How Hawaii’s No-Fault Insurance Works When You’re the One Hurt

“No-fault” is a misleading name. It does not mean nobody is at fault, and it does not mean nobody can be sued. It means that after a motor vehicle accident in Hawaii your own insurer normally pays your medical treatment first, without waiting for anyone to establish who caused it — and that whether you can pursue the other driver for anything beyond that depends on conditions the statute sets out.

What the System Actually Does

HRS §431:10C-306(a) abolishes tort liability, with respect to accidental harm arising from motor vehicle accidents occurring in this State, for the owner, operator or user of an insured motor vehicle, and for the operator or user of an uninsured vehicle who operates or uses it without reason to believe it to be uninsured — except in the circumstances listed in subsection (b), which are covered further down this page.

In place of that liability, the injured person receives personal injury protection benefits. Under HRS §431:10C-304(1), every PIP insurer must pay those benefits without regard to fault, to the provider of services, on behalf of persons who sustain accidental harm as a result of the operation, maintenance or use of the vehicle.

What PIP Pays For

HRS §431:10C-103.5(a) defines personal injury protection benefits, for any accidental harm, as all appropriate and reasonable treatment and expenses necessarily incurred as a result of the accidental harm, and which are substantially comparable to the requirements for prepaid health care plans. The subsection then lists what that includes: medical, hospital, surgical, professional, nursing, advanced practice nursing, dental, optometric, naturopathic medicine, chiropractic, ambulance, prosthetic services, medical equipment and supplies, products and accommodations furnished, x-ray, psychiatric, physical therapy pursuant to prescription by a medical doctor, occupational therapy, rehabilitation, and therapeutic massage by a licensed massage therapist when prescribed by a medical doctor.

The limit is the number to hold on to. HRS §431:10C-103.5(c) provides that PIP benefits are subject to an aggregate limit of $10,000 per person for services provided under the section, and that an insurer may offer additional coverage in excess of that limit, or as provided by rule of the commissioner.

Who Is Covered

HRS §431:10C-304(1) names the people entitled to benefits: any person, including the owner, operator, occupant or user of the insured motor vehicle; any pedestrian, including a bicyclist; any user or operator of a moped as defined in HRS §249-1; and any user or operator of an electric foot scooter as defined in the same section.

The same paragraph carries an exclusion that catches people out: it does not apply to injury to or death of any operator or passenger of a motorcycle or motor scooter, as defined in HRS §286-2, arising out of a motor vehicle accident, unless expressly provided for in the motor vehicle policy. If you ride, that is a sentence worth checking your own policy against before you need it.

Which Policy Pays

Under HRS §431:10C-305(b)(1), PIP benefits are paid primarily from the insurance on the vehicle occupied by the injured person at the time of the accident, or — where the injured person is a pedestrian, including a bicyclist — from the insurance on the vehicle which caused the accidental harm. If there is no insurance on that vehicle, any other motor vehicle insurance applicable to the injured person applies. The same paragraph provides that no person shall recover PIP benefits from more than one insurer for accidental harm as a result of the same accident.

There is also an ordering rule where work is involved. HRS §431:10C-305(b)(2) provides that PIP benefits are paid secondarily and net of any benefits a person is entitled to receive because of the accidental harm under workers’ compensation laws, subject to the limits that subsection sets out for monthly earnings loss. If you were hurt in a crash while working, both systems are in play and the interaction is worth advice.

How Payment Is Supposed to Work

HRS §431:10C-304(2) provides that payment of PIP benefits is made as the benefits accrue, except that in the case of death, payment of the benefits under §431:10C-302(a)(5) may be made immediately in a lump sum at the beneficiary’s option.

The timing rules are specific:

• Payment within thirty days after the insurer has received reasonable proof of the fact and amount of benefits accrued, and demand for payment (§431:10C-304(3)(A))
• If the insurer denies a claim in whole or in part, written notice of the denial and the reasons for it, within thirty days, in a format approved by the commissioner (§431:10C-304(3)(B))
• If it cannot pay or deny because it needs more information, an itemized list of all required documents, forwarded within the same thirty days (§431:10C-304(3)(C))
• Interest at one and one-half per cent per month on amounts unpaid after those thirty days (§431:10C-304(4))

Those rules are the reason it is reasonable to ask an insurer to put a request, or a refusal, in writing.

When You Can Step Outside No-Fault

This is the part of the system that decides whether a claim against the other driver exists. HRS §431:10C-306(b) provides that tort liability is not abolished in the following circumstances:

• Death occurs to the person in the motor vehicle accident (§431:10C-306(b)(1))
• Injury occurs which consists, in whole or in part, of a significant permanent loss of use of a part or function of the body (§431:10C-306(b)(2))
• Injury occurs which consists of a permanent and serious disfigurement which results in subjection of the injured person to mental or emotional suffering (§431:10C-306(b)(3))
• Injury occurs and, as a result of it, the personal injury protection benefits incurred by the person equal or exceed $5,000 (§431:10C-306(b)(4))

The fourth is the one most claims turn on, and the statute sets out how the calculation is done. Under §431:10C-306(b)(4)(A), the amount includes PIP benefits incurred by, paid to or payable to or on behalf of an eligible injured person — including amounts paid directly by or on behalf of the eligible insured, and similar benefits under social security, workers’ compensation or public assistance laws; the applicable amounts of deductible or copayment paid or incurred; and amounts paid by or on behalf of an injured person who is not entitled to PIP benefits, by health insurance or other funds. Where a person receives coverage other than on a fee-for-service basis, including from a health maintenance organization operating on a capitation basis, the value of services provided is determined in accordance with the fee schedules allowable under the chapter for the purpose of the threshold determination.

Under §431:10C-306(b)(4)(B), where a person has optional coverage, benefits received in excess of the maximum basic PIP limits set out in §431:10C-103.5 are not included in that calculation.

Subsection (c) provides that these rules apply whether or not the injured person is entitled to receive PIP benefits, and that the party against whom the presumption under the section is directed bears the burden of proof to rebut it.

Where a death has occurred, the death exception in (b)(1) applies and the claim is governed by Hawaii’s wrongful death statute — see who may bring a Hawaii wrongful death claim under HRS §663-3.

What No-Fault Does Not Cover

PIP is medical and rehabilitative in character. Stepping outside the no-fault system under §431:10C-306(b) is what opens the door to a claim against the at-fault driver for general damages — the losses that are not simply arithmetic. What such a claim has to prove is set out on the elements of a Hawaii personal injury claim, and any recovery is then subject to the comparative negligence rule in HRS §663-31, under which damages are diminished in proportion to the injured person’s share of fault.

The Deadlines Are Their Own Statute

Motor vehicle claims do not simply run two years from the crash. HRS §431:10C-315(a) sets the deadline for suits on a contract providing motor vehicle insurance benefits at the later of several dates, including two years from the accident and two years after the last payment of benefits. HRS §431:10C-315(b) does the same for suits in tort, measured from the later of two years after the accident, two years after the last payment of motor vehicle insurance or optional additional benefits, or two years after the last payment of workers’ compensation or public assistance benefits arising from the accident.

Because the period runs from the later of those dates, an ongoing stream of payments can matter. The guide to Hawaii filing deadlines by claim type covers this alongside the other deadlines.

Where to Read Further

If the accident is recent, the guide on what to do in the first 48 hours after a Hawaii car accident covers the scene and how a PIP claim is opened. If an adjuster has already been in touch, see what the adjuster’s first call is really for. For the practice page on collisions, see Hawaii car accident claims and no-fault rules.