*1 the Commission is remanded application is reversed. The and the opinion with this consistent proceedings further fact. findings prior Commission’s appellant Bridges for
Gene General, George Leonard, Jr., Attorney Deputy E. Olen brief) appellee (with him Pai, Attorney General Compensation Commission. Injuries Criminal Plaintiff, DeMELLO, HOWARD FIRST INSURANCE J. HAWAII, LTD., COMPANY Defendant.
NO. 12, 1974 JUNE KOBAYASHI, LEVINSON, RICHARDSON, C.J., JJ., OGATA, VITOUSEK and CIRCUIT JUDGE BY REASON OF VACANCY ASSIGNED TEMPORARILY OGATA, BY OF THE COURT OPINION J. (hereinafter plaintiff- plaintiff
Howard DeMello J. (hereinafter insured) Company of Hawaii and First Insurance defendant-insurer) this defendant or submitted for our case H.R.S., provisions decision ch. under former 631 of that this could provided Court hear and determine *2 Agreed claim presented for relief on an Statement Facts.1 Agreed From the submitted of Facts we Statement extract the following sequence legally significant events. evening 18, 1971,
Late August plaintiff operating Honolulu, his truck in on Kalanianaole pickup Highway (west) about mile one-half ewa of the intersection of Highway Kalanianaole and At this Ehukai Street. particular location, is a Highway road; Kalanianaole plaintiff two-lane inwas his ewa-bound lane. The other lane was for traffic proceeding opposite (Makapuu direction east bound). Suddenly, noticed an plaintiff headlights on- coming, Makapuu-bound approaching pickup vehicle his According stipulated facts, truck. on-coming Makapuu-bound vehicle was ewa-bound lane travel. apparently collision; To avoid an plaintiff imminent head-on right swerved his vehicle and collided with the right mountainside off the shoulder of the highway. The operator approaching of the that had been vehicle driven improper lane drove without and never stopping has been identified. stipulated
It is agreed (1) plaintiff further that: suf- injuries fered severe of his result collision with the mountainside; (2) its injuries this collision and resultant were proximately by caused of the negligence still unknown vehicle; operator on-coming (3) there was no plaintiff’s contact between vehicle and on- the unidentified coming agreed It is also that had plaintiff vehicle. in force liability valid automobile time accident insurance provided defendant-insurer that defendant- pay damages by insurer would caused uninsured motorist. particular provision plaintiff-insured under which claims repealed 89, 7; entirety, 1972, § Ch. 631 of H.R.S. has been in its SLH Act 1, 1973, 1972, July 89, § effective SLH Act 11. us This case was submitted to for 2,1973. jurisdiction power dispose decision March We have to entertain 602-5(3) 88, 2, July § this cause under HRS as amended SLH Act effective and under our Rule 21. paragraph, paragraph the “hit-and-run” coverage any “bodily injury specifically coverage includes to an arising insured out contact” of insured’s motor “hit- operated negligent motor vehicle vehicle driver, long identity so of the “hit-and-run” and-run” agree Plaintiff driver cannot ascertained.2 and defendant prerequisites recovery policy provi that all the under the with, except have save and for the complied sions been fact plaintiff-in no between there was operated by the still uniden sured’s vehicle the vehicle tified other driver. turning herein, involved legal
Before the narrow issue dissenting opinion merits brief infra, the issue raised agree view, expressed by the with the discussion. We dissent, invalidly applicability assumed the by invalidly assuming accidents herein of HRS operators and involving unidentified motor vehicle insured *3 § in all by are intended HRS 431-448 to be covered drivers liability in this state. policies automobile insurance issued Nor we with in the that agree expressed the view dissent provisions The relevant are: COVERAGE: AGAINST UNINSURED MOTORISTS
