NO. SCWC-28314 AND SCWC-28315 Thursday, June 2, 2011, 11:00 a.m.

SCWC-28314 – CHUNG MI AHN, Respondent/Claimant/Appellant/

Appellee-Appellee, vs. LIBERTY MUTUAL FIRE INSURANCE COMPANY, Petitioner/Respondent/Appellee/Appellant-Cross-Appellee, and GORDON I. ITO, Insurance Commissioner, Department of Commerce and Consumer Affairs, Respondent/Appellee/Appellee-Cross-Appellant. (CIVIL NO. 05-1-2265)

Attorney for Petitioner/Respondent/Appellee/Appellant-Cross-Appellee (Liberty Mutual Fire Insurance Co.):

Randall Y.W. Chung and James H. Monma of Matsui Chung & Ikehara

Attorney for Respondent/Claimant/Appellant/Appellee-Appellee (Chung Mi Ahn): Melvin Y. Agena

Attorney for Respondent/Appellee/Appellee-Cross-Appellant (Gordon I. Ito, Insurance Commissioner, DCCA):

C. Bryan Fitzgerald, Elmira K. Tsang, and Deborah Day Emerson, Deputies Attorney General

NOTE: Certificate of recusal by Chief Justice Mark E. Recktenwald, filed 04/14/11.

NOTE: Order accepting application for writ of certiorari and consolidating oral arguments with SCWC-28315, filed 05/02/11.

NOTE: Assignment of Circuit Court Judge Gary W.B. Chang in place of Chief Justice Mark Recktenwald, recused, filed 05/03/11.

AND

NO. SCWC-28315 – KEE SUN KIM, Respondent/Claimant/Appellant/

Appellee-Appellee, vs. LIBERTY MUTUAL FIRE INSURANCE COMPANY, Petitioner/Respondent/Appellee/Appellant-Cross-Appellee, and GORDON I. ITO, Insurance Commissioner, Department of Commerce and Consumer Affairs, Respondent/Appellee/Appellee-Cross-Appellant. (CIVIL NO. 06-1-0994)

Attorney for Petitioner/Respondent/Appellee/Appellant-Cross-Appellee (Liberty Mutual Fire Insurance Co.):

Randall Y.W. Chung and James H. Monma of Matsui Chung & Ikehara

Attorney for Respondent/Claimant/Appellant/Appellee-Appellee (Kee Sun Kim): Melvin Y. Agena

Attorney for Respondent/Appellee/Appellee-Cross-Appellant (Gordon I. Ito, Insurance Commissioner, DCCA):

C. Bryan Fitzgerald, Elmira K. Tsang, and Deborah Day Emerson, Deputies Attorney General

NOTE: Certificate of recusal by Chief Justice Mark E. Recktenwald, filed 03/18/11.

NOTE: Assignment of Circuit Court Judge Gary W.B. Chang, in place of Chief Justice Mark E. Recktenwald, recused, filed 03/22/11.

NOTE: Order accepting application for writ of certiorari, filed 04/27/11

COURT: PAN, Acting CJ; SRA, JED & SSM, JJ; and Circuit Court Judge Gary W.B. Chang, in place of Recktenwald, CJ, recused.

The above argument was held in the Supreme Court courtroom on the Second Floor of Ali`iolani Hale, 417 South King Street, Honolulu, Hawai`i.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

This is a consolidated oral argument in two cases with similar facts. The cases arise from Liberty Mutual Fire Insurance Company’s denials of automobile personal injury protection (PIP) benefits to Kee Sun Kim (Kim) and Chung Mi Ahn (Ahn). After the denials, Kim and Ahn sought administrative reviews. The Insurance Commissioner ruled that based on Hawaii Supreme Court’s holding in Wilson v. AIG Hawaii Ins. Co., 89 Hawai#i 45, 968 P.2d 647 (1998), neither Kim nor Ahn were real parties in interest to pursue claims for PIP benefits (and that the claims would have to be pursued directly by the medical providers). In a consolidated hearing, the First Circuit Court (circuit court) concluded that the Legislature, through its 2006 amendments to Section 431:10C-308.5(e) of the Hawaii Revised Statutes, provided insureds with the right to directly pursue PIP denials.

In a published opinion in the Kim case, the Intermediate Court of Appeals (ICA) agreed with the circuit court’s ruling, then ruled in favor of Ahn through a summary disposition order based on its written opinion in the Kim case. Liberty Mutual filed applications for writs of certiorari in both cases, and the Supreme Court has consolidated both cases for oral argument. Liberty Mutual asserts that the ICA gravely erred in deciding that: (1) H.R.S. § 431:10C-308.5(e), as amended by Act 198 of 2006, conferred upon Kim and Ahn real party in interest status to pursue administrative hearings regarding Liberty Mutual’s denial of PIP benefits; and (2) Kim and Ahn were real parties in interest to pursue administrative hearings regarding Liberty Mutual’s denial of PIP benefits, in conflict with the Hawaii Supreme Court’s holding in Wilson.