WEITE v. MOMOHARA

law as was given to them and were guided by the plain language of Jury Instruction No. 30 ("award only such damages as will fairly and reasonable compensate [Kato] for the injuries or damages legally caused by [Funari]'s negligence") and Jury Instruction No. 31 ("limit your award to the damages attributable to the injury caused by [Funari]"). As previously stated, such a presumption is impermissible and contrary to our case law. Myers, 76 Hawai'i at 165, 871 P.2d at 1235. Thus, we hold that the ICA erred in affirming the trial court's December 8, 2004 judgment.

. . . [B]ased on our holding that the jury's answer to Question No. 2 represented a post-apportionment amount of damages, we conclude that the apportionment questions ( i.e., Question Nos. 3 and 4) were irrelevant and unnecessarily posed to the jury. We, therefore, hold that Question Nos. 3 and 4 should not have been included on the special verdict form.

We emphasize, however, that our holding today should not be read as a blanket prohibition against the inclusion of apportionment questions relating to pre-existing injuries on special verdict forms. Our holding is limited to the circumstances where the standard Montalvo instruction . . . is given to the jury, i.e., the jury is instructed to limit its award of damages to those damages attributable solely to the defendant's negligence. In such circumstances, apportionment questions are unnecessary and, therefore, improper because it is presumed that the jury will follow the plain language of the Montalvo instruction and indicate its apportioned-award of damages on the special verdict form. In other words, when using the Hawai'i Standard Civil Jury Instructions regarding apportionment, the inclusion of apportionment questions on the special verdict form is unnecessary. However, if apportionment questions are to be included on the special verdict form, the jury instructions must be consistent with the questions asked and must clearly apprise the jury of the special findings it is being asked to make.

Id. at 383-84, 191 P.3d at 1060-61 (footnote in original omitted).

Although the circuit court in the instant case instructed the jury to limit its award of damages to those "damages attributable solely to [Momohara's] negligence," the questions on the special verdict form were "consistent with the questions asked" and "clearly apprise[d] the jury of the specific findings it [was] being asked to make." Kato, 118 Hawai'i at 384, 191 P.3d at 1061. Unlike the special verdict form in Kato, the special verdict form in the instant case did not simply ask the jury what were Weite's total damages; rather, Question No. 2 asked, " Without regard to any special apportionment of her damages, what is the total amount of [Weite's] damages?". (Emphasis added.) The addition of this explicit language sufficed to eradicate any potential confusion the combination of jury instructions and questions on the special verdict form may have caused the jury.

Given the foregoing, Questions No. 2 and 3 on the special verdict form in combination with the other jury instructions on apportionment "when read and considered as a whole" were not "prejudicially insufficient, erroneous, inconsistent, or misleading." Tabieros, 85 Hawai'i at 350, 944 P.2d at 1293. The circuit court did not abuse its discretion in including the two questions in the special verdict form.

5. Calculating the judgment

Weite contends the circuit court erred in calculating the judgment by apportioning the jury award of special damages and general damages by 50% and then subtracting the full amount of the CLD. Weite argues that pursuant to HRS § 431:10C-301.5, the circuit court should have subtracted the CLD from the verdict amount before apportioning damages, as follows: Total damages $39,256.63 -CLD $ 6,537.73 __________ $32,718.90 -50% $16,359.45 __________ Net $16,359.45

From the jury verdict in favor of [Weite] in the amount of Nineteen Thousand Six Hundred Twenty-Eight Dollars and Thirty-Two Cents ($19,628.32), the sum of Six Thousand Five Hundred Thirty-Seven Dollars and Seventy-Three Cents ($6,537.73) representing the [CLD] pursuant to [HRS] § 431:10C-301.5, shall be deducted.

Accordingly, it is hereby ordered, adjudged and decreed that Judgement be and is hereby entered in favor of [Weite] in the amount of Thirteen Thousand Ninety Dollars and Fifty-Nine Cents ($13,090.59).

Pursuant to the Judgment, Weite's damages are calculated as follows: Total damages $39,256.63 -50% $19,628.31 __________ $19,628.32 -CLD $ 6,537.73 __________ $13,090.59 HRS § 431:10C-301.5 provides:

§ 431:10C-301.5 Covered loss deductible. Whenever a person effects a recovery for bodily injury, whether by suit, arbitration, or settlement, and it is determined that the person is entitled to recover damages, the judgment, settlement, or award shall be reduced by $5,000 or the amount of personal injury protection benefits incurred whichever is greater, up to the maximum limit. The covered loss deductible shall not include benefits paid or incurred under any optional additional coverage.

(Emphasis added.)

