PIP Exclusions: When “No Fault” Is Your Fault

Personal Injury Protection Exclusions

By statute Personal Injury Protection (PIP) benefits are required for all Massachusetts automobile insurance policies. This coverage provides for payment of “all reasonable expenses incurred within two years from the date of accident for necessary medical, surgical, x-ray, and dental services,” as well as lost wages and payments for necessary household services. PIP benefits are to be paid promptly without regard to fault, so that insureds will have funds available to cover the immediate expenses of injury from an accident. This same statute, however, also provides that insurers can deny PIP benefits where a person’s “conduct contributed to his injury” while operating a motor vehicle in the Commonwealth “while under the influence of alcohol or a narcotic drug;” “while committing a felony or seeking to avoid lawful apprehension or arrest;” or “with the specific intent of causing injury or damage to himself or others.” The burden is on the insurer to prove that any exclusion applies.

The Alcohol Exclusion

The alcohol exclusion requires the insurer to show both that the insured was 1) operating a motor vehicle while under the influence of alcohol, and 2) that the insured’s conduct contributed to their injury. Although the circumstances of an accident may seem to fall within an exclusion, as one recent case illustrates, an insurer must still provide competent evidence on each distinct element. In that case a woman was injured in a two-car accident at an intersection in Boston. The hospital record noted that the woman had an odor of alcohol and she was diagnosed with ethyl alcohol intoxication with a blood alcohol level of .12, well above the .08 level that defines driving under the influence by statute. The insurer denied PIP benefits based on the alcohol exclusion and one of the woman’s medical providers filed suit to recover benefits. The trial court judge awarded summary judgment to the insurer, and the Appellate Division of the District Court affirmed. However, on further review the Appeals Court reversed, finding that neither the “under the influence” nor the “contributed to” elements had been proved as a matter of law.

The Result

The Appeals Court concluded that there was “in fact, no evidence in the summary judgment record as to how the car crash occurred, nor any evidence of how [the woman] contributed to it.” The court noted that the police report did not contain a description of the accident and there was no affidavit or deposition testimony from any participant or witness to the crash. The court further found that “standing alone, being under the influence at the moment an accident occurs is not necessarily dispositive of fault; suppose for example that [the woman] had been rear-ended while waiting to make a turn.” The court also determined that the police report which did not mention alcohol, even though it was prepared by an officer who interacted with the woman immediately after the crash, sufficiently challenged the “under the influence” element to preclude summary judgment.


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