In re: The Petition of Hannah Harrison v. Ito

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-FEB-2023
11:49 AM
Dkt. 66 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE MATTER OF THE PETITION OF HANNAH HARRISON,
Appellant-Petitioner/Appellant,
v.
GORDON I. ITO, INSURANCE COMMISSIONER, DEPARTMENT
OF COMMERCE AND CONSUMER AFFAIRS, STATE OF HAWAI#I,1
Appellee/Appellee,
and
EVERCARE, Appellee-Respondent/Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC191001415)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Nakasone, and McCullen, JJ.)
In this joint appeal, Petitioners-Appellants Hannah
Harrison (Harrison) and Hannah Metsch (Metsch) (collectively,
Appellants) appeal from the March 3, 2020 "Order Affirming
Insurance Commissioners' Orders filed August 8, 2019"(Order
Affirming Commissioner) and the March 17, 2020 Final Judgment
1
Pursuant to Hawai#i Rules of Appellate Procedure (HRAP) Rule
43(c)(1), Gordon I. Ito, the current Insurance Commissioner, Department of
Commerce and Consumer Affairs, is automatically substituted as
Appellee/Appellee herein in place of Colin M. Hayashida.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(Judgment) filed and entered by the Circuit Court of the First
Circuit (Circuit Court).2
On appeal, Appellants contend that the Circuit Court
erroneously affirmed the determination of Respondent-Appellee
Insurance Commissioner Gordon I. Ito, Department of Commerce and
Consumer Affairs, State of Hawai#i (Commissioner) that Appellants
were not entitled to prejudgment interest in connection with an
insurance external review involving their managed care plan,
Respondent-Appellee UnitedHealthcare Insurance Company dba
Evercare (Evercare).3
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we resolve
Appellants' points of error as follows, and affirm.
The underlying case arises out of external reviews
under Hawaii Revised Statutes (HRS) § 432E-6(a) (2005) (repealed
2011),4 requested by both Appellants in 2011, of Evercare's
decision regarding changes to coverage under their managed care
plan with Evercare. Following the resolution of the external
reviews, Appellants filed separate motions for attorneys' fees
and costs in 2011 that were denied by the Commissioner in 2013;
the denials were appealed to the Circuit Court in 2013; the case
was then stayed by agreement from 2013-2017; then remanded back
2
The Honorable James H. Ashford presided.
3
Evercare now operates as UnitedHealthcare Insurance Company, Inc.
4
HRS Chapter 432E, entitled the "Patients' Bill of Rights and
Responsibilities Act," sets forth statutory requirements for managed care
plans, and includes an external review procedure by which the enrollee may
pursue a complaint against the managed care plan, in HRS § 432E-6. "'External
review' means an administrative review requested by an enrollee under 432E-6
of a managed care plan's final internal determination of an enrollee's
complaint." HRS § 432E-1 (2005).
The external review statute, HRS § 432E-6, was repealed by the
2011 Legislature, to comply with the federal Patient Protection and Affordable
Care Act of 2010. See Haw. Med. Serv. Ass'n v. Adams, No. CAAP-XX-XXXXXXX,
2013 WL 4606314, at *1 n.2 (App. Aug. 29, 2013) (SDO); 2011 Haw. Sess. Laws
Act 230, § 10 at 746.
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
to the Commissioner by the Circuit Court in 2018,5 at which time
the Commissioner awarded Harrison $22,320.19 in attorney's fees
and costs, and Metsch $17,574.60 and $12,595.13 on two motions
for attorneys' fees and costs.
On August 3, 2018, Appellants filed motions for
prejudgment interest (Motions for Prejudgment Interest), arguing
that the Commissioner could award prejudgment interest
pursuant to HRS § 432E-6(e)6 and HRS § 636-16.7
On August 8, 2019, the Commissioner denied Appellants'
Motions for Prejudgment Interest (Orders Denying PJI), on the
grounds that neither HRS § 636-16 nor HRS § 432E-6(e)
"indicate[s] express authority or an obligation for the
Commissioner to make a prejudgment interest award."