In State Farm v. Gepaya, the Hawai'i Supreme Court stated that HRS § 431:10C-301.5 (Supp. 1997) "was part of a full scale change to fix the motor vehicle insurance system designed to yield a significant reduction in premiums, control litigation, and provide adequate medical coverage without a cost shift to businesses and employees." Gepaya, 103 Hawai'i at 146, 80 P.3d at 325 (internal quotation marks, citation, and brackets omitted). The supreme court further stated that the OLD was "designed to discourage frivolous law suits and yet at the same time set a reasonable standard for litigation on legitimate claims." Id. at 147, 80 P.3d at 326 (quoting Conf. Comm. Rep. No. 171, in 1997 Senate Journal, at 798 (comments of Senator Baker)). The CLD works in the following manner:

1) In cases where the damages associated with an automobile accident are less than $5,000, the claimant is precluded from suing the negligent party in an automobile accident. This is necessary in order to keep the small claims out of litigation.

2) In cases where the claimant has incurred medical expenses of between $5,000 and $10,000, the result of the litigation will have subtracted from the award the amount of medical expenses incurred. This precludes the claimant from receiving funds for medical expenses for which is covered [sic] under his own policy.

. . . .

3) In cases where the claimant has incurred medical expenses of $10,000 or more, any award obtained through any means of litigation will be reduced by $10,000.

Gepaya, 103 Hawai'i at 147, 80 P.3d at 326 (emphasis omitted) (quoting Conf. Comm. Rep. No. 171, in 1997 House Journal, at 999 (comments of Representative Menor)). The supreme court went on to state that the role of the statute "was to preclude a claimant from receiving a `double recovery' for medical expenses which had been paid under the PIP coverage by reducing a recovery of damages for bodily injury[.]" Gepaya, 103 Hawai'i at 148, 80 P.3d at 327.

In the instant case, HRS § 431:10C-301.5 mandates that the "award shall be reduced by . . . the amount of [PIP] benefits." The statute does not state that the award should be reduced after apportionment by the amount of PIP benefits. The CLD is to be deducted from the "total damages" awarded by the trier of fact prior to apportionment of the damages.

The issue has not been previously addressed in this jurisdiction. Although this case involves apportionment of damages due to pre-existing injuries, cases from other jurisdictions addressing apportionment in the context of comparative negligence support our holding that the CLD should be deducted from the verdict amount before damages are apportioned. In a Florida case, Norman v. Farrow, 880 So.2d 557 (2004), Farrow alleged that she was injured when her car was rearended by a car driven by William Cleff (Cleff). Id. at 558. Cleff asserted as an affirmative defense that Farrow's negligence had been a cause of the collision. Id. At trial, the jury found Cleff 90% negligent and Farrow 10% negligent and awarded Farrow $19,647.71 in total damages for medical expenses and pain and suffering. Id. It was undisputed that pursuant to Florida Statutes § 627.736(3) (2003), Cleff was entitled to a setoff for "damages for which [PIP] benefits are paid or payable" to Farrow. Norman, 880 So.2d at 558. Section 627.736(3) provided in relevant part that "[a]n injured party who is entitled to bring suit under the provisions of §§ 627.730-627.7405, or his or her legal representative, shall have no right to recover any damages for which [PIP] benefits are paid or payable." Norman, 880 So.2d at 559-60 (footnote and emphasis omitted).

Cleff subsequently died and his wife, Cynthia Cleff Norman, as personal representative of Cleff's estate, became the named party. Norman, 880 So.2d at 558 n. 1.

In its judgment, the Circuit Court, Escambia County, calculated Farrow's award as follows:

A. Jury Verdict........................ $19,647.71 B. Reduction, 10% Comparative Negligence.......................... (-$ 1,964.77) C. PIP Offset.......................... 1. PIP ($4,998.17) Offset........... 2. Reduction, 10% Comparative....... (-4,498.35) D. Taxable Costs....................... (+ 4,868.44) E. Pre-Judgment Interest on Verdict $ 0.00 TOTAL JUDGMENT ON JURY VERDICT $18,053.03

Id. at 558.

Cleff appealed, arguing that the Escambia circuit court's calculations led to a double recovery by Farrow and that Cleff was entitled to a setoff of all damages for which PIP benefits were paid or payable to Farrow, with no consideration of comparable fault. Id. at 559. The Supreme Court of Florida agreed, holding that

pursuant to section 627.736(3), which bars all recovery of damages paid or payable by PIP benefits, the amount for which PIP benefits have been paid or payable is to be deducted by the trier of fact from the amount awarded as economic damages in the verdict. Those amounts are not recoverable. Following that deduction, the non-economic damages awarded should be added and then the percentage of comparative negligence found by the trier of fact is to be applied to reduce the amount of damages which are recoverable from the tortfeasor. The remainder is the amount of the judgment.

