Crawford for Crawford v. Crawford , 69 Haw. 410 ( 1987 )

WAKATSUKI, J. CONCURRING IN THE JUDGMENT

I reach the same result as the majority but based on different reasoning.

The majority’s position that the general wrongful death limitation period of HRS § 663-3 applies suggests by analogy that in an action seeking compensation for auto-related personal injury the general personal injury tort limitation period, § 657-7, should apply. In Joshua v. MTL, Inc., 65 Haw. 623, 656 P.2d 736 (1982), however, this court applied § 294-36(b) to just such a case. The majority attempts to distinguish wrongful death claims from personal injury claims. I see no valid reason why the two situations should be treated any differently with respect to the application of the limitation period provided in Chapter 294.

I would hold that HRS § 294-36(b) governs this case. Section 294-36(b) applies to any “suit arising out of a motor vehicle accident . . . brought in tort.” Appellant’s claim of wrongful death does not alter the fact that the tort action arose out of a motor vehicle accident. Chapter 294 creates a system of reparations for accidental harm and loss arising from motor vehicle accidents, see HRS § 294-1(a), and sets forth limitation periods to cover no-fault claims, HRS § 294-36(a), and certain residual tort actions, HRS § 294-36(b).

The plain language of HRS § 294-36(b), however, does not allow for tolling. Unlike the situation in Hun v. Center Properties, 63 Haw. 273, 626 P.2d 182 (1981), HRS § 294-36(b) does not contain the words, “except as otherwise provided,” and thus tolling cannot be incorporated as provided in HRS § 657-13.

Under HRS § 294-36(b), minor children of parents killed in automobile accidents do not receive the benefits of tolling while minor children of parents killed in non-automobile accidents receive the benefits of tolling under 657-13. I find no rational basis for the disparate treatment. Although the no-fault law intended an efficient and less costly system of resolving claims arising from motor vehicle accidents, there is nothing in the legislative history to suggest that elimination of tolling the limitation period as afforded to minors under § 657-13 for residual tort claims was intended as a mean to expedite the resolution of such claims.

I would hold, therefore, that the limitation period under HRS § 294-36(b) when applied to those who are minors at the time of the accident is unconstitutional as being violative of the equal protection clauses¹ of the Constitutions of the United States and Hawaii. In view of this holding, HRS § 663-3 and HRS § 657-13 become applicable to this case. See Hun.

1 Fourteenth amendment to the U.S. Constitution. Article I, secton 5 of the Hawaii Constitution.