Jou v. Dai-Tokyo Royal State Ins. Co.
| Decision Date | 16 November 2007 |
| Docket Number | No. 26310.,26310. |
| Citation | 172 P.3d 471,116 Haw. 159 |
| Parties | Emerson M.F. JOU, M.D., and as to Some Claims, on Behalf of the Class of Others Similarly Situated, Plaintiff-Appellant, v. DAI-TOKYO ROYAL STATE INSURANCE COMPANY, Limited and Lawrence M. Reifurth<SMALL><SUP>1</SUP></SMALL>, as the Director, State of Hawai`i Department of Commerce and Consumer Affairs, Defendants-Appellees, and John Does 1-50, Doe Attorneys 1-50, Doe Corporations 1-10; Doe Partnerships 1-10, and Doe Governmental Entities 1-10, Defendants. |
| Court | Hawaii Supreme Court |
Stephen M. Shaw, on the briefs, for Plaintiff-Appellant Emerson M.F. Jou, M.D.
J. Patrick Gallagher, Joelle Segawa Kane, and Leah M. Reyes, on the briefs, Honolulu, for Defendant-Appellee Dai-Tokyo Royal State Insurance Company, Limited.
David A. Weber and Deborah Day Emerson, Deputy Attorneys General, on the briefs, for Defendant-Appellee Lawrence M. Reifurth, Director, Department of Commerce and Consumer Affairs, State of Hawai`i.
Plaintiff-Appellant, Emerson M.F. Jou, M.D. ("Jou"), appeals from the first circuit court's2 December 17, 2003 judgment in favor of Defendant-Appellants, Dai-Tokyo Royal State Insurance Company, Limited ("DTRIC") and Lawrence E. Reifurth in his capacity as the director of the Department of Commerce and Consumer Affairs ("DCCA"), State of Hawai`i ("the director"). On appeal, Jou presents the following points of error: (1) the circuit court reversibly erred by denying his motion for recusal; (2) the circuit court reversibly erred by denying his oral motion for an interlocutory appeal from the denial of his motion for recusal; (3) the circuit court reversibly erred by denying his request to amend the complaint; (4) the circuit court erroneously granted summary judgment in favor of the director inasmuch as his declaration in support of summary judgment was insufficient; (5) the circuit court erred by granting DTRIC's motion to dismiss, or for summary judgment, inasmuch as "[t]he court was violating state law [sic] of equitable tolling, the right to sue insurers in tort notwithstanding administrative proceedings, and settled law of third party beneficiaries[]"; (6) the foregoing errors violated his constitutional rights to equal protection and due process of law under the state and federal constitutions; and (7) "[t]he first circuit, by repeatedly assigning [J]udge Hifo to Appellant's cases is creating a `conduit court' bent on damaging Dr. Jou as much as possible on his way to the appellate courts." Also before this court is a motion for damages and costs filed by the director, pursuant to Hawai`i Rules of Appellate Procedure ("HRAP") Rule 38, asserting that Jou filed a frivolous appeal.
For the following reasons, we conclude that Jou's points of error are without merit. However, we disagree with the director that Jou's appeal is frivolous. Accordingly, we affirm the judgment appealed from and deny the director's motion for damages and costs.
On May 30, 2003, Jou filed a "Complaint In Tort For Insurer Bad Faith" in the first circuit court against DTRIC and the director. The case was assigned to the Honorable Judge Eden Elizabeth Hifo on June 4, 2003.
Jou filed a first amended complaint on June 12, 2003. Therein, he asserted four causes of action. Jou first claimed that DTRIC breached a duty of good faith and fair dealing owed to him as an intended third-party beneficiary by engaging in the following unfair and deceptive business practices:
[DTRIC] . . . (a) failed to adequately address concerns stated in [Jou's] communications about the balance due; (b) failed to provide [Jou] with a reasonable explanation for delays on claims unresolved for thirty days; (c) did not attempt in good faith to effectuate settlements; (d) made payments to [Jou] not accompanied by a statement setting forth the coverage under which the payments were made; (e) required duplicative proofs of loss from [Jou], a physician (f) failed to promptly provide an explanation of the basis in the insurance policy for the denial or partial payment, and (g) sent the equivalent of "final" or "paid in full" partial payments to [Jou].
Second, Jou requested declaratory relief, asserting that the director's staff utilized "`old boy', `back door', and other corrupt procedures which deprive[d] [Jou] and others similarly situated of adequate notice and a meaningful opportunity to be heard as to their liberty and property rights. . . ." Jou asserted further that the DCCA's "administrative hearing system, in its entirety, on the face of its statutes rules and procedures; and, as this scheme is applied to [Jou], and others similarly situated, violates [Jou's] property and liberty rights . . . and is completely unworthy of public confidence." Jou's third claim requested injunctive relief against the DCCA and its hearings officers, asserting that "all administrative remedies for [Jou] and others similarly situated, . . . are futile, void and inadequate, and should be enjoined. . . ." Finally, Jou's fourth claim alleged the existence of a numerous class of individuals who suffered similar injuries.
