State Farm Mutual Automobile v. Michael Mizuno , 933 F.3d 1030 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE FARM MUTUAL No. 17-15947
AUTOMOBILE INSURANCE
COMPANY, D.C. No.
Plaintiff-Appellee, 1:16-cv-00059-KJM
v. ORDER CERTIFYING
QUESTION TO THE
MICHAEL MIZUNO, SUPREME COURT OF
Defendant-Appellant. HAWAI‘I
Filed August 5, 2019
Before: Kim McLane Wardlaw, Marsha S. Berzon,
and Johnnie B. Rawlinson, Circuit Judges.
Order
2 STATE FARM MUT. AUTO. INS. CO. V. MIZUNO
SUMMARY*
Certified Question to the Supreme Court of Hawai‘i
The panel certified the following question of state law to
the Supreme Court of Hawai‘i:
Under Hawai‘i law, is a permissive user of an
insured vehicle, whose connection to the
insured vehicle is permission to use the
vehicle to run errands and drive to work,
entitled to uninsured motorist (UM) benefits
under the chain-of-events test because he was
injured by an uninsured motorist?
COUNSEL
Roy K. S. Chang and Harvey M. Demetrakopoulos, Shim &
Chang, Honolulu, Hawai‘i, for Defendant-Appellant.
David R. Harada-Stone, Patricia Kehau Wall, and Richard B.
Miller, Tom Petrus & Miller LLLC, Honolulu, Hawai‘i, for
Plaintiff-Appellee.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
STATE FARM MUT. AUTO. INS. CO. V. MIZUNO 3
ORDER
Pursuant to Hawai‘i Revised Statute § 602-5(a)(2) and
Rule 13 of the Hawai‘i Rules of Appellate Procedure, we
respectfully certify the following question to the Supreme
Court of Hawai‘i:
Under Hawai‘i law, is a permissive user of an
insured vehicle, whose connection to the
insured vehicle is permission to use the
vehicle to run errands and drive to work,
entitled to uninsured motorist (UM) benefits
under the chain-of-events test because he was
injured by an uninsured motorist?
Michael Mizuno (Mizuno), a permissive user of a vehicle
insured under a policy issued by State Farm Mutual
Automobile Insurance Company (State Farm) to Mizuno’s
girlfriend, Daryl-Jean S. Wong (Wong), was injured when he
was struck by an uninsured motorist while crossing the street
as he returned to the vehicle after running an errand. The
question of whether Mizuno is entitled to UM benefits under
Hawai‘i law is determinative of the matter pending before
this court and the question is not affirmatively answered by
any controlling Hawai‘i precedent. Accordingly, pursuant to
Rule 13(a) of the Hawai‘i Rules of Appellate Procedure, we
respectfully request that the Hawai‘i Supreme Court
determine whether, under Hawai‘i law, a permissive user of
an insured vehicle is entitled to UM benefits when he is
injured by an uninsured motorist while returning to the
4 STATE FARM MUT. AUTO. INS. CO. V. MIZUNO
vehicle after running an errand.1 Pursuant to Rule 13(b) of
the Hawai‘i Rules of Appellate Procedure, we provide “a
statement of prior proceedings in the case, a statement of
facts showing the nature of the cause, the question of law to
be answered, and the circumstances out of which the question
arises.” Haw. R. App. P. 13(b).
I. Statement of Facts
According to the undisputed facts, Mizuno received
permission from Wong to use her vehicle because Mizuno’s
vehicle was undergoing repairs. Mizuno had an automobile
insurance policy issued by GEICO, with “UM limits of
$50,000 per person and $100,000 per accident.” State Farm
insured Wong and her vehicle, “with UM limits of $100,000
per person and $300,000 per accident.” Wong’s policy with
State Farm defined “Insured” in relevant part as “any other
person while: a. occupying, with a reasonable belief that he
or she is entitled to do so: (1) your car.” The policy provided
that “[o]ccupying means in, on, entering, or exiting.”
After receiving Wong’s permission to use her vehicle,
Mizuno drove the vehicle to the post office to mail the
1
Rule 13(a) provides:
When a federal district or appellate court certifies to the
Hawai‘i Supreme Court that there is involved in any
proceeding before it a question concerning the law of
Hawai‘i that is determinative of the cause and that there
is no clear controlling precedent in the Hawai‘i judicial
decisions, the Hawai‘i Supreme Court may answer the
certified question by written opinion.
Haw. R. App. P. 13(a).
