CONSTRUCTION AND WHAT IT MEANS, I THINK IT SHOULDN'T BE THIS DIFFICULT TO
FIGURE OUT IF THIS YA IS A PEDESTRIAN, WE SHOULDN'T BE TRYING SO HARD TO READ ALL
OF THESE STATUTES TOGETHER TO DEFRM THIS. JUSTICE FASCIALE:
WELL CAN I INTERRUPT YOU FOR A MOMENT BECAUSE I'M NOT SO SURE IT'S ABOUT
DIFFICULT, IF I COULD JUST TAKE YOU THROUGH STATUTORY LANGUAGE AND ASK YOU TO TELL
ME WHEN YOU THINK I'M MISINTERPRETING THE LANGUAGE THAT THE LEGISLATURE ITSELF
USED. OBVIOUSLY WE KNOW IF THIS PLAINTIFF IS A PEDESTRIAN, HE'S ENTITLED
TO PIP BENEFITS UNDER PROGRESSIVE'S POLICY. PATRICIA A.
HOLDEN: AGREED. JUSTICE FASCIALE: THE DEFINITION OF
PEDESTRIAN IS PROVIDED TO US IN THE NO-FAULT STATUTE UNDER SECTION H, AND THE
OPERATIVE WORDS IN SUBSECTION H TO ME ARE "VEHICLE PROPELLED BY OTHER THAN MUSCULAR
POWER. "SO FAR WE'RE TOGETHER ON THAT? PATRICIA A. HOLDEN:
YES. JUSTICE FASCIALE: OKAY, I DON'T KNOW HOW WHETHER WE
CALL IT A VEHICLE OR DEVICE, ANYTHING CAN BE PROPELLED BY OTHER THAN MUSCULAR POWER
UNLESS IT HAS A MOTOR. SO, IF IT'S A VEHICLE LIKE YOU SAY IT IS, A MOTOR
VEHICLE IS DEFINED IN THE NO-FAULT STATUTE. WE KNOW THAT BECAUSE IN SUBSECTION
J THE LEGISLATURE WENT OUT OF ITS WAY TO DEFINE THAT PHRASE. CORRECT?
PATRICIA A. HOLDEN: YES, IT IS DEFINED -- JUSTICE FASCIALE:
AND SO THE DEFINITION OF MOTOR VEHICLE IN SUBSECTION J OF THE NO-FAULT STATUTE
TELLS US THAT MOTOR VEHICLE MEANS A MOTOR VEHICLE AS DEFINED IN 3911.
AUTOMATICALLY WE GO TO 3911. ARE YOU WITH ME SO FAR? PATRICIA A.
HOLDEN: YES. JUSTICE FASCIALE: OKAY, SO LET'S GO TO 3911.
3911 DEFINES MOTOR VEHICLE AS MOTOR VEHICLE INCLUDES ALL VEHICLES PROPELLED OTHERWISE
THEN BY MUSCULAR POWER, EXCEPTING DOT DOT DOT LOW-SPEED ELECTRIC SCOOTERS.
WHEN WE INTERPRET THOSE WORDS IN THE DEFINITION OF MOTOR VEHICLE, WE CAN THEN
REASONABLY CONCLUDE THAT THE LOW-SPEED ELECTRIC SCOOTER IS NOT A VEHICLE
PROPELLED BY OTHER THAN MUSCULAR POWER. CORRECT? PATRICIA A.
HOLDEN: THAT'S WHERE I DISAGREE. JUSTICE FASCIALE: TELL ME
WHY. PATRICIA A. HOLDEN: BECAUSE MOTORCYCLES ARE VEHICLES
PROPELLED BY MOTOR, MOW PEDESTRIANS ARE PROPELLED BY MOTOR AND THEY ARE MOTOR
VEHICLES AND THEY ARE EXCEPTED FROM THE STATUTE. JUSTICE
FASCIALE: BUT LET ME JUST INTERRUPT YOU FOR A MOMENT, PLEASE, WITH THIS. I
UNDERSTAND THAT MOTORCYCLE RIDERS ARE NOT ENTITLED TO PIP, I UNDERSTAND THAT
COMMERCIAL VEHICLES DON'T PROVIDE PIP BENEFITS, ET CETERA. BUT THE DEFINITION
OF MOTOR VEHICLE HAS NOTHING TO DO WITH MOTORCYCLES, MOW PEDESTRIANS, COMMERCIAL
VEHICLES AT ALL. IT SAYS IN 3911 MOTOR VEHICLE INCLUDES ALL VEHICLES EXCEPT
LOW-SPEED ELECTRIC SCOOTER. WE DON'T HAVE TO GUESS WHETHER LOW-SPEED ELECTRIC SCOOTERS
ARE MOTOR VEHICLES BECAUSE THE LEGISLATURE HAS TOLD US THAT THEY'RE NOT.