PROTECTION legal representative pay shall company all his sums which the insured or the will damages operator of legally the or an as owner be entitled recover insured, injury bodily highway of sustained vehicle because uninsured arising ownership, use of such and out of the maintenance or caused accident vehicle; highway .... uninsured ” “ highway vehicle” means: “Uninsured vehicle; (b) A hit-and-run “ ” bodily highway injury means causes vehicle” a vehicle which “Hit-and-run arising with insured insured out of contact of such vehicle or an accident, occupying at time of an which the insured is automobile (a) identity operator provided: or the be ascertained the there cannot either vehicle; (b) his behalf shall have the insured or owner such someone police, judicial peace reported accident to a or officer within hours Vehicles, company within 30 and have filed with the of Motor shall Commissioner legalrepresentative days that the insured or his statement under oath thereafter damages against arising accident for causes action out such has cause or unascertainable, setting identity person persons the facts and forth or whose is thereof; (c) request, legal company’s support the insured or his and at inspection representative which the insured the automobile makes available occupying at the time of the accident. terms HRS are clear and unambiguous applied in this case.3 dissenting proceeds opinion logically unsound basis that an not, be, driver is an unidentified driver,
uninsured apply. and hence the statute does not How- ever, it seems clear us that unidentified drivers can either (b) (a) be insured or uninsured. we make Unless some com- pletely unsupportable and unwarranted assumption factual whether or about not the driver is not unidentified or is insured, we cannot know from the bare terms of the unin- sured motorists or an statute whether not automobile acci- involving dent is driver is not intended to unidentified covered statute. We no basis on factual determination, make such are factual determinations inappropriate court, an appellate activities for in event. dissenting perhaps unconsciously, Whereas opinion, assumption driver, by makes factual the unknown unknown, of being virtue uninsured, prefer cannot also be to have recourse to history HRS 431-448 for determining assistance in how the term in the “uninsured” is statute to be read in cases as that such here bar. The history statute, pertinent of this legislature part, set out only clearly infra, fn. is a legislative indicative assure, § 431-448, intention to via HRS proper compensation accidents, tragically injured for those automobile but in fact, expressly, clearly, ambiguity, states a legis- without companies provide lative intention to assure insurance coverage injured have, persons accidents who here, a valid claim uncollectible because of the fact that the operating tortfeasor second vehicle involved *4 pertinent § provides part HRS 431-448 in as follows: liability; coverage damage by § 431-448 Automobile for uninsured motor liability liability policy vehicle. No automobile or motor vehicle . . . shall be delivered, delivery, coverage issued or in . . for renewed this . unless is State provided bodily supplemental thereto, injury therein or in or set limits for death 287-7, provisions approved by
forth in section filed with and under the insurance commissioner, protection persons legally for the insured thereunder who are damages operators to recover or of uninsured entitled from owners motor vehi- however, provided, coverage required . . that cles the under this section shall . reject applicable any policy coverage insured named in shall not be where the the writing. dis- sum, the In whereas cannot the accident be identified. illogical and unfounded takes the opinion apparently senting are dif- “uninsured” that because “unidentified” view conceptu- mutually adjectives (albeit ferent not exclusive the ally), is a favor of unknown presumption there only oppo- think that coverage, we tortfeasor’s insurance unam- with the clear and site can be reconciled presumption provide to to in- intent- biguous statement that now instances such adequate protection sureds us. before presented complex legal issue for
