385 Mass. 1013 | Mass. | 1982
On August 7, 1978, while operating a moped, the defendant was involved in an accident with an automobile. The moped was not insured. However, the defendant had a policy of insurance with the plaintiff covering his 1972 automobile.
If words in an exclusionary clause are free from ambiguity, we give the words their usual and ordinary meaning. See Barnstable County Mut. Fire Ins. Co. v. Lally, 374 Mass. 602, 605 (1978). The defendant admits that his moped moves over land, and is equipped with a small motor. A moped is defined as: “[a] low, two-wheeled vehicle resembling a bicycle and having two pedals and a small motor by which it is driven” (emphasis added). The American Heritage Dictionary 852 (1981). Therefore, we conclude that a moped is included in the definition of “land motor vehicle.” We are supported in our conclusion by the policy’s use of the term “land motor vehicle,” and not just “motor vehicle.” SeeG. L. c. 90, § l.
Courts in New York, California, and the District of Columbia have reached the same conclusion, but in slightly different circumstances. Lalomia v. Bankers & Shippers Ins. Co., 35 App. Div. 2d 114 (1970), aff’d, 31 N.Y.2d 830, 832 (1972) (motorized bicycle was motor vehicle within meaning of uninsured motorist endorsement contained in insurance policy). People v. Jordan, 75 Cal. App.3d Supp. 1, 5-7 (1977) (moped considered motor vehicle in prosecution for drunk driving). United States v. Stancil, 422 A.2d 1285, 1287-1288 (D.C. App. 1980) (moped considered “motor vehicle” for purposes of statute governing unauthorized use of a vehicle).
The authorities cited by the defendant are inapposite. See, e.g., Aetna Ins. Co. v. Weiss, 174 N.J. Super. 292 (1980) (policy definition of motor vehicle “unserviceable,” and, therefore, ambiguity resolved in favor of insured); Pennsylvania Nat'l Mut. Cas. Ins. Co. v. Gartelman, 288 Md. 151,153 n.1, 161 n.4 (1980) (court declined to decide whether moped was a “motor or highway vehicle” under the insurance policy).
The judgment is reversed and the case remanded to the Superior Court for entry of a declaration that a moped is a “land motor vehicle,” and therefore is within the policy exemption. The defendant, therefore, is not entitled to recover under Parts 6 and 7 of the insurance policy.
So ordered.
This vehicle was not involved in the accident.
The defendant also made a claim for personal injury protection benefits (PIP), which claim he subsequently waived.
General Laws c. 90, § 1, expressly excludes “motorized bicycles” from the definition of “motor vehicles” for purposes of compulsory insurance coverage. How