88 Hawai'i 251, Ho v. Leftwich

Citation88 Hawaii 251,965 P.2d 793
Decision Date21 October 1998
Docket NumberNo. 20398,20398
Parties88 Hawai'i 251 April J.A. HO, Plaintiff-Appellant, v. Jeremy LEFTWICH, Defendant-Appellee, and John Does 1-10, Jane Does 1-10, Doe Partnerships 1-10, Doe Corporations 1-10, Roe Non-profit Organizations 1-10, Roe Governmental Entities 1-10, Defendants.
CourtSupreme Court of Hawai'i

Arnold T. Phillips and Jacob Merrill, On the Briefs, Honolulu, for Plaintiff-Appellant.

Mark T. Ichiyama, On the Briefs, Honolulu, for Defendant-Appellee.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

LEVINSON, Justice.

The plaintiff-appellant April Ho appeals from (1) the judgment entered after the circuit court granted the motion of the defendant-appellee Jeremy Leftwich for a directed verdict and (2) the circuit court's order denying Ho's motion for a new trial. On appeal, Ho contends that the circuit court erred (1) in refusing to accept the medical-rehabilitative expense threshold established in Hawai'i Revised Statutes (HRS) § 431:10C-306(b)(2) (1993) 1 as a jurisdictional requirement that must be challenged before trial or be deemed waived and (2) in ruling that the plaintiff had not presented sufficient evidence to establish that she had met the medical-rehabilitative expense threshold. Ho's points of error on appeal are without merit. Accordingly, we affirm the judgment and order appealed from.

I. FACTUAL BACKGROUND

On May 28, 1994, at about 5:15 p.m., Ho was driving her 1991 Honda Civic on Salt Lake Boulevard when it was struck from behind by another vehicle driven by Leftwich. As a result of the impact, Ho's vehicle was pushed into the rear of the vehicle in front of it. The chain reaction continued until a total of five vehicles were involved in the collision. When the police arrived, they directed the drivers of all of the vehicles to proceed to a nearby First Hawaiian Bank parking lot. When Ho was asked by police officers at the scene if she was injured and needed an ambulance, she responded, "No."

Upon arising the next morning, however, Ho felt "strain pulling in [her] lower back and neck and shoulder area." Accordingly, she was taken to the Queen's Medical Center Emergency Room by her boyfriend. After being examined by a doctor there, Ho was given medication for her discomfort, told to apply ice to the painful area every four hours for forty-eight hours, and directed to consult with a Dr. Miller if her condition did not improve. Ho testified that, while she did complete the medication as ordered, she did not continue the ice applications past the day of her emergency room visit and never contacted Dr. Miller.

About five or six days after her emergency room visit, on the advice of an acquaintance, Ho decided to consult with a chiropractor. She selected Gina Whest, D.C., from the yellow pages. Her first visit with Dr. Whest occurred on June 2, 1994. Ho's treatment by Dr. Whest continued through June and July. During that period, she continued attending classes during both summer sessions at the University of Hawai'i and earned "A" or "B" grades in all of the courses she took. Ho testified that, although she had informed Dr. Whest that she was an avid dancer, Dr. Whest never instructed her to stop dancing because of her injury. Accordingly, when fall classes began at the University, Ho enrolled in eighteen credit hours of classes, including a jazz dance class that met twice weekly for one hour and fifteen minutes.

Dr. Whest, however, testified that she was not apprised of the fact that Ho had resumed dancing while being treated and, because Ho "want[ed] to do the dancing and [the doctor] wanted to be sure there wouldn't be any relapse," referred Ho to Aloha Diagnostic for testing in September to evaluate whether she had sufficiently recovered to start dancing again. On September 7, 1994, Ho began a course of physical therapy, which Dr. Whest had prescribed as a "way to ease [Ho] back into dance."

At trial, Ho introduced videotapes of dance performances in which she participated during the fall of 1994. One was filmed the weekend of September 10 and 11, 1994, immediately after she had begun her physical therapy regimen. Although Ho testified at trial that she had experienced pain during the performance, the records of her physical therapy did not corroborate her claim. On cross-examination she testified:

Q. Now, when you performed at that benefit, you stated to Mr. Phillips that you experienced pain during that performance.

Did you go to the physical therapy people the Monday right after the performance?

A. Well, wait. What date?

Q. Well, we know that the performance took place on a weekend and the weekend is Saturday and Sunday is 10th and 11th?

A. I would say yes because I had a regular scheduled physical therapy.

Q. You went on Monday the 12th, that's on Exhibit O isn't it? Second page of Exhibit O shows a visit on September 12, that would be the first Monday after that week he said?