Id. at 560-61 (footnotes omitted). In so holding, the Florida Supreme Court "disapprove[d] the holding in Assi v. Florida Auto Auction of Orlando, Inc., 717 So.2d 588 (Fla. 5th DCA 1998), in which the Fifth District affirmed a trial court's method of calculation that first diminished the total award by the plaintiffs comparative fault and then subtracted the amount of damages paid or payable by the PIP benefits." Norman, 880 So.2d at 561.

In another Florida case, Hibbard v. McGraw, 918 So.2d 967 (Fla. 2005), Carr (the plaintiff) sustained injuries while riding as a passenger in a truck driven by her friend, Brock, when Brock swerved to avoid hitting a vehicle driven by McGraw and collided with a tree. Id. at 969. Carr settled with Brock prior to trial. Id. at 973. A jury found Brock 70% negligent, McGraw 5% negligent, and Carr 25% negligent for Carr's injuries and awarded damages to Carr and her mother. Id., at 970. The Circuit Court, St. Johns County, deducted a setoff for PIP benefits after apportioning damages according to Brock and McGraw's relative comparative negligence. Id.

Carr was a minor at the time of the accident and suit was filed by Carr's mother. Hibbard, on behalf of Carr. 918 So.2d at 969.

On appeal, Carr argued that the Circuit Court miscalculated the damages. Id. at 972. The District Court of Appeals of Florida, Fifth District, agreed and, citing to Norman, held that "the amount of PIP benefits paid or payable must be first deducted from the amount of economic damages awarded, the noneconomic damages added and then comparative negligence considered." Id. at 973.

The underlying facts in a Colorado personal injury case, Hickenbottom v. Schmidt, 626 P.2d 726 (Colo. 1981), were as follows:

After a trial to the jury, [Hickenbottom's] damages due to [Schmidt's] negligence were calculated to be $10,000. After deducting the percentage of [Hickenbottom's] comparative negligence from the total amount of damages, the [District Court of Logan County] entered judgment in favor of [Hickenbottom] for $7,500. However, because [Hickenbottom] had received $9,802.35 in [PIP] benefits for medical expenses and loss of income, the court amended the judgment in favor of [Schmidt].

Id. Hickenbottom appealed, arguing that pursuant to Colorado Revised Statutes (C.R.S. 1973) § 10-4-717 (1979 Cum. Supp.), the district court erred by setting off the PIP payments received by her against the damages awarded to her. Hickenbottom, 626 P.2d at 726-27. Section 10-4-717 provided that an injured party was "precluded from recovering damages from a tortfeasor which are recoverable as direct benefits under § 10-4-706, C.R.S. 1973 (1979 Cum.Supp.)." Hickenbottom, 626 P.2d at 727. The Colorado Court of Appeals held that the district court did not err by setting off the PIP payments received by Hickenbottom, but pursuant to other parts of C.R.S. 1973 and another source of law, "the recoverable P.I.P. benefits are to be deducted from the total amount of damages attributable to defendant's negligence before the court reduces the judgment by the percentage of comparative negligence attributable to plaintiff." Hickenbottom, 626 P.2d at 727 (emphasis added).

In an Alaska case, Jackman v. Jewel Lake Villa One, 170 P.3d 173 (Alaska 2007), Jackman fell and injured herself on a staircase at her apartment complex, the Jewel Lake Villa Apartments (Jewel Lake). Id. at 174. Jackman sued Jewel Lake. Id. A jury found Jewel Lake was 51% at fault for Jackman's injuries. Id., The Superior Court, Third Judicial District, Anchorage, calculated the award to Jackman as follows:

[The superior court] initially divided the full jury award, $7,147.23, to derive Jewel Lake's fifty-one percent share of the damages: $3,645.09. After adjusting for interest, costs, and attorney's fees, the court subtracted the full amount of the advance medical payments from Jewel Lake's share of the damages to arrive at a "maximum amount . . . payable" of $906.63 under the verdict.

