Unpublished Disposition, 935 F.2d 275 (9th Cir. 1991)

No. 89-15358.

United States Court of Appeals, Ninth Circuit.

Before SKOPIL and KOZINSKI, Circuit Judges, and SINGLETON, District Judge.^** 

MEMORANDUM^*** 

Plaintiff, Jerry Souza, (hereinafter "Souza") sued defendant, State Farm Mutual Automobile Insurance Company, (hereinafter "State Farm"), for tort and contract damages for alleged wrongful refusal to pay no-fault benefits for claims arising out of an automobile accident. State Farm paid Souza's medical bills, but refused his demand for a lump-sum payment of the balance of the policy limits for alleged nonmedical "faith healing" on the ground that the expenses were not actually incurred nor were they adequately proved. Souza then filed this pro se action asserting various theories of recovery. When State Farm failed to respond, default was entered. Over Souza's objection, the district court set aside the entry of default and permitted State Farm to file an answer. The parties filed cross-motions for summary judgment.

Souza argued that requiring him to document his "religious expenses" serves to deprive him of religious freedom in violation of the first amendment to the United States Constitution. The district court granted summary judgment in favor of State Farm, finding that State Farm did not breach its contract with Souza or commit a tort against him by requiring Souza to prove that he had, in fact, incurred expenses for "religious treatment". The ruling was made without prejudice, entitling Souza to seek treatment first and then apply for compensation. Souza appeals. We affirm.

Our review of the parties' arguments satisfies us that the trial court did not abuse its discretion in setting aside the default and deciding this matter on its merits. We are further of the view that there are no disputed issues of material fact and that State Farm was entitled to summary judgment. Souza is not entitled under Hawaii's no-fault insurance provisions to recover for expenses that he cannot reasonably prove he incurred. See Haw.Rev.Stat. Sec. 294-4(3) (recodified as Sec. 431:10C-304(2) & (37) (1988)). Requiring Souza to prove that he, in fact, incurred expenses before obtaining compensation for them does not violate his rights under the first amendment.

AFFIRMED.