§431:10C-306 - Abolition of tort liability.

§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:

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

(2) 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;

(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;

(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) 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;

(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) No provision of this section shall be
construed to abolish tort liability with respect to property damage arising
from 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 to
the equal protection of the laws as applied to persons ineligible for no-fault
benefits. 87 H. 297, 955 P.2d 90.

Plaintiff did not satisfy minimum level of qualifying
expenses necessary to maintain action under subsection (b)(2) (1993) where
plaintiff did not present: (1) evidence that medical expenses plaintiff
claimed in motor vehicle tort lawsuit were paid, thereby triggering statutory
presumption that they were reasonable and necessary; nor (2) expert testimony
establishing that the expenses were reasonable and necessary. 88 H. 251, 965
P.2d 793.

Where insured was neither involved in the car accident nor
witnessed the accident involving insured's son, insured was precluded from
recovering for any emotional distress under subsection (b) and First Insurance
Co. of Hawaii v. Lawrence. 108 H. 380, 120 P.3d 1115.

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

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