*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCCQ-XX-XXXXXXX
20-NOV-2020
10:11 AM
Dkt. 42 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
________________________________________________________________
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
Plaintiff-Appellee,
vs.
MICHAEL MIZUNO,
Defendant-Appellant.
________________________________________________________________
SCCQ-XX-XXXXXXX
CERTIFIED QUESTION FROM THE
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
(NO. 17-15947; D.C. NO. 1:16-CV-00059-KJM)
NOVEMBER 20, 2020
NAKAYAMA, ACTING C.J., McKENNA, AND WILSON, JJ.,
CIRCUIT JUDGE VIOLA, IN PLACE OF RECKTENWALD, C.J., RECUSED,
AND CIRCUIT JUDGE KURIYAMA, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY WILSON, J.
I. INTRODUCTION
On August 28, 2019, this court accepted the following
certified question from the United States Court of Appeals for
the Ninth Circuit (“Ninth Circuit”):
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Under Hawaiʻi law, is a permissive user of an insured
vehicle, whose connection to the insured vehicle is
permission to use the vehicle to run errands and drive to
work, entitled to uninsured motorist (UM) benefits under
the chain-of-events test because he was injured by an
uninsured motorist?
We answer the certified question in the affirmative.
The proper inquiry under the chain of events test in this case
is whether a permissive user, such as Mizuno, has retained a
“sufficient connection” to the insured vehicle. Under the chain
of events test, Mizuno is entitled to UM benefits because he was
a permissive user of the insured vehicle during the chain of
events resulting in his injury caused by an uninsured motor
vehicle.
II. FACTUAL BACKGROUND
Michael Mizuno (“Mizuno”) received permission from his
girlfriend, Daryl-Jean S. Wong (“Wong”), to use her vehicle to
deliver the couple’s bills to the post office and to drive to
his place of employment. Unable to use his own vehicle that was
undergoing repairs, Mizuno drove Wong’s vehicle to the post
office to mail the couple’s bills. He parked the vehicle across
the street from the post office, walked across the street, and
deposited the bills in a mailbox. As he was walking back across
the street to Wong’s vehicle, Mizuno was struck by an
2
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
unidentified driver,1 causing injuries to his left leg, left arm,
left wrist, and left hand.
Mizuno received compensation for his injuries pursuant
to his own automobile insurance policy (UM coverage) and also
sought benefits under the terms of Wong’s UM policy.
Wong held an Automobile Insurance Policy with State
Farm for her 2007 Toyota Camry, affording “UM limits of
$100,000.00 per person and $300,000.00 per accident[.]” The UM
policy provides that State Farm “will pay damages for bodily
injury an insured is legally entitled to recover from the owner
or driver of an uninsured motor vehicle.” Her UM policy defines
“insured” to include the named insured(s), resident relatives,
and “any other person while . . . occupying, with a reasonable
belief that he or she is entitled to do so[,] . . . [the
insured’s] car[.]” Wong’s policy defines “occupying” to mean
“in, on, entering, or exiting [a vehicle covered by the State
Farm policy].” State Farm argues that the policy’s occupancy
restriction for uninsured users, limiting the meaning of
“occupying” to situations where the “other person” is “in, on,
1 Under Hawai‘i’s UM laws, an unidentified driver or a hit and run
driver, like the one that struck Mizuno, is considered an uninsured motorist
for the purposes of UM coverage. Dawes v. First Ins. Co. of Haw., Ltd., 77
Hawaiʻi 117, 122-23, 883 P.2d 38, 44-45 (1994) (quoting 8C Appleman § 5067.45,
at 41-46 (1981)) (noting that Hawai‘i’s UM laws, HRS §§ 431:10-213 and
431:10C-301(b)(3), are remedial in nature, “provid[ing] a remedy to the
innocent victims of irresponsible motorists who may have no resources to
satisfy the damages they cause” and “cover the situation of a wrongful or
tortious act of an uninsured motorist or a hit and run driver, or that of
another unknown motorist.”).
3
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
entering, or exiting” the vehicle, excludes coverage for Mizuno.
Under this interpretation of “occupancy” Mizuno is excluded from
coverage because he was not “in, on, entering, or exiting” the
insured vehicle at the time he was struck by the unidentified
motorist.
