Ganiron v. Hawaii Ins. Guar. Ass'n

• Decision Date: 10 November 1987
• Docket Number: No. 11961,11961
• Citation: Ganiron v. Hawaii Ins. Guar. Ass'n, 744 P.2d 1210, 69 Haw. 432 (Haw. 1987)
• Parties: , 56 USLW 2347 Tony GANIRON, II, Plaintiff-Appellee, Cross-Appellant, v. HAWAII INSURANCE GUARANTY ASSOCIATION, Defendant-Appellant, Cross-Appellee.
• Court: Hawaii Supreme Court

Page 1210

744 P.2d 1210

69 Haw. 432, 56 USLW 2347

Tony GANIRON, II, Plaintiff-Appellee, Cross-Appellant, v. HAWAII INSURANCE GUARANTY ASSOCIATION, Defendant-Appellant Cross-Appellee.

No. 11961.

Supreme Court of Hawai'i.

Nov. 10, 1987.

As Amended Nov. 24, 1987.

Syllabus by the Court

1. Under the provisions of HRS Chapter 294, an insured occupant of a motor vehicle, injured by a gunshot from another motor vehicle, is covered by the no-fault insurance policy issued with respect to the vehicle occupied.

2. An insured, under a motor vehicle liability policy containing uninsured motorist coverage, can recover for injuries inflicted upon him by a gunshot from an unidentified individual in an unidentified vehicle.

3. Under the provisions of HRS § 294-30(a), a trial judge, in an action where no-fault liability was contested, erred in reducing the award of attorney's fees to claimant to 55% of the reasonable amount of such fees.

Carleton B. Reid (Ross N. Taosaka with him, on the briefs; Davis, Reid & Richards, Honolulu, of counsel), for HIGA.

Bert S. Sakuda (Gerald Y. Sekiya and Keith K.H. Young with him, on the briefs; Cronin, Fried, Sekiya, Kekina & Fairbanks, Honolulu, of counsel) for Ganiron.

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

PADGETT, Justice.

This is an appeal from a judgment holding that appellee was covered, for the incident from which this lawsuit arose, by the provisions for no-fault and uninsured motorist coverage in the automobile insurance policy issued to him by Financial Security Insurance Company, Ltd., (FSIC) to which appellant Hawaii Insurance Guaranty Association (HIGA) is the successor-in-interest, and a cross-appeal by appellee from the order entered awarding him attorney's fees in the action. We affirm the judgment as to insurance coverage and reverse the order as to attorney's fees.

The facts are undisputed. On January 7, 1984, appellee Tony B. Ganiron, II, was driving a car on the H-1 freeway located in the City and County of Honolulu, State of Hawaii, when he was struck by a bullet from a gun fired from another vehicle on the freeway. The other vehicle and the person firing the gun have never been identified or found.

Appellee was an insured under an automobile insurance policy issued by FSIC providing no-fault and uninsured motorist coverages pursuant to the statutes of the State of Hawaii. He made a claim for benefits pursuant to those coverages. Appellant HIGA is the successor-in-interest under the statutes of the State of Hawaii to the insolvent insurer FSIC. It denied coverage and appellee then filed this suit. The court below entered two partial summary judgments holding that there was both uninsured motorist and no-fault coverage for appellee's injuries under the policies. Thereafter, appellee moved for an award of attorney's fees and the court below entered an order reducing what it found to be the reasonable attorney's fees to 55%. Subsequently, a final judgment was entered and this appeal and cross-appeal were taken.

With respect to the question of no-fault coverage, HRS § 294-2 contains the following definitions:

(1) "Accidental harm" means bodily injury, death, sickness, or disease caused by a motor vehicle accident to a person.

....

(9) "Motor vehicle accident" means an accident arising out of the operation, maintenance, or use of a motor vehicle, including an object drawn or propelled by a motor vehicle.

....

(12) "Operation, maintenance, or use" when used with respect to a motor vehicle includes occupying, entering into and alighting from it but does not include conduct in the course of loading or unloading the vehicle unless the accidental harm occurs in the immediate proximity of the vehicle, and does not include conduct within the course of a business of repairing, servicing, or otherwise maintaining vehicles unless the conduct occurs outside the premises of such business.

With respect to the question of the scope of the uninsured motorist coverage, HRS § 431-448(a) provides as follows:

No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle, shall be delivered, issued for delivery, or renewed in this State, with respect to any motor vehicle registered or principally garaged in this State, unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in section 287-7, under provisions filed with and approved by the insurance commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom, provided that the coverage required under this section shall not apply where any insured named in the policy shall reject the coverage in writing.

As to the question of attorney's fees, HRS § 294-30(a) provides as follows:

(a) A person making a claim for no-fault benefits may be allowed an award of a reasonable sum for attorney's fees, and reasonable costs of suit in an action brought by or against an insurer who denies all or part of a claim for benefits under the policy, unless the court or the commissioner, upon judicial or administrative proceedings, respectively, determines that the claim was fraudulent, excessive, or frivolous. Reasonable attorney's fees, based upon actual time expended, shall be treated separately from the claim and be paid directly by the insurer to the attorney.

The critical question on the two coverage issues is whether the injuries in question arose out of the operation, maintenance, or use of a motor vehicle. Cases in other jurisdictions involving similar statutory terms have reached varying results. Some, using the "causal connection" rationale, have denied coverage, holding that an injury resulting from the firing of a gun from a vehicle, as distinguished from an injury inflicted by the vehicle itself, is not covered. Other states using either a "nexus" test or a "territoriality" test have held there is coverage in such situations. Appellee argues the territoriality test should be adopted relying on the following...