PATRICIA A. HOLDEN: OKAY. BUT THE LEGISLATURE DID NOT CHANGE
THE DEFINITION OF PEDESTRIAN TO SAY YOU HAVE TO BE ON OR HIT BY A MOTOR VEHICLE.
JUSTICE FASCIALE: CORRECT. PATRICIA A. HOLDEN:
IT SAID, A PEDESTRIAN -- AND BY THE WAY, 3911 AS AMENDED DID NOT CHANGE
THE DEFINITION OF PEDESTRIAN IN THAT STATUTE WHICH AS WE'VE ALL HEARD MANY TIMES
IS A PERSON OF FOOT. JUSTICE FASCIALE: BUT WE KNOW THAT THAT
DEFINITION DOES NOT APPLY HERE. PATRICIA A. HOLDEN: RIGHT, SO IF
THAT DEFINITION DOESN'T APPLY THEN HOW DOES IT GO THE OTHER WAY AND HAVE
MOTOR VEHICLE APPLY. JUSTICE FASCIALE: BECAUSE --
JUSTICE PATTERSON: COULD YOU EXPLAIN WHAT YOU MEAN A LITTLE BIT IN DPAL.
PATRICIA A. HOLDEN: OKAY, YOU HAVE 39 AND FOLLOWING THAT SECTION 1, THAT'S
THE MOTOR VEHICLE CODE, THAT IS GUIDING HOW WE OPERATE ON THE ROADWAYS, AND THEN
YOU HAVE SECTION 2 WHICH IS NO-FAULT, AND NO-FAULT IS SEPARATE FROM THAT.
JUSTICE WAINER APTER: YOU MEAN SUB TITLE, SUB TITLE 1 VERSUS
SUB TITLE 2. PATRICIA A. HOLDEN: CORRECT. AND IT HAS A VERY
SPECIFIC DEFINITION OF PEDESTRIAN, BECAUSE WE RECOGNIZE THAT PEDESTRIAN IS SOMETHING
MORE THAN JUST AFOOT, BICYCLES, ROLLER SKATES, AGAIN, BUT IT SAYS VEHICLE
-- YOU HAVE TO LOOK AT THAT AS THE CONJUNCTIVE THAT IT IS, PROPELLED BY OTHER THAN
MUSCULAR POWER. JUSTICE FASCIALE: WHICH I THINK WE JUST
ESTABLISHED MEANS MOTOR VEHICLE. PATRICIA A. HOLDEN: BUT IT DOESN'T
SAY MOTOR VEHICLE PROPELLED BY OTHER THAN -- SO -- JUSTICE
FASCIALE: BUT WHAT I'M TRYING TO GET TO, I'M TRYING TO GET TO A REASONABLE
INTERPRETATION OF THE WORDS THEY USE. I THOUGHT WE JUST ESTABLISHED THAT
PROPELLED BY OTHER THAN MUSCULAR POWER CAN ONLY MEAN A MOTOR. AND IF IT'S A VEHICLE,
IT HAS TO THEN BE A MOTOR VEHICLE. IF IT'S A MOTOR VEHICLE, SUBSECTION J
SAYS -- PATRICIA A. HOLDEN: IT CAN BE OTHER VEHICLES, BESIDES
THAT. JUSTICE FASCIALE: IT MIGHT VERY WELL BE BUT IN THIS
PARTICULAR STATUTE J SAYS A MOTOR VEHICLE SAYS GO TO 3911 AND 3911 SAYS MOTOR VEHICLE
FOR PURPOSES OF WHAT MOTOR VEHICLE MEANS IN THE NO-FAULT STATUTE DOES NOT
INCLUDE A LOW-SPEED ELECTRIC SCOOTER. TSDZ RIGHT IN THE STATUTE.
PATRICIA A. HOLDEN: EXCEPT THAT THEY DIDN'T CHANGE THE DEFINITION OF PEDESTRIAN,
THEY'VE NEVER CHANGED THE DEFINITION OF PEDESTRIAN. PATRICIA A.
HOLDEN: THEY DIDN'T HAVE TO, BECAUSE IT SAYS VEHICLE PROPELLED BY OTHER THAN MUSCULAR
POWER, IT CAN ONLY MEAN -- PATRICIA A. HOLDEN: SO BY THAT LOGIC
THEN, A VEHICLE THAT'S PROPELLED BY OTHER THAN MUSCULAR POWER MEANS THIS IS
NOT A PEDESTRIAN, EVEN THOUGH IT MAY NOT BE DEFINED AS A MOTOR VEHICLE UNDER 3911,
BECAUSE IT'S VERY SPECIFIC, IF YOU USE A MOTOR, YOU ARE NOT A PEDESTRIAN.
