliberate legislative intent to limit coverage. By choosing the narrower verb “struck,” the Legislature signaled that causation alone—being “injured by” the presence of a car—was not enough to trigger PIP benefits.
The “Slippery Slope” of Causation
Beyond the text, the Court expressed concern about the practical application of the plaintiff’s definition. The Massachusetts PIP system is designed for prompt, inexpensive resolution of minor claims without fault determination.
The Court reasoned that expanding “struck” to include “near misses” would force claims adjusters and courts into complex causation analyses ill-suited for the no-fault system. Without physical contact as the bright-line test, the industry would struggle to determine which non-contact reactions qualify for coverage.
“If we were to interpret ‘struck’ beyond its plain meaning,” the decision stated, “the problem is that courts would be left without clear legislative guidance on what sort of near misses qualify as striking a pedestrian.”
The Tort Remedy Remains
The plaintiff argued that a strict reading of the statute creates an inequitable “gap” in coverage. Under the Court’s ruling, a pedestrian, quick enough to dodge being hit by a car but injured in the process, is denied immediate PIP benefits. In contrast, a pedestrian who fails to avoid a moving vehicle is entitled to PIP benefits for their injuries.
The Court acknowledged this outcome but maintained that it is not the judiciary’s role to rewrite the statute to fill such gaps. “It is for the Legislature to amend the statute, if it so chooses, to identify any additional circumstances in which a pedestrian should qualify for PIP benefits,” the Court noted.
However, the denial of PIP benefits does not leave the injured pedestrian without legal recourse. This decision limits first-party no-fault benefits; it does not absolve the driver of third-party tort liability.
A “near miss” pedestrian claim now falls outside the PIP statute, but it remains a viable Bodily Injury (BI) liability claim if negligence can be proven. The pedestrian may still sue the driver for causing the fall, but must do so under the traditional tort system rather than the expedited no-fault system.
The Court explicitly preserved this avenue of recovery in Footnote 11 of the decision. While the factual dispute of the accident was irrelevant to the definition of “struck,” it remains central to a potential negligence suit.
“We do not mean to suggest that a court could not resolve the factual dispute of what happened or who was negligent — those questions are part of a court’s bailiwick,” the Court wrote. “However, the answers to those questions do not resolve whether Henry qualified for PIP benefits, which instead turns on whether Bibby ‘struck’ Henry.”
Owen Gallagher
Insurance Coverage Legal Expert/Co-Founder & Publisher of Agency Checklists
Throughout my legal career, I have argued numerous cases in the Massachusetts Supreme Judicial Court and assisted agents, insurance companies, and lawmakers with the complexities and nuances of insurance law in the Commonwealth.
Interested in contacting me? Call me directly at 617-598-3801.
