Yamamoto v. Premier Ins. Co.

• Decision Date: 03 August 1983
• Docket Number: No. 8506,8506
• Parties: Mitsuo YAMAMOTO and Kimiye Yamamoto, Plaintiffs-Appellants, v. PREMIER INSURANCE COMPANY, Defendant-Appellee, and George Makuaole, John Does 1-5, Jane Does 1-5, Doe Partnerships 1-5 and Doe Corporations 1-5, Defendants.
• Court: Hawaii Court of Appeals

Page 42

668 P.2d 42

4 Haw.App. 429

Mitsuo YAMAMOTO and Kimiye Yamamoto, Plaintiffs-Appellants, v. PREMIER INSURANCE COMPANY, Defendant-Appellee and George Makuaole, John Does 1-5, Jane Does 1-5, Doe Partnerships 1-5 and Doe Corporations 1-5, Defendants.

No. 8506.

Intermediate Court of Appeals of Hawai'i.

Aug. 3, 1983.

Syllabus by the Court

1. Where there are no genuine issues of fact, defendant is entitled to summary judgment only if it is clear that there is no discernible theory under which plaintiff could recover.

2. Where there is more than one injured party in an automobile collision and the tortfeasor's automobile liability insurance, though meeting the mandatory minimum amount prescribed by the financial responsibility statute, is not adequate to compensate each injured party for damages in an amount at least equivalent to the minimum amount specified by the statute, the tortfeasor is considered uninsured for purposes of uninsured motorist coverage under the injured parties' automobile insurance policies.

3. Where the injured party has two or more automobiles insured under a single liability insurance policy providing uninsured motorist coverage, separate uninsured motorist coverage is created for each vehicle and the insured may recover up to the maximum amount of the coverage for each vehicle where the injury is caused by an uninsured motorist.

4. The possibility that co-plaintiffs would not be compensated for their injuries by tortfeasor's automobile liability insurance for at least the minimum amount specified by the financial responsibility law and that, therefore, the tortfeasor would be considered uninsured for purposes of uninsured motorist coverage, is a discernible theory under which plaintiffs could recover and summary judgment was erroneously granted.

5. Where a tortfeasor, although maintaining an automobile liability insurance policy meeting the minimum requirement under the financial responsibility law, is deemed uninsured because plaintiffs' combined entitlement to damages for injuries caused by him exceeds that statutory minimum, the injured parties may recover the difference between the recovery from the tortfeasor's insurance policy and the maximum contract limit of the uninsured motorist provision of their own policy.

Richard F. Dvonch, Honolulu (Vernon T. Tashima and Roy Y. Nihei, Honolulu, with him on the opening brief), for plaintiffs-appellants.

Colbert M. Matsumoto, Honolulu (Wallace S. Fujiyama, James E. Duffy, Jr., and James J. Stone, Honolulu, on the brief; Fujiyama, Duffy & Fujiyama, Honolulu, of counsel), for defendant-appellee.

Before BURNS, C.J., and HEEN and TANAKA, JJ.

HEEN, Judge.

Plaintiffs Mitsuo Yamamoto (Mr. Yamamoto) and Kimiye Yamamoto (Mrs. Yamamoto) appeal from a nunc pro tunc summary judgment entered in favor of defendant Premier Insurance Company (Premier), ¹ contending that the court erred as a matter of law in granting summary judgment to Premier. We reverse.

On December 30, 1976, Mr. Yamamoto suffered severe injuries in an automobile collision with a vehicle driven by defendant George Makuaole (Makuaole). Mr. Yamamoto was driving one of three vehicles owned by him, all of which were insured by Premier under one policy covering uninsured motorist risk in the amount of $25,000 per vehicle. Makuaole's automobile policy was insured against the risk of liability for personal injury or death in the amount of $25,000. On December 29, 1978, Mr. Yamamoto filed a personal injury action against Makuaole and Mrs. Yamamoto joined in the suit claiming loss of consortium. ² The Yamamotos' suit also included a claim against Premier for wrongful denial of uninsured motorist coverage benefits due them under their insurance policy.

