§431:10C-304  Obligation to pay personal
injury protection benefits.  For purposes of this section, the term
"personal injury protection insurer" includes personal injury
protection self-insurers.  Every personal injury protection insurer shall
provide personal injury protection benefits for accidental harm as follows:



(1)  Except as otherwise provided in section
431:10C-305(d), in the case of injury arising out of a motor vehicle accident,
the insurer shall pay, without regard to fault, to the provider of services on
behalf of the following persons who sustain accidental harm as a result of the
operation, maintenance, or use of the vehicle, an amount equal to the personal
injury protection benefits as defined in section 431:10C-103.5(a) payable for
expenses to that person as a result of the injury:



(A)  Any person, including the owner, operator,
occupant, or user of the insured motor vehicle;



(B)  Any pedestrian (including a bicyclist); or



(C)  Any user or operator of a moped as defined
in section 249-1;



provided that this paragraph shall not apply in
the case of injury to or death of any operator or passenger of a motorcycle or
motor scooter as defined in section 286-2 arising out of a motor vehicle
accident, unless expressly provided for in the motor vehicle policy;



(2)  Payment of personal injury protection benefits
shall be made as the benefits accrue, except that in the case of death, payment
of benefits under section 431:10C-302(a)(5) may be made immediately in a lump
sum payment, at the option of the beneficiary;



(3)  (A)  Payment of personal injury protection
benefits shall be made within thirty days after the insurer has received
reasonable proof of the fact and amount of benefits accrued, and demand for
payment thereof. All providers must produce descriptions of the service
provided in conformity with applicable fee schedule codes;



(B)  If the insurer elects to deny a claim for
benefits in whole or in part, the insurer shall, within thirty days, notify the
claimant in writing of the denial and the reasons for the denial.  The denial
notice shall be prepared and mailed by the insurer in triplicate copies and be
in a format approved by the commissioner.  In the case of benefits for services
specified in section 431:10C-103.5(a) the insurer shall also mail a copy of the
denial to the provider; and



(C)  If the insurer cannot pay or deny the
claim for benefits because additional information or loss documentation is
needed, the insurer shall, within the thirty days, forward to the claimant an
itemized list of all the required documents.  In the case of benefits for
services specified in section 431:10C-103.5(a) the insurer shall also forward
the list to the service provider;



(4)  Amounts of benefits which are unpaid thirty days
after the insurer has received reasonable proof of the fact and the amount of
benefits accrued, and demand for payment thereof, after the expiration of the
thirty days, shall bear interest at the rate of one and one-half per cent per
month;



(5)  No part of personal injury protection benefits
paid shall be applied in any manner as attorney's fees in the case of injury or
death for which the benefits are paid.  The insurer shall pay, subject to
section 431:10C-211, in addition to the personal injury protection benefits
due, all attorney's fees and costs of settlement or suit necessary to effect
the payment of any or all personal injury protection benefits found due under
the contract.  Any contract in violation of this provision shall be illegal and
unenforceable.  It shall constitute an unlawful and unethical act for any
attorney to solicit, enter into, or knowingly accept benefits under any
contract;



(6)  Disputes between the provider and the insurer
over the amount of a charge or the correct fee or procedure code to be used
under the workers' compensation supplemental medical fee schedule shall be
governed by section 431:10C-308.5; and



(7)  Any insurer who violates this section shall be
subject to section 431:10C-117(b) and (c). [L 1987, c 347, pt of §2; am L 1992,
c 124, §11; am L 1993, c 6, §20 and c 205, §27; am L 1997, c 251, §41; am L
1998, c 275, §21; am L 2000, c 138, §1]



 



Case Notes



 



  Section entitles motorcycle passenger to claim no-fault
benefits against automobile driver's policy for passenger's injuries received
in accident between driver's vehicle and motorcycle.  81 H. 302, 916 P.2d 1203.



  Term "any person" in paragraph (1)(A)(i) includes
motorcycle passengers.  81 H. 302, 916 P.2d 1203.



  In light of the unambiguous mandatory language of paragraph
(3)(B), an insurer is required to provide written notice of its denial--in
whole or in part--of the claim for benefits; written notice to the claimant is
required where the denial or partial denial relates to the treatment service
and/or the charges therefor; where the denial or partial denial involves
treatment services, the insurer must also provide written notice to the
provider.  109 H. 185, 124 P.3d 930.



  Where insurer's denial of plaintiff's claim for no-fault
benefits was based upon an open question of law--whether "the reasons"
as used in paragraph (3)(B) means "all reasons"--there was no bad
faith on the part of insurer for not having stated all the reasons for its
denial of plaintiff's claim.  109 H. 537, 128 P.3d 850.



  Hawaii's no-fault legislative scheme did not establish
doctor's status as a third party beneficiary as a matter of law.  116 H. 159,
172 P.3d 471.



  Paragraph (1)(B) (1987) created a statutory right to
survivors' loss benefits.  88 H. 345 (App.), 966 P.2d 1071.



  Pursuant to paragraph (1)(B) (1987) and §431:10C-103(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.



  The plain language of paragraph (1) requires a causal
connection between a motor vehicle accident and any injury for which a claim
for no-fault insurance benefits is made.  101 H. 21 (App.), 61 P.3d 532.



  Insurer violated the time requirements of paragraph (3)(C)
(1993) when it delayed granting or denying insured's claim for no-fault
benefits pending (1) receipt of answers from insured's treating physicians to
insurer's questions regarding the underlying cause of the medical condition
that required insured to undergo bypass surgery a few days after a motor
vehicle accident, and (2) insured's undergoing two independent medical
examinations; however, the commissioner wrongly concluded that insurer's
violation of these time requirements procedurally barred insurer from
contesting the substantive merits of insured's claim.  101 H. 311 (App.), 67
P.3d 810.



  Under paragraph (5), an award of attorney's fees and costs is
mandatory if a claimant prevails in a settlement or suit for no-fault benefits;
and under §431:10C-211(a), an award of attorney's fees and costs may, in the
exercise of a court's or the commissioner's discretion, be awarded to a
nonprevailing claimant, as long as the claim is not determined to be
unreasonable, fraudulent, excessive, or frivolous.  104 H. 375 (App.), 90 P.3d
267.



  Paragraph (3)(B) (1993) applies to billing disputes and this
section's notice requirement is triggered by a partial denial of claims in the
form of reduced or partial payments by an insurer; thus, trial court erred in
finding that insurer was not required to issue a formal notice of denial of
benefits pursuant to paragraph (3)(B) (1993) after it made both reduced and
partial payments on physician's claims.  117 H. 477 (App.), 184 P.3d 792.



  Paragraph (4) (1993) is applicable when a payment due is
delayed in conjunction with a billing dispute; thus, physician was entitled to
interest on the balance withheld by insurer thirty days after physician
submitted physician's billing statements and demand for payment; insurer was
not permitted to withhold payment for an indeterminate period of time, without
interest, while it sought additional information from physician.  117 H. 477
(App.), 184 P.3d 792.



  The doctrine of equitable tolling cannot be applied to expand
the two-year statute of limitations period in §431:10C-315 (1993) based solely
on an issuer's failure to provide a formal notice of denial required pursuant
to paragraph (3) (1993) in conjunction with a reduced or partial payment.  117
H. 502 (App.), 184 P.3d 817.