Liberty Mutual Fire Insurance Co. v. Dennison10/11/2005
FOR PUBLICATION
MOON, C.J., LEVINSON, NAKAYAMA, AND DUFFY, JJ.; ACOBA, J., DISSENTING OPINION OF THE COURT BY MOON, C.J.
This action for declaratory relief arises out of an automobile accident in which then-fifteen year old Tyrone Dennison (Tyrone) suffered severe injuries, including brain damage. The dispute on appeal centers around Tyrone's father, defendant-appellee Donald H. Dennison (Donald) and his separate claim for underinsured motorist (UIM) benefits. Briefly stated, although Donald was not involved in the accident, he claimed emotional distress as a result of seeing his son being attended to by emergency medical personnel at the triage area near the accident scene and eventually taken away by the medi-vac helicopter. Plaintiff-appellant Liberty Mutual Fire Insurance Company [hereinafter, Liberty Mutual] tendered a policy limit payment for UIM benefits to Donald and defendant-appellee Lynn T. Dennison [hereinafter, collectively, the Dennisons] as next friends of Tyrone. Donald also filed a separate claim for UIM benefits based on his emotional distress. Liberty Mutual subsequently filed this declaratory judgment action, requesting the Circuit Court of the First Circuit, the Honorable Richard W. Pollack presiding, to declare that, because Donald was not involved in nor witnessed the accident, he was not entitled to compensation under Hawaii Revised Statutes (HRS) § 431:10C-306(b) (1993) and First Ins. Co. of Hawaii v. Lawrence, 77 Hawaii 2, 881 P.2d 489, reconsideration denied, 77 Hawaii 373, 884 P.2d 1149 (1994) [hereinafter, Lawrence].
Liberty Mutual appeals from the circuit court's: (1) September 26, 2001 order denying its motion for summary judgment [hereinafter, motion or motion for summary judgment]; and (2) February 5, 2002 judgment in favor of the Dennisons, individually and as next friends of their son, Tyrone. On appeal, Liberty Mutual contends that the circuit court erred in denying its motion and entering judgment in favor of the Dennisons based on its conclusion that Donald was not precluded from filing, under his insurance policy, a separate and independent claim for emotional distress allegedly arising from the instant accident. Liberty Mutual maintains that, because Donald was neither involved in the car accident nor witnessed the accident, he is precluded from recovering for any emotional distress under HRS § 431:10C-306(b) and Lawrence, 77 Hawaii 2, 881 P.2d 489.
As discussed more fully infra in section III, we vacate the circuit court's September 26, 2001 order and February 5, 2002 judgment and remand this case for entry of judgment in favor of Liberty Mutual.
I. BACKGROUND
A. Factual Background
The parties stipulated to the following statement of facts:
1. At approximately 1:06 a.m. on Friday, February 21, 1997, [Tyrone] was a passenger in a 1992 Toyota Corolla driven by nineteen year old Michael Lutz.
2. [Lutz] had a blood alcohol level of .09 percent and had lost control of the Toyota Corolla which crashed into a utility pole on Kuloa Avenue in Kapolei.
3. [Tyrone], the son of [the Dennisons], was fifteen years old at the time (DOB January 19, 1982).
4. [Tyrone] suffered severe injuries, including brain damage and jaw injuries in the collision.
5. [Tyrone] was found unconscious and in critical condition in the back seat of the Lutz vehicle.
6. [The Dennisons] were not in the Lutz car when the collision occurred and they did not witness the actual collision.
7. At about 1:30 a.m., police officer Joseph Tabarejo, one of the investigating officers, went to the Dennison home and told [the Dennis
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