The narrow and more under plaintiff-insured is whether recover our decision when, particular policy his with defendant-insurer insurance here, requirement” policy in the contact is that language complied urges with. Plaintiff-insured is null and void under precondition §HRS 431-448. recently have similar In
We decided somewhat issue. Walton v. State Farm Mutual Automobile Insurance Com (1974), pany, 55 Haw. 518 P.2d that in order we held 431-448, 4 accomplish protective to of HRS an purpose provi clause in “other insurance” the uninsured motorists liability an its sions of insured’s is invalid if automobile recovery by is limit particular effect the insured under the 431-448), (which Report Standing became HRS 194 on H.B. Committee Journal, part: page House states insurance, voluntary through protection, purpose promote bill The of this is personal pay injured by persons for uninsured who for who are motorists injuries . . vehicle accidents. . caused motor protection engages pay offering company motorist An insurance uninsured limits, insured, uncollectible . not to the stated to the . . sums exceed bodily injury damages resulting judgment or from valid or unsatisfied claims payable death, resulting becomes claim . . . use of automobile. valid, is, legal that there his is victim shows that claim when innocent responsible liability person alleged the claim cannot be person irresponsibility or because because of the financial collected inability person persons responsible. identify the testimony persons bill, cited where this have been instances damages injuries property personal found suffered extensive financially any liability guilty irresponsible insurance. and without motorist availability general public knows about Your Committee believes that if it, insurance, many companies compelled are such insurance offer if (Emphasis supplied.) tragic circumstances can be avoided. these *5 524
policy to amount is less statutory that than the minimum § up 287-7, set HRS if that limit also results insured’s recovery total from all equalling sources less than the — insured’s damage. Similarly, actual here hold invalid as we — contrary protective to the purpose § of HRS requirement contact” in the uninsured motorists coverage of insured’s policy. automobile Walton,
As in
we are
confronted
with a split
outset
in authority.5
However,
study
detañed
authority
of the case
only
in this
minimally
field is
we
helpful, because
are here
required
statute,
to
Hawaii
construe
which the law in
jurisdictions
only.
other
advisory
be
considering
In
contractuaUy
whether the
policy
imposed
requirement
physical
impact
be
and void
should
null
as in
statutory
contravention
policy requirement evident in
§ 431-448,
HRS
may analyze
problem by endeavoring
(1)
to discover
what arguably
arbitrary
valid objective this
5
interpreting
statute,
the Florida uninsured
it
motorist
held that no
was
requirement
permitted
contractual
could
to stand so as to defeat
recovery
Progressive
in a factual situation similar
here involved. Brown v.
Company,
(Fla. 1971).
special legislative
Mutual Insurance
So.2d
249
429
purpose of
required
the uninsured motorist statute
this result. Fla. Stats.
627.0851,
Compare,
Progressive
Company,
F.S.A.
Brown v.
Mutual Insurance
su
pra,
Stewart,
(Fla.
Ct., 1974),
with
Sup.
Gilliam v.
The first two the only designed be to reduce physical requirement impact may be filed the of claims that insureds number insurers, of are by elimination some claims which fraudulent. Company, 249 Progressive Mutual Insurance So.2d Brown v. (Fla. Exchange the Auto. 1971); Inter-Insurance 429, 430 of 441, App. v. Lopez, Club 238 Cal. Southern California of is eliminate 834, (1965). “The to Rptr. object Cal. who, through negligence, a his own claims of driver fictitious without the involvement of another injury to himself causes vehicle, recovery it due ground the that was then seeks on Mutual Au- driver.” State Farm to a hit-and-run fictitious Company tomobile Insurance v. 374 F.2d Spinola, (5th is 1967). elimination claims obvi- Cir. of fraudulent ously repugnant statutory to terms 431-448 the of HRS policies provision’s his- legislative to reflected tory.