STATE FARM MUT. AUTO. INS. CO. V. MIZUNO 5
couple’s bills. Mizuno parked the vehicle across the street
from the post office, walked across the street, and deposited
the bills in a mailbox. As Mizuno was returning to the
vehicle, he was struck by an unidentified driver as he was
approaching Wong’s vehicle. Mizuno “suffered injuries to
his left leg, left arm, left wrist, and left hand, and required
surgery to repair his broken left wrist.”
Mizuno acknowledged that he “made a voluntary and
conscious decision to stop, park and exit Wong’s car near the
Kaimuki Post Office on the morning of the Accident; and his
decision was not caused or influenced by a mechanical
breakdown or collision of some sort.” Mizuno also conceded
that “[a]t the moment he was struck, [he] was not physically
in, on, entering, exiting, loading or unloading Wong’s car.”
Mizuno sought coverage under Wong’s UM policy with
State Farm. Mizuno subsequently received $50,000 pursuant
to his UM policy with GEICO.
II. Statement of Prior Proceedings
State Farm filed a complaint for declaratory judgment in
federal court, alleging that Mizuno was not entitled to
benefits under Wong’s UM policy because Mizuno “was not
‘occupying’ a ‘car’ at the time of the Accident, as those terms
are defined in the Policy.”
The district court granted summary judgment in favor of
State Farm, explaining that “[c]onstruing the State Farm
Policy in accord with the reasonable expectations of a
layperson, the Court cannot conclude that mere occupancy -
without any further connection with the vehicle - would
entitle a permissive user/passenger injured by an uninsured
6 STATE FARM MUT. AUTO. INS. CO. V. MIZUNO
motor vehicle several feet away from the insured vehicle to
UM coverage.”
Mizuno filed a timely notice of appeal.
III. Legal Circumstances
On appeal, Mizuno contends that the district court erred
in granting summary judgment in favor of State Farm because
he was entitled to benefits under the State Farm policy issued
to Wong. Mizuno specifically asserts that he qualifies for
benefits under the chain-of-events test first articulated by the
Hawai‘i Supreme Court in Dawes v. First Insurance Co. of
Hawai‘i, Ltd., 883 P.2d 38 (Haw. 1994). According to
Mizuno, he had permission to use the vehicle, and was struck
by an uninsured motorist as he was returning to Wong’s
vehicle after depositing their mail. Mizuno posits that
“[t]here was no break in the chain of events between his
occupancy and his injury.”
In its seminal decision of National Union Fire Insurance
Co. of Pittsburgh v. Olson, 751 P.2d 666 (Haw. 1988), the
Hawai‘i Supreme Court considered several certified questions
from our court concerning UM coverage under Hawai‘i law.
See id. at 666. In that case, Richard Olson (Olson), an
emergency medical technician, was struck and injured by an
uninsured motorist as he was placing flares at the scene of an
accident. See id. at 667.
National Union asserted that Olson was not covered under
the employer’s uninsured motorist policy because he was not
“occupying” the vehicle when he was struck by the uninsured
driver. Id. at 668. In response, the Court observed that “both
the no-fault and uninsured motorist statutes have as their
STATE FARM MUT. AUTO. INS. CO. V. MIZUNO 7
purpose the protection of users of motor vehicles from bodily
injury, sickness, or disease, including death, resulting from
motor vehicle accidents.” Id. at 669. The Court opined that
applying the definition of “occupying” to entirely bar
coverage would result in a policy provision trumping these
statutory mandates, and concluded that the policy restriction
was “in conflict with the statute and . . . void.” Id.The Court explained that coverage for Olson existed
under the employer’s UM policy because:
The federal district court determined that the
ambulance Olson was driving was covered by
the policy, Olson was using the ambulance
with permission and was therefore an insured
person for purposes of the liability provisions
of the policy. That court also determined that
Olson’s use was within the scope of
permission granted. We agree with these
conclusions. In addition, we find that as
instructed by his superior, Olson was lighting
a flare to guide traffic and the flares were
carried in the ambulance for exactly the
purpose to which Olson put them. Olson’s
lighting of the flare was an activity which was
reasonably calculated to safeguard the
ambulance and its occupants from a motor
vehicle accident. It cannot be said that
Olson’s activity was not within the term use
within the uninsured motorist and liability
provisions of the policy.
Id. (internal quotation marks omitted).
8 STATE FARM MUT. AUTO. INS. CO. V. MIZUNO
In Dawes, an uninsured motorist killed a passenger in a
vehicle driven by a covered driver after the latter’s vehicle
became inoperable. See 883 P.2d at 40–41. The passenger
was not in the vehicle when she was struck. See id. Rather,
she had walked “for twenty to twenty-five minutes [along the
highway] and . . . traveled approximately one mile from the
insured vehicle” when she was struck. Id. The UM policy
provided coverage for “[a]ny other person occupying [the]
covered auto,” and defined “occupying . . . to mean in, upon,
getting in, on, out or off.” Id. at 41 (internal quotation marks
omitted).