Id. at 178. Jackman appealed, arguing that the superior court miscalculated the award. Id. at 177. The Supreme Court of Alaska agreed, holding the following:

The [superior] court's approach treated the medical expense payments as pure liability payments — payments meant to compensate Jackman only for Jewel Lake's proportionate share of the fault. Yet . . . the record fails to disclose the specific basis for the medical payments. Jewel Lake's insurer appears to have unconditionally reimbursed Jackman for her medical expenses: there is no indication of any reservations or restrictions suggesting that the reimbursements were paid as compensation for Jewel Lake's potential share of the fault. Absent evidence establishing the actual basis for the injurer's payments, we see no obvious grounds for crediting the entire amount of the advance payments against the portion of the jury verdict reflecting Jewel Lake's share of the fault. Id. at 178. The supreme court went on to state that "[a]bsent case-specific evidence establishing that the payment in question was actually based on potential fault, then, it simply lowers the total damages still to be paid, leaving all negligent parties responsible for their proportionate share of the harm." Id. at 179. The supreme court added that "deducting advance payments from the jury's total award poses a risk of double recovery only if we assume that those payments were made on the basis of the defendant's potential fault." Id- In a footnote, the supreme court stated that its approach was similar by analogy to the method adopted by the Florida Supreme Court in Norman and the Colorado Court of Appeals in Hickenbottom. Jackman, 170 P.3d at 179 n. 16.

Given the foregoing, the circuit court in the instant case erred when it subtracted the CLD from the jury's damage award after apportioning the damages.

6. Prevailing party and CAAP sanctions

HAR 25(A) provides that the "`Prevailing Party' in a trial de novo is the party who (1) appealed and improved upon the arbitration award by 30% or more. . . . For the purpose of this rule, `improve' or `improved' means to increase the award for a plaintiff or to decrease the award for the defendant."

HAR 26 provides in relevant part that "[a]fter the verdict is received and filed, or the court's decision rendered in a trial de novo, the trial court may, in its discretion, impose sanctions . . . against the non-prevailing party whose appeal resulted in the trial de novo."

Weite contends the circuit court erred by finding that Momohara, not Weite, was the "prevailing party" for purposes of assessing CAAP sanctions and the court should have determined who the CAAP "prevailing party" was before subtracting the CLD. She claims that Momohara's improvement on the arbitration award in this case should be calculated as follows:

CAAP award $27,808.62 Judgment (after 50% apportionment of special and general damages) $19,628.32 Amount of improvement $ 8,180.30 % of improvement [reduction] 29.42%

Consequently, Weite maintains, Momohara was not the prevailing party pursuant to HAR 25(A) because he only improved upon the arbitration award by 29.42%.

In his Motion Re Sanctions/Costs/Interest, Momohara argued that he clearly improved upon the Arbitration Award by 30% or more at trial and was the "prevailing party" under HAR 25(A). First, Momohara claimed that the net CAAP award was actually $21,000, or the special and general damages award of $27,808.62 minus the CLD of $6,808.62. Momohara cited to Kim v. Reilly, 105 Hawai'i 93, 94 P.3d 648 (2004), for his assertion that the total CAAP award represented the damages award minus the CLD amount. Second, Momohara claimed, as he had in his Motion Re CLD, that Weite's recovery at trial was actually $13,090.59, or 50% of the jury's verdict of $19,628.32, reduced by the CLD of $6,537.73. Momohara cited to HRS § 431:10C-301.5 in support of his assertion that the verdict amount had to be reduced by the CLD amount. Based on Momohara's assertions in his opposition memorandum to the Motion Re Sanctions/Costs/Interest, Momohara's calculation was as follows:

CAAP award: $27,808.62 -CLD: $ 6,808.62 __________ $21,000.00 Damages (50%): $19,628.32 -CLD: $ 6,537.73 __________ $13,090.59 % improvement (reduction): 37%

In Richardson v. Sport Shinko (Waikiki Corp.), the Hawai'i Supreme Court stated the following regarding HAR 26:

[T]he legislature statutorily codified the CAAP as a means to reduce the delay and costs involved in protracted litigation by providing for a procedure to obtain prompt and equitable resolution of certain civil actions in tort through arbitration. At the same time, the supreme court was delegated the authority to adopt rules to implement the CAAP. In doing so, this court promulgated HAR 26 to enforce the objectives of the CAAP.

Indisputably, baseless or frivolous appeals from an arbitration decision subvert the purposes of the CAAP because they prevent prompt and equitable resolutions of actions and, as such, must be discouraged. The goals of the CAAP would be jeopardized without a mechanism to ensure meaningful participation in the program and to encourage participants to seriously evaluate the merits of their case following the arbitration before expending the additional time and expense of a trial de novo. In other words, the vital objectives of the CAAP cannot be met if participants invariably treat arbitration as a routine or pro forma step along the path to trial de novo by rejecting reasonable arbitration decisions or reasonable post-arbitration settlement offers, even though the decision to appeal is not technically "frivolous."

Thus, HAR sanctions may be imposed to penalize a non-prevailing party whose decision to appeal the arbitration award and pursue a trial de novo was unreasonable under the circumstances of the particular case, albeit grounded to some degree in law or fact.