Conceding physical that the is de impact signed to eliminate fraudulent claims and elimina such contrary statute, is not next tion we are faced with the step evaluating third this analytical proper whether actually even laudable served objective any light countervailing requirement, especially in impact Since, bar, requirement. at objections to case Facts, according Agreed Statement the claim claim, it is plaintiff-insured is valid and non-fraudulent contrary statutory policy evident that it be would permit legislative intent of HRS 431-4486 plaintiff-insured’s bar this valid claim impact requirement this be against Although this case might defendant-insurer. easily seeks grounds, decided these defendant-insurer ruling this broader court. history especially paragraph two thereof. See the set out fn. 4
This court has held that the fear of flood of fraudulent justify judicial deprivation plaintiff’s claims cannot right bring independent tort, action because the genuineness of the claim adequately can be tested adversary process. State, Rodrigues mechanisms of our 156, 169-176, 472 Haw. P.2d the case bar, inas it is Rodrigues, forgotten not to be that plaintiff very recently carries the proof. only burden We held plaintiff the weight proof provides fully s burden of ’ protection adequate against “flood’ of fraudulent claims negligent distress, for the infliction of emotional judicial imposition of a in this as an permitted and should be eliminated state
arbitrary, irrelevant, recovery unjust and often barrier to the by plaintiff damages mental distress negligently actual *7 Takasaki, Leong 398, inflicted others. v. 55 Haw. 520 P.2d Similarly physical hold impact 758 here that the be requirement used defeat defendant-insurer an insured’s valid otherwise claim. For us to enforce insurer’s physical effect, impact prerequisite would, contractual in propping up arbitrary amount to our barricade erected resulting to eliminate all claims for damages one car it is accidents. clear that one car accidents can be Since negligent caused a “uninsured” operation second (as here) any prerequisite contractual vehicle statutory pur contact between automobiles undermines poses of HRS 431-448.7 recognized has repeatedly, tacitly, by many
It
if
been
can,
strictly
if
courts
enforced,
prevent
result,
yet
this
defeat valid
To
claims.
“uphold”
impact requirement,
have
courts
been com-
pelled
may
engage
euphemistically
what
termed
unbelievably
thinking.
example,
creative
For
v.
Johnson
Ins.,
State Farm Mut. Auto.
70 Wash. 2d
7 Note involved,8 there substantively here identical a sec vehicle struck when an unknown “physical contact” vehicle; the court vehicle, insured’s in turn struck ond which contact” interpretation this held that strained statute.9 Other the uninsured motorists was consistent with Com v. Insurance gone yet further. courts Barfield America, App. S.W.2d North 59 Tenn. pany of (1968), held contact” court vehicle an unidentified the rear wheels of was satisfied when causing him through a windshield a rock claimant’s propelled Gernand, Company Insurance injury.10 In American severe (1968), found 300, 68 Rptr. 810 the court App. Cal. Cal. Alice as to whether defendant-insured an arbitrable issue her uninsured in could under motorists Gernand collect physical contact when Mrs. Gernand requiring dorsement injured by an uniden and another were in an accident caused vehicle, opera negligent operation driver’s which tified swerving in third collision tion resulted vehicle’s avoid This party’s automobile. third vehicle’s with the unidentified vehicle, defendant-insured, operator of her swerve caused of the vehicles touched to swerve avoid collision. None vehicles, yet this factor not alone defeat of the other could automobile The insured’s (for purposes policy provided of uninsured motorists following protection): definition of a “hit-and-run” injury arising automobile causes an insured out bodily which
[A]n
of such automobile with the insured or with an
automobile
occupying at
insured is
of the accident
....
time
words
Compare
70 Wash. 2d
“
‘Hit-and-run vehicle’
with the
policy
*8
language
P.2d at
”
means ....
involved
649.
in the
case
at bar,
fn.
following
son
Civ.
ern
[873]
insured’s contact” tanding.11 notwiths preceding a indicate toward the cases trend erosion contractually a validity requirement. imposed impact
This factor should be connection with the obvi considered arbitrary requirement ous correlative truth that this will de clearly feat some conceptually valid claims unless stretched points incredulity far beyond preceding that done cases.12 light of these considerations we do not think we should a
adopt
validating
rule
impact requirement
if
do
so will
initially (by
either defeat valid claims
construction),
strict
or
compel many claimants to
expense
take
litigating
meaning
(if
contact”
approach
liberal
prevails).
that,
minimum,
ap-
Since we feel
a liberal
proach to
requirement
the definition of
contact
required by
statute,
would
and since
presence
will
often be
collateral
irrelevant issue
the establishment
a valid
negligence
claim based on the
driver, and, finally,
the unidentified
since considerable
must,
sophistry
perforce, be used
what
courts to decide
amounts to
“physical contact”
one
in order to
case
(given
sustain a valid claim
provi-
a liberal definition of the
sion)
required
think it
to hold the
prerequisite
void
provision
under the statute.
hold
To
other-
wise
protection
would dilute the
intended to be offered
insureds,
HRS
unnecessarily
it
making
dif-
expensive
ficult and
an injured
prove
insured
his
validity.
claim’s
11
acknowledge
contractually imposed physical impact
We
other cases
strictly construed,
Cruger v.
