Weite v. Momohara, ICA No. 29322, September 14, 2010
The 54 page opinion was authored by Judge Foley, joined by JJ Leonard and Reifurth.
Marie Weite prevailed in a jury trial against Matsuo Momohara on claims arising from a February 2000 motor vehicle accident in which Momohara caused his car to negligently strike Weite’s car. Although she prevailed at the trial level, Weite appealed on a number of issues involving alleged error in the circuit court’s rulings on her motion for partial summary judgment, motion in limine, expert testimony, jury instructions, damage calculations, and assessing Court Annexed Arbitration Program (CAAP) sanctions. Momohara cross-appealed alleging error in the circuit court’s rulings on his motion in limine and the admission of expert testimony.
The primary crux of many of the issues was whether Weite’s damages were properly apportioned between the 2000 accident and several prior accidents in which Weite was involved and had suffered injuries.
Motion for Partial Summary judgment
Weite’s partial MSJ was premised on the argument that there should be no apportionment. The ICA concluded that the circuit did not error in denying the MSJ because there were genuine issue of material fact as to whether her injuries were caused by the 3 accidents occurring prior to the 2000 accident and because there was no Hawaii case law requiring Momohara (as the non-movant) to present expert testimony in favor of apportionment.
Motions in Limine
Both Weite and Momohara alleged error in the circuit court’s limine rulings related to the prior accidents.
Regarding Weite’s claim that any argument related to apportionment should have been excluded, the ICA disagreed because (1) she had the burden to prove her injuries were caused by the 2000 accident, (2) Momohara was entitled to cross examine her expert witness, (3) the jury was entitled to determine the cause of the injuries and the amount of damages, and (4) there is no Hawaii law requiring the defense to provide expert medical testimony on apportionment.
Regarding Momohara’s claim that the circuit court should have limited Weite’s claimed medical expenses in the amount and frequency to those permitted under the workers’ comp fee schedule and prohibited her from introducing evidence in excess of that amount, the ICA also found no error (after addressing the issue under the plain error rule). Momohara misread the statute which “does not preclude a plaintiff injured in an automobile accident from receiving special damages beyond what she received in PIP benefits.”
The ICA also disagreed with Weite’s claim that the circuit court should have allowed her medical expert to testify on the issue of apportionment because the question of whether her damages should be apportioned was a question of law. Expert witnesses are prohibited from testifying as to a question of law.
The ICA also disagreed with Momohara’s argument (also addressed under the plain error rule) that the circuit court should not have allowed her medical expert to testify regarding the amounts, reasonableness, and necessity of Weite’s medical expenses because the testimony complied with HRE 703 and was no hearsay.
Jury Instructions & Special Verdict Form
Weite also argued the circuit court should not have given the standard jury instruction on apportionment due to a lack of competent evidence. The ICA declined to address this issue in light of its conclusion that there was no error in denying her partial MSJ or motion in limine.
The ICA disagreed with Weite’s contention that the circuit court should have granted her “eggshell skull” instruction because “[t]he modified HCJI 7.3 and HCJI 8.11, along with the special verdict form given to the jury, made it unnecessary and inappropriate” to give Weite’s proposed instruction.
The ICA found no abuse of discretion in the inclusion on the special verdict form of separate apportionment questions.
ERROR in Judgment Calculation: deduct CLD first, then apportion
In calculated Weite’s judgment, the circuit court calculating the judgment by apportioning the jury award of special damages and general damages by 50% and then subtracting the full amount of the covered loss deductible (the CLD deducted in accordance with HRS 431:10C-301.5). This was erroneous. The ICA acknowledged that the question of when the reduction under these circumstances should be made was on of first impression in Hawaii. “Although this case involves apportionment of damages due to pre-existing injuries, cases from other jurisdictions addressing apportionment in the context of comparative negligence support our holding that the CLD should be deducted from the verdict amount before damages are apportioned.” The court relied on cases out of Florida, Colorado, and Alaska.
ERROR in CAAP Sanctions
The circuit court also abused its discretion in finding that Momohara, not Weite, was the “prevailing party” for purposes of assessing CAAP sanctions. HAR 25(A) provides that the prevailing party is the party who appealed and improved upon the arbitration by 30% or more, or the non-appealing party where the appealing party did not improve upon the arbitration judgment by 30% or more. Momohara was the appealing party from arbitration. Weite calculated his improvement at 29.42%. Momohara calculated his improvement at 37%.
According to the ICA “for purposes of determine who was the prevailing party, the recovery at trial should be compared with the CAAP award after the subtraction of the CLD.” In so holding, the ICA disagreed with Weite’s claim that the CAAP prevailing party should be determined before subtracting the CLD because “the respective amounts must be based on the same underlying factors.” Based on the ICA’s decision that the circuit court miscalculated the judgment, there was also a miscalculation of the CAAP award. The new calculation revealed reduction in the CAAP award of 22%, therefore Momohara was not a prevailing party. For this reason, the ICA also reversed the award of costs in favor of Momohara.
The circuit court did not abuse its discretion in failing to award Weite prejudgment interest because (1) there was no evidence that Momohara acted in bad faith during settlement negotiations, (2) Momohara was not required to depose her expert witnesses or to stipulate that her medical treatments following the accident were necessary or reasonable; (3) there was no basis for awarding prejudgment interest due to the three month delay caused by Momohara’s discovery violations (for which he was sanctioned for by the circuit court).