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Sprague v. California Pacific Bankers & Insurance Ltd.12/27/2001
uestions presented are (1) whether general damages awarded for a negligence cause of action are assignable and (2) whether general damages can be awarded absent some physical injury. The answer to both questions is yes.
Defendants/Cross-Appellants contend that "general damages are NOT ASSIGNABLE." (Emphasis in original.) The cases they cite, such as Austin v. Michiels, 6 Haw. 595 (1885), are precedent that "injuries which are personal on nature such as emotional distress, cannot be transferred to another," Cuson v. Maryland Casualty, 735 F. Supp. 966, 969 (D. Haw. 1990). This precedent is not relevant in the instant case.
In Forgione v. Dennis Pirtle Agency, Inc., 701 So.2d 557, 559 (1997), the Supreme Court of Florida recognized that "purely personal tort claims cannot be assigned." Although the negligence claims against an attorney in a legal malpractice action are not assignable "because of the personal nature of a legal relationship which involve highly confidential relationships[,]" id., relationships between an insurance agent and an insured do not carry the same "personal nature" as do attorney-client relationships. Id. at 560. Therefore, "public policy considerations do not preclude the assignment of an insured's claim for negligence against an insurance agent." Id.
Defendants/Cross-Appellants also contend that " nder Hawaii law, general damages may not be awarded in a negligence action absent physical injury caused by the defendant." To support this position, Defendants/Cross-Appellants cite the case of Ross v. Stouffer Hotel Co. Hawaii Ltd., 76 Hawaii 454, 879 P.2d 1037 (1994). However, Ross is precedent, based on Chedester v. Stecker, 64 Haw. 464, 468, 643 P.2d 532, 535 (1982), that "recovery for negligent infliction of emotional distress by one not physically injured is generally permitted only when there is 'some physical injury to property or a person' resulting from the defendant's conduct." Ross, 76 Hawaii at 465-66, 879 P.2d at 1048. Ross is not precedent that general damages may not be awarded to the plaintiff in a negligence action absent physical injury caused by the defendant.
E.
Defendants/Cross-Appellants contend that the trial court erred in not granting summary judgment to Defendants/Cross-Appellants because the loss in question was not covered by the insurance policy. Specifically, Defendants/Cross-Appellants contend that the evidence is undisputed that: (1) Doris is not an insured under the policy, (2) William, the pilot, was an excluded member of the flight or cabin crew, (3) the policy was an indemnity only policy, (4) coverage was excluded because Maydwell was a non-certified flight instructor who performed the required "checkout," (5) Maydwell and Doris had no liability, and (6) there was no hull coverage.
Upon a review of the record, we disagree with the position that the evidence of these facts is undisputed and that Defendants/Cross-Appellants were authorized a summary judgment regarding them.
F.
Defendants/Cross-Appellants contend that the trial court erred in not awarding the full amount of attorney fees and costs to them. In light of our decision, this contention is without merit.
V. CONCLUSION
In accordance with the above discussions, we affirm the May 30, 2000 Second Amended Judgment, the July 29, 1999 Order denying Plaintiffs' Motion to Amend Judgment, and the August 17, 1999 Order Awarding Costs to Plaintiff Terri Sprague, Individually and as Conservator of the Estates of William Adams and Grace P. Adams, Deceased, et al.
We vacate the August 17, 1999 Order Awarding Attorneys Fees and Costs to Defendant Tokunaga, and Costs to Sa
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