ARBIT v. STANDARD FIRE INSURANCE COMPANY (2025)

The plaintiff, Jordan J. Arbit, doing business as Arbit Chiropractic (Arbit), submitted a personal injury protection (PIP) claim with the defendant, The Standard Fire Insurance Company (Standard Fire), to obtain payment for medical services provided to treat a patient. The patient had been injured in a fall while walking backward to get out of the way of an oncoming motor vehicle. Standard Fire, which insured the driver, denied coverage on the basis that the driver's motor vehicle did not hit the patient. This lawsuit followed, and a summary judgment entered in favor of Standard Fire. Arbit appealed from the summary judgment to the Appellate Division of the Boston Municipal Court Department (Appellate Division), which affirmed. Arbit now appeals from the decision of the Appellate Division. Because the Commonwealth's no-fault automobile insurance law provides that a pedestrian must be “struck” by an insured's motor vehicle to qualify for PIP benefits, see G. L. c. 90, §§ 34A, 34M, we affirm.³

1. Background. We take the facts in the light most favorable to the party against whom summary judgment entered, here, Arbit. See HSBC Bank USA, N.A. v. Morris, 490 Mass. 322, 326-327, 190 N.E.3d 485 (2022).

On November 21, 2019, Alfred Bibby was turning into a shopping center in his car. At the same time, Guerda Henry was attempting to cross a walkway near the entrance to the shopping center on foot. Henry, seeing Bibby's car coming toward her, started to run backward, fell to the ground, and was injured. Bibby stopped his car so that it did not hit Henry. Following Henry's fall, she received medical services from Arbit to treat her injuries.

At the time of the incident, Bibby had a motor vehicle liability policy with Standard Fire. Pursuant to the no-fault automobile insurance law, see G. L. c. 90, §§ 34A, 34M, Bibby's policy included PIP provisions that required Standard Fire to pay PIP benefits on behalf of a “pedestrian ․ if struck by your auto in Massachusetts.” Arbit submitted a claim with Standard Fire under these provisions for the medical services provided to treat Henry. Standard Fire denied coverage on the basis that Bibby's car did not hit Henry. Arbit then brought suit, alleging that Standard Fire's denial violated the no-fault automobile insurance law and G. L. c. 93A.⁴

2. Discussion. The question on appeal is whether a pedestrian who is injured in a fall while trying to get out of the way of an oncoming motor vehicle -- but who is not hit by the motor vehicle -- qualifies for PIP benefits. The question is governed by the no-fault automobile insurance law, which requires motor vehicle liability policies to provide PIP benefits and sets forth the details of those benefits. See G. L. c. 90, §§ 34A, 34M. See also Amica Mut. Ins. Co. v. Bagley, 28 Mass. App. Ct. 85, 90, 546 N.E.2d 184 (1989) (interpreting policy language to be consistent with what statute prescribes). We review this question of statutory interpretation de novo. See Meyer v. Veolia Energy N. Am., 482 Mass. 208, 211, 121 N.E.3d 1221 (2019).

a. Principles of statutory construction. In interpreting the no-fault automobile insurance law, we are guided by the following fundamental approach to statutory interpretation:

“[A] statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.”

Vita v. New England Baptist Hosp., 494 Mass. 824, 834, 243 N.E.3d 1185 (2024), quoting Harvard Crimson, Inc. v. President & Fellows Of Harvard College, 445 Mass. 745, 749, 840 N.E.2d 518 (2006). “[O]ur analysis begins with the principal source of insight into legislative intent -- the plain language of the statute” (quotations and citation omitted). Patel v. 7-Eleven, Inc., 489 Mass. 356, 362, 183 N.E.3d 398 (2022), S.C., 494 Mass. 562, 240 N.E.3d 765 (2024). “We derive the words’ usual and accepted meanings from sources presumably known to the statute's enactors, such as their use in other legal contexts and dictionary definitions” (citation omitted). Curtatone v. Barstool Sports, Inc., 487 Mass. 655, 658, 169 N.E.3d 480 (2021).