The Hawai‘i Supreme Court held that the passenger’s
estate was entitled to benefits under the UM policy. See id.
at 54. In determining whether the passenger was entitled to
coverage, the Court held that the “occupying” restriction was
void and could not bar coverage. See id. at 50. Rather, the
appropriate determination was whether there was “some
connection with the insured vehicle.” Id. The Court
emphasized that it would be anomalous if the passenger was
denied UM coverage even though the driver, if injured under
identical circumstances, would receive full benefits. See id.
at 48. The Court adopted the following chain-of-events test
for determining UM coverage:
For purposes of entitlement to UM benefits,
(1) if a person was a passenger in an insured
vehicle being operated by a named insured or
a named insured’s family member, (2) during
the chain of events resulting in injury to the
person caused by an accident involving an
uninsured motor vehicle, (3) then the person
is a covered person at the time of his or her
injury to the same extent as the named insured
STATE FARM MUT. AUTO. INS. CO. V. MIZUNO 9
or the named insured’s family members would
be entitled to receive UM benefits under the
applicable UM policy.
Id. at 54 (internal quotation marks omitted). Applying this
standard, the Court held that the passenger was entitled to
UM benefits due to the following uncontroverted facts:
(1) [the decedent] was a passenger in the
insured vehicle; (2) the insured vehicle was
being operated by . . . a family member of the
named insured; (3) the insured vehicle broke
down; (4) as a result of the breakdown, the
occupants of the insured vehicle, including
[the passenger], exited and proceeded on foot
to the Kona airport in order to obtain
alternative transportation and repair
assistance; and (5) en route to the group’s
destination, [the passenger] sustained fatal
injuries as a result of the operation of an
uninsured vehicle by an uninsured motorist.
Id. (internal quotation marks omitted). The Court held “as a
matter of law that [the passenger] was a covered person
within the meaning of the UM provisions of the . . . auto
policy.” Id.The Court rejected requirements that the person asserting
coverage be in “reasonably close geographic proximity to the
insured vehicle,” be “vehicle oriented rather than highway or
sidewalk oriented,” and be “engaged in a transaction essential
to the use of the vehicle.” Id. (quoting Rau v. Liberty Mut.
Ins. Co., 585 P.2d 157, 162 (Wash. Ct. App. 1978)). The
Court clarified that:
10 STATE FARM MUT. AUTO. INS. CO. V. MIZUNO
a determination as to whether [the passenger]
was vehicle oriented rather than highway or
sidewalk oriented at the time of her death, and
whether she was engaged in a transaction
essential to the use of the [insured] vehicle at
the time, would be nothing more than a
conclusory and self-serving exercise in
semantic game playing.
Id. (internal quotation marks omitted) (first alteration added).
Mizuno also relies on the decision of the Hawai‘i Court
of Appeals in Liki v. First Fire & Casualty Insurance of
Hawai‘i, Inc., 185 P.3d 871 (Haw. Ct. App. 2008). In Liki,
the Court of Appeals, applying the chain-of-events test, held
that an employee of a repair service was entitled to UM
benefits under his employer’s policy. See id. at 872. The
employee drove his employer’s truck to a gas station, where
he unloaded equipment from the truck to clean a sump.2 See
id. at 873. The employee “parked the truck about ten to
fifteen feet from the sump,” and “made at least two trips back
and forth between the sump and the truck to get tools to clean
the sump.” Id. During the course of cleaning the sump, an
uninsured motorist “backed her vehicle away from one of the
gas pumps and struck [the employee] while he was kneeling
in the sump.” Id.Although the policy contained an “occupying” restriction,
the Hawai‘i Court of Appeals determined that the employee
“was a permissive user of the vehicle, and thus was, under the
2
A sump is “[a] pit or well for collecting water or other fluid.”
Oxford English Dictionary (https://www.oed.com/view/Entry/194024
?rskey=GC0Rgh&result) (last visited June 17, 2019).
STATE FARM MUT. AUTO. INS. CO. V. MIZUNO 11
terms of the Policy and the holding in Dawes, an insured
person who was entitled to UM coverage if he can
demonstrate some connection with the insured vehicle.” Id.
at 873, 875–76. In determining whether a sufficient
connection to the vehicle existed, the Court of Appeals
explained:
In Dawes, the connection was supplied by the
vehicle breaking down while the decedent was
occupying it. Here, it is supplied by the fact
that [there] was an employee of the named
insured, who was using the truck during the
course of his employment to get to and from
the jobsite where he was injured, and to store
and transport the equipment that he was using
as part of his duties at the time he was injured.