76 Hawai'i at 510-11, 880 P.2d at 185-86 (internal quotation marks, citation, and foot-note omitted).

In the instant case, the arbitrator awarded Weite $7,808.62 in special damages, $20,000 in general damages, and $299.50 in costs. The Arbitration Award provides that "[t]otal damages shall be reduced by a CLD in the amount of $6,808.62." HAR 25(A) provides that the "prevailing party" at trial is "the party who appealed and improved upon the arbitration award by 30% or more." In the instant case, for purposes of determining who was the prevailing party, the recovery at trial should be compared with the CAAP award after the subtraction of the CLD, or $21,000. Kim, 105 Hawai'i at 96, 94 P.3d at 651.

In accordance with our holding in Part III.A.5 of this discussion, Weite's net damages award should have been $16,359.45. Both the CAAP award and the damages award reflect the subtraction of the CLD. "In order to meaningfully compare a plaintiffs GAAP award with the amount a plaintiff recovers at trial de novo, the respective amounts must be based on the same underlying factors. Otherwise, the trial court will have no way of determining whether an award of a different value is an improvement or a reduction." Molinar v. Schweizer, 95 Hawai'i 331, 335-36, 22 P.3d 978, 982-83 (2001).

Given our discussion on this point, the calculation for purposes of determining the prevailing party in this case is as follows:

GAAP award: $21,000.00 Damages award: $16,359.45 __________ Amount of reduction: $ 4,640.55

Consequently, because Momohara reduced the CAAP award by 22%, he was not the "prevailing party" under HAR 25. The circuit court abused its discretion in denying the Motion Re Sanctions/Costs/Interest.

7. Prejudgment interest

Weite contends the circuit court abused its discretion in not awarding her prejudgment interest. Weite maintains that "the equities in this case merit such an award" because "the record is clear that [Momohara] and AIG acted in bad faith during settlement negotiations." In support of this contention, Weite maintains that the parties' initial settlement positions were only $1,100 apart, but once she filed the lawsuit, AIG withdrew its $17,000 settlement offer and lowered its offer to $5,000. Weite also contends that "[Momohara] and AIG's litigation tactics were deplorable" in that

[t]he defense tried repeatedly to conduct discovery after the discovery cutoff, resulting in monetary sanctions, but requiring a postponement of the trial date. Further, rather than deposing the medical experts and stipulating to the authenticity and reasonableness of the medical treatment and bills, the defense forced this matter to be litigated as well which ultimately was decided in favor of [Weite].

In sum, Weite maintains that

the defense tried to get away with defending the case as cheaply as possible, even though defense costs far exceeded the amount needed to settle the case, and far exceeded the jury verdict as well. Although "bad faith" is not required in order for [Weite] to obtain prejudgment interest, such factors should persuade the Court that full prejudgment interest is appropriate here.

(Emphasis in original.) In her Motion Re Sanctions/Costs/ Interest, Weite's arguments on this point were substantially similar to her arguments on appeal.

In Kalaivaia v. AIG Hawai'i Insurance Co., 90 Hawai'i 167, 172, 977 P.2d 175, 180 (1999) (internal quotation marks and citations omitted), the Hawai'i Supreme Court stated that "[p]rejudgment interest is an element of complete compensation. Prejudgment interest serves to compensate for the loss of use of money due as damages from the time the claim accrues until judgment is entered, thereby achieving full compensation for the injury those damages are intended to redress." "[P]rejudgment interest compensates for the inevitable litigation delay in being reimbursed for damages incurred." Molinar, 95 Hawai'i at 335, 22 P.3d at 982. "The purpose of prejudgment interest is to discourage recalcitrance and unwarranted delays in cases which should be more speedily resolved." Metcalf v. Voluntary Employees' Benefit Ass'n of Hawai'i 99 Hawai'i 53, 61, 52 P.3d 823, 831 (2002) (internal quotation marks, citation, and brackets omitted).

"A trial court's denial of prejudgment interest is usually affirmed if the party requesting the award is found to have caused the delay or if there is no showing that the non-moving party's conduct unduly delayed the proceedings of the case." Page v. Domino's Pizza, Inc., 80 Hawai'i 204, 209, 908 P.2d 552, 557 (App. 1995) (internal quotation marks and citations omitted).

[I]t is clearly within the discretion of the circuit court to deny prejudgment interest where appropriate, for example, where: (1) the defendant's conduct did not cause any delay in the proceedings; (2) the plaintiff himself has caused or contributed to the delay in bringing the action to trial; or (3) an extraordinary damage award has already adequately compensated the plaintiff.

