E-bikes, motorized scooters and mopeds are gaining nationwide popularity as folks seek out affordable, environmentally friendly transportation alternatives.
As compared to four-wheeled motor vehicles and even full-size motorcycles on the one hand, and standard foot scooters and foot pedal bicycles on the other, scooters, mopeds and E-bikes provide the best of both worlds. Like a foot scooter or standard bicycle, they are small, easy to park and easy maneuver around, yet like a full-size motorcycle or car, they are powered and can get around at speeds topping 20 to 40 miles per hour, which is more than sufficient to navigate crowded city streets. They are particularly popular among delivery workers who can zip past traffic and pull up right to their delivery destinations without the concern of finding available street parking.
Recognizing the popularity and the advantages of electric bikes and scooters, in June 2020, the City Council of New York City passed several pieces of legislation allowing or expanding the use of lower speed E-bikes and E-scooters (Local Laws 72, 73 and 74.)
Yet, the convenience and affordability also comes with a price in the form of injuries, sometimes fatal. According to a report by the United States Consumer Product Safety Commission (Micromobility Products- Related Deaths, Injuries and Hazard Patterns: 2017-2022), nationally, there was an estimated 222,500 emergency department visits related to E-scooter and E-bike use (169,300 and 53,200, respectively) in the years 2017 to 2022. Further, there were 233 fatalities associated with E-scooter and E-bike use (129 and 104, respectively) in those same years. Of those fatalities, 10 were pedestrians struck by E-scooters or E-bikes. These numbers are conservative and do not include injuries and fatalities associated with mopeds and other gas-powered scooters.
Notwithstanding the risks of operating scooters, E-bikes and mopeds, or perhaps because of such risks, New York no-fault insurance benefits may not be available to cover such injuries.
New York Insurance Law §5103 provides for first party no-fault benefits (i.e. payments to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle) to occupants of motor vehicles and to pedestrians. Specifically excluded are occupants of motorcycles.
The Insurance Law defines a motorcycle as “any motorcycle, as defined in section 123 of the vehicle and traffic law, and which is required to carry financial security pursuant to Article 6, 8 or 48-A of the vehicle and traffic law.” (Ins. Law §5102(m)). Vehicle & Traffic Law §123 defines a motorcycle as “Every motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground, but excluding a tractor.” A “motor vehicle” is defined in the Vehicle & Traffic Law as “Every vehicle operated or driven upon a public highway which is propelled by any power other than muscular power” (VTL §125).
Specifically excluded from the definition of motor vehicle are mobility scooters, snowmobiles, all-terrain vehicles, electric scooters weighing less than 100 pounds that are powered by an electric motor and which have a maximum speed of no more than 20 miles per hour (VTL §114-e) and bicycles with E-bikes) that stop providing assistance once the bicycle reaches twenty miles per hour (or 25 miles per hour in cities with a population of one million or more, of which New York City is the only one meeting that requirement) (VTL §102-c).
As a motorcycle must, by definition, be a motor vehicle, and as lightweight electric scooters, as defined in VTL §114-e, and electric assist bicycles, as defined in VTL §102-c, are excluded from the definition of motor vehicle, such scooters and bicycles cannot, therefore, be considered motorcycles.
With respect to gas powered scooters and mopeds, and electric scooters that weigh more than 100 pounds, Vehicle & Traffic Law Article 48-a (Registration of Limited Use Vehicles), Section §2265(3) provides that “The provisions of articles six, seven and eight of this chapter [requiring financial security in the form of insurance or self-insurance coverage] shall be applicable to limited use vehicles, except that the provisions of article six of this chapter shall not apply to class C limited use motorcycles. See, also, 15 NYCRR 102.3(b)(1) (“The provisions of articles 6, 7 and 8 of the Vehicle and Traffic Law relating to insurance shall be applicable to limited use vehicles, except that the provisions of article 6 (the Motor Vehicle Financial Security Act) shall not apply to class C limited use motorcycles”).
A limited use motorcycle is defined as “a limited use vehicle having only two or three wheels, with a seat or saddle for the operator.” Limited use motorcycles are classified as Class A (those limited use motorcycles with a maximum speed of more than 30 miles per hour but not more than 40 miles per hour), Class B (having a maximum speed of more than 20 miles per hour but not more than 30 miles per hour) and Class C (having a maximum performance speed of not more than 20 miles per hour). VTL §121-b.
