77 Hawai'i 117, Dawes v. First Ins. Co. of Hawai`i, Ltd.

Decision Date12 October 1994
Docket NumberNo. 15457,15457
Citation883 P.2d 38,77 Hawai'i 117
PartiesPage 38 883 P.2d 38 77 Hawai'i 117 Jeanette DAWES, Individually and as Special Administrator of the Estate of Elizabeth Jean Bockhorn, Deceased, Plaintiff-Appellant, v. FIRST INSURANCE COMPANY OF HAWAI'I, LIMITED, a Hawai'i corporation, Defendant-Appellee. Supreme Court of Hawai'i
CourtHawaii Supreme Court

Ian L. Mattoch (Roger I. Hoffman with him on the briefs), Honolulu, for plaintiff-appellant Jeanette Dawes.

Bradford F.K. Bliss of Lyons, Brandt, Cook & Hiramatsu, Honolulu, for defendant-appellee First Ins. Co. of Hawai'i, Ltd. Before MOON, C.J., KLEIN, LEVINSON and NAKAYAMA, JJ., and WALTER M. HEEN, Intermediate Court of Appeals Judge, in place of RAMIL, J., Recused.

LEVINSON, Justice.

This case calls upon us to revisit National Union Fire Ins. Co. v. Olson, 69 Haw. 559, 751 P.2d 666 (1988), in order to clarify further the nature and scope of uninsured motorist (UM) insurance coverage under applicable Hawai'i law. The plaintiff-appellant Jeanette Dawes, individually and as special administrator of the estate of her daughter, Elizabeth Jean Bockhorn, deceased, has appealed from the circuit court's order granting the motion for summary judgment of the defendant-appellee First Insurance Company of Hawaii, Limited (FICH) and denying Dawes's cross-motion for summary judgment (order). For the reasons set forth in this opinion, we reverse the circuit court's order and remand for the entry of summary judgment in favor of Dawes.


The facts material to the present appeal are not in dispute. On October 21, 1988, Eric L. Shimp, Bockhorn, and two of their mutual female friends spent the afternoon sand boarding and taking in the sun at Kua Bay Beach, north of the Kona Airport on the island of Hawai'i. Deposition of Eric Shimp (Shimp deposition), conducted on April 21, 1989, at 8-9. Shimp had driven the group to the beach in an International Travel All (the insured vehicle), a "Jeep Cherokee" style automobile owned by Shimp's father and insured under a general automobile liability insurance policy, Policy No. AP 3154087, issued by FICH (the FICH auto policy). Id. at 29-30; affidavit of Elizabeth Nelander.

Sometime between 4:30 and 5:00 p.m., the group left the beach in the insured vehicle--Shimp driving and Bockhorn and the other women riding as passengers--to return to Kona, where Bockhorn resided. Shimp deposition at 8, 10-11. As Shimp proceeded south on the Queen Ka'ahumanu Highway, he noticed that the temperature gauge of the insured vehicle was abnormally high. Id. at 11. The gauge continued to rise, so Shimp slowed the insured vehicle to a stop and parked it approximately twenty feet off the ocean-side edge of the highway. Id. at 11-12. While the three women remained in the insured vehicle, Shimp looked under the hood and saw that "steam was coming out everywhere." Id. at 12. Shimp decided to pour some water into the radiator from a five-gallon jug kept in the insured vehicle for emergencies, but "[w]hen [he] poured the water in, [he] noticed it was coming out just as fast as [he] was putting it in." Id. Accordingly, Shimp concluded that "we weren't going to use the vehicle to go any further" because "the plug where you drain the radiator had blown out." Id. For approximately fifteen minutes, Shimp attempted unsuccessfully to repair the insured vehicle. Id. at 14.

At that point, according to Shimp's uncontroverted testimony,

I discussed with all the parties involved what we should do. Should we wait for a police officer or should I go up to the airport, since it was in sight, and they would wait there, or if we should all walk. We were seriously considering waiting for about a half an hour until a police officer came by, and one drove by and didn't stop. That's when the car was steaming, and he did not stop.

So then I discussed further with the girls what to do, and they came to the decision, all of us came to the decision to walk to the airport.

Id. at 13. The decision was motivated by the fact that one police officer had already driven by the disabled insured vehicle without stopping; "[t]hat kind of made our mind up that if he's not going to stop, there's probably not going to be another one coming by for a while any ways." Id.

