Caberto v. National Union Fire Insurance Co. ( 1994 )

HUDDY, Circuit Judge,

concurring and dissenting.

I agree with the majority that there should be no reduction of the arbitration award by the amount of no-fault benefits. Dispositive of the issue is this court’s opinion in Sol v. AIG Hawai’i Insurance Co., 76 Hawai'i 304, 875 P.2d 921 (1994).

With respect to the second subject, I respectfully dissent.

Other states decided this issue on a “public policy” basis.

The language of HRS § 431:100-302 (1987 Spec. Pamphlet) neither permits nor prohibits the insurance policy provision relating to workers’ compensation set-off. Relevant committee reports also offer the court no guidance to determine the legislative intent on the question. On the other hand, the language of the UIM statute merely requires that insurers offer these policies as “optional insurance.” Thus, in my view, the legislature did not address this topic and matters of policy are for the legislature to decide. Levy v. Kimball, 51 Haw. 540, 465 P.2d 580 (1970); Barcena v. The Hawaiian Ins. & Guar. Co., Ltd., 67 Haw. 97, 678 P.2d 1082 (1984); see also Ross v. Stouffer Hotel Company (Hawai'i), Ltd., 879 P.2d 1037 (Haw.1994) (Klein, J., concurring and dissenting).

Consistent with the law of damages, I see nothing inherently unfair in awarding a claimant actual losses. Nobriga v. Raybestos-Manhattan, Inc., 67 Haw. 157, 683 P.2d 389 (1984); Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 839 P.2d 10 (1992).