Murphy v. BohnMurphy v. Bohn
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We are called on to resolve a single question here: Can an operator of a motorcycle, duly registered in this Commonwealth, as a matter of law, recover damages in tort for conscious pain and suffering, when he has neither incurred $500 in medical expenses nor suffered any of the five types of injury speсified in
*545 A brief statement of the background of the case follows. The injury in issue was suffered on June 7, 1971; an action of tort for negligence was entered in the Superior Court for Plymouth County on November 1, 1971. On July 23,1976, the court ordered the matter referred to a master, and the master filed a final report on January 4, 1977. In summary, the master found that the minor plaintiff, John J. Murphy (hereafter, plaintiff), while operating a motorcycle, sustained personal injuries as a result of the defendant Felix J. Bohn’s negligent operation of his mother’s motor vehicle. The master determined that the plaintiff was entitled to recover $4,500 damages for personal injuries, including conscious рain and suffering; he also found that John D. Murphy, the plaintiffs father, incurred reasonable and necessary medical expenses as a result, and was entitled to $262.55 for consequential damages.
The defendants thereafter filed a motion to strike the master’s report, claiming that as a matter of law the plaintiff was barred from recovering damages for pain and suffering since he failed to satisfy any of the criteria established in
The issue presented by this case arises as a result of the unique position in which operators and passengers of motorcycles registered in this Commonwealth, injured while riding on such vehicles, find themselves. According to a regulation promulgated by the Commissioner of Insurance on December 4, 1970, pursuant to St. 1970, c. 744, § 4, 4 5 while motorcycle insurance policies must afford “Personal Injury Protection” (hereinafter P.I.P.) to pedestrians struck by motorсycles, no insurance company is required to provide “no-fault” protection “for owners, operators or guests of motorcycles who suffer bodily injury while operating or riding as a guest upon such vehicles.” 5 Nor, according to the regulation, may any such *547 operator or guest recover P.I.P. benefits from any other source. 6 Essentially, then, the plaintiff, like other owners of motorcycles duly registered in this Commonwealth, is required to carry insurance which provides P.I.P. coverage for the benefit of eligible parties not traveling on the motorcycle (e.g., pedestrians injured in an accident involving a motorcycle), regardless of fault, while those on the motorcycle are exсluded from such coverage. 7
Given this scheme, the plaintiffs argue that a literal application of
Like
Chipman,
the case before us prompts a construction of
We sounded the same theme in
Chipman
v.
Massachusetts Bay Transp. Auth., supra,
the second case to come before us under the statute. In
Chipman,
we described the essential features of the sweeping reform of motor vehicle insurance embodied in St. 1970, c. 670, and gave recognition that “personal injury protection” insurance has its “key concept.” Paraphrasing
Pinnick,
we said in
Chipman, supra
at 256-257: “Personal injury protection insurance provides for payments up to $2,000 of
*549
medical and other designated expenses by an insurer to the insured (and certain others) regardless of fault in the causation of the accident which resulted in bodily injury. In
exchange for the right granted to him to recover directly from his own insurer,
the insured loses
(to the extent he is eligible for personal injury protection benefits)
his traditional common law right to recover in tort even if he is able to prove that the other party to the accident was at fault. Thus, the principal innovation of the no-fault scheme is that owners and operators of mоtor vehicles insured under that scheme who are injured in accidents 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. In addition, in those casеs where the accident victim does not come within the exceptions specified in
In
Chipman,
notwithstanding the statutory language, we upheld recovery for pain аnd suffering to a plaintiff
9
who had no recourse to P.I.P. benefits, when the uninsured defendant was expressly exempted from the “no-fault” scheme.
10
We interpreted the legislative intent, in
*550
these circumstances, as placing the defendant and the plaintiff “beyond the scope not only of the personal injury protection coverage but also of
every
aspect of the no-fault insurance scheme,”
id.
at 258-259 (emphаsis in original), including the restrictions embodied in
The defendant claims that
Cyr
v.
Farias,
367 Mass. 720 (1975), controls the result in this case. In
Cyr,
the two nonresident plaintiffs sought damages, including pain and suffering,
11
as a result of an automobile accident in Massachusetts. The defendant, a domiciliary of this Commonwealth, was insured under a compulsory motor vehicle policy which included a P.I.P. policy conforming to the requiremеnts of St. 1970, c. 670. Although the plaintiffs were ineligible for P.I.P. benefits on a no-fault basis, we applied the language of
*551
The case before us presents a fact pattern distinct from that found in
Cyr.
The defendant here, like the defendant in
Cyr,
was subject to comрulsory motor vehicle insurance, participated in the no-fault system, bore its burdens, and was eligible for its benefits. Unlike the nonresident plaintiff in
Cyr,
however, the plaintiff motorcyclist was also required to bear the burden of the no-fault scheme. Notwithstanding his contribution to the system, by regulation
12
neither he, nor any other operator оr passenger on the motorcycle, injured while riding, had recourse to P.I.P. benefits. Given this conjunction of his contribution to the no-fault system and his ineligibility to receive its “key” benefit, personal injury protection, we hold that the plaintiffs right to recovery is unimpaired by the pain and suffering exemption set forth in
*552 We answer the reported question in the affirmative, and remand to the Superior Court for further proceedings not inconsistent with this opinion.
So ordered.
