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Gamata v. Allstate Insurance Co.4/28/1999
he has not reviewed Straub's records. The question is why did he also recommend physical therapy, if after review, physical therapy only provided temporary relief[?] So the court questions Dr. Portner's treatment plan.
So this is the information Allstate had at the time that they denied -- of their denial[,] October 1997. So therefore the court finds that Allstate's denial was proper.
Based upon evidence that they had[,] at the time of the denial, Dr. Portner's treatment records, Dr. Sheets' IME examinations, a review of Straub's records, therefore, the court finds that denial was proper by Allstate. (Emphases added.)
On May 1, 1998, the court entered judgment in favor of Allstate and against Plaintiff.
E.
Following trial, on March 17, 1998, Plaintiff filed a request for fees and costs, attached to which was counsel's affidavit asserting that attorney's fees, expert fees for Dr. Portner, and costs were justified because, among other reasons, Plaintiff's condition improved after receiving the contested treatments:
"Despite . . . Allstate's denial of benefits, Plaintiff underwent the MRI and the nerve root . . . injection. The nerve root . . . injection had the effect of curing Plaintiff's occipital headaches which significantly improved his condition. With this knowledge, Plaintiff's counsel advised [Plaintiff] to go forward with the present no-fault action on the basis that Dr. Portner's diagnosis and treatment were reasonable, appropriate and necessarily incurred." (Emphasis added.) The affidavit did not refer to any supporting documents or evidence.
On March 16, 1998, Allstate filed its request for costs and opposition memorandum to Plaintiff's request. It argued, in relevant part, that Dr. Portner was not entitled to expert witness fees because he was "a real part in interest" as his "bills for past and future treatment were at issue in the instant case."
On March 18, 1998, Plaintiff filed a reply memorandum in which he maintained he had already paid Dr. Portner's bills, and thus, Dr. Portner was not a real party in interest:
"Allstate assert that expert witness fees for testimony at trial should not be awarded because Dr. Portner is not a real party in interest. However, this is not the case. Dr. Portner does not have any interest in the outcome of this case since he was already paid for his services by Plaintiff. Dr. Portner wished to testify on Plaintiff's behalf because of the fact that he knew Plaintiff was genuinely suffering and that Defendant was shirking its duty." (Emphasis added.)
The court denied Allstate's and Plaintiff's requests for costs, including expert witness fees for Dr. Portner, but partially granted Plaintiff's request for fees.
III.
On appeal, Plaintiff contends that (1) evidence of post- October 13 treatment was relevant under Hawaii Rules of Evidence (HRE) Rule 401 (1993), and (2) exclusion of such evidence violated HRS §§ 431:10C-303 and -314 and was against public policy. However, during the pendency of this appeal, the supreme court reversed the Yucoco order by memorandum opinion in AIG v. Yucoco, No. 20756, slip. op. (Haw. Dec. 14, 1998) (mem.), and also decided Wilson. In light of these decisions, we believe, based on our review of the record, that the pertinent issues to be decided are those that follow.
IV.
While the court acted conscientiously, we believe it incorrectly applied HRS § 431:10C-103(10)(A)(i) and (ii).
An insurer's denial of no-fault benefits must be evaluated within the pertinent statutory framework. In that regard, HRS § 431:10C-303(a) provides
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