*
* * NOT FOR PUBLICATION * * *
NO. 24402
IN THE SUPREME COURT OF THE STATE OF HAWAI`I
JACKIE MADURA and JOHN MADURA, Plaintiffs-Appellants,
vs.
AIG INSURANCE COMPANY, Defendant-Appellee,
and
JOHN
DOES 1-10, JANE DOES 1-10, DOE PARTNERSHIPS 1-10,
DOE CORPORATIONS 1-10, DOE "NON-PROFIT" CORPORATIONS 1-10,
DOE ENTITIES 1-10, and DOE GOVERNMENTAL ENTITIES 1-10,
Defendants.
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 00-1-0019)
SUMMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, Nakayama, and Duffy, JJ.,
and Intermediate Court of Appeals Judge Fujise,
in place of Acoba, J., Recused)
Upon carefully reviewing the record and the briefs submitted by the parties, and having given due consideration to the arguments advocated and the issues raised, we hold that the circuit court did not err in granting AIG's cross-motion for summary judgment. Specifically, we hold that:
(1)
the plain language of HRS § 431:10C-103(23)(B)
applies to the plaintiffs' claim. At the time of Jackie Madura's
accident,
HRS §
431:10C-103(23)(B) provided that a claimant's injury will not be deemed
to have been caused by an
uninsured
motor vehicle unless
the claimant notified her or his insurer within thirty days or as soon
as practicable thereafter
that she
or he had a legal
action arising out of the accident. Although the legislature
subsequently amended HRS §
431:10C-103
to remove the thirty
day notification provision, see
2000 Haw. Sess. L. Act 66, § 1 at 122, these amendments
do not
apply retroactively.
HRS § 1-3 (1993);
(2)
the circuit court properly held that the plaintiffs
did not notify AIG of their claim within thirty days or as soon as
practicable
thereafter. Even if the plaintiffs proved at trial that they failed to
notify AIG of their claim because they did not
believe they had a
claim against AIG, the outcome would not change: the phrase "as soon as
practicable" does not
encompass a
plaintiff's subjective belief as to the existence of a potential claim.
Whereas this court construes insurance
contracts in favor of
the insured, Dairy Road
Partners v. Island Ins. Co., Ltd., 92 Hawai`i 398, 411-12, 992
P.2d 93,
106-07
(2000), this court construes statutory provisions according to their
plain and obvious meaning, In
re Trust
Created Under
Will Dated Nov. 15, 1917 of Cunha, 104 Hawai`i 267, 270-71, 88
P.3d 202, 205-06 (2004). HRS §
431:10C-103(23)(B)
provides that a claimant must notify the insurer of a UM claim "within
thirty days or as soon as
practicable
thereafter"; in
the instant case, viewing the evidence in a light most favorable to the
plaintiffs, the plaintiffs did
not notify AIG of
their
claim as soon as practicable because the plaintiffs could have
investigated their claim long before
September 8, 1999:
there is nothing in the record to suggest that the plaintiffs were
incapable of investigating their claim.
Therefore, the
circuit
court correctly granted AIG's motion for summary judgment because the
plaintiffs' allegations, even
if proven at trial,
do
not establish that the plaintiffs notified AIG as soon as practicable
after Jackie Madura's accident;
(3)
the circuit court properly considered AIG's untimely
notice of claim defense. The plaintiffs argue that Hawai`i Rules
of
Civil Procedure Rule 8(c)
should have prevented the circuit court from considering AIG's
timeliness defense and that
the
circuit court erred
by considering this issue. However, the plaintiffs' complaint for
declaratory relief put HRS §
431:10C-103(23)(B) at
issue: the plaintiffs were required to prove that their injuries were
caused by an uninsured motor
vehicle as defined by
HRS § 431:10C-103(23)(B) in order to recover UM benefits.
Therefore, the plaintiffs -- rather
than
AIG -- put the timeliness of their notification to AIG at issue. AIG
was not required to assert HRS §
431:10C-103(23)(B)
as an affirmative defense; instead, AIG's contention that the
plaintiffs were not entitled to UM
benefits was
sufficient to
allow it to argue that the plaintiffs did not satisfy HRS §
431:10C-103(23)(B). Consequently,
the circuit court did
not err in
considering AIG's argument that the plaintiffs failed to satisfy the
statutory requirements of
HRS §
431:10C-103(23)(B);
and
(4)
AIG need not prove that it was prejudiced by the
plaintiffs' untimely claim. The instant case involves a statutory
notice
requirement, rather
than a notice requirement in an insurance contract. HRS §
431:10C-103(23)(B) does not require
the
insurer to
demonstrate prejudice. Thus, the circuit court did not err when it
granted summary judgment without AIG
having proven that it
had been prejudiced by the untimely notice of claim.
Therefore, IT IS HEREBY ORDERED that the circuit court's June 29, 2001 judgment, granting summary judgment in favor of AIG, is affirmed.
DATED: Honolulu, Hawai`i, July 21, 2004.
On the briefs:
Richard C.
Sutton, Jr.
and Jason M. Tani (of Rush
Moore Craven Sutton Morry
& Beh) for plaintiffs-
appellants Jackie Madura
and John Madura
1.
The
Honorable Gary W.B. Chang presided over this matter.