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Ferrer v. Ngo6/20/2003
FOR PUBLICATION
Defendant-Appellant/Cross-Appellee Daniel T. Ngo (Ngo) appeals and Plaintiff-Appellee/Cross-Appellant Francisco Q. Ferrer (Ferrer) cross-appeals from the December 11, 2001 Judgment on All Claims and Parties (December 11, 2001 Judgment). Pursuant to this December 11, 2001 Judgment, Ngo was the prevailing party regarding Ferrer's complaint and Ferrer was the prevailing party regarding Ngo's request for costs. We affirm the judgment in favor of Ngo, vacate the judgment in favor of Ferrer, and remand. Specifically, we vacate the May 2, 2001 Judgment on Taxation and Assessment of Costs (May 2, 2001 Judgment on Taxation) denying Ngo's request for taxation of costs in the sum of $19,485.49 and remand for the award of reasonable costs consistent with this opinion. In all other respects, we affirm.
The most significant question presented is whether, in a tort case, the payment of the prevailing defendant's costs by the prevailing defendant's insurer pursuant to the insurance policy is a valid reason for the court to decide not to order the losing plaintiff to pay the costs reasonably incurred by the prevailing defendant. The answer is no.
BACKGROUND
This case arises out of a September 4, 1996 collision between Ngo's automobile and Ferrer's automobile. Both drivers were insured by Defendant-Appellee/Cross-Appellee Allstate Insurance Company (Allstate). Allstate's policy insuring Ferrer provided for no-fault benefits and underinsured motorist (UIM) coverage. Ferrer alleged Ngo was liable for Ferrer's neck and back injury .
On April 24, 1998, Ferrer filed a complaint in the District Court of the First Circuit, Honolulu Division (district court), against Ngo and Allstate alleging that they negligently injured Ferrer in the September 4, 1996 automobile collision and refused to pay for Ferrer's damages. Ferrer prayed for judgment against Ngo and Allstate for damages proved, costs, and attorney fees.
Hawaii Revised Statutes (HRS) ยง 604-5 (Supp. 2002) states, in relevant part, as follows:
Civil jurisdiction. (a) Except as otherwise provided, the district courts shall have jurisdiction in all civil actions where the debt, amount, or value of the property claimed does not exceed $20,000. . . .
(b) The district courts shall try and determine all actions without a jury, subject to appeal according to law. Whenever a civil matter is triable of right by a jury and trial by jury is demanded in the manner and within the time provided by the rules of court, the case shall be transferred to the circuit court. If the demand is made in the complaint and the matter is triable of right by a jury, the action may be commenced in the circuit court if the amount in controversy exceeds $5,000.
On May 15, 1998, Ngo and Allstate filed a Demand for Jury Trial. Ngo and Allstate were represented by the same lawyers from the same law corporation.
On May 15, 1998, Allstate sought dismissal of Ferrer's complaint on the ground that a party claiming damages for an injury caused by the negligence of another party may not sue the other party's insurer directly. Olokele Sugar Co. v. McCabe, Hamilton & Renny Co., 53 Haw. 69, 487 P.2d 769 (1971). Ferrer opposed the motion on the grounds that (1) he agrees with Justice Kazuko Abe's concurring opinion in Olokele Sugar Co., 53 Haw. at 73, 487 P.2d at 771, "that the insurance company here (which actually paid the claim and would have satisfied a judgment for the claim if the action had gone to trial and judgment was obtained against the defendant) is the real party in interest and pursuant to [Hawaii Rules of Civil Procedure (HRCP)] Rule 17(a), should be named as a
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