§431:10C-306  Abolition of tort liability. (a)  Except as provided in subsection (b), this article abolishes tortliability of the following persons with respect to accidental harm arising frommotor vehicle accidents occurring in this State:

(1)  Owner, operator, or user of an insured motorvehicle; or

(2)  Operator or user of an uninsured motor vehiclewho operates or uses such vehicle without reason to believe it to be anuninsured motor vehicle.

(b)  Tort liability is not abolished as to thefollowing persons, their personal representatives, or their legal guardians inthe following circumstances:

(1)  Death occurs to the person in such a motorvehicle accident;

(2)  Injury occurs to the person which consists, inwhole or in part, in a significant permanent loss of use of a part or functionof the body;

(3)  Injury occurs to the person which consists of apermanent and serious disfigurement which results in subjection of the injuredperson to mental or emotional suffering; or

(4)  Injury occurs to the person in a motor vehicleaccident and as a result of such injury that the personal injury protectionbenefits incurred by such person equal or exceed $5,000; provided that incalculating this amount:

(A)  The following shall be included:

(i)  Personal injury protection benefitsincurred by, paid to or payable to, or on behalf of, an eligible injured personincluding amounts paid directly by or on behalf of the eligible insured becauseof the accidental harm or similar benefits under social security, worker'scompensation, or public assistance laws;

(ii)  The applicable amounts of deductible orcopayment paid or incurred;

(iii)  Amounts paid by or on behalf of an injuredperson who is not entitled to personal injury protection benefits, by healthinsurance or other funds; provided that payment in excess of the charges orservices allowable under this chapter shall not be included;

(iv)  Where an eligible injured person receivescoverage on other than a fee for service basis including, but not limited to, ahealth maintenance organization operating on a capitation basis, the value ofservices provided shall be determined in accordance with the fee schedulesallowable under this chapter for purposes of threshold determination;

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

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

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

(e)  No provision of this article shall beconstrued to exonerate, or in any manner to limit:

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

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

(A)  Intentionally causes injury or damage to aperson or property;

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

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

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

(f)  No provision of this section shall beconstrued to abolish tort liability with respect to property damage arisingfrom motor vehicle accidents. [L 1987, c 347, pt of §2; am L 1997, c 251, §43;am L 1998, c 275, §§22, 23; am L 2001, c 157, §31]

 

Case Notes

 

  Section (pre-1997) does not violate constitutional right tothe equal protection of the laws as applied to persons ineligible for no-faultbenefits.  87 H. 297, 955 P.2d 90.

  Plaintiff did not satisfy minimum level of qualifyingexpenses necessary to maintain action under subsection (b)(2) (1993) whereplaintiff did not present:  (1) evidence that medical expenses plaintiffclaimed in motor vehicle tort lawsuit were paid, thereby triggering statutorypresumption that they were reasonable and necessary; nor (2) expert testimonyestablishing that the expenses were reasonable and necessary.  88 H. 251, 965P.2d 793.

  Where insured was neither involved in the car accident norwitnessed the accident involving insured's son, insured was precluded fromrecovering for any emotional distress under subsection (b) and First InsuranceCo. of Hawaii v. Lawrence.  108 H. 380, 120 P.3d 1115.

  Where plaintiffs' claim did not accrue until the quantum ofthe medical care they actually received exceeded the medical-rehabilitativelimit set forth in subsection (b)(2) (1993), and plaintiff apparently exceededthat limit, §662-4 afforded plaintiffs two years from the accrual of theirclaim within which to file their lawsuit; as plaintiffs' claim had accrued bythe time they filed their complaint but not more than two years prior, thecomplaint was timely under §662-4; thus, trial court properly denieddefendant's motion to dismiss.  113 H. 459, 153 P.3d 1144.

  Trial court erred in entering judgment for defendant assubsection (b)(2) does not require that jury return verdict in excess ofmedical-rehabilitative limit established by §431:10C-308, but only requiresthat "amount paid or accrued" exceeds this limit.  80 H. 188 (App.),907 P.2d 774.