The group's objective in proceeding on foot to the airport was to obtain alternative transportation and repair assistance. Order at 3; affidavit of Eric L. Shimp at 2. At about 5:30 p.m., after walking alongside the shoulder of the highway--well clear of the pavement--for twenty to twenty-five minutes and having traveled approximately one mile from the insured vehicle, Shimp heard "a very loud disturbing sound" coming from behind. Shimp deposition at 11, 14-16, 24. Shimp turned toward the sound in time to see Bockhorn, who was to his immediate left on the highway side, struck by a maroon Honda Accord that was moving "at highway speed." Id. at 15-17, 24; exhibit "1" attached to the Shimp deposition. Bockhorn was thrown onto the Accord as it proceeded down the highway; she was carried for approximately the length of a football field before she fell off. Id. at 23-24.

Bockhorn sustained fatal injuries and died at the scene of the accident. Order at 2; Shimp deposition at 25-28. The Honda Accord was uninsured. Order at 2. Apparently, the driver was uninsured as well.

As we have noted, at the time of the events described above, the insured vehicle was covered by the FICH auto policy issued to Shimp's father. The "Insuring Agreement" of Part C-1--entitled "Uninsured Motorists Coverage"--provided in relevant part:

[FICH] will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:

1. Sustained by a covered person; and

2. Caused by an accident.

The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle.


"Covered person" as used in this Part means:

1. [The named insured, i.e., Shimp's father] or any family member.

2. Any other person occupying your covered auto.

3. Any person [e.g., the administrator of a decedent's estate, or a minor claimant's "next friend"] for damages that person is entitled to recover because of bodily injury to which this coverage applies sustained by a person described in 1. or 2. above.

"Uninsured motor vehicle" means a land motor vehicle or trailer of any type:

1. To which no bodily injury liability bond or policy applies at the time of the accident.


3. Which is a hit and run vehicle whose operator or owner cannot be identified and which hits:

a. [the named insured] or any family member;

b. a vehicle which [the named insured] or any family member are occupying; or

c. [the named insured's] covered auto.

(Underscoring added and bold in original.) The general "definitions" section of the FICH auto policy defined "family member" to mean "a person related to [the named insured] by blood, marriage or adoption who is a resident of [the named insured's] household." "Occupying" was defined to mean "in, upon, getting in, on, out or off." It is undisputed that the insured vehicle was a "covered auto" of the named insured and that Shimp was a "family member".

At some point after Bockhorn's death, Dawes asserted a claim against FICH for UM benefits, as delineated in the FICH auto policy, for injuries and damages arising from the October 21, 1988 accident. FICH denied Dawes's claim.

On May 16, 1990, Dawes filed a timely complaint in the Third Circuit Court for declaratory judgment against FICH, in which she sought a declaration that the FICH auto policy's UM coverage was available to her to cover damages resulting from the October 21, 1988 accident. FICH answered the complaint on June 25, 1990 and asserted a counterclaim for declaratory judgment against Dawes, in which it sought, inter alia, a declaration that "[FICH] has no obligation to pay [UM] benefits to [Dawes] for any loss or injury arising from the October 21, 1988 ... accident."

On April 10, 1991, FICH moved the circuit court for an order granting summary judgment in its favor "declaring that [Dawes] is not entitled to [UM] benefits under the subject policy issued by [FICH], on the ground that [Dawes's] decedent, ... Bockhorn, was not a 'covered person' under the [UM] provisions of the ... policy at the time she sustained fatal injuries on October 21, 1988." On May 15, 1991, Dawes filed a cross-motion for summary judgment seeking the converse relief, namely, an order declaring that Bockhorn was a "covered person" under the FICH auto policy at the time of the accident.

The two motions came on for hearing on May 21, 1991. Counsel for Dawes and FICH agreed that there were no genuine issues of material fact and that the case was ripe for summary judgment in favor of one party or the other. 5/21/91 Tr. at 3, 25. The hearing consisted almost exclusively of a thorough and probing colloquy between the circuit court and the parties regarding the proper application of Olson, supra, to the undisputed facts of the case, at the end of which the circuit court took the matter under advisement.

On June 5, 1991, the circuit court entered an order granting summary judgment in favor of FICH and against Dawes on the basis that "[a]t the time of the subject accident[,] Elizabeth Bockhorn was not occupying the insured vehicle, was not in the immediate proximity of the insured vehicle[,] and was not engaged in maintenance or use of the insured vehicle."

Dawes filed a timely notice of appeal on July 1, 1991.


On appeal, an award of summary judgment is reviewed under the same standard applied by the trial courts. Under Hawai'i Rules of Civil Procedure Rule 56(c), summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Kaneohe Bay Cruises, Inc. v. Hirata, 75 Haw. 250, 258, 861 P.2d...

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