JUSTICE PATTERSON: CAN YOU EXPLAIN A LITTLE BIT MORE WHAT
YOU MEAN. PATRICIA A. HOLDEN: WHAT I MEAN, YOUR HONOR, IS
THAT THE STATUTE IS VERY CLEAR, A PEDESTRIAN IS SOMEONE WHO IS OPERATING A VEHICLE
THAT IS PROPELLED BY OTHER THAN MUSCULAR POWER, SOMETHING THAT DOESN'T INVOLVE
MUSCULAR POWER. IF YOU'RE USING YOUR MUSCULAR POWER, YOU'RE A PEDESTRIAN. IF
YOU'RE USING SOMETHING ELSE, YOU'RE NOT A PEDESTRIAN. IT'S --
JUSTICE PATTERSON: SO BICYCLE IN. PATRICIA A. HOLDEN: PHYSICAL,
NONPHYSICAL OUT. JUSTICE PATTERSON: BICYCLE IS IN. SCOOTER
THAT IS NONMOTORIZED IS A PEDESTRIAN. PATRICIA A. HOLDEN:
AND THE CASE LAW MAKES A DISTINCTION BETWEEN THE MOTORIZED BIKES WHEN THEY'RE
PEDESTRIAN DALG VERSUS NONPEDESTRIAN DALG, SO YOUR INTENT TO USE IT AS A
PEDALED DEVICE, YOU'RE IN, IF YOU USE IT BY THE MOTOR, YOU'RE OUT. THIS IS NOT
A HYBRID SITUATION, THIS IS A VERY SPECIFIC SET OF FACTS, THIS IS A
PERSON USING A LOW-SPEED ELECTRIC SCOOTER THSHG ONLY MOVE BY OPERATION OF A MOTOR.
JUSTICE FASCIALE: RIGHT, THAT'S HOW COME I SAID THAT WE HAVE
TO DEFINE WHAT MOOESHG MEANS. PATRICIA A. HOLDEN: BUT THE WORD IN THE
STATUTE IS VEHICLE, SO IT'S A BROADER DEFINITION FOR PEDESTRIAN THAN JUST
LIMITING IT TO MOTOR VEHICLES AS DEFINED IN 3911. JUSTICE
FASCIALE: AND THAT'S WHAT 3911 SAYS, IT AGREES WITH YOU, IT SAYS MOTOR VEHICLES
INCLUDES ALL VEHICLES, JUST LIKE YOU SAID, EXCEPT LOW-SPEED ELECTRIC SCOOTERS
VRM. PATRICIA A. HOLDEN: BUT WHAT IS THE PURPOSE, YOUR HONOR,
THE PURPOSE IS TO ARE WE GOING TO REGISTER THEM LIKE CARS AND MOTORCYCLES AND TRUCKS,
NO, AS THEY AMENDED THE STATUTE AND AS THEY ADDED 39:4-14-16, THEY WERE
SAYING WE'RE ENCOURAGING THIS FOR ENVIRONMENTAL REASONS, BUT WE'RE NOT GOING TO
MAKE YOU FOLLOW ALL OF THE RULES RELATED TO MOTOR VEHICLES, WE'RE GOING
TO MAKE YOU FOLLOW SOME OF THE RULES. JUSTICE FASCIALE: THAT DOESN'T
MATTER AS TO PIP COVERAGE. IF I'M LIVING IN YOUR HOUSEHOLD AND I'M A TEENAGER
AND I GET HURT AS A PEDESTRIAN IN A CAR ACCIDENT CASE, SOME CAR HITSZ ME, I'M
ENTITLED TO PIP BECAUSE I'M LIVING IN YOUR HOUSE HOLDER, I'M A MEMBER OF YOUR
HOUSEHOLD. SO WHETHER THE PLAINTIFF WAS AN INTENDED INSURED OR BENEFICIARY OF THE
PIP BENEFITS UNDER YOUR POLICY IS IRRELEVANT TO THE QUESTION THAT WE
HAVE BEFORE US. WHEN THE LEGISLATURE PASSED THE STATUTE IN 2019 SAYING THAT PEOPLE
CAN USE THESE LOW-SPEED ELECTRIC SCOOTERS ON HIGHWAYS, THEY SPECIFICALLY TOLD US
WHAT THESE THINGS ARE. THEY SAID GO TO 3911. AGAIN, WE RETURN TO 3911
AND IT SAYS THEY'RE DEVICES, AND THEN IN THE SAME PART OF THE STATUTE, IT SAYS
ALL VEHICLES, IT SAYS VEHICLES MEANS EVERY DEVICE EXCEPT LITERALLY A LOW-SPEED
ELECTRIC SCOOTER. PATRICIA A. HOLDEN: I THINK THAT YOU'RE
MISSING THE POINT OF THAT STATUTE THAT DEFINES THAT AND THE STATUTE THAT PLAINTIFF
