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Liberty Mutual Fire Insurance Co. v. Dennison10/11/2005
wever, was not concerned with applying that test and Lejeune would not foreclose the claim of Defendant-Appellee Donald H. Dennison (Donald). The parameters of the "scene" and the measurement of the "soon thereafter" are issues to be determined by the fact finder on a case-by-case basis subject only to this court's determination on "whether the case presents questions on which reasonable men would disagree[.]" Rodrigues, 52 Haw. at 175 n.8, 472 P.2d at 521 n.8.
Under the stipulated facts, Donald arrived at the "triage area" and saw his son in the ambulance -- circumstances one might reasonably expect to encounter at the "scene" of an automobile accident. He arrived within thirty minutes of the accident, not a lengthy period after the accident. The "scene" and time of arrival under these facts were not so remote from the accident so as to absolutely preclude consideration of Donald's claim under the test. This is a case where "'reasonable persons in the exercise of fair and impartial judgment may reach different conclusions upon the crucial issue[.]'" Chambers v. City & County of Honolulu, 48 Haw. 539, 541, 406 P.2d 380, 382 (1965) (quoting Young v. Price, 47 Haw. 309, 313, 388 P.2d 203, 206 (1963)). It is not a case where reasonable persons could reach only one conclusion. Any dispute in this case as to the compensable nature of the distress is an issue which appropriately concerns the amount of damages, if any, that should be awarded and should not operate as a bar to consideration of the claim itself. In view of the facts here, Donald was one who should not be excluded as a matter of law from asserting such a claim.
Accordingly, I respectfully disagree and would affirm the circuit court's order denying both Plaintiff-Appellant Liberty Mutual's Motion for Summary Judgment and Defendants-Appellees Donald and Lynn T. Dennison's Motion for Summary Judgment.
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