Roxas v. Marcos, 89 Hawai'i 91, 153, 969 P.2d 1209, 1271 (1998) (citations omitted). In Tri-S Corp. v. Western World Insurance Co., 110 Hawai'i 473, 498, 135 P.3d 82, 107 (2006), the Hawai'i Supreme Court held that

(1) if fault is found on the part of the party seeking interest, denial of interest will not be considered an abuse of discretion; (2) if fault is found on the part of the party opposing interest, an award of interest will not be considered an abuse of discretion; and (3) where no fault is found on either side, the trial court may still award or deny prejudgment interest in its discretion, depending on the circumstances of the case.

Although Weite argues that "the record is clear that [Momohara] and AIG acted in bad faith during settlement negotiations," in support of this contention, Weite cites only to the actions of AIG, not Momohara, during her settlement negotiations with AIG. Weite presents no evidence on appeal that Momohara acted in bad faith during those negotiations. In the "Background" section of her opening brief, Weite does describe Momohara's offers of settlement to her. She states that Momohara offered her $5,000 in general damages, net of the CLD, then proffered a Rule 68 Offer of Settlement in the amount of $10,000 in general damages and net of the CLD. Given Weite's recovery in this case, which should have been $16,359.45 net of the CLD, Momohara's offers were not per se indicative of any disingenuousness on his part.

Weite further argues that she was entitled to prejudgment interest because Momohara declined to depose Drs. Nierenberg and Lind or stipulate to the authenticity and reasonableness of Weite's medical treatment and expenses. As we have already discussed, Momohara was not required to depose the doctors to rebut their deposition testimony that Weite's injuries after the 2000 accident were entirely attributable to that accident. Further, Momohara validly argued in his memorandum in opposition to the MPSJ Re Medical Bills that there was a genuine issue of material fact regarding the reasonableness and necessity of Weite's medical expenses because the evidence showed Weite's injuries could have resulted from one or more of her prior accidents. Given that theory, it was not unreasonable for Momohara to decline to stipulate that Weite's medical treatments following that accident were necessary or reasonable.

Weite also contends "[Momohara] and AIG's litigation tactics were deplorable" because the "defense tried repeatedly to conduct discovery after the discovery cutoff, resulting in monetary sanctions, but requiring a postponement of the trial date." On October 17, 2007, Weite filed her Motion to Strike Oda/Preclude Video. On November 7, 2007, the circuit court filed its order in which the court sanctioned Momohara for the discovery violations, but declined to strike Oda as a witness or preclude the video from trial. The circuit court continued the trial from November 19, 2007 to February 19, 2008 "to allow the parties to conclude discovery." On November 14, 2007, Weite moved to continue the trial to May 5, 2008 because Dr. Nierenberg was going to be off-island from mid-January to mid-March 2008 and unavailable to testify at trial. On November 30, 2007, the circuit court filed an order granting the motion. Given that Momohara's discovery violations only resulted in a roughly three-month delay and Weite does not argue Momohara knew the delay would result in Weite having to request another continuance so Dr. Nierenberg could testify at trial, we fail to see why the circuit court should have awarded Weite prejudgment interest on this basis.

In Page, Page was sitting on a stool at a Domino's Pizza store (Domino's), when the stool collapsed. 80 Hawai'i at 205-06, 908 P.2d at 553-54. Page filed a complaint against Domino's, alleging that the incident resulted from the negligence of Domino's and Page had suffered injuries as a result of such negligence. Id. at 206, 908 P.2d at 554. A jury found Domino's was negligent and awarded damages to Page. Id. The award was entered over three-and-a-half years after Page had been injured. Id. at 210, 908 P.2d at 558. Page moved the circuit court for an award of prejudgment interest, which motion the court denied. Id. at 206, 908 P.2d at 554. The circuit court stated that Page was not entitled to t he award "because the period of time it took to complete the case was not extraordinary considering `the totality of the case.'" Id. at 209, 908 P.2d at 557 (footnote omitted).

In a cross-appeal to this court, Page argued that the circuit court erred in denying his motion for prejudgment interest. Id. at 206, 908 P.2d at 554. Page maintained, among other things, that he was "entitled to prejudgment interest because [Domino's] delayed the speedy resolution of the case by not offering more than $25,000 during the numerous settlement conferences held during the litigation." Id. at 209, 908 P.2d at 557. This court disagreed, holding that the circuit court had not abused its discretion in denying the motion for prejudgment interest on the basis that Domino's "offer of $25,000 was not unreasonable in light of its belief regarding disputed issues on liability and apportionment of damages." Id. at 210, 908 P.2d at 558. This court further stated: "There is no evidence in the records to indicate that any delays in the proceedings were due to the conduct of either Page or [Domino's]. The continuances of the trial date were not due to the conduct of either." Id.