RELIES ON IT'S A VEHICLE IN SOME CONTEXTS AND NOT IN OTHERS. IT IS A VEHICLE FOR
THE PURPOSES OF THE MOTOR VEHICLE OPEN CARRY LAW OF THE FEDERAL GOVERNMENT
PER THAT STATUTE. JUSTICE FASCIALE: BUT UNDER THE MOTOR VEHICLE
STATUTE, FORGET ABOUT WHETHER IT SHOULD BE EQUATED TO A BICYCLE, UNDER THE NO-FAULT
STATUTE -- PATRICIA A. HOLDEN: YOUR HONOR, THIS IS NOT AN
ARGUMENT THAT WAS MADE BELOW. JUSTICE FASCIALE: LET ME JUST ADDRESS
THAT FOR A SECOND, WE HAVE AN OBLIGATION TO INTERPRET THE STATUTE BASED
ON WHAT THE LEGISLATURE INTENDED, WHETHER THE LAWYERS MET THE ARGUMENT OR NOT,
WE CAN'T SAY WE'RE GOING TO IGNORE THE TEXT OF THE STATUTE IF AN ARGUMENT
WASN'T RAISED. WE HAVE TO LOOK AT THE TEXT, AND THE TEXT SAYS THAT LOW-SPEED ELECTRIC
SCOOTERS ARE NOT VEHICLES FOR THE PURPOSES OF MOTOR VEHICLE VEHICLE UNDER A
NO-FAULT STATUTE, HOW COULD WE IGNORE THE LANGUAGE THAT THE LEGISLATURE GAVE US.
PATRICIA A. HOLDEN: AND I DID NOT MEAN TO IMPLY THAT THAT WAS
NOT YOUR ROLE HERE WHAT I WAS ABOUT TO SAY IS IF YOU'RE GOING TO LOOK AT THAT,
WHY DIDN'T THEY AMEND THE NO-FAULT LAW, AND SAY IF YOU'RE RIDING ONE OF
THESE THINGS, THEY COULD HAVE PUT IN EXCEPT IF YOU'RE RIDING A BICYCLE OR A LOW-SPEED
ELECTRIC SCOOTER. JUSTICE FASCIALE: THEY DID AMEND THE
DEFINITIONAL SECTION TO EXCLUDE LOW-SPEED ELECTRIC SCOOTERS IN THE DEFINITION OF
MOTOR VEHICLE AND IN THE DEFINITION OF VEHICLE AND IN THE DEFINITION OF LOW-SPEED
ELECTRIC SCOOTERS AFTER THEY PASSED THE LAW IN 2019 THAT SAID YOU CAN USE
THESE DEVICES ON HIGHWAYS. THEY DIDN'T HAVE TO AMEND THE NO-FAULT STATUTE BECAUSE
THE PLAIN TEXT OF THE NO-FAULT STATUTE SAYS VEHICLE PROPELLED BY OTHER THAN
MUSCULAR POWER AND CLEARLY LOW-SPEED ELECTRIC SCOOTERS ARE PROPELLED BY OTHER THAN
MUSCULAR POWER. PATRICIA A. HOLDEN: SO THEREFORE THEY FAULT INTO
THE DEFINITION -- THEY ARE EXCLUDED FROM THE DEFINITION OF PEDESTRIAN, BECAUSE THEY
DID NOT CHANGE THAT, THEY DID NOT SAY MOTOR VEHICLES OTHER THAN THESE, THEY
SAID A VEHICLE, ANY VEHICLE THAT'S PROPELLED BY SOMETHING THAT'S NOT YOUR OWN MUSCULAR
POWER. JUSTICE SOLOMON: SO I TAKE IT YOUR ARGUMENT IS EVEN
IF YOU DON'T DEFINE THE SCOOTER AS A MOTOR VEHICLE, IT DOESN'T MEAN THAT THE PERSON
USING IT IS A PEDESTRIAN. PATRICIA A. HOLDEN: CORRECT.
CHIEF JUSTICE RABNER: AND YOUR POINT ALSO IS MOTOR VEHICLE IS PRECISELY
DEFINED IN 6 A-2 AND THAT AND ONLY THAT TELLS YOU TO LOOK AT 391-1, VEHICLE IN
SECTION H DOESN'T SEND YOU BACK TO THE OTHER DEFINITIONAL SECTION.
PATRICIA A. HOLDEN: DOESN'T SEND YOU ANYWHERE. CHIEF
JUSTICE RABNER: AND BY THE WAY, WE ALL APPRECIATE THAT YOU ARE RESPONDING ON THE
FLY TO AN ARGUMENT MADE FOR THE FIRST TIME TODAY AND YOU'RE DOING THAT QUITE
NICELY. PATRICIA A. HOLDEN: THANK YOU, YOUR HONOR.
