Colonial Penn Ins. Co. v. First Ins. Co. of Hawaii, Ltd., 13483

• Decision Date: 09 October 1989
• Docket Number: No. 13483,13483
• Citation: 71 Haw. 42,780 P.2d 1112
• Parties: COLONIAL PENN INSURANCE COMPANY, Plaintiff-Appellant, v. FIRST INSURANCE COMPANY OF HAWAII, LTD., Defendant-Appellee, and John Does 1-10, Defendants. COLONIAL PENN INSURANCE COMPANY and Cil Kim Thresher, Plaintiffs-Appellants, v. FIRST INSURANCE COMPANY OF HAWAII, LTD., Defendant-Appellee, and John Does 1-10, Defendants.
• Court: Hawaii Supreme Court

Page 1112

780 P.2d 1112

71 Haw. 42

COLONIAL PENN INSURANCE COMPANY, Plaintiff-Appellant, v. FIRST INSURANCE COMPANY OF HAWAII, LTD., Defendant-Appellee, and John Does 1-10, Defendants.

COLONIAL PENN INSURANCE COMPANY and Cil Kim Thresher, Plaintiffs-Appellants, v. FIRST INSURANCE COMPANY OF HAWAII, LTD., Defendant-Appellee, and John Does 1-10, Defendants.

No. 13483.

Supreme Court of Hawai'i.

Oct. 9, 1989.

As Amended Oct. 12, 1989.

Syllabus by the Court

1. Where the driver of a vehicle stopped at a service station for air and water, and while standing in front of her vehicle, about to open the hood, was pinned against it by another vehicle, her vehicle, for the purposes of HRS § 294-5(d), was occupied by her, and she was also a pedestrian.

2. With the policy of the no-fault act being to put primary responsibility upon the injured party's own insurer for no-fault benefits, it was proper to grant summary judgment in a situation where both the injured party's insurer and the insurer of the other vehicle were responsible for the payment of no-fault benefits under the disjunctive provisions of HRS § 294-5(d).

John H. Price, Honolulu, for plaintiff-appellant.

Bradford F.K. Bliss (Thomas E. Cook and Gregory L. Lui-Kwan with him on the briefs), Honolulu, for defendant-appellee.

Before LUM, C.J., and NAKAMURA, PADGETT, HAYASHI and WAKATSUKI, JJ.

PADGETT, Justice.

Two cases were filed below, and consolidated. Summary judgment was granted in favor of the appellee. The factual situation was that the individual appellant, Cil Kim Thresher (Thresher), and her automobile were insured by the insurer appellant, Colonial Penn Insurance Company (Colonial Penn). Thresher pulled into a service station, and got out of her automobile to put air and water in it. While she was standing in front of her car, about to open the hood, one Jerome Reynolds, whose automobile was insured by First Insurance Company of Hawaii (First Insurance), backed his car into her, pinning her between her car and his. HRS § 294-5(d) provides in part:

The no-fault insurance applicable on a primary basis to accidental harm to which this chapter applies is the insurance on the vehicle occupied by the injured person at the time of the accident, or, if the injured person is a pedestrian (including a bicyclist), the insurance on the vehicle which caused [the] accidental harm to the pedestrian....

First Insurance took the position that Thresher was not a pedestrian and therefore denied responsibility for no-fault coverage. Colonial Penn paid the no-fault benefits and brought suit, claiming that Thresher was not an occupant of her car but rather a pedestrian and that therefore First Insurance was primarily liable under the statute. A second suit was brought by Colonial Penn and Thresher claiming, among other things, a bad faith denial of the payment of no-fault benefits by First Insurance. The court below granted summary judgment.

We affirm the summary judgment with respect to the alleged bad faith denial of no-fault benefits because, as is obvious from the discussion of the remaining point, the question of who was liable to pay no-fault benefits on a primary...