In the instant case, the accident occurred on February 8, 2000. Weite filed the original complaint on August 25, 2005 and the First Amended Complaint on February 3, 2006, after negotiations with AIG allegedly stalled. Trial was set for the week of November 19, 2007. On October 17, 2007, Weite filed her Motion to Strike Oda/Preclude Video. On November 7, 2007, the circuit court filed an order, in which the court sanctioned Momohara for the discovery violations, but declined to strike Oda as a witness or preclude the video from trial. The circuit court continued the trial to February 19, 2008 "to allow the parties to conclude discovery." On November 14, 2007, Weite moved to continue trial to May 5, 2008 because Dr. Nierenberg was unavailable to testify the week of February 19, 2008. On May 15, 2008, the jury issued its verdict, awarding Weite damages.

There is no evidence in the record on appeal to suggest that Momohara's conduct unduly delayed the proceedings of the case so as to justify an award of prejudgment interest to Weite. Page, 80 Hawai'i at 209, 908 P.2d at 557. The circuit court did not abuse its discretion by denying Weite's motion for prejudgment interest.

8. Taxable costs

Weite contends the circuit court abused its discretion in denying her Motion Re Taxable Costs. Given our holding that Momohara was not the prevailing party at trial, we vacate the award of costs to Momohara as the prevailing party.

B. CROSS-APPEAL

1. MIL Re Medical Claims

Momohara contends the circuit court erred in denying his MIL Re Medical Claims. He argues that the circuit court should have limited Weite's claimed medical expenses in amount and frequency to those permitted under the workers' compensation fee schedule, pursuant to HRS § 431:10C-308.5(b), and prohibited Weite from introducing evidence of medical expenses in excess of that amount. HRS § 431:10C-308.5(b) provides in relevant part that "[t]he charges and frequency of treatment for services specified in section 431:10C-103.5(a) [(Supp. 1999)] except for emergency services provided within seventy-two hours following a motor vehicle accident resulting in injury, shall not exceed the charges and frequency of treatment permissible under the workers' compensation schedules."

HRS§ 431:10C-103.5 provides:

§ 431:10C-103.5 Personal injury protection benefits; defined; limits, (a) Personal injury protection benefits, with respect to any accidental harm, means 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, including medical, hospital, surgical, professional, nursing, advanced practice nursing recognized pursuant to chapter 457, dental, optometric, chiropractic, ambulance, prosthetic services, 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.

. . . .

(c) Personal injury protection benefits shall be subject to an aggregate limit of $10,000 per person for services provided under this section. An insurer may offer additional coverage in excess of the $10,000 aggregate limit lor services provided under this section, or as provided by rule of the commissioner.

HRS § 43 1:10C-308.5(a) states that "the term `workers' compensation schedules' means the schedules adopted and as may be amended by the director of labor and industrial relations for workers' compensation cases under chapter 386, establishing fees and frequency of treatment guidelines[.]"

Momohara argues that HRS § 431:10C-308.5 limits Weite to a medical expenses claim that does not exceed the charges and frequency of treatment allowable under the workers' compensation schedules, which claim in this case was the amount her PIP carrier had paid. He presumes that Weite's PIP carrier determined the amount in PIP benefits to pay out based on the workers' compensation schedules, pursuant to HRS § 431:10C-308.5.

As Weite argues in her answering brief, Momohara did not make these arguments in his MIL Re Medical Claims. There, Momohara argued that Weite should be precluded from requesting an award for medical expenses because in response to an interrogatory, Weite stated only that she had incurred $7,808.62 in medical expenses stemming from the 2000 accident — the $1,000 deductible she paid and the $6,808.62 paid by her PIP provider. He further argued that because Weite had not supplemented her response, she should be held to that amount. He added that Weite had neither exhausted the amount of medical insurance benefits available to her, nor indicated that she had incurred any expenses in excess of $7,808.62. Regardless, we review the contention for plain error.

Momohara's argument is based on a misreading of HRS § 431:10C-308.5. That statute clearly provides in relevant part that "[t]he charges and frequency of treatment for services specified in section 431:10C-103.5(a) . . . shall not exceed the charges and frequency of treatment permissible under the workers' compensation schedules." HRS § 431:10C-103.5 defines and limits PIP benefits. Hence, HRS § 431:10C-308.5 limits the payment of PIP benefits to payments permitted under the workers' compensation schedules. The statute does not preclude a plaintiff injured in an automobile accident from receiving special damages beyond what she received in PIP benefits.