The Yamamotos filed a motion for partial summary judgment against Premier on October 20, 1979 and Premier filed a motion for summary judgment on November 13, 1979. After hearing, the court granted Premier's motion and denied Yamamotos' motion. Mr. Yamamoto later obtained a $300,156.84 judgment against Makuaole in a bench trial. ³

A motion for summary judgment may not be granted where there are genuine issues of material fact present. On appeal, a reviewing court will examine the entire record for any issues of material fact. Costa v. Able Distributors, 3 Haw.App. 486, 653 P.2d 101 (1982); Ottensmeyer v. Baskin, 2 Haw.App. 86, 625 P.2d 1069 (1981). Facts which are properly shown and any inferences which may be properly drawn therefrom, will be considered in the light most favorable to the non-moving party. Gealon v. Keala, 60 Haw. 513, 591 P.2d 621 (1979); Costa v. Able Distributors, supra. If there are no genuine issues of material fact, a movant is entitled to judgment as a matter of law if it is clear that there is no discernible theory under which plaintiff could recover. Abraham v. Onorato Garages, 50 Haw. 628, 446 P.2d 821, reh'g denied, 50 Haw. 639 (1968); Costa v. Able Distributors, supra. The Yamamotos contend that the trial court erred because there is a discernible theory under which they could have recovered. We agree.

Under the Yamamotos' policy, ⁴ Premier would be required to pay uninsured motorist benefits if either Mr. or Mrs. Yamamoto, or both, were injured as a result of an auto accident with an "uninsured automobile." Insofar as is pertinent to this opinion, uninsured automobile is defined by the policy as follows:

"uninsured automobile" * * * means:

(a) an automobile or trailer with respect to the ownership, maintenance or use of which there is, in at least the amounts specified by the financial responsibility law of the state in which the insured automobile is principally garaged, no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile, or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder * * *

Thus, the policy's definition of an uninsured automobile includes a vehicle with no liability insurance as well as a vehicle whose liability insurance coverage is less than the statutory requirement of $25,000. See Hawaii Revised Statutes (HRS) § 431-448 (1976). ⁵

Our supreme court has held that the legislative policy expressed in the motor vehicle insurance statutes really provides another category of uninsured motorists. In Palisbo v. Hawaiian Insurance & Guaranty Co., 57 Haw. 10, 547 P.2d 1350 (1976), the court held that where there is more than one injured party in an automobile collision and the tortfeasor's insurance, though meeting the mandatory minimum amount prescribed, is not adequate to cover each injured party's damages up to the minimum amounts specified by the financial responsibility law, the tortfeasor is considered uninsured for the purposes of uninsured motorist coverage under the injured parties' automobile insurance policies, but only to the extent of the insufficiency.

In addition, in Allstate Insurance Co. v. Morgan, 59 Haw. 44, 575 P.2d 477 (1978), a case where the tortfeasor was in fact an uninsured motorist, the supreme court held that where the injured party has two or more automobiles insured under a single liability insurance policy providing uninsured motorist coverage, separate uninsured motorist coverage is created for each vehicle and the insured may recover up to the maximum amount of the coverage for each vehicle. In short, the insured may "stack" his coverage.

Thus, it follows that if, within the meaning of our statutes and case law, Makuaole is not an uninsured motorist, then the Yamamotos are limited to Makuaole's $25,000; but if Makuaole is an uninsured motorist, then the Yamamotos may "stack" the uninsured motorist coverage of the three automobiles and may claim against not only Makuaole's $25,000 coverage but also their $75,000 coverage for any damages not recovered from Makuaole. We hold that Makuaole is, and the Yamamotos may.

In Palisbo, supra, an injured passenger and the parents of another passenger killed in an automobile collision each recovered damages from the tortfeasor's insurance company in an amount less than the minimum statutory amount required for uninsured motorist policies. They brought suit against their own insurance companies, seeking to recover the maximum coverage under their uninsured motorist provisions. In arriving at the holding stated above, the court held the real issue to be whether the tortfeasor was operating an "uninsured motor vehicle" under the pertinent statute, HRS § 431-448. Id. 57 Haw. at 13, 547 P.2d at 1353. The statutory provisions were held to be controlling, not the policy provisions.

The court noted that the statute is remedial and a literal application of the statutory term "uninsured motor vehicles" would be inconsistent with the legislative policy embodied in the statutory scheme. As the court stated:

The avowed purpose of the statute is to encourage self-protection against the financially irresponsible motorist through voluntary insurance. To make this realistically possible, it requires liability insurance companies to offer their clients this protection in at least the minimum amounts established by the financial responsibility law. The policy required under the financial responsibility law is for the protection of the public generally, while uninsured motorist insurance is for individuals who have foresight to protect themselves against the financially irresponsible motorist. The statute was clearly designed to enable the purchaser of the latter type of insurance to assure himself and members of his household of not less than the minimum protection provided for the general public in the financial responsibility law. The uninsured motorist policy is personal to the insured. This is what he bargained for, and one which he was encouraged to purchase by the...