Mobley v. Kimura

463 P.3d 968

Gary MOBLEY, Respondent/Plaintiff-Appellant,

v. Lyanne KIMURA, Respondent/Defendant/Cross-Claim Defendant/Cross-Claimant/Third-Party Plaintiff/Counterclaim Defendant-Appellee, Leslie S. Ching, Respondent/Defendant/Cross-Claimant/Cross-Claim Defendant-Appellee,andDennis K. Espaniola, Petitioner/Third-Party Defendant/Counterclaimant/Cross-Claimant/Cross-Claim Defendant-Appellee.

SCWC-12-0001090

Supreme Court of Hawai‘i.

MARCH 13, 2020

Michael H. Tsuchida, Honolulu, for petitioner

Walter J. Rodby and John Y.U. Choi, Honolulu, for respondent/plaintiff-appellant

Randall Y.S. Chung, Rayni M. Nakamura, Honolulu, and Michael S. Hult, for respondent/defendant-appellee

Jonathan L. Ortiz and Wade J. Katano, Honolulu, for respondent/defendant/third-party plaintiff-appellee

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

This case arises from a personal injury lawsuit filed by Gary Alan Mobley ("Mobley") against the drivers of two vehicles in two separate accidents, from which Mobley alleges injuries. The accidents occurred on June 8, 2005, and January 12, 2008. Mobley filed a complaint in the Circuit Court of the First Circuit ("circuit court") against Leslie S. Ching ("Ching") for the 2005 accident and Lyanne Kimura ("Kimura") for the 2008 accident. Kimura then impleaded Dennis K. Espaniola ("Espaniola") as a third-party defendant because of his involvement in the 2008 accident.

Hawai‘i Revised Statutes ("HRS") § 431:10C-306(a) (2005) abolishes tort liability with respect to accidental harm arising from motor vehicle accidents occurring in this State unless an exception under subsection (b) applies. Mobley's complaint alleged he was able to assert tort liability for the 2005 and 2008 accidents under either or both of two exceptions: (1) HRS § 431:10C-306(b)(4), which provides an exception to the abolition of tort liability if a person has incurred at least $5,000 in personal injury protection ("PIP") benefits (sometimes "tort threshold" or "tort threshold exception"); and/or (2) HRS § 431:10C-306(b)(2), which provides an exception for an injury that consists, in whole or in part, "in a significant permanent loss of use of a part or function of the body" (sometimes "significant permanent loss of use exception").

The circuit court granted summary judgment in favor of Kimura and Espaniola with respect to the 2008 accident, ruling Mobley failed to satisfy either exception. Before granting the defense motions, the circuit court also ruled Mobley failed to lay sufficient foundation for the admission and consideration of a doctor's report and letter attached to his opposition memorandum, then denied Mobley's oral request for a Hawai‘i Rules of Civil Procedure ("HRCP") Rule 56(f) continuance to obtain admissible evidence of the contents of the doctor's documents.

In its August 15, 2019 memorandum opinion, the Intermediate Court of Appeals ("ICA") ruled, inter alia, that the circuit court erred in granting summary judgment in favor of Kimura and Espaniola for the 2008 accident. We accepted Espaniola's application for a writ of certiorari, which presents two questions, summarized as follows:

1. Did the ICA err in ruling the circuit court erred in granting Espaniola's motion for partial summary judgment based on Mobley's failure to satisfy the tort threshold?

2. Did the ICA err in ruling that the circuit court's grant of Espaniola's motion for partial summary judgment was premature because evidence had not established that, by the time of trial, Mobley would not be able to demonstrate satisfaction of the tort threshold or prove that his injury constitutes, in whole or in part, a significant permanent loss of use of a part or function of the body?

Espaniola's questions on certiorari relate to the ICA's application of the following portion of Ralston v. Yim, 129 Hawai‘i 46, 292 P.3d 1276 (2013) :

In sum, this court's case law indicates that a summary judgment movant may satisfy [their]^{[1 ]} initial burden of production by either (1) presenting evidence negating an element of the non-movant's claim, or (2) demonstrating that the nonmovant will be unable to carry [their] burden of proof at trial. Where the movant attempts to meet [their] burden through the latter means, [they] must show not only that the non-movant has not placed proof in the record, but also that the movant will be unable to offer proof at trial. Accordingly, in general, a summary judgment movant cannot merely point to the non-moving party's lack of evidence to support [their] initial burden of production if discovery has not concluded. ("[M]erely asserting that the non-moving party has not come forward with evidence to support its claims is not enough.").

