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Jou v. Medical Insurance Exhcange of California5/30/2003
Emerson M.F. Jou, M.D. (Jou or Plaintiff), appeals the July 27, 2001 final judgment of the circuit court of the first circuit, the Honorable Eden Elizabeth Hifo, judge presiding, that dismissed all claims Jou asserted in his second amended complaint against Medical Insurance Exchange of California (MIEC or Defendant), his erstwhile insurer. We affirm.
I. Background.
On December 29, 2000, Jou filed a complaint against MIEC that purported to state numerous causes of action. In this complaint, Jou, "an Individual physician (and Solo Professional Corporation)[,]" alleged that MIEC had insured him under "an insurance policy bearing the number 0058540 . . . , by the terms of which Plaintiff [(sic)] agreed to defendant [(sic)] and to indemnify Plaintiff." Jou made further, rather obscure allegations that, when he raised questions with MIEC about an alleged waiver of its right to select defense counsel and a "possible conflict of interest with respect to" defense counsel, MIEC "retaliated" by "canceling" his insurance coverage, thereby injuring him in his medical practice.
In response, MIEC filed a March 9, 2001 motion to dismiss the complaint. MIEC maintained that Jou's complaint was "blatantly conclusory and . . . largely incomprehensible" and hence, failed to state any cause of action. However, on March 23, 2001, Jou filed a memorandum in opposition to MIEC's motion, in which his counsel, Stephen M. Shaw (Shaw), declared that a first amended complaint would be filed and, indeed, a first amended complaint had been filed a minute before the memorandum was filed. Thereupon, on March 28, 2001, MIEC withdrew its motion to dismiss.
Although Jou's first amended complaint stated essentially the same causes of action, it made certain changes to the allegations of his original complaint -- such as correcting the insurance policy number ("DR 61-007031") -- and added more detailed allegations. The first amended complaint revealed that it was an unidentified complaint and summons filed against Jou that actuated his request to MIEC for a defense under the policy, and that it was MIEC's refusal to pay for Jou's choice of defense counsel (Shaw) and MIEC's subsequent decision not to renew the insurance policy when it expired, that were, apparently, the gravamen of his grievances. Jou identified his "delisting as a preferred [Hawaii Medical Service Association (HMSA)] provider[,]" his loss of hospital staff privileges, and his inability to obtain other insurance coverage, as some of the items of his damages.
On March 28, 2001, MIEC filed a motion to dismiss the first amended complaint,
on the ground that the defects which compel dismissal have not been cured by the First Amended Complaint which still fails to state a claim for which relief may be granted.
. . . . The Amended Complaint remains deficient and still does not allege facts sufficient to sustain the claims stated therein. Furthermore, certain claims stated therein cannot be maintained as a matter of law. The Amended Complaint must therefore be dismissed.
In particular, MIEC argued that the implied covenant of good faith and fair dealing, the basis of the first cause of action in Jou's first amended complaint, was not implicated by its selection of defense counsel or by its decision not to renew the insurance policy.
On April 3, 2001, Jou filed a "cross-motion" for summary judgment: "Plaintiff Emerson M.F. Jou, M.D.[,] hereby moves for summary judgment on all counts of the complaint. [Hawaii Rules of Civil Procedure (HRCP) Rule] 56. Alternatively, partial summary adjudication of issues is requested as to those matters set forth in Dr. Jou's declarati
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