As only motorcycles that are required to carry financial security (insurance or self-insurance coverage) are considered motorcycles under the Insurance Law and as Class C limited use motorcycles are not required to carry insurance/self-insurance coverage, such Class C limited use motorcycles are not considered motorcycles under the Insurance Law.
Thus, the occupant of (1) a lightweight electric scooter, (2) an E-bike and (3) a Class C limited use motorcycle, whose top motorized speed is 20 miles per hour or less (or 25 for electric assisted bicycles in New York City), would be eligible for no-fault insurance coverage in the same manner as a pedestrian or bicyclist.
Therefore, in most cases, the particular scooter’s/E-bike’s/moped’s top speed will be the relevant and determinative factor. Descriptive titles on police accident reports or claim forms may not be sufficient to prove the top speed of the vehicle and thus not be sufficient to prove that insurance is required. For example, in Englington Medical v. Motor Vehicle Accident Indemnification (81 A.D.3d 223 [2d Dept. 2011]), the court held:
Nevertheless, the use of the word “Mini–Bike” in the claim form, standing alone, is insufficient to establish whether [injured person’s] vehicle was or was not a class C motorcycle with a maximum speed of 20 miles per hour, because the critical factor in determining a motorcycle’s class is its maximum speed (see Vehicle and Traffic Law § 121–b). Thus, MVAIC failed to establish that the vehicle that [the injured person] was operating was either an uninsured motor vehicle for which she was required to carry insurance, or a motorcycle of a class which required her to carry insurance.
But see, Tyler v. Traveler’s Insurance (110 Misc. 2d 471 [Sup. Ct. Schenectady Cty. 1981) (The court accepted Plaintiff’s statement that he was operating a minibike, which would constitute a Class C motorcycle and thus make him eligible for no-fault benefits.) See, also, New Millenium Medical Imaging, v. MVAIC (61 Misc. 3d 145(A) [App. Term 2d, 11 & 13 Jud. Dists. 2018]) (Injured person’s claim form stated he was driving a motorcycle. Judgment after trial dismissing the complaint affirmed, “As plaintiff failed to establish that the motorcycle was a class C motorcycle, and thus that plaintiff’s assignor was eligible for first-party no-fault benefits”).
In terms of proving the top speed of a particular scooter or limited use motorcycle, a number of AAA no-fault arbitration awards issued on that topic discuss the submission of the scooter’s/motorcycle’s manufacturer specifications.
In most cases where the insurer prevailed in proving that the scooter was a Class A or B limited use motorcycle that required insurance (and thus the occupant was ineligible for no-fault benefits), the insurer obtained a detailed description of the scooter from photos of the scooter, the claimant’s elicited description of the scooter and/or from the scooter’s VIN. From that information, an internet search of the scooter revealed the manufacturer’s specifications, including the maximum speed of the scooter.
It should be noted that the rules of evidence in AAA arbitrations are relaxed, and therefore, the admissibility of such evidence, particularly manufacturer specifications obtained via the Internet, is near certain. For actions commenced in court, however, a different result may occur.
In those cases where the insurer did not prevail, the arbitrators found that the respondent insurer failed to submit sufficient evidence to prove that the top speed of the subject scooter exceeded 20 miles per hour. A recent case in point is Country-Wide Insurance Company v. Physical Therapy of New York (2024 NY Slip Op 30942(U) [Sup. Ct. NY Cty. 2024]). In that matter, the injured person alleged he was operating a motorized bike when he was struck by the insured’s automobile, and injured. The insurer, relying upon some conversations with the claimant’s attorney, alleged the injured person was operating a motorcycle, and was also in the course of employment at the time of the subject accident. The arbitrator ruled the evidence presented was inadequate and found in favor of the applicant medical provider.
Specifically, the arbitrator ruled, inter alia, “There is still conflicting evidence regarding whether the vehicle was a bicycle, motorcycle or motorized bike. And I note that certain motorized bikes would not be considered motorcycles as it depends on how many miles per hour, they are able to reach.”