b. No-fault automobile insurance law. General Laws c. 90, § 34M, first par., requires all motor vehicle liability policies in Massachusetts to provide PIP benefits as a form of no-fault automobile insurance. See Ortiz v. Examworks, Inc., 470 Mass. 784, 787, 26 N.E.3d 165 (2015); Creswell v. Medical W. Community Health Plan, Inc., 419 Mass. 327, 328, 644 N.E.2d 970 (1995). PIP benefits “provide payment for medical and other designated expenses by the insurer to the insured” -- and certain other individuals, including any pedestrian struck by the insured's motor vehicle -- “regardless of whether the insured was at fault in causing the accident that resulted in the bodily injury” (footnote omitted). Simmons v. Chace, 105 Mass. App. Ct. 550, 553-554, 262 N.E.3d 231 (2025). See G. L. c. 90, § 34A. The benefits “are granted in lieu of damages otherwise recoverable by the injured person ․ in tort as a result of an accident occurring within [Massachusetts].” Simmons, supra at 554, 262 N.E.3d 231, quoting G. L. c. 90, § 34M, first par.

The “principal innovation” of this legislative scheme is that injured parties “are entitled to immediate payment of their actual costs, e.g., medical costs, wages and certain incidental expenses, and in exchange surrender, to a limited extent, ․ their right to recover damages in tort actions.” Chipman v. Massachusetts Bay Transp. Auth., 366 Mass. 253, 256, 316 N.E.2d 725 (1974).⁵ PIP benefits thereby “reduce the number of small motor vehicle tort cases being entered in the courts of the Commonwealth” and “provide a prompt, inexpensive means of reimbursing claimants for out-of-pocket expenses.” Flanagan v. Liberty Mut. Ins. Co., 383 Mass. 195, 198, 417 N.E.2d 1216 (1981).

The details of PIP benefits -- including who qualifies for the benefits -- are set forth in the statutory definition of PIP. See G. L. c. 90, § 34A. As pertinent here, the statute defines PIP as the “provisions of a motor vehicle liability policy ․ which provide for payment to ․ any pedestrian struck by the insured's ․ motor vehicle” (emphasis added). G. L. c. 90, § 34A. Therefore, to qualify for PIP benefits, a pedestrian must be “struck” by an insured's motor vehicle.

c. Whether physical contact is required. The plain meaning of “struck” requires physical contact. “Struck” is the past tense of “strike,” which means “to come into contact or collision.” Webster's Third New International Dictionary 2262 (2002).⁶ Moreover, this definition is consistent with how the Legislature has used the words “struck” and “strikes” in other statutes. See G. L. c. 90, § 34O (limited collision coverage applies where “insured motor vehicle is struck in the rear”). See also G. L. c. 269, § 12G (setting forth penalties for intentional or reckless discharge of firearm that “strikes a dwelling or other building”). Applying the plain meaning of the word “struck,” we agree with Standard Fire that a pedestrian must have some form of physical contact with an insured's motor vehicle to qualify for PIP benefits.⁷ See Patel, 489 Mass. at 362, 183 N.E.3d 398; Curtatone, 487 Mass. at 658, 169 N.E.3d 480. See also Pennsylvania Nat'l Mut. Cas. Ins. Co. v. Burnetti, 259 Ga. 794, 794-795, 387 S.E.2d 570 (1990) (interpreting similar statutory language to require some form of physical contact); Miller v. United States Fid. & Guar. Ins. Co., 112 Idaho 955, 957, 738 P.2d 425 (1987) (same); Ingraham v. Travelers Cos., 217 N.J. Super. 126, 128-129, 524 A.2d 1319 (App. Div. 1987), aff'd, 110 N.J. 67, 539 A.2d 733 (1998) (same); Early Settlers Ins. Co. v. Jordan, 217 Va. 462, 466, 229 S.E.2d 871 (1976) (same).⁸

