*1 432 GANIRON, II, v.
TONY Cross-Appellant, Plaintiff-Appellee, ASSOCIATION, HAWAII INSURANCE GUARANTY Defendant-Appellant, Cross-Appellee
NO. 11961 85-3384) (CIVIL NO.
NOVEMBER 1987 PADGETT, LUM, NAKAMURA, HAYASHI C.J., WAKATSUKI, AND JJ. PADGETT, OPINION OF THE COURT BY J. This is appeal judgment arose, covered, for the lawsuit incident from which this for no-fault and uninsured motorist coverage provisions Security insurance to him Financial issued automobile In- (FSIC), to which Hawaii Ltd. appellant Insurance Company, successor-in-interest, (HIGA) Association is the surance Guaranty awarding entered the order by appellee cross-appeal as to affirm fees the action. We him attorney’s fees. insurance and reverse the order as to attorney’s *2 1984, Tony The facts are On undisputed. January Ganiron, II, located B. was a the H-l car on driving freeway Honolulu, Hawaii, was struck he and of of when State County City another vehicle on freeway. bullet from fired from by gun never been have The other vehicle gun person identified or found. anwas insured an automobile insurance under
Appellee cov- issued and uninsured motorist FSIC no-fault by providing He made a to the Hawaii. statutes of State of erages pursuant claim for HIGA is to those pursuant coverages. Appellant of Hawaii to successor-in-interest under the statutes of the State then insolvent insurer It denied FSIC. and appellee filed this The court suit. below entered two summary judg- partial ments that there was and no-fault both Thereafter, for under the appellee’s injuries ap- policy. an moved for award of court below pellee fees and the at- entered an order what it found to be the reasonable reducing fees to a final entered torney’s Subsequently, 55%. and this were taken. appeal cross-appeal
With to the § of no-fault HRS 294-2 respect coverage, contains the definitions: following death, sickness,
(1) or “Accidental harm” means bodily injury, disease caused vehicle motor accident to a person. (9) “Motor vehicle accident” means an out of accident arising maintenance, vehicle, in- or use of a motor drawn a motor vehicle. or
cluding object propelled by (12) maintenance, or with use” when used “Operation, respect
to a motor vehicle into and includes entering occupying, from it but does not include conduct alighting of the acci- course or the vehicle unless loading unloading dental harm of the ve- occurs in the immediate proximity hicle, does course of a not conduct within the include of business or otherwise maintaining repairing, servicing, vehicles unless the conduct occurs outside the premises such business. of the of the uninsured
With respect scope l-448(a) HRS 43 as follows: § motorist or motor vehicle No automobile liability liability policy insuring loss law for bodily resulting liability imposed by or death suffered out the owner- any person arising delivered, or use of a motor shall be ship, State, issued with for renewed this delivery, respect any State, in this motor vehicle registered principally garaged thereto, unless therein or supplemental coverage provided 287-7, under limits for or death forth in section set bodily injury commis- filed with and the insurance provisions approved by sioner, thereunder who for insured protection persons are entitled to recover from owners or legally oper- ators of uninsured motor vehicles because of bodily injury, sickness, disease, death, therefrom, pro- including *3 that under this section shall not vided the coverage required in shall where insured named reject apply any in writing. coverage fees, 294-30(a)
As to the HRS § question as follows:
(a) be A a claim for no-fault may person making fees, and allowed an award of a reasonable sum for attorney’s an reasonable costs of suit in an action brought benefits under the insurer who denies all or of a claim for part commissioner, unless the court or the judicial upon policy, that administrative determines proceedings, respectively, excessive, fraudulent, attor- Reasonable claim was or frivolous. fees, be treated shall based actual time ney’s expended, upon insurer to be from the claim and directly by separately paid the attorney. whether the
The on the two issues is critical coverage question use in arose out of the similar in motor vehicle. Cases other involving jurisdictions Some, terms have reached results. using statutory varying rationale, “causal connection” have denied vehicle, as from the of a gun injury resulting itself, is not inflicted the vehicle from an distinguished test or a “territoriality” covered. Other states either a “nexus” using in test held is such situations. have there Appellee argues test be on should territoriality following adopted relying statute, from the of the Hawaii no-fault language legislativehistory Bill in Comm. No. on Hse. Conf. 2840-74: appearing Rep. The cited the industry, testimony, costlydanger having claims made for which, during loading operations fact, insured, were far but removed from the parked, has, therefore, threat,
Your Committee to limit this sought to for losses commonly simultaneously provide coverage associated with use or maintenance of a vehicle. By using measure, territorial criteria for this we have believe we attained moderate resolution. moderating 776-83, 1974 Sen. 779. Journ., pp. is, however, never, fact,
It clear that the consid- legislature ered the of whether there was under the no-fault statute for a a car and a result of a as person occupying injured from another car. 294-l(a)
HRS § provides: The of this to create repara- purpose chapter system tions for accidental harm vehicle and loss from motor accidents, fault, these without to compensate regard limit tort for these accidents. liability in- From the of the unknown appellee’s standpoint gunner, conduct, result but of either reckless or intentional juries our In were accidental. appellee’s they standpoint, opinion, fall within the accidental harm as definition of appellee’s injuries *4 294-2(1), in vehi- § defined HRS because the incident was a motor accident, 294-2(9), cle in occurred be- as defined HRS since it § maintenance, cause of the the vehicles in or use of ques- operation, tion. Both the and the motor ve- gunner appellee occupying hicles on the If when incident occurred. traveling highway of instead had gunner him shooting appellee injured by ramming car, car with his there would be no that the appellee’s question were covered. Given the of the statute as set forth in policy above, we see no distinction between the two language quoted events.
