Report Title:

Motor Vehicle Insurance; Uninsured Motorists

Description:

Specifies that a person injured in an accident while driving uninsured, has no cause of action to recover personal injury protection benefits or damages arising out of the operation or use of the motor vehicle, and protects insurers from liability to a person who is uninsured.

HOUSE OF REPRESENTATIVES

H.B. NO.

215

TWENTY-THIRD LEGISLATURE, 2005

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to torts.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Section 431:10C-306, Hawaii Revised Statutes, is amended to read as follows:

"§431:10C-306 Abolition of tort liability. (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] state:

(1) [Owner,] The owner, operator, or user of an insured motor vehicle; or

(2) [Operator] The 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; 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; and

(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 determined in accordance with the fee schedules allowable under this chapter for purposes of threshold determination;

and

(B) When a person has optional coverage, benefits received in excess of the maximum basic personal injury protection limits set forth in section 431:10C-103.5 shall not be included.

(c) Subsections (a) and (b) shall apply whether or not the injured person is entitled to receive personal injury protection benefits. The party against whom the presumption under this section is directed shall have the burden of proof to rebut the presumption.

(d) No claim may be made for benefits under the uninsured motorist coverage by an injured person against an insurer who has paid or is liable to pay motor vehicle insurance benefits to the injured person unless the claim meets the requirements of this article.

(e) Except as provided in subsection (b), no person injured in an accident shall have any action to recover any personal injury protection benefits or damages arising out of the operation or use of any motor vehicle involved in an accident if, at the time of the accident, the person was operating a motor vehicle in violation of section 431:10C-104. No insurer of any vehicle involved in the accident shall be liable under a policy of liability insurance, uninsured motorist insurance, or personal injury protection benefits insurance, to pay any benefits or damages to the person operating a motor vehicle in violation of section 431:10C-104.

[(e)] (f) No provision of this article shall be construed to exonerate, or in any manner to limit:

(1) The liability of any person in the business of manufacturing, retailing, repairing, servicing, or otherwise maintaining motor vehicles, arising from a defect in a motor vehicle caused, or not corrected, by an act or omission in the manufacturing, retailing, repairing, servicing, or other maintenance of a vehicle in the course of the person's business;

(2) The criminal or civil liability, including special and general damages, of any person who, in the maintenance, operation, or use of any motor vehicle:

(A) Intentionally causes injury or damage to a person or property;

(B) Engages in criminal conduct that causes injury or damage to person or property;

(C) Engages in conduct resulting in punitive or exemplary damages; or

(D) Causes death or injury to another person in connection with the accident while operating the vehicle in violation of section 291E-61 or section 291-4 or 291-7, as those sections were in effect on or before December 31, 2001.

[(f)] (g) No provision of this section shall be construed to abolish tort liability with respect to property damage arising from motor vehicle accidents."

SECTION 2. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 3. This Act shall take effect upon its approval.

INTRODUCED BY:

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