The circuit court did not plainly err by failing to limit Weite's recovery for medical expenses to what she had already received in PIP benefits.

2. Dr. Nierenberg's testimony re medical expenses

Momohara contends that the circuit court erred in permitting Dr. Nierenberg to testify regarding the amounts, reasonableness, and necessity of Weite's medical expenses incurred at QMC, RA, and ORS, over Momohara's objection. Momohara argues that

[t]here was no evidentiary foundation for Dr. Nierenberg's testimony. In particular, there was no testimony or evidence presented that Dr. Nierenberg was in any way involved in the billing for any other medical care providers. There was also no testimony or evidence that he had any personal knowledge of the reasonable and customary billing practices or charges for diagnostic studies (i.e. the MRI scans) or physical therapy.

To support this argument, Momohara cites to HRE Rules 602 and 801.

At trial, the following discussion took place outside the presence of the jury:

THE COURT: As far as reasonableness of [medical] bills and that sort of thing, let's take that first, [Momohara's counsel], do you have a position.

[MOMOHARA'S COUNSEL]: Your Honor, [Dr. Nierenberg] can testify as to the reasonableness of the bills as his role as treatment.

THE COURT: Treatment.

[MOMOHARA'S COUNSEL]: Treating physician. I don't have a problem with that.

THE COURT: All right. That's going to be allowed. I don't hear an objection to that.

Go on, [Weite's Counsel], what do you want?

[WEITE'S COUNSEL]: It's not just his but also he referred her going to be talking about treatment, physical therapy, whether that was reasonableness, about their bills, the same thing with respect to MRI's. This is what he does.

THE COURT: [Momohara's Counsel], you object to any of that.

[MOMOHARA'S COUNSEL]: Your Honor, if he lays the proper foundation, but, the foundation treating he made a referral. And, if the physical therapist reported back to him, part of his files, he can testify to that. As far as what they charge, I'm not sure how he knows that but if he does it customarily, they can lay a foundation for it. Nothing to do with his —

THE COURT: Well, what I hear [Weite's Counsel] saving is that part of the foundation for his testifying another physician's treatment including physical therapy as an independent medical examiner he's very use to reviewing that sort of thing, etc.

So, if that's the objection, I heard [Weite's Counsel] qualify the objection, I will allow that over objection. Lay the foundation. Given that, that will be allowed.

Dr. Nierenberg testified that Weite's medical charges resulting from the 2000 accident of $1,286.96 from Dr. Nierenberg for four-teen visits to his office, $1,896 from QMC for two MRIs, $441 from RA for reading and interpreting the MRIs, and $3,457.47 from ORS for thirty-seven physical therapy sessions were all reasonable and necessary. Dr. Nierenberg testified that each charge was within the range commonly charged by other providers in Hawai'i at the time he treated Weite for her injuries from the 2000 accident.

On appeal, Momohara contends he objected to the testimony, citing to an earlier objection he had made to "the scope of Dr. Nierenberg's testimony." However, in his earlier objection, Momohara objected to Dr. Nierenberg's proffered testimony regarding apportionment of damages, not testimony regarding the necessity or reasonableness of Weite's medical expenses. We review this point for plain error.

HRE Rule 602 provides:

Rule 602 Lack of personal knowledge. A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witnesses] own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.

HRE Rule 703 provides:

Rule 703 Bases of opinion testimony by experts. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. The court may, however, disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthiness.

Weite called Dr. Nierenberg to testify at trial as an expert witness. Therefore, HRE Rule 703 applies. Pursuant to that rule, Dr. Nierenberg did not have to have personal knowledge of the customary billing practices of any and all medical providers to testify that Weite's medical expenses were necessary and reasonable. It sufficed that his testimony was based on his experience as a treating physician and IME doctor and his knowledge of the industry practice.

Momohara characterizes Dr. Nierenberg's testimony as hearsay, under the definition set forth in HRE Rule 801 (" `Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."). However, Dr. Nierenberg did not testify that the charges set forth in the medical bills were accurate; rather, he testified that they met the industry standard at the time he treated Weite for injuries stemming from the 2000 accident. The testimony did not constitute hearsay.

Given the foregoing, the circuit court did not plainly err by allowing Dr. Nierenberg to testify regarding the necessity and reasonableness of Weite's medical expenses.

IV.

The portion of the Judgment, filed on June 18, 2008 in the Circuit Court of the First Circuit, setting forth the calculation and resulting amount of Weite's damages and costs is vacated, and this case is remanded to the circuit court for proceedings consistent with this opinion. The remainder of the Judgment is affirmed.