JUSTICE PIERRE-LOUIS: SUBSECTION H DOESN'T SEVEND YOU BACK TO 3911 WHERE THERE IS
ANOTHER DEFINITION OF PEDESTRIAN THAT'S DIFFERENT FROM THE DEFINITION OF
PEDESTRIAN IN 6 A-2 BECAUSE A DEFINITION OF PEDESTRIAN IN 6 A-2 IS SPECIFIC TO
NO-FAULT COVERAGE, JUST LIKE THE DEFINITION OF VEHICLES AND OTHER STATUTES
THAT ARE NOT EXACTLY THE SAME. PATRICIA A. HOLDEN: I AGREE WITH THAT
AND THAT'S WHY I BOOT STRAP THE ARGUMENT THAT IF THAT'S WHAT THE LEGISLATURE
INTENDED THEN WHY DIDN'T THEY DO THAT AND FIX THE DICHOTOMY BETWEEN THOSE TWO GROUPS
OF STATUTES. JUSTICE PATTERSON: PEDESTRIAN IS MORE BROADLY
DEFINED UNDER THE NO-FAULT LAW THAN IT IS UNDER TITLE 39 WHICH SAYS SOMEONE AFOOT.
PATRICIA A. HOLDEN: RIGHT, IF THAT WAS THE ONLY DEFINITION
HERE, EVERYTHING IS OUT, INCLUDING BICYCLES. JUSTICE
PATTERSON: RIGHT, AND THE BROADER DEFINITION OF THE NO-FAULT LAW COULD BE
INTENDED BY THE LEAFS LASER APPLIED EMPLOYED BROADLY.
PATRICIA A. HOLDEN: YES. JUSTICE FASCIALE: CAN YOU EXPLAIN HOW TO
INTERPRET THIS PHRASE IN 3911 AND SPECIFICALLY IN THAT SECTION OF THE
STATUTE THAT DEFINES MOTOR VEHICLE, IT SAYS MOTOR VEHICLE INCLUDES ALL VEHICLES
PROPELLED OTHERWISE THAN MUSCULAR POWER, WHEN YOU READ THAT TOGETHER WITH
H WHICH SAYS VEHICLE PROPELLED BY OTHER THAN MUSCULAR POWER, ISN'T A MOOENG THE
SAME THING AS VEHICLE AS USED IN SUBSECTION H? PATRICIA
A. HOLDEN: I DON'T THINK THAT'S WHAT THEY WERE TRYING TO GET AT, I THINK THEY WERE
TRYING TO SAY WE HAVE DIFFERENT KINDS OF VEHICLES THAT WE ALLOW TO BE OPERATED
ON THE STREETS AND HIGHWAYS IN THE STATE, WE'RE GOING TO REGULATE THEM IN A CERTAIN
WAY, BECAUSE THE FIRST PART OF THE ACT IS REGULATING TRAFFIC FLOW, PROVIDES
FOR PENALTIES FOR NOT OBEYING THE RULES AND ALL OF THAT, AND THEN THE SECOND PART
IS THE INSURANCE PART AND WE'RE GOING TO INSURE DIFFERENT KINDS OF VEHICLES
DIFFERENTLY, AND IF YOU DON'T EXCEPT THEM, THEN THEY MAY BE FALLING INTO THE CAT
GHOER OF MOW PEDESTRIANS AND MOTORCYCLES, SO IF YOU LOOK AT THE LEGISLATIVE
INTENT WHEN THEY MADE THEM "BIKES, THEY SAID AT THIS POINT WE'RE NOT MAKING THEM
BE REGISTERED OR INSURED, SO NOW THE LEGISLATURE IS SAYING MAYBE WE NEED TO
RETHINK THAT AND WE'RE GOING TO 2828-1.3 AND WE'RE GOING TO CHANGE THE STATUTE
OF THE LOW-SPEED ELECTRIC SCOOTERS AND SAY WE'RE GOING TO INSURE THEM AND NOW THEY
WOULD QUALIFY BECAUSE THEY WOULD HAVE THEIR OWN POLICIES THAT WOULD PROVIDE
THAT BENEFIT. JUSTICE FASCIALE: IF WE WERE NOT TO EQUATE
VEHICLES WITH MOTOR VEHICLES AND INSTEAD WITH SIMPLY SAY VEHICLE PROPELLED BY OTHER
THAN MUSCULAR POWER AND NOT GO TO 391-1 BUT USE BLACK'S DICTIONARY TO DEFINE
VEHICLE, WOULD ROLLER SKATES WITH A VEHICLE. PATRICIA A. HOLDEN:
YES, BECAUSE YOU'RE USING YOUR OWN POWER. JUSTICE FASCIALE:
SO IF I'M ROLLING DOWN THE SIDEWALK AND I GET HIT BY A CAR, I'M ENTITLED TO PIP.
