431:1-201 Insurance defined. (a) Insurance is a contract whereby one undertakes to indemnify another or pay a specified amount upon determinable contingencies.

(b) The following contracts are not considered to be insurance for the purposes of this code:

(1) A bond with respect to which no premium is charged or paid;

(2) A bond or contract or undertaking in the performance of which the surety has an interest other than that of surety;

(3) A plan or agreement between an employer and any employee or the employee's representative, individually or collectively, by the terms of which the employer or the parties to the plan or agreement agree to contribute to the cost of nonoccupational disability benefits, medical attention, treatment or hospitalization for the employee or members of the employee's family unless such plan is underwritten by an insurer as defined in this article;

(4) A legal service plan as defined in chapter 488 other than plans in which either the person or entity offering the plan or the person administering the plan is otherwise subject to this code;

(5) Any unincorporated interindemnity or reciprocal or interinsurance contract, which qualifies under chapter 435E between members of a cooperative corporation, whose members consist only of physicians and surgeons licensed in Hawaii, which contracts indemnify solely in respect to medical malpractice claims against such members, and which do not collect in advance of loss any moneys other than contributions by each member to a collective reserve trust fund or for necessary expenses of administration. [L 1987, c 347, pt of 2; am L 2012, c 34, 22]


Case Notes


Materialman guaranteeing general contractor's performance through surety bond did not have an interest in the performance of the bond other than that of surety. 797 F. Supp. 832.

When the uncontested requirements of the managed care plan request for proposals were read alongside the text of subsection (a) defining the term "insurance", it was clear that the insurers had agreed to assume a risk based on a relationship with plan members--not the department of human services--and were "undertaking to indemnify another or pay a specified amount upon determinable contingencies"; thus, insurers were not performing their plan contracts under no licensing authority but held licenses pursuant to article 431:10A and were contracted to provide insurance services for plan members. 126 H. 326, 271 P.3d 621 (2012).

Vehicle theft registration system sold by car dealership did not constitute "insurance" where the system warranted against the "defect" that the system would fail to deter a theft and fail to aid in the recovery of the owner's vehicle, and did not warrant against the fortuitous happening of the theft itself. 122 H. 181 (App.), 223 P.3d 246 (2009).



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