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§431:10C-103  Definitions


Published: 2015

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     §431:10C-103  Definitions.  As used in

this article:

     "Accidental harm" means bodily

injury, death, sickness, or disease caused by a motor vehicle accident to a

person.

     "Alternative care provider" means any

person providing medical or rehabilitative services in section

431:10C-302(a)(10) to a claimant covered by a motor vehicle insurance policy.

     "Anesthetist" means a registered

nurse-anesthetist who performs anesthesia services under the supervision of a

licensed physician.

     "Criminal conduct" means:

     (1)  The commission of an offense punishable by

imprisonment for more than one year;

     (2)  The operation or use of a motor vehicle with the

specific intent of causing injury or damage; or

     (3)  The operation or use of a motor vehicle as a

converter without a good faith belief by the operator or user that the operator

or user is legally entitled to operate or use such vehicle.

     "Injury" means accidental harm not

resulting in death.

     "Insured" means:

     (1)  The person identified by name as insured in a

motor vehicle insurance policy complying with section 431:10C-301; and

     (2)  A person residing in the same household with a

named insured, specifically:

         (A)  A spouse or reciprocal beneficiary or

other relative of a named insured; and

         (B)  A minor in the custody of a named insured

or of a relative residing in the same household with a named insured.

     A person resides in the same household if the

person usually makes the person's home in the same family unit, which may

include reciprocal beneficiaries, even though the person temporarily lives

elsewhere.

     "Insured motor vehicle" means a motor

vehicle:

     (1)  Which is insured under a motor vehicle insurance

policy; or

     (2)  The owner of which is a self-insurer with respect

to such vehicle.

     "Insurer" means every person holding

a valid certificate of authority to engage in the business of making contracts

of motor vehicle insurance in this State.  For purposes of this article,

insurer includes reciprocal or inter-insurance exchanges.

     "Maximum limit" means the total

personal injury protection benefits payable for coverage under section

431:10C-103.5(a), per person on account of accidental harm sustained by the

person in any one motor vehicle accident shall be $10,000, regardless of the

number of motor vehicles or policies involved.

     "Medical fee schedule" refers to the

Medicare Resource Based Relative Value Scale System applicable to Hawaii, entitled "Workers' Compensation Supplemental Medical Fee Schedule".

     "Monthly earnings" means:

     (1)  In the case of a person regularly employed,

one-twelfth of the average annual compensation before state and federal income

taxes at the time of injury or death;

     (2)  In the case of a person regularly self-employed,

one-twelfth of the average annual earnings before state and federal income

taxes at the time of injury or death; or

     (3)  In the case of an unemployed person or a person

not regularly employed or self-employed, one-twelfth of the anticipated annual

compensation before state and federal income taxes that would have been paid

from the time the person would reasonably have been expected to be regularly

employed.

     "Motor vehicle" means any vehicle of

a type required to be registered under chapter 286, including a trailer

attached to such a vehicle, but not including motorcycles and motor scooters.

     "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.

     "Motor vehicle insurance policy"

means an insurance policy that meets the requirements of section 431:10C-301.

     "Operation, maintenance, or use with

respect to a motor vehicle" includes occupying, entering into, and

alighting from it, but does not include:

     (1)  Conduct in the course of loading or unloading the

vehicle, unless the accidental harm occurs in the immediate proximity of the

vehicle; and

     (2)  Conduct within the course of a business of

repairing, servicing, or otherwise maintaining vehicles, unless the conduct

occurs outside the premises of such business.

     "Owner" means a person who holds the

legal title to a motor vehicle; except that in the case of a motor vehicle

which is the subject of a security agreement or lease with a term of not less

than one year with the debtor or lessee having the right to possession, such term

means the debtor or lessee.  Whenever transfer of title to a motor vehicle

occurs, the seller shall be considered the owner until delivery of the executed

title to the buyer, from which time the buyer holding the equitable title shall

be considered the owner.