Notes
As part of the record on report, the judge designated the following stipulation of the parties: “1. Under Chapter 231,
“In light of General Laws, chapter 231,
Under the terms of this statute, any regulation promulgated thereunder would expire on February 6, 1971, unless ratified by both Houses of the Legislature. The regulation was ratified on February 4, 1971. See, 1971 H. Res. Nos. 5008, 5011; 1971 Senate Journal 617.
The regulation, promulgated “for the purpose of enabling owners of motorcycles to readily obtain adequate insurance through private enterprise,” is accompanied by a statement of “Finding and Reasons” of the Commissioner of Insurance. In that statement, the Commissioner explained that prior to the inception of the “no-fault” system, insurance policies covering motorcycles did not provide compensation for motorcycle drivers or guests who were injured in an accident, and premium rates reflected this fact. Noting that “a very large proportion of motоrcycle accidents result in serious bodily injury to the motorcycle driver and his guest, if any,” the statement recognized that insurance companies would experience substantial adverse financial consequences were they required to provide P.I.P. coverage in accordance with St. 1970, c. 670, for motorcyсles, and that the major companies had in fact taken steps to cease writing motorcycle insurance within the Commonwealth.
The regulation further provides that “[n]o person who suffers bodily injury while an operator or a guest on a motorcycle shall be entitled to recover his damages for such injury through the so-called assigned claims plan or under the Personal Injury Protection coverage of any insurance policy covering any other motor vehicle owned by such person or any member of his household.” See
In the memorandum of decision accompanying his order and report, the judge noted that plaintiffs’ insurance policy in effect at the time of the accident included a “Motorcycle Endorsement” which removed from P.I.P. coverage “any person who sustains bodily injury while operating or occupying a motorcycle.” The defendants contend in their brief that the unavailability of P.I.P. benefits to the plaintiff “arises out of his election not to provide himself with such coverage.” They argue that the plaintiff could have acquired P.I.P. coverage for a motorcycle owner, operator or guest, albeit at higher premium rates, if he had opted to do so. While the language of the regulation promulgated by the Commissioner does not explicitly eliminate the possibility of the type of P.I.P. coverage referred to by the defendant, nothing in the record indicates that such protection was available to the plaintiff. See E. Martin & E. F. Hennessey, Automobile Law and Practice, § 1155.15 (Supp. 1977): By regulation, the Insurance Commissioner has ruled that operators and occupants of motorcycles are not entitled to no-fault benefits. The policy for the motorcycle does not include coverage for them, and since they are not pedestrians, they do not fall within the coverage of any other vehicle in the collision.” But cf. Porter v. Michigan Mut. Liab. Co., 80 Mich. App. 145 (1977).
See, for example, Pinnick v. Cleary, 360 Mass. 1, 8 (1971): “In exchange for the protection extended by с. 670, the accident victim loses his right to recover in tort to the extent he is eligible for personal injury protection benefits” (emphasis supplied). See also supra at 22-23.
The plaintiff there, a woman injured while attempting to board a bus owned by the defendant, had neither incurred $500 in medical expenses nor suffered any of the five types of injury specified in the statute.
In
Chipman,
the defendant was exempted from the requirements of G. L. c. 90 by § 1A thereof, which provides that motor vehicles owned by street railway companies under public control or by any political subdivision of the Commonwealth are exempt from the insurance requirements of the chapter. The defendant, a self-insurer, was of course susceptible to tort liability nonetheless. The only question in the case was whether that tort liability included the plaintiffs damages for pain and suffering in the face of
*550
A different result was reached in
Scandura
v.
Trombly Motor Serv., Inc.,
370 Mass. 612 (1976). The
Scandura
facts are analogous to those in
Chipman,
except that in
Scandura
the defendant, a common carrier,
was
covered by a motor vehicle liability policy which provided P.I.P. benefits. We denied the plaintiffs recovery for pain and suffering in the absence of satisfaction of one or more of the
Neither of the plaintiffs’ medical expenses reached $500 nor did they otherwise qualify for pain and suffering damages under
We note that “[s]o long as these regulations are extant, they have the force оf law and the three branches of government are bound to respect them and enforce them. See United States v. Nixon, 418 U.S. 683, 695-696 [1974].” Chipman v. Massachusetts Bay Transp. Auth., 366 Mass. 253, 258 n.6 (1974).
We note that the problems incident to no-fault coverage for motorcyclists have not gone unnoticed in other jurisdictions. In none of the jurisdictions we have surveyed is an injured motorcyclist who is required to contribute to a no-fault system precluded from both P.I.P. benefits and full tort recovery. See generally Am. Jur. 2d, No Fault Insurance § 17 (New Topic Service 1973). The Uniform Motor Vehicle Accident Reparations Act appears to cover motorcycles under no-fault, if they are required to be registered, or if they are not designеd for off-road use. See Uniform Motor Vehicle Accident Reparations Act, § 1(a)(7). The New Jersey no-fault law,
In Kansas, a statute making optional the purchase of P.I.P. coverage *552 for motorcycle owners was deemed constitutionally valid. Manzanares v. Bell, 214 Kan. 589 (1974). See also Porter v. Michigan Mut. Liab. Co., 80 Mich. App. 145 (1977).
In several othеr States, motorcycles are excluded from the category of vehicles requiring no-fault coverage. See, e.g., Conn. Gen. Stat. c. 690, § 38-319(g) (1977);