PATRICIA A. HOLDEN: YES. JUSTICE FASCIALE:
OKAY. CHIEF JUSTICE RABNER: ANYTHING ELSE YOU'D LIKE TO COVER?
PATRICIA A. HOLDEN: NO. CHIEF JUSTICE RABNER:
OTHER QUESTIONS ANYONE? PATRICIA A. HOLDEN: THANK YOU ALL
FOR YOUR TIME. NICOLE R. CASSATA: MAY IT PLEASE THE COURT,
CHIEF JUSTICE, JUSTICES, I CAME HERE TODAY ON BEHALF OF THE NEW JERSEY DEFENSE
ASSOCIATION TO TELL YOU THAT THE PUBLIC POLICY YOU CANNOT EXPAND THE DEFINITION
OF PEDESTRIAN, NOT EXPECTING ALL OF THE TALK THAT WE HAD FOR THE LAST HOUR
AND A HALF. BUT I THINK IT IS IMPORTANT TO ADDRESS THE PUBLIC POLICY, BECAUSE
IT IS A PUBLIC POLICY ISSUE. AND WHEN WE ADDRESS THE PUBLIC POLICY ISSUE
WE HAVE TO LOOK TO ACHE RA WHICH WAS ENACTED IN 1988, THIS WAS ENACTED IN ORDER
TO REDUCE THE COST OF INSURANCE, BY DOING THIS ACURA PLACED A FOCUS ON REDUCING
MANDATORY PIP, AS DISCUSSED BY MY COLLEAGUES THE DEFINITION OF PEDESTRIAN HAS NEVER
BEEN AMENDED OR EXPANDED. THE LEGISLATURE HAS NOT ATTEMPTED TO CHANGE THE
DEFINITION OF PEDESTRIAN AND WE'VE TALKED BACK AND FORTH ABOUT VEHICLE, MOTOR
VEHICLE, BUT ONE THING THAT HAS STAYED TRUE IS THE DEFINITION OF PEDESTRIAN, AND
THAT IS HOW MR. GOYCO IS ATTEMPTING TO GET PIP BENEFITS TODAY, AS A PEDESTRIAN.
IN SOL AND NO, SIR, THE APPELLATE DIVISION ACTUALLY TOOK THE
ANALYSIS ONE STEP FURTHER AND CON CLUTDED THEY WERE ADDRESSING A MOTOR SCOOTER,
THAT A MOTOR SCOOTER WAS AKIN TO A MOTORCYCLE WHICH IS NOT AN AUTOMOBILE
UNDER NO FAULT. THE COURT SPECIFICALLY NOTED TO EXTEND PIP BENEFITS TO AN OPERATOR OF
A VEHICLE OTHER THAN AUTOMOBILE WOULD OBVIOUSLY INCREASE NO-FAULT PREEM YUG
OF YUMS, THE COURT THEN SAID THEREFORE THE LEGISLATURE HAS DETERMINED THAT
NONAUTOMOBILES WOULD NOT SHARE THE BENEFIT OF PIP, THAT IS WHAT A LOW-SPEED
ELECTRIC SCOOTER IS A NONAUTOMOBILE. THAT'S WHAT EXACTLY WHAT WOULD HAPPEN HERE
TODAY. THE AUTOMOBILE INDUSTRY WOULD BE UNABLE TO QUANTIFY THE AMOUNT OF PIP
PAY OUT TO POTENTIAL PIP INSUREDS. I WAS IN NEW YORK CITY JUST THIS PAST
WEEKEND AND WHILE NEW YORK IS MUCH DENSER THAN OUR STATE, IT IS UNBELIEVABLE HOW MANY
OF THESE SCOOTERS ARE OUT THERE. THERE WOULD BE NO WAY THAT ANY INSURANCE
CARRIER WOULD BE ABLE TO QUANTIFY HOW THEY WOULD PAY PIP BENEFITS TO ALL OF THOSE
PEOPLE ON SCOOTERS, IT WOULD BE IMPOSSIBLE, AND ULTIMATELY BY DOING
THAT PREMIUM WOULD BE INCREASED DIRECTLY AFFECTING THE CONSUMERS AND TAXPAYERS OF
THIS STATE. JUSTICE PATTERSON: I THINK WE HEARD THAT
THERE'S A LEGISLATURE UNDER CONSIDERATION NOW THAT WOULD REQUIRE THAT THERE BE INSURANCE
AND THERE WOULD BE PIP BENEFITS. PATRICIA A. HOLDEN: RIGHT
AND. NICOLE R. CASSATA: RIGHT, AND I THINK IF THEY ARE NOT
INSURED OR NOT REGISTERED, THEY WOULDN'T GET PIP BENEFITS, THEY WOULD GET THEIR
BENEFITS BY WHAT TYPE OF POLICY THEY WOULD PAY FOR. THAT I THINK SPEAKS TO
THE LEGISLATURE -- THAT IS THE LEGISLATIVE INTENT AS OF NOW, IF WE REGISTER THESE
TYPES OF VEHICLES, IF WE INSURE THEM, THEN YOU WOULD BE GUARANTEED INSURANCE.
