No. SCWC-29868, Thursday, September 20, 2012, 10 a.m.

EMERSON M.F. JOU, M.D., Petitioner/Provider-Appellant, vs. J.P. SCHMIDT, Insurance Commissioner, Department

of Commerce and Consumer Affairs, State of Hawai`i, Respondent/Respondent-Appellee, vs. DAI-TOKYO ROYAL INSURANCE COMPANY, Respondent/Respondent-Appellee.

Attorney for Petitioner/Provider-Appellant:

Stephen M. Shaw

Attorneys for Respondent/Respondent-Appellee: 

Elmira K.L. Tsang and Deborah Day Emerson, Deputy Attorneys General

Attorneys for Respondent/Respondent-Appellee: 

J. Patrick Gallagher and Hiro S. Takei of Henderson Gallagher & Kane

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale
417 South King Street
Honolulu, HI 96813

NOTE: Certificate of Recusal, by Chief Justice Mark E. Recktenwald, filed 05/02/12.

NOTE: Order assigning Circuit Court Judge Glenn J. Kim in place of CJ Recktenwald, filed 05/04/12.

NOTE: Order assigning Circuit Court Judge Richard W. Pollack due to a vacancy, filed 06/04/12.

NOTE: Order accepting Application for Writ of Certiorari, filed 06/26/12.

COURT: PAN, Acting CJ; SRA, & SSM, JJ; Circuit Court Judge Glenn J. Kim in place of Duffy, recused, and

Circuit Court Judge Richard W. Pollack due to a vacancy.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Petitioner Emerson M.F. Jou, M.D. filed an Application for Writ of Certiorari seeking review of the May 14, 2012 judgment of the Intermediate Court of Appeals (ICA) filed pursuant to its April 2, 2012 summary disposition order (SDO) affirming the May 19, 2009 Final Judgment on Remand entered in the Circuit Court of the First Circuit.

After Jou billed Respondent Dai-Tokyo Royal Insurance Company (DTRIC) for medical services rendered to DTRIC’s insured following an automobile accident, DTRIC paid Jou a reduced amount. Because negotiations did not resolve the disputed amount, Jou requested an administrative hearing with the Insurance Division of the Department of Commerce and Consumer Affairs. While the hearing was pending, DTRIC’s insured exhausted the personal injury protection benefits available under the insurance policy. After the hearing, the hearings officer recommended that Jou’s claim be dismissed as moot because the benefits were exhausted. The Insurance Commissioner adopted the recommendation, and on appeal, the circuit court affirmed. On secondary appeal, the ICA also affirmed but remanded the case to the circuit court pursuant to HRS § 431:10C-211 for consideration of Jou’s request for attorney’s fees and costs on appeal as the non-prevailing party. On remand, the circuit court denied the request on the ground that Jou’s appeal was unreasonable because DTRIC had no obligation to pay benefits beyond the policy limit. The ICA affirmed.

In his application, Jou argues that the ICA gravely erred in affirming the circuit court’s order denying appellate attorney’s fees and costs on the ground that pursuit of his claim for benefits on appeal was “unreasonable” under HRS § 431:10C-211.