Question from an IIABNY member: I have a client who drives a delivery truck. After delivering the packages, he injured his shoulder closing the rear roll down door. He submitted a Workers' Compensation claim, but is he entitled to Personal Injury Protection (PIP), too? If so, under who’s policy -- the employer’s PIP on the commercial vehicle he was using, or his own under his Personal Auto Policy?
Answer: The PIP endorsement to the Business Auto Policy states that the insurer “will pay first-party benefits to reimburse for basic economic loss sustained by an eligible injured person on account of personal injuries caused by an accident arising out of the use or operation of a motor vehicle …” It certainly sounds like his injuries were caused by an accident arising out of the use of a motor vehicle. Also, the definition of “eligible injured person” includes:
Any (person other than the named insured or a relative) who sustains personal injury arising out of the use or operation of the insured motor vehicle in the State of New York while not occupying another motor vehicle …
Therefore, the employee falls within the definition of eligible injured person. None of the exclusions in the endorsement appear to apply, so I believe he is eligible for PIP benefits.
I’m not sure whether he is also eligible for PIP under his personal policy. While the definition of eligible injured person includes, “The named insured and any relative who sustains personal injury arising out of the use or operation of any motor vehicle,” the Exclusions state:
This coverage does not apply to personal injury sustained by:
(c) The named insured or relative while occupying, or while a pedestrian through being struck by, a motor vehicle in New York State, other than the insured motor vehicle, with respect to which the coverage required by the (New York no-fault law) is in effect …
The question becomes whether he was considered to be “occupying” the truck or whether he was a pedestrian who was struck by it. If the answer is yes, then his personal PIP coverage won’t apply. If no, then both policies will share the loss on a pro-rata basis, based on the total limits available.
Finally, the amount of the PIP recovery is reduced by the amounts he recovers under Workers’ Comp.