IT WOULD NOT BE -- IT WOULD BE THE WILD WILD WEST WHERE ANYBODY ON A SCOOTER
-- JUSTICE FASCIALE: WHEN WILL IT WOULDN'T BE ANYBODY ON A
SCOOTER, IT WOULD BE SOMEBODY ON A SCOOTER WHO IS LIVING WITH A NAMED INSURED,
MEMBER OF A HOUSEHOLD, IT'S NOT NIS WIDE BRUSH WHERE EVERYBODY TO HAS A
SCOOTER WHETHER YOU LIVE WITH SOMEONE OR NOT IS PROTECTED.
PATRICIA A. HOLDEN: IF YOU'RE ON A SCOOTER AND YOU DON'T HAVE INSURANCE OF YOUR
OWN OR IN YOUR HOUSEHOLD, THEN APPLY GO WOULD BE ON THE HOOK AS AN UNINSURED.
SO FOR THE REASONS THAT I JUST STATED, IT'S IMPORTANT TO THE N.J. D A, IT'S ALSO
IMPORTANT TO THE AUTOMOBILE INDUSTRY TODAY, THAT IF WE EXPAND THE
DEFINITION OF PEDESTRIAN THIS IS IN DIRECT CONTRADICTION OF WHAT THEY SOUGHT TO
DO BY LIMITING THE COST OF INSURANCE. CHIEF JUSTICE RABNER:
THANK YOU COUNSEL. NICOLE R. CASSATA: THANK YOU.
THE COURT: MR. LOPIANO, DID YOU WANT BRIEF REBUTTAL? CHRISTIAN C.
LOPIANO: IF I MAY. I JUST WANT TO CLARIFY A COUPLE OF THINGS OR A COUPLE OF
ARGUMENTS THAT WERE MADE. UNDER THE NEW KNACK CASE, THE COURT FOUND IT WAS THE
NATURE AND CHARACTER OF THE VEHICLE, NOT WHETHER THE PERSON WAS PEDESTRIAN DALG
OR USING THE MOTOR AT THE TIME, AND THAT'S IMPORTANT, BECAUSE WHEN YOU LOOK
TO THE NATURE AND CHARACTER OF THE VEHICLE, THAT'S WHAT THIS NEW STATUTE DOES,
BY GIVING A SPECIFIC DEFINITION FOR A LOW-SPEED ELECTRIC SCOOTER, IF YOU
DON'T MEET EVERY REQUIREMENT, YOU DO NOT GET THE CLASSIFICATION OF A BICYCLES OR
AT LEAST UNDER THIS LAW, AND THAT'S IMPORTANT, BECAUSE IN NEW KNACK THAT WAS WHAT
THE SUPREME COURT COURT THAT YOU HAVE TO LOOK AT THE VEHICLE AND LOOK AT
IT IN CONTEXT OF THE STATUTE. THAT'S ISSUE NUMBER 1. ISSUE NUMBER TWO IS THIS
BILL, AND I HAVE THIS IN MY REPLY TO THE AMICUS BRIEF, THE BILL WAS INTRODUCED
BY TWO SENATORS, IT WAS IN NOVEMBER OF 2023, THAT BILL IS DEAD AND GONE, IT NEVER
MADE IT ANYWHERE. CHIEF JUSTICE RABNER: COUNSEL, WE WON'T
CONSIDER IT. CHRISTIAN C. LOPIANO: I JUST WANDER TO
EXPLAIN THAT -- CHIEF JUSTICE RABNER: ALLOW ME, WE WON'T CONSIDER
A BILL THAT IS NOT ENACTED, THE QUESTION IS IF THE STATUTE IS UNCLEAR AND THE
LEGISLATIVE HISTORY IS UNCLEAR THEN SHOULD WE WAIT FOR THE LEGISLATURE TO ENACT
WHATEVER IT IS THAT IT MIGHT ENACT. CHRISTIAN C. LOPIANO:
I RESPECTFULLY SUBMIT I'M NOT ASKING YOU TO CONSIDER THAT BILL AT ALL, BUT THE
ARGUMENT THAT'S MADE THAT THAT BILL SHOWS THAT THEY NEVER HAD AN INTENTION TO
HAVE IT, THAT'S WRONG. CHIEF JUSTICE RABNER: IT'S NOT RESONATE GO.