State Farm filed a complaint for declaratory judgment
in the United States District Court for the District of Hawai‘i,
and received summary judgment in its favor in response to the
question of whether Mizuno was “occupying” Wong’s vehicle at the
time of the accident. Mizuno appealed to the Ninth Circuit. On
appeal, Mizuno contends that the district court erred by
granting summary judgment in favor of State Farm because he was
entitled to UM coverage provided by Wong’s UM policy.
Specifically, Mizuno argues that he was using the insured
vehicle to deliver mail and due to an uninterrupted “chain of
events” involving the insured vehicle, was injured. In so
doing, Mizuno relies upon the “chain of events test” articulated
by this court in Dawes v. First Ins. Co. of Haw., Ltd., 77
Hawaiʻi 117, 122-23, 883 P.2d 38, 43-44 (1994).
Before the Ninth Circuit and this court, State Farm
contends that Mizuno was not a covered person under Wong’s
policy because his “connection to the insured vehicle consists
of nothing more than the claimant having ridden in the vehicle
to the vicinity of a later accident, or of being struck while
4
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
walking toward an insured vehicle.” According to State Farm,
“there is no connection between Mizuno’s use of Wong’s car and
the accident.” Although State Farm acknowledges that Mizuno was
struck as he was returning to Wong’s vehicle, it argues that
“the accident could just as easily have happened if he were
walking across the street to get to a bus stop, hail a cab or
talk to a friend. The presence of the insured vehicle at the
scene was purely incidental to the accident and Mizuno’s
injuries.” State Farm argues that if this court finds UM
coverage for Mizuno in the circumstances of this case, the court
would be mandating “virtually limitless” coverage.
The Ninth Circuit observed that requiring State Farm
to provide uninsured motorist coverage under Wong’s policy to
Mizuno “would extend the chain-of-events test [further than our
prior precedent because in] this circumstance . . . (1) the
vehicle was not disabled . . . and a covered family member of
the named insured was not present, [and] (2) the driver was not
an employee of the insured performing work duties . . . .”
Consequently, the Ninth Circuit concluded that it “[could not]
readily discern whether the Hawai‘i Supreme Court would extend
the chain-of-events test to [Mizuno’s] circumstance[s] . . . .”
We accepted the certified question to answer this
inquiry and answer in the affirmative.
5
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
III. DISCUSSION
Hawai‘i’s UM statute, Hawaiʻi Revised Statutes (“HRS”)
§ 431:10C-301(b)(3) (2013),2 requires “any motor vehicle
registered or principally garaged in this State” to maintain
“liability coverage . . . for the protection of persons insured
thereunder who are legally entitled to recover damages from
owners or operators of uninsured motor vehicles because of
bodily injury, sickness, or disease, including death, resulting
therefrom[.]” HRS § 431:10C-301(b)(3).3 The required UM
coverage applies to “all damages arising out of accidental harm
sustained as a result of any one accident and arising out of
2 Hawai‘i’s UM statute was previously codified as HRS § 431-448
(1978).
3 HRS § 431:10C-301(b) provides in relevant part:
(b) A motor vehicle insurance policy shall include:
(1) Liability coverage of not less than $20,000 per person, with
an aggregate limit of $40,000 per accident, for all damages
arising out of accidental harm sustained as a result of any one
accident and arising out of ownership, maintenance, use, loading,
or unloading of a motor vehicle;
. . . .
(3) With respect to any motor vehicle registered or principally
garaged in this State, liability coverage provided therein or
supplemental thereto, in limits for bodily injury or death set
forth in paragraph (1), under provisions filed with and approved
by the commissioner, for the protection of persons insured
thereunder who are legally entitled to recover damages from
owners or operators of uninsured motor vehicles because of bodily
injury, sickness, or disease, including death, resulting
therefrom; provided that the coverage required under this
paragraph shall not be applicable where any named insured in the
policy shall reject the coverage in writing[.]
6
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
ownership, maintenance, use, loading, or unloading of a motor
vehicle[.]” HRS § 431:10C-301(b)(1).