Following a 2019 joint appeal to the Circuit Court, and
a hearing on February 21, 2020,8 the Circuit Court affirmed the
Commissioner's Orders Denying PJI in a March 3, 2020 Order
Affirming Commissioner, which concluded:
5
The Honorable Keith K. Hiraoka presiding.
6
The external review statute contains an attorney's fees and costs
provision, HRS § 432E-6(e) (2005) (repealed 2011), that provides:
[a]n enrollee may be allowed, at the commissioner's
discretion, an award of a reasonable sum for
attorney's fees and reasonable costs incurred in
connection with the external review under this
section, unless the commissioner in an administrative
proceeding determines that the appeal was
unreasonable, fraudulent, excessive, or frivolous.
7
HRS § 636-16 (1979) provides,
In awarding interest in civil cases, the judge is
authorized to designate the commencement date to conform
with the circumstances of each case, provided that the
earliest commencement date in cases arising in tort, may be
the date when the injury first occurred and in cases arising
by breach of contract, it may be the date when the breach
first occurred.
8
Appellants did not request transcripts of the February 21, 2020
hearing.
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
2. Pursuant to Hawaii Revised Statutes § 432E-6(e),
the Insurance Commissioner is neither expressly or impliedly
authorized to award prejudgment interest on the attorney fee
awards.
3. Hawaii Revised Statutes § 636-16 is inapplicable in
this case. The statute applies to the award of prejudgment
interest in civil court actions. The statute does not apply
to proceedings before the Insurance Commissioner and the
Department of Commerce and Consumer Affairs under Hawaii
Revised Statutes § 432E-6(e).
Appellants raise their points of error (POE)9 as
follows:
II. CONCISE STATEMENT OF THE POINTS OF ERROR
Whether the circuit court erred in affirming Commr
[sic] Hayashida's orders denying the Harrison PJI Motion,
Dkt #11, JIMS #4, 3-19 and the Metsch PJI Motion Dkt #11,
JIMS #4 at 108-122 by:
1. Narrowly construing Chapter 432E at odds with
the express remedial purposes for its enactment
to reach the result that the Insurance
Commissioner is neither expressly nor impliedly
authorized to award prejudgment interest on
H.R.S. § 432E-6(e) attorney fee awards, Dkt #16
at 3;
2. Failing to provide a basis for its conclusion
that H.R.S. §636-16 "does not apply to
proceedings before the Insurance Commissioner
under . . . H.R.S. § 432E-6(e)", Dkt #16 at 3;
and
3. Failing to adhere to rules of statutory
interpretation in construing the applicability
of H.R.S. § 636-16 based upon its language, the
common law of prejudgment interest, and the
legislative history of 1979 Haw. Sess. Laws Act
78." Dkt #16 at 3.
9
Evercare argues that none of Appellants' points of error comply
with HRAP Rule 28(b)(4):
Nor do any of Appellants' points of error contain references
to "where in the record the alleged error was objected to or
the manner in which the alleged error was brought to the
attention of the court or agency" as required by HRAP Rule
28(b)(4); all references are to "Dkt #16 at 3," which is the
order appealed from.
4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
HRAP Rule 28(b)(4)(iii) provides that each point "shall
state . . . the manner in which the alleged error was brought to
the attention of the court or agency." This is a secondary
appeal from the Circuit Court. The record references in the POE
section above reference the motions for prejudgment interest
filed before the Commissioner.10 Each of the numbered POEs
identically refers to "Dkt #16 at 3," which is the Order
Affirming Commissioner that is the subject of this appeal, in
accordance with HRAP Rule 28(b)(4)(i) and (ii). However, each
numbered POE contains no record reference to where each argument
raised in each POE was "brought to the attention" of the Circuit
Court as required by HRAP Rule 28(b)(4)(iii).
Notwithstanding the deficiencies in the Appellants'
opening brief, we seek to address the merits where possible. See
Schefke v. Reliable Collection Agency, Ltd., 96 Hawai#i 408, 420,
32 P.3d 52, 64 (2001). With regard to POE 1, based on a plain
reading of HRS § 432E-6(e), we conclude the Circuit Court was
correct in affirming the Commissioner's denial of prejudgment
interest because such an award is not authorized under the
statute.
