NO. 28075 – Thursday, August 21, 2008 – 11:00 a.m.

MARGRET GILLAN, and HOWARD KELLER, M.D., Plaintiffs-Appellees, vs. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant-Appellant, and JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10; ROE ?NON-PROFIT? CORPORATIONS 1-10, and ROE GOVERNMENTAL ENTITIES 1-10, Defendants.
(Contract)

Attorney(s) for Petitioner/Plaintiff-Appellee(s)
Roy K. S. Chang and Harvey M. Demetrakopoulos (Shim & Chang)

Attorney(s) for Respondent/Defendant-Appellant(s)
Kathy K. Higham (Kessner Umebayashi Bain & Matsunaga)

Attorney(s) for amicus curiae Insurance Commissioner, State of Hawai`i
Mark J. Bennett, Attorney General, and David A. Webber and Deborah Day Emerson, Deputies Attorney General and J.P. Schmidt, Insurance Commissioner

NOTE: Certificate of Recusal of Justice Duffy, filed May 28, 2008.

NOTE: Order assigning Randal K. O. Lee in place of Duffy, recused, filed June 2, 2008.

NOTE: Order granting Motion to Allow Oral Argument by the Insurance Commissioner filed Aug. 1, 2008.

COURT: RTYM, CJ; SHL, PAN, SRA, JJ & Randal K. O. Lee in place of Duffy, recused.

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Brief description:

The plaintiffs, a personal injury protection (no-fault insurance) claimant, Margret Gillan, and her treating physician, Howard Keller, M.D., appeal from the published opinion of the Intermediate Court of Appeals (ICA) in this case, which vacated the July 17, 2006 amended partial judgment of the circuit court in favor of the plaintiffs and against the defendant Government Employees Insurance Co. (GEICO). The circuit court concluded that GEICO violated Hawai`i Revised Statutes (HRS) § 431:10C-308.5(b) (Supp. 2002) because the insurer failed to seek Gillan’s consent when it retained a doctor to conduct an “independent medical examination” to determine whether her treatment from Dr. Keller was appropriate, reasonable, and necessarily incurred as a result of her automobile accident. The ICA held to the contrary on the basis that GEICO’s doctor did not, in fact, perform an independent medical examination, because, although he reviewed Gillan’s medical records, he did not actually examine her, physically or otherwise. The plaintiffs argue that the ICA gravely erred in this regard.