Hawai‘i’s UM statutes have a broad ameliorative
purpose. See Conf. Comm. Rep. No. 27, in 1974 House Journal, at
864, 866 (recognizing the purpose of Hawaiʻi’s UM statute is to
provide “protection of users of motor vehicles from bodily
injury, sickness, or disease, including death, resulting from
motor vehicle accidents[,]” which includes “accidents resulting
from activities prescribed ‘in the immediate proximity of the
vehicle.’”). To reflect this ameliorative purpose, this court
has broadly interpreted Hawai‘i’s UM statute so that UM benefits
apply even when an individual is not “in, on, entering, or
exiting” the insured vehicle. See National Union Fire Insurance
Co. of Pittsburgh v. Olson, 69 Haw. 559, 563, 751 P.2d 666, 669
(1988) (holding that UM coverage applied to an employee who was
not physically occupying the insured vehicle); Dawes, 77 Hawaiʻi
at 131-32, 883 P.2d at 52-53 (holding that UM coverage is based
on the chain of events test where an individual is entitled to
UM benefits when they maintain a sufficient connection to the
insured vehicle). More recently, the ICA expanded the extent of
UM coverage to a permissive user who was not occupying the
insured vehicle when he was injured by an uninsured motorist.
Liki v. First Fire & Cas. Ins. of Haw., Inc., 118 Hawaiʻi 123,
131, 185 P.3d 871, 879 (App. 2008) (holding that under the chain
7
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
of events test, UM coverage existed for a driver who was an
employee of the insured, injured while performing work duties
outside of the insured vehicle). Hawaiʻi courts have broadly
interpreted the coverage of UM benefits for claimants injured
outside of the insured vehicle in Olson, Dawes, and Liki.
In Olson, the claimant, Olson, was working as an
emergency medical technician, driving an ambulance for his
employer. 69 Haw. at 560, 751 P.2d at 667. Olson was placing a
flare in the center of the road while responding to the scene of
an accident when he was struck by an uninsured motorist. Id. at
561, 751 P.2d at 667. The insurer of the ambulance argued that
Olson was not entitled to UM benefits because he was not
“occupying” the vehicle at the time of his injury. Id. at 563,
751 P.2d at 668. Olson held that the occupancy restriction was
void and that, under Hawaiʻi law, an insured is entitled to
coverage for accidents arising from the “operation, maintenance
or use” of the vehicle, and thus, “accidents resulting from
activities prescribed ‘in the immediate proximity of the
vehicle’” are compensable. Id. at 563-64, 751 P.2d at 669.
Accordingly, Olson was entitled to UM coverage because: (1)
“Olson was using the ambulance with permission and was therefore
an insured person”; (2) “Olson’s use [(lighting the flare)] was
within the scope of permission granted”; (3) “Olson was lighting
a flare to guide traffic and the flares were carried in the
8
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
ambulance for exactly the purpose to which Olson put them.” Id.
at 564, 751 P.2d at 669.
Roughly six years later, this court revisited Hawai‘i’s
UM statute in Dawes “in order to clarify further the nature and
scope of (UM) insurance coverage under applicable Hawai‘i law” as
it relates to claimants injured outside of the insured vehicle.
77 Hawaiʻi at 119, 883 P.2d at 40. In Dawes, Jeannette Dawes
(“Dawes”) filed a declaratory judgment action against First
Insurance Company of Hawaii (“FICH”) due to FICH’s failure to
pay UM benefits for the death of Dawes’ daughter, Elizabeth
Bockhorn (“Bockhorn”), who was struck and killed by an uninsured
motorist. Id. Bockhorn and two friends had been traveling in a
car driven by Eric Shimp (“Shimp”),4 when the car broke down.
Id. As the group was walking along the highway to locate repair
assistance, approximately one mile from the insured vehicle,
Bockhorn was struck and killed by an uninsured motorist. Id. at
119-20, 883 P.2d at 40-41. FICH denied Dawes’ claim, asserting
that Bockhorn was not a “covered person” under the UM policy
because she was not occupying the insured vehicle at the time of
the accident. Id. at 120-121, 883 P.2d at 41-42.
The Dawes court held that the occupancy restriction
contained in the FICH policy was void. See id. at 129, 883 P.2d
4 The vehicle was owned and insured by Shimp’s father, and Shimp
was an insured under the policy.
9
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
at 50. It found that passengers “need not be ‘occupants’ of an
insured vehicle . . . but must have ‘some connection with the
insured vehicle’ in order to be entitled to UM benefits.” Id.
at 129, 883 P.2d at 50.