Evercare argues that the specific arguments in POEs 2
and 3 regarding HRS § 636-16 are waived because they were not
argued before the Circuit Court.11 In addition to a noncompliant
points of error section, the argument section also does not
contain any citations to the record for arguments Appellants
purportedly made before the Circuit Court regarding their
10
The record references to "Harrison PJI Motion, Dkt #11, JIMS #4,
3-19" and "Metsch PJI Motion[,] Dkt. #11, JIMS #4 at 108-122" pertain to the
prejudgment interest motions filed before the Commissioner.
11
Evercare argues: "Appellants failed to raise before the circuit
court any of their arguments regarding statutory interpretation of HRS § 636-
16, the common law of prejudgment interest, or the legislative history of 1979
Haw. Sess. Laws Act 78." Appellants did not file a Reply Brief to Evercare's
Answering Brief.
5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
entitlement to prejudgment interest.12 See HRAP Rule 28(b)(7)
(requiring that argument on the points presented contain
citations to the "parts of the record relied on."); State v.
Hoglund, 71 Haw. 147, 150-51, 785 P.2d 1311, 1313 (1990)
(citation omitted) ("Generally, the failure to properly raise an
issue at the trial level precludes a party from raising that
issue on appeal.").
"[A]ppellant has the burden of furnishing the appellate
court with a sufficient record to positively show the alleged
error." Bettencourt v. Bettencourt, 80 Hawai#i 225, 230, 909
P.2d 553, 558 (1995) (quoting Union Building Materials Corp. v.
The Kakaako Corp., 5 Haw. App. 146, 151, 682 P.2d 82, 87 (1984)).
The Appellants' POEs challenge various aspects of the Circuit
Court's reasoning in arriving at its conclusions, yet provide no
transcript of the hearing before the Circuit Court. See HRAP
Rule 10(b)(1)(A) (requiring transcripts for "any point on appeal
that requires consideration of the oral proceedings before the
court appealed from . . . ."). "The burden is upon appellant in
an appeal to show error by reference to matters in the record,
and he [or she] has the responsibility of providing an adequate
transcript." Bettencourt, 80 Hawai#i at 230, 909 P.2d at 558.
Without a transcript there is no basis upon which to review the
alleged errors in the Circuit Court's reasoning in arriving at
its conclusion.
An appellate court is not "obligated to sift through
the voluminous record to verify an appellant's inadequately
documented contentions[.]" Haw. Ventures, LLC v. Otaka, Inc.,
114 Hawai#i 438, 480, 164 P.3d 696, 738 (2007) (citations and
internal quotation marks omitted). Thus, as to POEs 2 and 3, we
conclude they are waived, and alternatively, Appellants have
12
The argument section contains a single record reference to "Dkt
#11, JIMS #4 at 71, 190," which are the Commissioner's 2013 orders denying
attorneys' fees and costs for Appellants. This reference is to the record
before the Commissioner, not the appeal to the Circuit Court.
6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
failed to demonstrate error. See HRAP Rule 28(b)(4) and (b)(7);
10(b)(1)(A); Bettencourt, 80 Hawai#i at 230, 909 P.2d at 558;
Hoglund, 71 Haw. at 150-51, 785 P.2d at 1313.
For the foregoing reasons, we affirm the March 3, 2020
"Order Affirming Insurance Commissioners' Orders filed August 8,
2019" and the March 17, 2020 Final Judgment filed and entered by
the Circuit Court of the First Circuit.
DATED: Honolulu, Hawai#i, February 24, 2023.
On the briefs:
/s/ Lisa M. Ginoza
Rafael G. Del Castillo Chief Judge
(Rafael Del Castillo &
Associates) for Appellant- /s/ Karen T. Nakasone
Petitioner/Appellant Associate Judge
Dianne Winter Brookins /s/ Sonja M.P. McCullen
(Dentons US LLP) for Appellee- Associate Judge
Respondent/Appellee
Daniel K. Jacob
Deputy Attorney General
for Appellee/Appellee
7