CHRISTIAN C. LOPIANO: WHAT I DO FIND IMPORTANT ABOUT THE NEW
BILL IS THAT THE NEW BILL IS ABSOLUTELY BLACK WHEN OUR BILL IS WHITE. THAT BILL
SAYS INSURANCE, REGISTRATION, DRIVER'S LICENSE, EVERYTHING THAT WOULD BE
A MOTORCYCLE, THAT'S WHAT THAT BILL SAYS AND IT TAKES EVERYTHING AWAY FROM WHAT
THE BILL SAYS NOW. CHIEF JUSTICE RABNER: LET ME REASSURE
YOU, THERE'S AMPLE LAW GOING BACK, WE DO NOT READ FROM PROPOSED LEGISLATION
WHAT THE MEANING OF A STATUTE THAT'S IN EXISTENCE IS, SO YOU NEED NOT WORRY ABOUT
THAT. CHRISTIAN C. LOPIANO: OKAY. MY LAST POINT, AND
IT DOES COME DOWN TO PUBLIC POLICY AND IT DOES COME DOWN TO THE INTENTS OF THE
ORIGINAL STATUTE IN 1972, FL 1972 TO 1998, TO 1989 WITH DAREL, THE INSURANCE INDUSTRY
THEY WERE NOT PAYING FOR A BICYCLIST, THIS COURT SETTER UNDER DAREL YOU ARE
GOING TO. JUSTICE WAINER APTER: SO WHY WERE THEY NOT PAYING
FOR A BICYCLIST, BECAUSE WE TALKED BEFORE ABOUT HOW THIS STATUTE WAS NOT AMENDED
AND THE DEFINITION OF PEDESTRIAN HAS BEEN THE SAME SINCE 1972, AND A PERSON WHO
IS ON A BIKE, A BIKE IS NOT PROPELLED BY OTHER THAN MUSCULAR POWER, A BIKE IS ONLY
PROPELLED BY MUSCULAR POWER, SO WHERE IN THE STATUTORY DEFINITION WERE THE
INSURANCE COMPANIES FINDING SUPPORT FOR THE IDEA THAT A BIKE, SOMEONE RIDING A BIKE
IS NOT A PEDESTRIAN. CHRISTIAN C. LOPIANO: YOU MEAN PRIOR TO
DAREL. JUSTICE WAINER APTER: CORRECT.
CHRISTIAN C. LOPIANO: THAT'S A GOOD QUESTION AND I DON'T HAVE AN ANSWER FOR THAT.
JUSTICE WAINER APTER: BUT A BICYCLE FALLS WITHIN THE PLAIN
LANGUAGE OF THE STATUTE AS A PEDESTRIAN. CHRISTIAN C. LOPIANO:
CORRECT, NO QUESTION ABOUT THAT. SO AGAIN, WHEN WE COME TO THIS LAW AND THEY
HAVE A SPECIFIC DEFINITION OF A LOW-SPEED ELECTRIC SCOOTER THAT CAN DRIVEN
ON A TRAIL, THAT CAN BE DRIVEN ON A SIDEWALK SUCH AS UNFORM MR. GOYCO WAS DOING
WHEN HE WAS STRUCK BY A CAR, OKAY, THAT'S WHY THEY SAY ALL LAWS, AND I GET
IT, THERE IS THE EXCEPTION, EXCEPT THOSE PROVISIONS BY WHICH THEIR VERY NATURE,
BUT I DON'T THINK AS YOU READ THE STATUTE AND YOU READ THE DEFINITIONS AND YOU
GO BACK TO THE DEFINITIONAL SECTION WHICH DOESN'T EVEN DEFINE BICYCLES BUT WHAT
IT DOES SAY, IT SAYS WHAT A VEHICLE IS NOT, BUT A MOTOR VEHICLE SPECIFICALLY IS
NOT A LOW-SPEED ELECTRIC SCOOTER, WHEN YOU TAKE THAT AND YOU MARRY ALL OF
THAT TOGETHER AND YOU LOOK AT THE STATUTE, PLEASE, I RESPECTFULLY SUBMIT FOR PUBLIC
POLICY, FOR MY CLIENT AND FOR THOSE INJURED, DON'T LET THAT EXCEPT PART,
WHICH ARGUABLY, I GET IT, IT'S AMBIGUOUS, BUT DON'T LET IT SWALLOW UP THE WHOLE
STATUTE WHEN YOU HAVE ALL THIS STUFF WHAT THE PLAIN MEANING OF THE STATUTE
SAYS ALL STATUTES APPLICABLE TO BICYCLES ARE APPLICABLE TO LOW-SPEED ELECTRIC SCOOTERS
AND A LOW-SPEED ELECTRIC BICYCLES. THANK YOU FOR YOUR TIME. CHIEF
JUSTICE RABNER: THANK YOU COUNSEL, THANK YOU TO ALL COUNSEL, WE'LL TAKE THE MATTER
UNDER ADVISEMENT.