In reviewing the holding in Olson, the Dawes court
“believe[d] that the Olson analysis [wa]s both inaccurate and
unduly restrictive” because “the purpose underlying the Hawai‘i
UM statutes is not limited to the protection of ‘users of motor
vehicles[,]’” and the purpose of Hawai‘i UM statutes does not
limit coverage to accidents resulting from activities “in the
immediate proximity of the vehicle.” Id. at 132-33, 883 P.2d at
52-53. Rather, the Dawes court emphasized that “the critical
element with respect to such claimants is a sufficient
‘connection with the insured vehicle.’” Id. at 132, 883 P.2d at
53 (quoting 8C J. Appleman, Insurance Law and Practice §
5092.35, at 381 (1981)).
Thus, the court in Dawes adopted the “chain of events
test” defining coverage for UM benefits:
(1) if a person was a passenger in an insured vehicle being
operated by a named insured or a named insured’s family member,
(2) during the chain of events resulting in injury to the person
caused by an accident involving an uninsured motor vehicle, (3)
then the person is a “covered person” at the time of his or her
injury to the same extent as the named insured or the named
insured’s family members would be entitled to receive UM benefits
under the applicable UM policy.
Id. at 132-33, 883 P.2d at 53-54. Under this rule, the Dawes
court held that Dawes was entitled to UM benefits, “as a matter
10
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
of law . . . Bockhorn was a ‘covered person’ within the meaning
of the UM provisions of the FICH auto policy” because:
(1) Bockhorn was a passenger in the insured vehicle; (2) the
insured vehicle was being operated by Shimp, a “family member” of
the named insured; (3) the insured vehicle broke down; (4) as a
result of the breakdown, the occupants of the insured vehicle,
including Bockhorn, exited and proceeded on foot to the Kona
airport in order to obtain alternative transportation and repair
assistance; and (5) en route to the group’s destination, Bockhorn
sustained fatal injuries as a result of the operation of an
uninsured vehicle by an uninsured motorist.
Id. at 121, 133, 883 P.2d at 42, 54.
More than a decade after Dawes, Hawaiʻi courts again
considered the extent of UM coverage and whether it covered a
permissive user who was an employee of the insured and was
injured while performing work duties outside of the insured
vehicle. Liki, 118 Hawaiʻi at 126, 185 P.3d at 874. In Liki,
the employee of a repair service (“Liki”) drove his employer’s
truck to a gas station, where he unloaded equipment from the
truck and began cleaning a gas station sump. Id. at 125, 185
P.3d at 873. While working and kneeling in the sump, about ten
or fifteen feet away from the work truck, Liki was struck by an
uninsured motorist and injured. Id. at 125, 130, 185 P.3d at
873, 878.
The ICA rejected the insurer’s argument that because
Liki was not “a passenger in an insured vehicle being operated
by a named insured or a named insured’s family member,” he was
not entitled to coverage under the Dawes chain of events test.
11
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Id. at 127, 185 P.3d at 875. The ICA explained that it did “not
read Dawes as limiting coverage to only individuals who can
satisfy those conditions.” Id. The ICA noted that according to
Dawes, Hawai‘i’s UM statute requires “auto policies extend UM
coverage for the protection of all insured ‘persons . . . who
are legally entitled to recover damages from owners or operators
of uninsured motor vehicles because of bodily injury[.]’” Id.
(quoting Dawes, 77 Hawaiʻi at 131, 883 P.2d at 52). The ICA
determined that Liki “was a permissive user of the vehicle[.]”
Id. at 127-28, 185 P.3d at 875-76. The ICA also held that Liki
demonstrated “some connection with the insured vehicle” because
he was an “employee of the named insured, who was using the
truck during the course of his employment to get to and from the
jobsite where he was injured, and to store and transport the
equipment that he was using as part of his duties at the time he
was injured.” Id. at 128, 185 P.3d at 876. Additionally, the
ICA considered physical proximity to the insured vehicle “to the
extent it tends to corroborate the connection between an injured
employee of the named insured and the insured vehicle.” Id. at
130, 185 P.3d at 878. Thus, the ICA concluded that under the
chain of events test, the fact that “Liki was no more than 10–15
feet from the truck” corroborated a connection between Liki and
the insured truck. Id.