We are not persuaded by Arbit's arguments that the word “struck” should be interpreted more broadly.⁹ Arbit relies on House Bill No. 1435 (Jan. 7, 1970), an early no-fault insurance proposal, which used the phrase “pedestrians struck by the insured motor vehicle” in one place and “pedestrians injured by the insured motor vehicle” in another. Arbit asserts that because the bill used the two phrases interchangeably, we should interpret “struck by” in G. L. c. 90, § 34A, to include “injured by.” However, as Arbit acknowledges, § 34A was not enacted from House Bill No. 1435, which was one of several proposals that the Senate committee on insurance consolidated into an altogether different bill that eventually became the no-fault insurance statute. See Senate Bill No. 1430 preamble (May 18, 1970). The portion of House Bill No. 1435 using the language “injured by” did not make it into the consolidated bill or the enacted statute, and we therefore cannot infer that when the Legislature said “struck by” it actually meant “injured by.” See Gravito vs. Commonwealth, 496 Mass. 756, 765 n.14, 270 N.E.3d 553 (2025) (“we do not derive the meaning of statutes from unenacted legislation”). To the contrary, the omission of that language suggests that the terms were not intended to be interchangeable. See MacCuish v. Volkswagenwerk A.G., 22 Mass. App. Ct. 380, 394 & n.19, 494 N.E.2d 390 (1986) (deletion from proposed legislation of paragraph allowing recovery for grief, anguish, and bereavement “suggest[ed] that the Legislature did not intend to allow compensation for the items omitted”). Regardless, “[w]e need not turn to legislative history,” where, as here, “the statutory language is clear and unambiguous.” Doe No. 99 v. Cheffi, 105 Mass. App. Ct. 704, 710, 267 N.E.3d 96 (2025).

Arbit also relies on Surrey v. Lumbermens Mut. Cas. Co., 384 Mass. 171, 424 N.E.2d 234 (1981), to argue that the Supreme Judicial Court has “reject[ed] arbitrary physical contact requirements” when the Legislature has used words such as “hit” and “struck.” Surrey does not stand for that proposition. In Surrey, the Supreme Judicial Court construed the phrase “hit and run” to include accidents with no physical contact. See id. at 176, 424 N.E.2d 234 (“Absent explicit legislative requirement that physical contact be shown, we can attribute no such connotation to the term ‘hit-and-run’ as used in G. L. c. 175, § 113L”). In interpreting that phrase, the Supreme Judicial Court applied the same principles of statutory construction that we apply here. Looking to dictionary definitions and the Legislature's use of the phrase in other statutes, the court concluded that “hit and run” is a nonliteral expression describing any car accident where the driver flees the scene, regardless of whether the fleeing driver's car hits another car or causes an accident in some other way. See id. See also Commerce Ins. Co. v. Mendonca, 57 Mass. App. Ct. 522, 524, 784 N.E.2d 43 (2003) (describing “nonliteral approach” to interpretation used in Surrey). In sum, Surrey stands for the proposition that the phrase “hit and run” has a broader use in the lexicon than the word “struck,” not that we should interpret “struck” beyond its plain meaning.

We further decline to interpret “struck” beyond its plain meaning where doing so would add unnecessary ambiguity to the statute. This case illustrates the problems that could arise. Henry and Bibby provided different versions of the circumstances surrounding Henry's fall.¹⁰ Henry stated that Bibby drove his car into the middle of the crosswalk that Henry was trying to cross and that she had to run backward to get out of the way. However, according to Bibby, he had just started turning into the shopping center when he saw Henry -- who was standing on the side -- back up and trip over a luggage bag. If we were to interpret “struck” to include accidents with no physical contact, courts would be left without clear legislative guidance on how close Bibby had to be to hitting Henry for Henry to qualify for PIP benefits.¹¹ In sum, a broad interpretation of “struck” would “becloud the statute.” Pennsylvania Nat'l Mut. Cas. Ins. Co., 259 Ga. at 795, 387 S.E.2d 570. See, e.g., Hamric v. Doe, 201 W. Va. 615, 620, 622, 499 S.E.2d 619 (1997) (interpreting similar statutory language as not requiring physical contact of any kind where independent evidence corroborates driver's negligence).¹²

Lastly, interpreting “struck” according to its plain meaning, and leaving it to the Legislature to amend the statute if it chooses, serves the objectives of the no-fault automobile insurance law. As discussed above, the no-fault law is intended to provide a prompt, inexpensive means of reimbursing individuals injured in automobile accidents, thereby reducing the number of small motor vehicle tort cases. See Flanagan, 383 Mass. at 198, 417 N.E.2d 1216. Following the Legislature's clear guidance regarding who qualifies for PIP benefits advances those objectives, but creating ambiguity through judicial decision-making does not. See Carpenter v. Suffolk Franklin Sav. Bank, 370 Mass. 314, 327, 346 N.E.2d 892 (1976) (discussing “advantages of legislative law reform as compared with reform by judicial decision”). Although it may seem counterintuitive that a pedestrian who jumps out of the way of an oncoming motor vehicle is worse off (legally, not physically) than one who is struck by the vehicle, 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. Given the clear and unambiguous language of the statute as currently written, we must affirm.¹³

Decision and order of the Appellate Division affirmed.