129 Hawai‘i at 60-61, 292 P.3d at 1290-91 (last alteration in original) (citations omitted).

For clarity, we address the ICA's rulings on the tort threshold and significant permanent loss of use exceptions separately, rather than through the questions presented by Espaniola.

With respect to Mobley's alleged failure to satisfy the tort threshold exception, Espaniola's motion was based on the first Ralston prong, as Kimura and Espaniola allegedly "present[ed] evidence negating an element of [Mobley's] claim" by submitting a declaration stating that no PIP benefits had been paid for the 2008 accident. Yet, the ICA ruled Espaniola was not entitled to summary judgment because of a failure to show that Mobley would be unable to offer proof at trial that he met the tort threshold. As indicated in the passage from Ralston above, however, the "unable to offer proof at trial" factor applies only when a movant seeks summary judgment based on the second Ralston prong, by "demonstrating that the nonmovant will be unable to carry [their] burden of proof at trial." According to Hawai‘i law, when a plaintiff asserts applicability of the tort threshold exception, satisfaction of the exception is jurisdictional to the filing of a lawsuit. Therefore, the ICA erred to the extent it ruled Espaniola could not obtain summary judgment on the tort threshold exception unless he could show Mobley could not demonstrate he could meet the tort threshold at the time of trial.

We also hold, however, that the ICA did not err in vacating the circuit court's grant of summary judgment as to the 2008 accident based on the tort threshold exception. This is because Espaniola failed to meet his initial burden under the first Ralston prong of "negating an element of [Mobley's] claim." The tort threshold exception of HRS § 431:10C-306(b)(4) requires that a plaintiff have "incurred" PIP benefits of $5,000, and reviewing the record de novo, Mobley's amended answers to interrogatories, attached to Kimura's motion for summary judgment,² raised a genuine issue of material fact on the applicability of the exception.

The ICA also did not err with respect to its application of Ralston with respect to the significant permanent loss of use exception. Espaniola presented no evidence to negate this exception to the abolition of tort liability. Espaniola's motion for partial summary judgment was, therefore, based on the second Ralston prong. The ICA properly concluded Espaniola did not meet his burden of establishing that Mobley would be unable to offer proof of this exception at trial; based on the record, whether Mobley could meet the exception was not "so clear that reasonable minds could only come to one conclusion."

We therefore affirm the ICA's August 29, 2019 judgment on appeal, which vacated the circuit court's March 6, 2013 judgment and remanded the case for reinstatement of Mobley's claims related to both the 2005³ and 2008 accidents, but as modified by the analysis in this opinion.

II. Background

A. HRS § 431:10C-306

HRS § 431:10C-306,⁴ entitled "Abolition of tort liability," will be continually referenced. It states in relevant part as follows:

(a) Except as provided in subsection (b), this article abolishes tort liability of the following persons with respect to accidental harm arising from motor vehicle accidents occurring in this State:

(1) Owner, operator, or user of an insured motor vehicle; or

(2) Operator or user of an uninsured motor vehicle who operates or uses such vehicle without reason to believe it to be an uninsured motor vehicle.

(b) Tort liability is not abolished as to the following persons, their personal representatives, or their legal guardians in the following circumstances:

(1) Death occurs to the person in such a motor vehicle accident;

(2) Injury occurs to the person which consists, in whole or in part, in a significant permanent loss of use of a part or function of the body;

(3) Injury occurs to the person which consists of a permanent and serious disfigurement which results in subjection of the injured person to mental or emotional suffering; or

(4) Injury occurs to the person in a motor vehicle accident and as a result of such injury that the personal injury protection benefits incurred by such person equal or exceed $5,000;^[5] provided that in calculating this amount:

(A) The following shall be included:

(i) Personal injury protection benefits incurred by, paid to or payable to, or on behalf of, an eligible injured person including amounts paid directly by or on behalf of the eligible insured because of the accidental harm or similar benefits under social security, worker's compensation, or public assistance laws;

(ii) The applicable amounts of deductible or copayment paid or incurred;

(iii) Amounts paid by or on behalf of an injured person who is not entitled to personal injury protection benefits, by health insurance or other funds; provided that payment in excess of the charges or services allowable under this chapter shall not be included;

(iv) Where an eligible injured person receives coverage on other than a fee for service basis including, but not limited to, a health maintenance organization operating on a capitation basis, the value of services provided shall be

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