§431:10C-301.5  Covered loss deductible.  Whenever a person effects a recovery for bodily injury, whether by suit, arbitration, or settlement, and it is determined that the person is entitled to recover damages, the judgment, settlement, or award shall be reduced by $5,000 or the amount of personal injury protection benefits incurred, whichever is greater, up to the maximum limit.  The covered loss deductible shall not include benefits paid or incurred under any optional additional coverage, benefits paid under any public assistance program, or benefits paid or incurred under chapter 386. [L 1997, c 251, pt of §2; am L 1998, c 275, §17; am L 2004, c 174, §2; am L 2012, c 32, §1]


Case Notes


  The covered loss deductible provision of this section applied to the insureds' recovery of bodily injury damages under their uninsured motorist coverage with insurer.  103 H. 142, 80 P.3d 321 (2003).

  Where defendant failed to (1) raise the covered loss deductible statute during the arbitration proceedings, (2) apply to the arbitration administrator or the arbitration judge to reduce the awards, or (3) file a notice of appeal and request a trial de novo, pursuant to Hawaii Arbitration Rules rule 21, the arbitration awards were entered as unappealable final judgments, which the trial court was precluded from modifying or vacating.  105 H. 93, 94 P.3d 648 (2004).

  Applying the covered loss deductible under this section to plaintiff's recovery of underinsured motorist benefits did not violate plaintiff's constitutional right to substantive due process as the legislature's policy determination to enact this section to reduce one of the costs of the motor vehicle insurance system was expressly within the constitutional purview of the legislature.  106 H. 511, 107 P.3d 440 (2005).

  The covered loss deductible applies to underinsured motorist coverage.  106 H. 511, 107 P.3d 440 (2005).

  This section mandates that the "award shall be reduced by the amount of personal injury protection (PIP) benefits"; as this section does not state that the award should be reduced after apportionment by the amount of PIP benefits, the covered loss deductible is to be deducted from the "total damages" awarded by the trier of fact prior to apportionment of the damages; thus, circuit court erred when it subtracted the covered loss deductible from the jury's damage award after apportioning the damages.  124 H. 236 (App.), 240 P.3d 899 (2010).