Unpublished Disposition, 937 F.2d 612 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 612 (9th Cir. 1991)

Azure MCCALL, Plaintiff-Appellee,v.UNITED STATES of America, Defendant-Appellant.

No. 90-15240.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 13, 1991.Decided July 11, 1991.

Before HUG, SCHROEDER and WIGGINS, Circuit Judges.


MEMORANDUM* 

Appellant United States appeals the district court's judgment, following a bench trial, in favor of Azure McCall ("McCall"). McCall brought suit under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), following an accident in which she suffered physical injuries and property damage when her car was hit by a government vehicle. The district court concluded that, as a result of the accident caused by the Government's negligence, McCall suffered accident harm consisting in whole or in part of "a significant permanent loss of use of a part or function of her body." As such, McCall's injuries fell within the terms of an exception to the abolition of tort liability under the Hawaii no-fault statute. Consequently, the district court awarded McCall damages totaling $34,106.73. We have jurisdiction to decide this case under 28 U.S.C. § 1291 and we affirm the judgment of the district court.

The question before this court is whether the district court erred when it determined that McCall had sustained "a significant permanent loss of use of a part or function of the body" and thus had a cause of action under the threshold provisions. As an initial matter, we must decide whether this is a question of fact, as argued by McCall, see Parker v. Nakaoka, 68 Haw. 557, 561-62, 722 P.2d 1028, 1031 (1986), or a mixed question of law and fact requiring de novo review, as argued by the Government. See United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).

In Parker, the Hawaii Supreme Court addressed whether the trial judge, as a matter of law, or the fact-finder, should have determined whether Parker's injury "met the threshold requirement for tort liability pursuant to Hawaii Revised Statutes ("H.R.S.") Sec. 294-6(a) (1)...." 68 Haw. at 562, 722 P.2d at 1029, 1031. The Parker court held

that whether the plaintiff meets the threshold requirement is for the jury to determine inasmuch as the facts relating to [plaintiff's] injury are in dispute and reasonable minds could differ on whether [plaintiff] sustained an injury which consists, in whole or in part, in a significant permanent loss of use of a part or function of her body.

Id. at 1031 (citations omitted).

Although, in the instant case, the district court's factual findings relating to McCall's injuries are not in dispute, the parties differ on whether those undisputed injuries consist, in whole or in part, in a significant permanent loss of use of a part or function of her body. It is our view that this is a question of fact for the district judge to have decided. While we acknowledge that there is an aspect of this inquiry that may be considered a mixed question of law and fact, we view the predominant inquiry as being factual. See McConney, 728 F.2d at 1202-03. The application of the threshold exception to the facts relating to McCall's injuries requires an essentially factual inquiry with the concerns of judicial administration clearly favoring the district court in this instance. Id. at 1201-02. Accordingly, the trial judge's determination that McCall had sustained "a significant permanent loss of use of a part or function of the body" shall not be set aside unless clearly erroneous. See Fed. R. Civ. P. 52(a); Rozay's Transfer v. Local Freight Drivers, Local 208, 850 F.2d 1321, 1326 (9th Cir. 1988), cert. denied, 490 U.S. 1030 (1989). Further, due regard must be given to the opportunity of the trial court to judge the credibility of the witnesses. Fed. R. Civ. P. 52(a); id.

Under Hawaii's no-fault scheme, the accident victim may not maintain the traditional negligence tort action against the alleged wrongdoer except as to certain "serious" instances specified under H.R.S. Sec. 294-6. See Parker, 68 Haw. at 560, 722 P.2d at 1030. One such exception that authorizes the traditional tort suit is when an "injury occurs to such person which consists, in whole or in part, in a significant permanent loss of use of a part or function of the body." H.R.S. Sec. 294-6(a) (1).

Here, the district court determined that McCall suffered accident harm pursuant to H.R.S. Sec. 294-6(a) (1). The district court based this conclusion on various facts relating to McCall's injuries. Specifically, the court found that McCall had sustained personal injury, including temporomantibular joint dysfunction, chronic cervical strain and other injuries. Further, it found that McCall had sustained physical pain and suffering, emotional distress, diminishment of earning capacity and loss of enjoyment of life. The trial judge's written findings of fact carefully detail the extent and degree of McCall's injuries, the treatment received by McCall and the impact those injuries have had and are likely to have on McCall in the future. Under the circumstances, we conclude that his decision was not clearly erroneous. It cannot be said that this court "is left with the definite and firm conviction that a mistake has been committed." McConney, 728 F.2d at 1201 (citations omitted) (internal quotations omitted). Consequently, the judgment of the district court must be affirmed.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3