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In the Matter of the Claim v. Gordon I. Ito

April 22, 2013

IN THE MATTER OF THE CLAIM, EARL ROMAN, CLAIMANT/APPELLANT-APPELLANT,
v.
GORDON I. ITO, INSURANCE COMMISSIONER, INSURANCE DIVISION, DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS, STATE OF HAWAII, RESPONDENT/APPELLEE-APPELLEE



APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 11-1-0058-01)

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

MEMORANDUM OPINION

(By: Foley, Presiding J., Fujise and Leonard, JJ.)

Claimant/Appellant-Appellant Earl Roman (Roman) appeals from the July 5, 2011 "Order Denying Claimant-Appellant Appeal And Affirming The Insurance Commissioner's Jurisdictional Abstention" and the February 16, 2012 "Judgment" both entered in the Circuit Court of the First Circuit *fn1 (circuit court) in favor of Respondent/Appellee-Appellee Gordon I. Ito, Insurance Commissioner, Insurance Division, Department of Commerce and Consumer Affairs, State of Hawaii (Insurance Commissioner).

I. BACKGROUND

Roman was struck by a vehicle on February 18, 2010.

Government Employees Insurance Company (GEICO) insured the vehicle under a policy that included both personal injury protection (PIP) and additional personal injury protection (APIP). The policy's terms limited PIP benefits to $10,000, which GEICO paid to Roman. Roman also claimed $20,000 in APIP benefits. However, GEICO asserted that under the policy language Roman was not eligible for APIP coverage, and it disputed Roman's claim for $20,000.

On August 25, 2010, Roman filed a complaint to the Insurance Division, challenging GEICO's determination that he did not qualify for APIP benefits and requesting a hearing. The Insurance Commissioner denied Roman's hearing request, stating the Insurance Division lacked jurisdiction over Roman's claims. On January 12, 2011, Roman filed a notice of appeal in the circuit court pursuant to Hawaii Revised Statutes (HRS) § 91- 14 (2012 Repl.). The circuit court heard oral argument on June 16, 2011. The circuit court then entered the July 5, 2011 "Order Denying Claimant-Appellant Appeal And Affirming The Insurance Commissioner's Jurisdictional Abstention" and the February 16, 2012 "Judgment," affirming the Insurance Commissioner's decision. Roman filed a timely notice of appeal on March 14, 2012. On appeal, Roman contends he is entitled to an administrative hearing before the Insurance Commissioner.

II. STANDARD OF REVIEW

Review of a decision made by the circuit court upon its review of an agency's decision is a secondary appeal.

In an appeal from a circuit court's review of an administrative decision the appellate court will utilize identical standards applied by the circuit court. . . . [A]n agency's legal conclusions are freely reviewable.

Hawaii Teamsters & Allied Workers, Local 996 v. Dep't of Labor & Indus. Relations, 110 Hawaii 259, 265, 132 P.3d 368, 374 (2006) (internal quotation marks and citations omitted).

III. DISCUSSION

Pursuant to HRS § 431:10C-212 (2005 Repl.), the Insurance Commissioner's jurisdiction is limited to "review[ing] any denial of [PIP] benefits" made pursuant to HRS § 431:10C- 304(3) (B). Under HRS § 431:10C-212, the Insurance Commissioner has the authority to "[a]ffirm the denial or reject the denial and order the payment of benefits as the facts may warrant," and to ...


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