12
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
By applying the chain of events test to Liki—a
permissive user of an insured vehicle who was not physically
occupying the vehicle—Hawaiʻi courts broadened part one of the
chain of events test to apply to permissive users of an insured
vehicle: (1) if a claimant qualifies as a passenger or a
permissive user, (2) during the chain of events resulting in
injury to the claimant caused by an accident involving an
uninsured motor vehicle, the claimant is a “covered person” at
the time of his or her injury who is entitled to receive UM
benefits under the applicable UM policy. See Liki, 118 Hawaiʻi
at 128, 130-31, 185 P.3d at 876, 878-79. Thus, under the chain
of events test, the factual determination pivotal to determining
UM coverage for a permissive user injured outside of the insured
vehicle is whether the claimant “can demonstrate ‘some
connection with the insured vehicle.’” Id. at 127-28, 185 P.3d
at 875-76.
Mizuno’s case falls squarely within the chain of
events test that this court has consistently applied when a
claimant, who is injured outside of the insured vehicle, seeks
UM coverage. Mizuno, qualifies for UM coverage because he has
“some connection with the insured vehicle” and is a permissive
user.
13
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Here, Mizuno is a permissive user because although he
was not the named insured (or a resident relative of the named
insured), he had Wong’s permission to use her car.
Mizuno also demonstrated some connection to the
insured vehicle. Mizuno had permission to use the vehicle to
conduct an errand. Mizuno traveled to the site of the accident
for the express purpose of mailing bills, carrying the bills to
the location of the post office in the insured vehicle. Mizuno
deposited the bills and was returning to the car at the time of
the accident. The record establishes that Mizuno was at the
crosswalk between his car and the post office when the accident
occurred. State Farm Mut. Auto. Ins. Co. v. Mizuno, No. CV 16-
00059 KJM, 2017 WL 3000023, at *1 (D. Haw. Apr. 30, 2017).
Mizuno’s close physical proximity with the vehicle corroborates
that there was a connection between Mizuno, a permissive user,
and the insured vehicle. See Liki, 118 Hawaiʻi at 130, 185 P.3d
at 878 (holding that physical proximity to the insured vehicle
can be considered “to the extent it tends to corroborate the
connection between an injured employee of the named insured and
the insured vehicle.”).
State Farm contends that this court would be mandating
“virtually limitless” coverage if we find that Mizuno is
entitled to UM benefit’s under Wong’s policy because coverage
would apply whenever “a UM . . . claimant used an insured
14
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
vehicle to get to a location where an accident later occurred.”
Contrary to State Farm’s contention, virtually limitless
coverage does not result from applying the chain of events test
to the facts of this case. State Farm fails to recognize that
the chain of events test is a fact-driven analysis when it
argues “the accident could just as easily have happened if he
were walking across the street to get to a bus stop, hail a cab
or talk to a friend[;] . . . [t]he presence of the insured
vehicle at the scene was purely incidental to the accident and
Mizuno’s injuries.”
Here, Mizuno’s accident did not occur when he was
going to a bus stop, when he was hailing a cab, or when he was
talking to a friend. Mizuno used the car to transport bills to
deposit at the mailbox and was returning to the car. The
presence of the vehicle at the scene was not “purely incidental
to the accident.” Mizuno was walking towards the car because it
was the car that he drove to drop off the bills. Thus, Mizuno
has demonstrated that he has “some connection with the insured
vehicle” because he was a permissive user, was using the insured
vehicle to transport and drop off mail, and was returning to the
vehicle when he was injured. These facts are sufficiently
similar to Dawes and Liki to establish that the chain of events
test is satisfied.
15
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
IV. CONCLUSION
For the reasons discussed above, we answer the Ninth
Circuit’s certified question in the affirmative. Under Hawaiʻi
law, Mizuno is a permissive user of an insured vehicle and is
entitled to UM benefits under the chain of events test.
Roy K.S. Chang /s/ Paula A. Nakayama
Harvey M. Demetrakopoulos
for Defendant-Appellant /s/ Sabrina S. McKenna
David R. Harada-Stone /s/ Michael D. Wilson
Richard B. Miller
Patricia K. Wall /s/ Christine E. Kuriyama
for Plaintiff-Appellee
/s/ Matthew J. Viola
16