     "Person" means, when appropriate to

the context, not only individuals, but corporations, firms, associations, and

societies.

     "Person receiving public assistance

benefits" means:

     (1)  Any person receiving benefits consisting of

direct cash payments through the department of human services; or

     (2)  Any person receiving benefits from the

Supplemental Security Income Program under the Social Security Administration.

     "Regulation" means any rule and

regulation promulgated by the commissioner pursuant to chapter 91.

     "Replacement vehicle" means a

specific, comparable, and available vehicle in as good or better overall

condition than the total loss vehicle.

     "Self-insurer, with respect to any motor

vehicle", means a person who has satisfied the requirements of section

431:10C-105.

     "U-drive motor vehicle" means a motor

vehicle which is rented or leased or offered for rent or lease to a customer

from an operator of a U-drive rental business.

     "U-drive rental business" means the

business of renting or leasing to a customer a motor vehicle for a period of

six months or less notwithstanding the terms of the rental or lease if in fact

the motor vehicle is rented or leased for a period of six months or less.

     "Underinsured motor vehicle" means a

motor vehicle with respect to the ownership, maintenance, or use for which sum

of the limits of all bodily injury liability insurance coverage and

self-insurance applicable at the time of loss is less than the liability for

damages imposed by law.

     "Uninsured motor vehicle" means any

of the following:

     (1)  A motor vehicle for which there is no bodily

injury liability insurance or self-insurance applicable at the time of the

accident; or

     (2)  An unidentified motor vehicle that causes an

accident resulting in injury; provided the accident is reported to the police

or proper governmental authority within thirty days or as soon as practicable

thereafter.

     "Without regard to fault" means

irrespective of fault as a cause of accidental harm, and without application of

the principle of liability based on negligence. [L 1987, c 347, pt of §2; am L

1989, c 195, §30; am L 1992, c 123, §2 and c 124, §2; am L 1997, c 251, §13 and

c 383, §59; am L 1998, c 275, §4; am L 1999, c 137, §3; am L 2000, c 24, §4 and

c 66, §1; am L 2004, c 10, §§13, 14, 18(3), (4)]

 

Case Notes

 

  Provision excluding welfare recipients from receiving medical

coverage under no-fault automobile insurance policies violated medicaid

provision of Social Security Act.  928 F.2d 898.

  Vehicle was "uninsured" where vehicle operator's

liability insurance did not cover injured passenger and vehicle owner had no

insurance.  807 F. Supp. 98.

  Households of plaintiff and spouse were separate and not a

family unit for purposes of paragraph (11).  812 F. Supp. 1083.

  Where named insured is a corporation, son of

officer/shareholder of corporation is not an "insured" under

paragraph (11).  816 F. Supp. 633.

  Insurer not obligated to defend or indemnify insured, or

otherwise pay any sums to defendants; defendant's shooting was no accident from

insured's viewpoint or perspective.  834 F. Supp. 329.

  Where insurer contended that plaintiff lacked standing to

bring bad faith claim because plaintiff, a covered person under taxicab owner's

insurance contract, was not defined as an insured in no-fault insurance

statute, plaintiff, a third party beneficiary of taxicab owner's policy, was

essentially an insured and to treat plaintiff otherwise made no sense.  947 F.

Supp. 429.

  Because police officer's injuries did not arise out of the

use of a vehicle, there was no uninsured motorist coverage under either of the

two policies at issue.  Officer had argued that  officer's injuries arose out

of three "uses" of automobiles, e.g., officer was "using" a

vehicle by trying to "secure" it.  187 F. Supp. 2d 1231.

  Trial court erred in concluding that insurance company did

not owe defendant duty to defend or indemnify on basis that shooting did not

arise out of a motor vehicle "accident".  74 H. 620, 851 P.2d 321.

  Car rental company not an "insurer" as defined

under paragraph (5).  82 H. 351, 922 P.2d 964.