On July 3, 2003, the director filed a "Motion For Summary Judgment Or Dismissal" asserting that (1) the Hawai`i Administrative Procedures Act ("HAPA") and the DCCA's related procedural rules are not unconstitutional, (2) Jou's complaint contains only conclusory accusations of corruption, and fails to state specific facts and circumstances that, if true, would support a due process violation, (3) Jou may not attempt to circumvent the contested case hearing procedure by declaring it corrupt or unconstitutional, and (4) the court lacks subject matter jurisdiction over Jou's claims for declaratory and injunctive relief.3
On July 10, 2003, Jou filed a "Motion To Recuse Or Disqualify The Honorable Eden Elizabeth Hifo[.]" Jou asserted that Judge Hifo rendered several "questionable" and adverse rulings against him in prior civil cases in which she presided that cumulatively demonstrate her bias against him and his counsel.4
On August 1, 2003, the circuit court filed an order denying Jou's motion for recusal or disqualification. The order additionally denied an oral motion for interlocutory appeal, apparently raised at a hearing on the motion for recusal or disqualification. Also on August 1, 2003, the circuit court filed an order granting the director's motion for summary judgment.
On August 14, 2003, DTRIC filed a motion to dismiss Jou's first amended complaint, or for summary judgment. Therein, DTRIC asserted that (1) Jou elected to pursue administrative remedies for his bill disputes with DTRIC and has not exhausted those remedies; (2) certain claims are barred by the statute of limitations; and (3) Jou is not DTRIC's insured and therefore has no standing to assert a claim for bad faith against DTRIC.5
On September 29, 2003, Jou filed a motion for leave to amend his first amended complaint in order to assert an additional claim based upon United States v. Allstate, 69 Haw. 290, 740 P.2d 550 (1987).6
On November 13, 2003, the circuit court filed an order denying Jou's motion to amend his first amended complaint.
On November 18, 2003, the circuit court filed an order granting DTRIC's motion for dismissal or summary judgment. In its order, the circuit court provided the following conclusions:
1. DTRIC's Motion to Dismiss First Amended Complaint or, in the Alternative, Motion for Summary Judgment is GRANTED as to the claims arising from Dr. Jou's treatment of N. Agbayani, A. Agbayani and Kiyomi Dixon by virtue of the statute of limitations.
2. DTRIC's Motion to Dismiss First Amended Complaint or, in the Alternative, Motion for Summary Judgment is GRANTED as to those claims regarding payment of bills under the no-fault statute as Dr. Jou elected administrative remedies.
3. DTRIC's Motion to Dismiss First Amended Complaint or, in the Alternative, Motion for Summary Judgment is GRANTED as to the claims of bad faith or tortious relief as the provider, Dr. Jou, as an incidental beneficiary to the insurance contract for no-fault benefits, lacks standing to bring a claim for bad faith or tortious relief against the insurer DTRIC.
The circuit court filed its judgment in favor of the director and DTRIC on December 17, 2003. Jou filed a timely notice of appeal on December 30, 2003.
"This court has adopted the abuse of discretion standard for reviewing a judge's denial of a motion for recusal or disqualification." State v. Ortiz, 91 Hawai`i 181, 188, 981 P.2d 1127, 1134 (1999) (citing State v. Ross, 89 Hawai`i 371, 376, 974 P.2d 11, 16 (1998)) (internal quotation marks omitted) (brackets omitted).
According to Hawai`i Revised Statutes ("HRS") § 641-1(b) (1993), interlocutory appeals "may be allowed by a circuit court in its discretion from an order denying a motion to dismiss or from any interlocutory judgment, order, or decree whenever the circuit court may think the same advisable for the speedy termination of litigation before it." (Emphasis added.) Because the circuit court is vested with discretion over the matter, our review is appropriately limited to the question whether the circuit court abused that discretion. Cf. Tri-S Corp. v. Western World Ins. Co., 110 Hawai`i 473, 489, 135 P.3d 82, 98 (2006) ().
"Orders denying motions for leave to amend a complaint are reviewed for an abuse of discretion." Office of Hawaiian Affairs v. State, 110 Hawai`i 338, 351, 133 P.3d 767, 780 (2006).
In Kau v. City & County of Honolulu, 104 Hawai`i 468, 92 P.3d 477 (2004), we explained that the...
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