Kau v. State Farm Mut. Auto. Ins. Co.

Decision Date19 May 1977
Docket NumberNo. 5829,5829
Citation58 Haw. 49,564 P.2d 443
PartiesCynthia M. KAU, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois Corporation, Defendant-Appellant.
CourtHawaii Supreme Court

Syllabus by the Court

1. The Hawaii uninsured motorist statute, HRS § 431-448, must be liberally construed to accomplish its remedial purposes and to give effect to the legislative intent.

2. The exclusionary clause of an automobile insurance policy which denies liability to an injured 'insured,' based upon the fact that at the time of injury the 'insured' was not occuptying an 'owned motor vehicle,' as defined in the policy, violates the protective provisions of the Hawaii uninsured motorist statute.

James Kawashima, Honolulu, for defendant-appellant.

Steven H. Levinson, Honolulu, for plaintiff-appellee.

Before RICHARDSON, C. J., OGATA, MENOR and KIDWELL, JJ., and Circuit Judge LUM in place of KOBAYASHI, J., disqualified.

PER CURIAM.

This is an appeal from an order granting the plaintiff's motion for partial summary judgment.

Plaintiff-appellee Cynthia M. Kau was involved in a motor vehicle accident in the City and County of Honolulu on January 28, 1973. She was then residing with her parents, Harry K. F. Kau and Leimomi C. Kau. She was driving a 1966 Volkswagen, owned by and registered in the name of her mother, Leimomi C. Kau. The driver of the other vehicle was one Roger A. Sundby, whose negligence was the proximate cause of the collision and the resulting unjuries to Miss Kau. Neither he nor the vehicle he was operating was insured.

At the time of the accident, Harry K. F. Kau owned a 1971 Dodge Dart automobile which was registered in his name. He had in effect at the time an insurance policy issued to him by defendant-appellant State Farm Mutual Automobile Insurance Company. The declarations page of the policy listed Mr. Kau as the 'named insured' and the Dodge automobile as a 'described motor vehicle.' The insurance policy did not list the Volkswagen, which was involved in the collision, as a 'described botor vehicle.'

It is conceded by State Farm that Miss Kau was an 'insured,' with respect to uninsured motorist coverage, under the terms of her father's insurance policy. It denies liability to Miss Kau, however, on the strength of the following exclusionary clause in the policy:

'This (uninsured motorist) insurance does not apply: . . . (b) To bodily injury to an insured while occupying . . . a land motor vehicle owned by the named insured or any resident of the same household, if such vehicle is not an owned motor vehicle . . .'

An 'owned motor vehicle' is defined in the policy as 'the motor vehicle or trailer described in the declarations, and includes a temporary substitute automobile, a newly acquired automobile. . . .' The Volkswagen automobile did not come within this definition.

The basic issue for defermination, therefore, is whether the foregoing exclusionary clause is violative of the provisions of the uninsured motorist statute (HRS § 431-448,, which 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 (issued), with respect to any motor vehicle registered . . . in this State, unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in section 287-7, . . . 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 . . ..'

The statute must be liberally construed to accomplish its remedial purposes and to give effect to the legislative intent. Palisbo v. Hawaiian Ins. & Guaranty Co., 57 Haw. 10, 547 P.2d 1350 (1976). A literal reading of the statute leaves no room for the exclusion which appellant...

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