FOOTNOTES

3.   We acknowledge the amicus letter of the Massachusetts Academy of Trial Attorneys.

4.   Where we conclude that Standard Fire properly denied coverage and Arbit does not raise any separate issues as to the dismissal of the c. 93A claim, we do not address that claim further.

5.   If an injured party does not qualify for PIP benefits, the tortfeasor is not made exempt from liability for damages. See Figuereo v. Valverde, 60 Mass. App. Ct. 76, 78, 799 N.E.2d 141 (2003).

6.   Arbit argues that the word “strike” alternatively means an unsuccessful attempt to try to hit something. However, nothing in the summary judgment record here suggests that Bibby was trying to hit Henry.

7.   We specifically do not address whether the word “struck” includes accidents involving indirect physical contact. Most courts that have addressed the issue have concluded that the word “struck” includes the sort of indirect physical contact that occurs when a motor vehicle knocks an intermediate object into a pedestrian. See Maryland Auto. Ins. Fund v. Erie Ins. Exch., 105 Md. App. 377, 385-386, 660 A.2d 929 (1995) (noting majority view). Those cases are inapposite here, as Bibby's car did not knock an intermediate object into Henry. As that scenario is not before us, we do not decide whether a pedestrian who is hit by an intermediate object qualifies for PIP benefits.

8.   Although some State courts have interpreted similar statutory language as not requiring physical contact of any sort, we are not persuaded by those decisions. Hamric v. Doe, 201 W. Va. 615, 621-622, 499 S.E.2d 619 (1997), holds that there is coverage if (1) but for a pedestrian's evasive action, physical contact would have occurred and (2) independent evidence, such as the testimony of disinterested individuals, can corroborate the driver's negligence. Amica Mut. Ins. Co. v. Cherwin, 673 So. 2d 112, 113-114 (Fla. Dist. Ct. App. 1996), holds that there is coverage if the motor vehicle was the proximate cause of the injury. Were we to follow these cases, we would depart from the principle that we must interpret statutory language according to its plain meaning.

9.   We note that the Legislature specifically defined the word “pedestrian” beyond its plain meaning to include bicyclists, see G. L. c. 90, § 34A; it similarly could have defined “struck” beyond its plain meaning, but chose not to do so. See Pilotte v. Aetna Cas. & Sur. Co., 384 Mass. 805, 806, 427 N.E.2d 746 (1981) (declining to interpret “pedestrian” to include those in stationary motor vehicles where Legislature used clear language to include those on bicycles, tricycles, horses, or in carriages drawn by animal).

10.   As this case was decided on summary judgment, we take the facts in the light most favorable to the party against whom summary judgment entered. See HSBC Bank USA, N.A., 490 Mass. at 326-327, 190 N.E.3d 485. Here, that means assuming Henry's version of the events to be true. However, we describe Bibby's version of the events to show the difficulties that could arise on remand if we were to conclude that the word “struck” does not require physical contact.

11.   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. However, the answers to those questions do not resolve whether Henry qualified for PIP benefits, which instead turns on whether Bibby “struck” Henry. As noted, if we were to interpret “struck” beyond its plain meaning, the problem is that courts would be left without clear legislative guidance on what sort of near misses qualify as striking a pedestrian.

12.   Another case from Kansas shows how far the arguments could go. In Pestock v. State Farm Auto. Ins. Co., 9 Kan. App. 2d 188, 188-189, 674 P.2d 1062 (1984), the plaintiff sought PIP benefits for psychiatric care she received after her daughter was struck and killed by a motor vehicle. The plaintiff, who was not present at the time of the accident, argued that there was a sufficient causal connection between the insured's use of his motor vehicle and her injuries for her to receive PIP benefits under statutory language similar to the language at issue here. Id. at 189, 674 P.2d 1062. The court summarily rejected this argument. Id. at 189-190, 674 P.2d 1062.

13.   Arbit's request for appellate attorney's fees is denied.

GRANT, J.