As uninsured term “owner- to the motorist the crucial maintenance, 431-448(a), in use” HRS although § ship, appears section, it that is not there defined. To it if an paraphrase says automobile the loss from liability policy insuring law suffered for liability imposed by bodily injury by any person maintenance, out of the or use of a motor vehi- ownership, issued, cle is then the must for the of provide protection thereunder, insured if are entided recover persons they legally vehicles, from owners or of uninsured because operators of such therefrom. injuries resulting
Since would be entitled to recover for his from appellee fired, vehicle from which the shot was owner of the operator on a literal of in the section there reading for appellee’s injuries. to both
We thus affirm the below with cov- respect judgment erages. the trial awarded of court 55%
Turning cross-appeal, for the award of fees. HRS § reasonable attorney’s authorization, in a is no situation reasonable fees. There attorney’s in the trial court to which a no-fault resists for carrier payment, because, here, as reduce reasonable fees attorney’s reverse the was a difficult or close one. We therefore the circuit court with order to remand part his full reasonable enter a judgment allowing appellee and remanded. fees. Affirmed reversed part, part briefs; Davis, (Ross Reid with him the CarletonB. N. Taosaka on counsel) Reid Richardsof for HIGA. with him (Gerald Keith on Y. K.H.
Bert S. Sakuda Young Sekiya briefs; counsel) Cronin, Fried, for 6? Fairbanks Kekina Sekiya, Ganiron. WAKATSUKI, J., OF OPINION
DISSENTING HAYASHI, J., WITH WHOM JOINS I dissent. respectfully view, not arise out
In did my use of a vehicle. motor Appellee’s fired from consists wound resulting only injury
437 the a not sustained use vehicle. The by obviously passing injury of either If automobile. the appellee, response or after hit the sustained gun, being by gunshot, that his it would be fair to crash of his argue Here, arose out of and use of his vehicle. the operation and the were in auto- both the assailant moving although appellee not mobiles at the time of the it was shooting, gunshot automobiles driven caused the the assailant and Moreover, occurred there is no evidence that injury. shooting due to assailant’s or or use of their respective appellee’s operation automobiles. The vehicles were use of the merely operation incidental to cause of the injury. primary
The factor the its offers only majority support summary use of the conclusion that arose out of the injury operation vehicles is that both the mov- assailant and appellee occupying demonstrate, at vehicles the time of This does ing the incident. not however, that the re- was causally injury lated to use or of either For to be vehicle. operation warranted, must automobiles serve as more than merely situs of the events. SeeContinentalWesternInsurance 394 Co. v. Klug, (Minn. 1986). Ct. N.W.2d App. I find the no-fault
Finally, nothing legislative history law to that our suggest legislature, “creat[ing] repara- system tions for accidental harm loss from motor vehicleacci- dents,” 294-l(a) added), §HRS intended to cover (emphasis gun- mainte- inflicted not connected to the causally nance, or of automobiles. use shot at motorist is Being by passing a natural not or foreseeable risk obviously using operating Western, See automobile. Continental at 875. N.W.2d I would reverse the no-fault and judgment granting appellee.