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Professional Affiliates Co. v. Farmers Insurance Group8/6/1992
l. Vol. 4A). Pedestrian is defined in ยง 10-4-703(9), C.R.S. (1987 Repl. Vol. 4A) as: "any person not occupying or riding in or upon a motor vehicle or machine operated by a motor or engine."
In Rose v. Allstate Insurance Co., 782 P.2d 19 (Colo. 1989), a passenger, who had begun the immediate act of entering a vehicle when that vehicle was struck by another vehicle driven by the insured, was determined to be an occupant at the time of his injury . There, our supreme court construed "occupying" as it is used in the Act "to include any person who is in or upon a vehicle, or who has begun the immediate act of entering into or alighting from a vehicle." See MFA Mutual Insurance Co. v. Government Employees Insurance Co., 785 P.2d 128 (Colo. 1990) (insureds, who had stopped to change flat tire and were struck from behind as they were leaning into trunk to remove spare tire, were pedestrians).
Here, the resolution of Bibeau's entitlement to PIP benefits depends on whether "occupying" includes a person who is involuntarily ejected from a machine operated by a motor after colliding with another vehicle and is then struck by that vehicle seconds after hitting the ground.
Although there is no Colorado authority directly on point, the court in State Farm Mutual Automobile Insurance Co. v. Berg, 70 Or. App. 410, 689 P.2d 959 (1984) examined the words "alighting from" under a comparable PIP statute. There, a woman was thrown from her car by the impact of a head-on collision. She landed in a lane of traffic and, other than trying to lift her head and arm, remained stationary until another vehicle operated by the insured ran over her.
The Berg court found that the woman completed the alighting process upon coming to rest on the pavement. The court noted that the woman's failure to seek a place of safety or embark on a different course of action was not dispositive, as she was unable to do so. Thus, the court held that the woman was a pedestrian when her body came into contact with the insured's vehicle.
We find the reasoning of the Berg court persuasive concerning the interpretation of "alighting from" and, consistent with the provisions of the Act and our supreme court's opinion in Rose v. Allstate Insurance Co., supra.
According to the undisputed facts, after the initial impact Bibeau was thrown or fell off his motorcycle and landed under the truck. Within a few seconds after Bibeau saw the muffler, the truck rolled over his chest. Under these facts, we conclude as a matter of law, that at the time the truck rolled over him, Bibeau was not a person who was in or upon a vehicle or who had begun the immediate act of alighting from a vehicle, Rose v. Allstate Insurance Co., supra, and was a "pedestrian" within the meaning of the Act.
Accordingly, the judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion.
JUDGE METZGER and JUDGE REED concur.
Disposition
JUDGMENT REVERSED AND CAUSE REMANDED WITH DIRECTIONS
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