A. Yes.

Q. Did you ever tell, do you recollect ever telling the physical therapist there that you hurt your back performing at this benefit?

A. No, I would tell him what I do, though, over the weekend.

Q. Do you remember what you told the therapist on Monday, September 12, what was bothering you that day?

A. No, I don't remember what I told him on that day.

Q. Please take a look at what has been marked as Defendant's Exhibit O, the entry for September 12, and see if that refreshed your recollection as to what you told the physical therapist?

A. Patient feels fine today but patient, back hurt at school today while carrying books.

Q. What the therapist wrote down, was this accurate as to what you told him?

A. Yes.

Q. You told the therapist that that Monday you hurt your back at school from carrying books?

A. No, I didn't hurt it because I was carrying books, I said the back hurt today while carrying her [sic] books.

Q. Did you ever tell the therapist that day that you hurt your back from performing in a benefit dance concert?

A. No, not those words specifically.

Q. Did you use the word "dance" at all?

A. Yes.

Q. Did you say that you were dancing and you hurt your back that day on the 12th?

A. I did say I was dancing. I didn't say I was dancing and hurt my back.

Q. On Monday the 12th is it fair to say that whatever pain you suffered from that performance wasn't bothering you anymore?

A. I don't remember.

At the end of October 1994, Ho also reported a seven-hour dance rehearsal/performance to the physical therapist. Like Dr. Whest, Ho's physical therapist never advised her to stop dancing, even after she suffered a knee injury during a dance class.

Ho testified that her expenses related to the May 28, 1994 collision included: $340.00 for the Queen's Hospital Emergency Room; $6200.00 for Dr. Whest; $4100.00 for Pacific Rehabilitation Services; $1100.00 for Aloha Diagnostics; and $1922.00 in lost wages. On March 29, 1995, Ho commenced the present lawsuit against Leftwich, alleging that, as a result of Leftwich's negligence in causing the accident, she had "suffered serious physical, emotional and economic injuries including but not limited to severe pain and suffering, emotional distress, [and] accrued or paid medical/rehabilitation expenses exceeding $10,000...." 2 In addition to responding to the various allegations of the complaint, Leftwich's responsive pleading asserted that he "intend[ed] to rely on the defense of failure to meet the no-fault threshold or otherwise qualify to file suit under the no-fault law." This matter proceeded through the Court Annexed Arbitration Program, and an arbitration award was entered on January 31, 1995. On January 26, 1996, Leftwich filed a notice of appeal and requested a trial de novo.

At the close of Ho's case, Leftwich moved for a directed verdict:

One of the prima facie elements of a motor vehicle tort case is that medical bills which were reasonably and necessarily incurred as a result of a motor [ ] vehicle tort accident exceed tort threshold, which I believe in this case is $10,000.

From my review of the testimony and records of this case to date, no witness has ever testified to any of the medical bills or amounts claimed for medical recovery was subsequently and necessarily related to an automobile accident, therefore prima facie element of plaintiff's case has failed to be proven at the completion of plaintiff's case and as a result directed verdict is in order.

The circuit court took the motion under advisement and invited both parties to submit written memoranda.

In support of his motion, Leftwich argued that HRS §§ 431:10C-103(10)(A) and (B) limit the expenses that may be used to satisfy the statutory threshold to those "appropriate and reasonable expenses necessarily incurred" as a result of a motor vehicle accident. Relying on Parker v. Nakaoka, 68 Haw. 557, 722 P.2d 1028, reconsideration denied, 68 Haw. 688 (1986), Leftwich asserted that (1) a "plaintiff has the burden of proving that his or her claim is one that exceeds the general abolition of tort liability" and (2) "[a] trial judge may determine, as a matter of law, whether a plaintiff has met a threshold and may do so when the evidence is so clear that reasonable minds could only come to one conclusion." Leftwich argued that Ho had not presented any evidence that the expenses that she claimed were reasonable or necessarily related to the injuries that she sustained in the collision with Leftwich. Accordingly, Leftwich contended, she had failed to carry her burden of establishing that her expenses met the threshold established by HRS § 431:10C-306, and, therefore, he was entitled to a directed verdict.

Ho responded that the threshold requirement of HRS § 431:10C-306 was similar to the "amount in controversy" requirement of federal diversity jurisdiction that is met if the plaintiff makes a "bona fide" allegation that his claim meets the required limit. Ho asserted that she had met this burden ...

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