On appeal, the master arbitrator affirmed. The insurer commenced an Article 75 proceeding to vacate the arbitration awards, and the court denied the petition and confirmed the arbitration awards, finding, “the lower arbitrator issued a well-reasoned decision that persuasively concluded that petitioner [the insurer] relied upon “uncorroborated” statements in support of its demand to disclaim coverage.”
Addressing the insurer’s argument that several prior arbitration awards in the insurer’s favor necessitated an award in its favor in this case, the court held, “The court also rejects petitioner’s assertion that this court is bound, under the principle of collateral estoppel, by the decision of a court of coordinate jurisdiction that found that the injured party was in the course of his employment. Respondent is not estopped by that decision as it was not a party to that arbitration or subsequent Supreme Court proceeding.”
Based on the above, insurance coverage for injuries sustained by scooter, E-bike and moped riders hinges upon a detailed description and accurate assessment of such vehicles. Moreover, as even lower speed scooters, etc. are capable of causing injuries to innocent pedestrians, the lack of financial security requirements for such vehicles presents a gap in coverage for such victims.
Future services not barred by prior order
No-Fault Regulation, 11 NYCRR 65-3.16(a)(12), provides:
A provider of health care services is not eligible for reimbursement under section 5102(a)(1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service in New York or meet any applicable licensing requirement necessary to perform such service in any other state in which such service is performed.
A finding that a medical provider is in violation of any licensing requirement would globally bar it from reimbursement of any no-fault benefits.
Parisien v. Avis Car Rental (80 Misc.3d 127(A) [App. Term 2d, 11th & 13th Jud. Dists. 2023]) involves a declaratory judgment previously granted against the medical provider, finding that the medical provider’s no-fault collection suits were permanently barred because it had been operating in violation of various New York State laws and was therefore not entitled to recover no-fault payments. When the medical provider sued the defendant for payment for services rendered after the declaratory judgment, the defendant insurer raised the defense of collateral estoppel, arguing that the prior declaratory judgment barred any such no-fault claims.
The lower court agreed with the defendant and permanently stayed the action. On appeal, the Appellate Term reversed, holding, “The February 2017 declaratory judgment order could not have decided the issue of whether, in December of 2017 and January of 2018, plaintiff was continuing to operate in such a way that would preclude it from recovering any no-fault payments for the medical treatment rendered in connection with the [later] accident. Thus, collateral estoppel does not apply here.”
Thus, even a global order finding a general ineligibility for no-fault benefits due to violation of state licensing laws will not necessarily preclude future claims for future services, since any such violations may be cured as to future services.
Staged accident defense rejected
Country-Wide Insurance v. JAM Pharmacy (2024 NY Slip Op 30940(U) [Sup. Ct. NY Cty 2024) presents another example of a prior award not having collateral estoppel effect on a subsequent case.
In a no-fault arbitration, the insurer’s defense was that the medical provider’s assignor’s injuries were the result of an intentional act (i.e. a “staged accident”). The insurer also argued that it prevailed on that same defense in prior arbitrations involving the same assignor and accident, albeit different medical providers, and therefore, the doctrine of collateral estoppel required the same finding.
The arbitrator found that the evidence presented by the insurer was lacking. The injured person’s statement, although difficult to read, conflicted with the insurer’s investigator’s assertions and revealed that the adverse vehicle chased him down and struck him. “As such, this would not be an intentional act by the assignor causing his own injury.” No other corroborating evidence was presented.
The arbitrator also rejected the collateral estoppel argument and ruled in favor of the medical provider. The insurer appealed the arbitrator’s award, and a master arbitrator affirmed the award.
The insurer then commenced an Article 75 proceeding to vacate the awards. The Supreme Court (Justice Arlene Bluth) denied the petition and confirmed the award, holding, inter alia, “The fact is that the arbitrator rationally determined that the doctrine of collateral estoppel did not apply because the medical provider was not a party to the other arbitration. Accordingly, she was not bound by the ruling in that arbitration that the accident here was intentional.”
Further, the court held, “That petitioner disagrees with the findings of the arbitration awards [the lower and the master arbitration awards] is not basis for this court to disturb these awards.”
David M. Barshay is a member of Barshay Rizzo & Lopez in Melville. Steven J. Neuwirth is a member of Sanders Grossman Aronova in Garden City.
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