2010 Hawaii Code
DIVISION 2. BUSINESS
TITLE 24. INSURANCE
431. Insurance Code
§431 10C-306 Abolition of tort liability.
§431:10C-306 Abolition of tort liability. (a) Except as provided in subsection (b), this article abolishes tort liability of the following persons with respect to accidental harm arising from motor vehicle accidents occurring in this State:
(1) Owner, operator, or user of an insured motor vehicle; or
(2) Operator or user of an uninsured motor vehicle who operates or uses such vehicle without reason to believe it to be an uninsured motor vehicle.
(b) Tort liability is not abolished as to the following persons, their personal representatives, or their legal guardians in the following circumstances:
(1) Death occurs to the person in such a motor vehicle accident;
(2) Injury occurs to the person which consists, in whole or in part, in a significant permanent loss of use of a part or function of the body;
(3) Injury occurs to the person which consists of a permanent and serious disfigurement which results in subjection of the injured person to mental or emotional suffering; or
(4) Injury occurs to the person in a motor vehicle accident and as a result of such injury that the personal injury protection benefits incurred by such person equal or exceed $5,000; provided that in calculating this amount:
(A) The following shall be included:
(i) Personal injury protection benefits incurred by, paid to or payable to, or on behalf of, an eligible injured person including amounts paid directly by or on behalf of the eligible insured because of the accidental harm or similar benefits under social security, worker's compensation, or public assistance laws;
(ii) The applicable amounts of deductible or copayment paid or incurred;
(iii) Amounts paid by or on behalf of an injured person who is not entitled to personal injury protection benefits, by health insurance or other funds; provided that payment in excess of the charges or services allowable under this chapter shall not be included;
(iv) Where an eligible injured person receives coverage on other than a fee for service basis including, but not limited to, a health maintenance organization operating on a capitation basis, the value of services provided shall be determined in accordance with the fee schedules allowable under this chapter for purposes of threshold determination;
(B) When a person has optional coverage, benefits received in excess of the maximum basic personal injury protection limits set forth in section 431:10C-103.5 shall not be included.
(c) Subsections (a) and (b) shall apply whether or not the injured person is entitled to receive personal injury protection benefits. The party against whom the presumption under this section is directed shall have the burden of proof to rebut the presumption.
(d) No claim may be made for benefits under the uninsured motorist coverage by an injured person against an insurer who has paid or is liable to pay motor vehicle insurance benefits to the injured person unless the claim meets the requirements of this article.
(e) No provision of this article shall be construed to exonerate, or in any manner to limit:
(1) The liability of any person in the business of manufacturing, retailing, repairing, servicing, or otherwise maintaining motor vehicles, arising from a defect in a motor vehicle caused, or not corrected, by an act or omission in the manufacturing, retailing, repairing, servicing, or other maintenance of a vehicle in the course of the person's business;
(2) The criminal or civil liability, including special and general damages, of any person who, in the maintenance, operation, or use of any motor vehicle:
(A) Intentionally causes injury or damage to a person or property;
(B) Engages in criminal conduct that causes injury or damage to person or property;
(C) Engages in conduct resulting in punitive or exemplary damages; or
(D) Causes death or injury to another person in connection with the accident while operating the vehicle in violation of section 291E-61 or section 291-4 or 291-7, as those sections were in effect on or before December 31, 2001.
(f) No provision of this section shall be construed to abolish tort liability with respect to property damage arising from motor vehicle accidents. [L 1987, c 347, pt of §2; am L 1997, c 251, §43; am L 1998, c 275, §§22, 23; am L 2001, c 157, §31]
Section (pre-1997) does not violate constitutional right to the equal protection of the laws as applied to persons ineligible for no-fault benefits. 87 H. 297, 955 P.2d 90.
Plaintiff did not satisfy minimum level of qualifying expenses necessary to maintain action under subsection (b)(2) (1993) where plaintiff did not present: (1) evidence that medical expenses plaintiff claimed in motor vehicle tort lawsuit were paid, thereby triggering statutory presumption that they were reasonable and necessary; nor (2) expert testimony establishing that the expenses were reasonable and necessary. 88 H. 251, 965 P.2d 793.
Where insured was neither involved in the car accident nor witnessed the accident involving insured's son, insured was precluded from recovering for any emotional distress under subsection (b) and First Insurance Co. of Hawaii v. Lawrence. 108 H. 380, 120 P.3d 1115.
Where plaintiffs' claim did not accrue until the quantum of the medical care they actually received exceeded the medical-rehabilitative limit set forth in subsection (b)(2) (1993), and plaintiff apparently exceeded that limit, §662-4 afforded plaintiffs two years from the accrual of their claim within which to file their lawsuit; as plaintiffs' claim had accrued by the time they filed their complaint but not more than two years prior, the complaint was timely under §662-4; thus, trial court properly denied defendant's motion to dismiss. 113 H. 459, 153 P.3d 1144.
Trial court erred in entering judgment for defendant as subsection (b)(2) does not require that jury return verdict in excess of medical-rehabilitative limit established by §431:10C-308, but only requires that "amount paid or accrued" exceeds this limit. 80 H. 188 (App.), 907 P.2d 774.
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