Unpublished Disposition, 878 F.2d 385 (9th Cir. 1989)

MEMORANDUM^* 

William Hara, widower of Thelma Hara, and his children appeal the district court's grant of summary judgment for Allstate Insurance Company on the amount due to them under an Allstate policy. A driver insured by Allstate was involved in an auto accident that caused Thelma Hara's death. The district court found that Allstate's total liability was limited to $25,000. The Haras argue that Hawaii's no-fault motor vehicle insurance act and wrongful death statute entitle each of them to a separate $25,000 recovery. We affirm.

We review de novo the district court's grant of summary judgment. Morrison v. Char, 797 F.2d 752, 755 (9th Cir. 1986). Because the parties agree that no factual dispute exists, "the question is simply whether the district court misconstrued the substantive law." Alcaraz v. Block, 746 F.2d 593, 602 (9th Cir. 1984) (citation omitted). We apply Hawaii state law in this diversity case, Morrison, 797 F.2d at 756 n. 6, and review de novo the district court's interpretation of it, In re McLinn, 739 F.2d 1395, 1403 (9th Cir. 1984) (en banc). Where the state's highest court has not decided an issue, we turn for guidance to the state's intermediate appellate courts and follow their decisions unless we are convinced that the highest state court would decide otherwise. Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir. 1986), modified on other grounds, 810 F.2d 1517 (1987).

Although the Haras offer a complex statutory interpretation argument to support their multiple recovery theory, a few principles of Hawaii case law foreclose their approach. In Hawaii, claims for wrongful death damages are derivative. Hara v. Island Ins. Co., 759 P.2d 1374, 1375-76 (Haw.1988) (holding specifically that the Haras' claims in this case are derivative); Bertelmann v. Taas Assocs., 735 P.2d 930, 935 (Haw.1987) (citing Hun v. Center Properties, 626 P.2d 182 (Haw.1981)). The Hawaii intermediate court of appeals has decided that recovery on derivative claims is limited to the maximum amount of liability provided by a wrongdoer's insurance policy to the injured individual. Doi v. Hawaiian Ins. & Guar. Co., 727 P.2d 884 (Haw.Ct.App.1981). In Doi, the Hawaii appellate court encountered a claim for compensation by an injured woman and her spouse under an uninsured motorist's provision in their own auto insurance policy. The tortfeasor's policy limited recovery to $25,000 for all damages sustained by any one person. The woman's injuries consumed all of the tortfeasor's policy coverage. The spouse sought indemnification from the couple's insurer for damages connected to his loss of consortium claim that the tortfeasor's policy could not cover. The court held that loss of consortium constituted a claim derived from the woman's injury and "that such derivative claims are not independent to the extent that they may be asserted without regard to the nature or extent of the injuries to the person suffering accidental harm." Id. at 891. It denied any recovery on the claim outside of the liability provided under the tortfeasor's policy.

Doi defeats the Haras' claim for multiple recovery. The Haras' memorandum in support of their motion for summary judgment shows that the basis of their recovery theory is the emotional and personal loss caused by a wrongful death. As noted above, Hawaii treats wrongful death claims as derivative. The clear implication of Doi is that a derivative claim will not support liability beyond coverage provided to the injured individual by the tortfeasor's policy. Under Doi, the Haras may not recover, individually or collectively, more for their derivative claim than allowed under the Allstate policy's maximum liability provision for Mrs. Hara herself. Since the policy limits coverage to $25,000 for all damages arising out of bodily injury including death sustained by one person, the Haras are entitled only to $25,000 for all of their derivative claims.

Although Doi is not a decision issued by the state's highest court, we accept its conclusions. We note that the Hawaii Supreme Court has cited Doi without criticism. See Hara, 759 P.2d at 1376; Crawford v. Crawford, 745 P.2d 285, 287 (Haw.1987). The Haras have not persuaded us that the Hawaii Supreme Court would reach a different result.

The district court properly found that, under Hawaiian law, the Allstate policy limited recovery for Mrs. Hara's death to $25,000. The summary judgment order is affirmed.

AFFIRMED.