All of these factors establish some connection
with the insured vehicle, such that UM
coverage extends to the injuries that [the
employee] received as a pedestrian.
Id. at 876 (internal quotation marks omitted). The Court of
Appeals observed that the “causation requirement” adopted
in Dawes “was not limited to causation based upon the
victim’s use of the vehicle.” Id. at 878 (citation omitted).
The Court of Appeals articulated:
we do not read Dawes as precluding
consideration of physical proximity to the
extent it tends to corroborate the connection
between an injured employee of the named
insured and the insured vehicle. The record
here establishes that [the employee] was no
more than 10–15 feet from the truck and using
12 STATE FARM MUT. AUTO. INS. CO. V. MIZUNO
the tools that he had transported to the jobsite
in the truck, when he was injured. . . . [The
employee] was doing exactly what was
expected of him by his employer while using
the truck under these circumstances. His
actions were part of the reasonably expected
use of the vehicle as contemplated by the
parties.
Id. (internal quotation marks omitted). The Court of Appeals
concluded that because the employee “was doing the job he
was supposed to perform after being transported to the scene
in the insured vehicle and while using equipment that was
transported in that vehicle, his injury had some connection
with the insured vehicle.” Id. at 879 (internal quotation
marks omitted).
State Farm contends that Mizuno, as a permissive user
who was injured by an uninsured motorist in the course of
running errands, is not entitled to UM benefits under the
terms of its policy or under the chain-of-events test. State
Farm argues that Mizuno was not “occupying” the insured
vehicle at the time of the accident. State Farm maintains that
Mizuno’s “connection to an insured vehicle consists of
nothing more than the claimant having ridden in the vehicle
to the vicinity of a later accident, or of being struck while
walking toward an insured vehicle.”
IV. Certified Question and Further Proceedings
Dawes and Liki applied the chain-of-events test in
determining that a passenger of an insured vehicle that was
disabled, and who was accompanied by a family member of
the named insured had established sufficient connections to
STATE FARM MUT. AUTO. INS. CO. V. MIZUNO 13
the insured vehicle to create coverage under a UM policy, and
that an employee, using his employer’s truck to perform his
work duties, did so as well. However, Hawai‘i precedent
does not clearly address the circumstances of this case, where
a permissive user was injured while returning to the insured
vehicle after conducting an errand.
The parties disagree on the proper application of these
cases. Mizuno posits that Dawes and Liki mandate coverage
because, under the chain-of-events test, he was required to
demonstrate only that he occupied an insured vehicle and was
injured as a pedestrian by an uninsured motorist. State Farm
counters that Mizuno is not entitled to coverage under Dawes,
Liki, or Olson because Mizuno, unlike the claimants in those
cases, is unable to demonstrate any connection between his
injuries and the use of Wong’s vehicle.
We cannot readily discern whether the Hawai‘i Supreme
Court would extend the chain-of-events test to this
circumstance where (1) the vehicle was not disabled as in
Dawes and a covered family member of the named insured
was not present, or (2) the driver was not an employee of the
insured performing work duties as in Olson and Liki.
As a result, we respectfully certify the following question
to the Hawai‘i Supreme Court:
Under Hawai‘i law, is a permissive user of an
insured vehicle, whose connection to the
insured vehicle is permission to use the
vehicle to run errands and drive to work,
entitled to UM benefits under the chain-of-
events test because he was injured by an
uninsured motorist?
14 STATE FARM MUT. AUTO. INS. CO. V. MIZUNO
We accordingly direct the Clerk of this court to forward
a copy of this order, under official seal, to the Hawai‘i
Supreme Court, together with copies of all briefs and excerpts
of record that have been filed in this court, with a certificate
of service on the parties.
We stay further proceedings in this case pending a
response from the Hawai‘i Supreme Court. This appeal is
withdrawn from submission and will be resubmitted
following the conclusion of proceedings in the Hawai‘i
Supreme Court. The Clerk is directed to administratively
close this docket, pending further order. We direct the parties
to file a joint notice with the Clerk of this court within one
week after the Hawai‘i Supreme Court accepts or rejects the
certification, and if it accepts certification, again to notify this
court within one week after that Court renders its opinion.
This panel retains jurisdiction over further proceedings in this
court.
SO ORDERED.
Respectfully submitted,
Kim McLane Wardlaw, Marsha S. Berzon, and Johnnie
B. Rawlinson, Circuit Judges.
FOR THE COURT:
______________________________
Kim McLane Wardlaw,
United States Circuit Judge, Presiding