Co.,
e.g.,
has been
Allstate Ins.
162 So.
Ely
(Fla.
Co.,
App. 1964);
App. 586, 268
690
v.
Farm Mutual Auto. Ins.
State
148 Ind.
Co.,
(1971);
App.,
Cent. Ins.
281
N.E.2d
Blankenbaker
Great
Ind.
(1972);
Casualty
Head,
(Miss. 1970);
Surety
Aetna
N.E.2d 496
&
Co.v.
2.41, 84-5, pp. fn. 194 *9 note possibility We also the clear instances in of contractually imposed requirement will not its justifi- fulfill able objective eliminating of claims. A fraudulent claimant same, with a fraudulent claim bolster if necessary, damaging car apparent his own leave of proof requisite contact” with non-existent “unidentified vehi- cle.” The contractual “physical impact” requirement thus only sweeps broadly, broadly not too but also enough, only its accomplish justifiable statutorily permissible prevention purpose, of frauds.
Because insurer’s contractual of impact unjustifiably impedes statutory effectuation protection against damage insureds negligence drivers, unidentified as elaborated our analysis, supra,13 Accordingly, it will cannot stand. judgment plaintiff-insured. entered for P.
Christopher (Gould counsel) McKenzie & McKenzie of for plaintiff.
Walter Davis for defendant. KOBAYASHI, J„ OF
DISSENTING OPINION AND CIRCUIT VITOUSEK JUDGE We dissent. it majority is that fallacy opinion
The basic of the of the goes unidentified, “hit and run” assumption provi- within operators owners motor fall vehicles sions of HRS 431-448. addition, majority violates opinion funda-
mental statutory Though rule language construction. is plain, clear, statute and unambiguous, majority ambiguity concludes exists and for of its support conclusion ’ utilizes a report committee for “clarification’ as legislative intent. the majority
Then justification of the court into a plunges why necessary contact” is not a “hit 2.41, requirement, Widiss, p. e.g., supra, For other criticism see 86; Poche, Scope Chadwick and Uninsured Statute: Prob Motorist California’s lems, L.J., 194, 13 Hast.
run” situation. if plausible majority
The
of the
would
opinion
initially
ques-
threshold
to the
had addressed itself
opinion
same,
dispensation
tions,
then dealt with
resolved
However,
we are
“physical contact” in “hit and run” case.
majority
that if
had dealt with the basic
opinion
herein,
majority
involved
would
questions
threshold
not
company
was
concluded
the defendant
insurance
“hit and
or unidenti-
coverage
run”
compelled to issue
the terms of
fied
or
of motor vehicles under
operators
owners
strictly
431-448,
coverage
that said
volun-
HRS
in-
and defendant
tary agreement
plaintiff-insured
between
in that
this court would then
company.
surance
context
And
the defendant
insurance com-
resolve the issue of whether
pany
impose
not
could
could
coverage.
in a “hit and run”
contact”
the terms of HRS 431-448 are clear
opinion
our
meaning.
their
and need no construction
unambiguous
clearly
damages
provisions
state
“to recover
The
therein
of uninsured motor vehicles
operators
from owners or
Furniture,
Century
added.)
. . . .” (Emphasis
Twentieth
Board, 52
Appeal
Inc. v. Labor
Industrial Relations
City
Com
(1971);
Bank
Helvering
Haw.
2d 813 Accord, Amidzich v. Charter Oak Fire Insurance Co., 44 Wis. 170 N.W.