  Where self-insurer rent-a-car company not an

"insurer" as defined in this section, court erred in granting

attorney's fees and costs under §431:10-242.  85 H. 243, 942 P.2d 507.

  Insofar as Hawaii administrative rule §16-23-11 conflicted

with paragraph (10)(B) (1987) by limiting survivors' benefits to $15,000

despite the presence of expanded no-fault coverage, §16-23-11 was void as a

matter of law.  88 H. 344, 966 P.2d 1070.

  Facts and circumstances of the case demonstrated that

plaintiff was temporarily absent from father's home while attending college in

Hawaii at the time of the accident; thus, trial court did not err in concluding

that plaintiff was a resident of plaintiff's father's, the named insured's

household in California and therefore a covered person under the insurance

policy for underinsured motorist benefits.  107 H. 192, 111 P.3d 601 (2005).

  Plaintiff not entitled to uninsured motorist benefits under Hawaii motor vehicle insurance law where an "uninsured motor vehicle" as defined

in this section was not involved in causing plaintiff's injuries.  81 H. 110

(App.), 912 P.2d 607.

  Pursuant to §431:10C-304(1)(B) (1987) and paragraph (10)(B)

(1987), upon the death of an insured, the insurer is obligated to provide the

insured's survivor a survivor's loss benefit of up to either (1) $15,000 where

the insured has purchased only the basic no-fault coverage, or (2) the expanded

limits of no-fault benefits where the insured has contracted for it under an

optional additional coverage.  88 H. 345 (App.), 966 P.2d 1071.

  Under paragraph (10)(A) (1993), no-fault benefits are

expenses which are appropriate, reasonable and necessarily incurred and are not

restricted to treatment characterized as "curative" as opposed to

"palliative".  90 H. 213 (App.), 978 P.2d 179.

  As motorcycles are excluded from the definition of

"motor vehicle" under this section, appellant's accident with a

motorcycle was not a "motor vehicle accident" under the definition set

forth in this section; appellant was thus not entitled to no-fault benefits

under §431:10C-303(a) (1993).  91 H. 299 (App.), 983 P.2d 200.

  Other than the named insured, the only persons residing in

the same household with a named insured who qualify as "insureds"

under this section are "a spouse or reciprocal beneficiary or other

relative of a named insured" and "a minor in the custody of a named

insured or of a relative residing in the same household with a named insured";

as plaintiff was not a descendant of an ancestor common with the insureds, nor

adopted by or married to a daughter or other relative of them, plaintiff was

not a "relative" of and could not qualify as an "insured"

on the sole basis that plaintiff resided in the same household with the

insureds.  113 H. 196 (App.), 150 P.3d 845 (2007).

  Construing the language of §431:10C-301 and this section

governing uninsured motorist (UM) and underinsured motorist (UIM) insurance

according to their plain and commonly understood meaning and in pari materia

with §§663-10.9 and 663-11, UM and UIM policies must provide coverage for all

damages which an insured is legally entitled to recover from the owner or

operator of an uninsured or underinsured motor vehicle, which necessarily

encompasses damages for which the owner or operator of an uninsured or

underinsured motor vehicle is jointly and severally liable pursuant to

§§663-10.9 and 663-11.  120 H. 329 (App.), 205 P.3d 594 (2009).

  To obtain underinsured motorist (UIM) coverage in Hawaii, the

liability for damages must exceed the total amount of bodily injury liability

limits applicable at the time of the loss and the policy limits for uninsured

motorist coverage and payments or settlements are not part of that analysis;

thus, trial court correctly determined that the joint and several "damages

imposed by law" against the driver exceeded the cumulative limits of

driver's bodily injury policies, driver met the statutory definition of an UIM,

and the insurer therefore was obligated to pay victim UIM benefits to

compensate victim for the difference.  120 H. 329 (App.), 205 P.3d 594 (2009).

  Mentioned:  732 F. Supp. 2d 1107 (2010).