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Dacanay v. Liberty Mutual Insurance Co.2/9/2005
FOR PUBLICATION
This secondary appeal by Respondent/Appellant-Appellant Liberty Mutual Insurance Co. (Liberty Mutual) stems from an administrative proceeding initiated by Claimant/Appellee-Appellee Flor Dacanay (Dacanay) before Appellee-Appellee Insurance Commissioner for the State of Hawaii (the Commissioner), challenging Liberty Mutual's refusal to pay several claims for personal injury protection (PIP) benefits submitted by health care providers who had treated Dacanay following an automobile accident. Liberty Mutual settled these claims, and on April 2, 2002, the Commissioner entered a Final Order awarding Dacanay $930.15 in attorney's fees and costs (the Commissioner's Final Order). Liberty Mutual appealed to the Circuit Court of the First Circuit (the circuit court). On October 7, 2002, the circuit court entered a Judgment in favor of Dacanay and the Commissioner and dismissed Liberty Mutual's appeal. This timely appeal followed.
Liberty Mutual argues that: (1) in light of Wilson v. AIG Hawaii Ins. Co., 89 Hawaii 45, 968 P.2d 647 (1998), and Gamata v. Allstate Ins. Co., 90 Hawaii 213, 978 P.2d 179 (App. 1999), Dacanay is not a real party in interest entitled to prosecute a claim for payment of the contested PIP benefits; and, therefore, (2) Dacanay is not entitled to an award of attorney's fees and costs for prosecuting such a claim.
We conclude that: (1) Liberty Mutual waived any objections that it may have had to Dacanay's status as the real party in interest, and (2) the Commissioner did not abuse his discretion when he awarded attorney's fees and costs to Dacanay.
BACKGROUND
On February 26, 2001, Dacanay was driving a 1991 Honda Accord insured under a motor vehicle policy issued by Liberty Mutual when the vehicle was rear-ended, resulting in $509.00 worth of damages to the vehicle's bumper. Two hours later, Dacanay went to see her regular physician and was referred to Workstar Occupational Health Systems, where she was seen by Dr. Gilbert P. Hager (Dr. Hager).
Dr. Hager examined Dacanay, noted the areas of her discomfort, and ordered x-rays of her cervical spine and right shoulder, magnetic resonance imaging (MRI) of her right shoulder, and a bone scan of her body. Dr. Hager also referred Dacanay for an arthrogram and for physical therapy. Dr. Hager continued to treat Dacanay for several weeks, including a period after Dacanay had returned to work one month after the accident. These initial medical costs do not appear to have been challenged by Liberty Mutual.
On May 23, 2001, Dr. Kent Davenport (Dr. Davenport) conducted an independent medical evaluation (IME) of Dacanay. In a report to Liberty Mutual following the IME, Dr. Davenport summarized his evaluation of Dacanay as follows:
[Dacanay] had no prior history of any neck or right shoulder problems before her motor vehicle accident of February 26, 2001. Following that accident she was evaluated for neck and right shoulder discomfort. She has normal range of motion with minimal discomfort at this time. There are no objective findings of any significant pathology. Her bone scan is normal. There is no radicular discomfort in either upper extremity. The MRI-arthrogram of her right shoulder is normal and I feel that she has minimal soft tissue strains which should resolve with her continued home exercise program. She is now three months following the minor motor vehicle accident and I believe she is in need of no further medical treatment.
I do not find that she has any significant permanent disability, nor does she have any limitations on her work at this time. I do not feel that she needs any further treatment except for a home exercis
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