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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-XX-XXXXXXX
                                                              13-MAR-2020
                                                              09:30 AM



           IN THE SUPREME COURT OF THE STATE OF HAWAII

                            ---o0o---
________________________________________________________________

           GARY MOBLEY, Respondent/Plaintiff-Appellant,

                                    vs.

LYANNE KIMURA, Respondent/Defendant/Cross-Claim Defendant/Cross-
     Claimant/Third-Party Plaintiff/Counterclaim Defendant-
     Appellee, LESLIE S. CHING, Respondent/Defendant/Cross-
            Claimant/Cross-Claim Defendant-Appellee,

                                    and

          DENNIS K. ESPANIOLA, Petitioner/Third-Party
           Defendant/Counterclaimant/Cross-Claimant/
                Cross-Claim Defendant-Appellee.
________________________________________________________________

                             SCWC-XX-XXXXXXX

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-XX-XXXXXXX; CIVIL NO. 1CC091002674)

                             MARCH 13, 2020

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                 OPINION OF THE COURT BY McKENNA, J.

                           I.    Introduction

      This case arises from a personal injury lawsuit filed by

Gary Alan Mobley (“Mobley”) against the drivers of two vehicles
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in two separate accidents, from which Mobley alleges injuries.

The accidents occurred on June 8, 2005, and January 12, 2008.

Mobley filed a complaint in the Circuit Court of the First

Circuit (“circuit court”) against Leslie S. Ching (“Ching”) for

the 2005 accident and Lyanne Kimura (“Kimura”) for the 2008

accident.   Kimura then impleaded Dennis K. Espaniola

(“Espaniola”) as a third-party defendant because of his

involvement in the 2008 accident.

      Hawaiʻi Revised Statutes (“HRS”) § 431:10C-306(a) (2005)

abolishes tort liability with respect to accidental harm arising

from motor vehicle accidents occurring in this State unless an

exception under subsection (b) applies.         Mobley’s complaint

alleged he was able to assert tort liability for the 2005 and

2008 accidents under either or both of two exceptions: (1)

HRS § 431:10C-306(b)(4), which provides an exception to the

abolition of tort liability if a person has incurred at least

$5,000 in personal injury protection (“PIP”) benefits (sometimes

“tort threshold” or “tort threshold exception”); and/or (2)

HRS § 431:10C-306(b)(2), which provides an exception for an

injury that consists, in whole or in part, “in a significant

permanent loss of use of a part or function of the body”

(sometimes “significant permanent loss of use exception”).

      The circuit court granted summary judgment in favor of

Kimura and Espaniola with respect to the 2008 accident, ruling

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Mobley failed to satisfy either exception.          Before granting the

defense motions, the circuit court also ruled Mobley failed to

lay sufficient foundation for the admission and consideration of

a doctor’s report and letter attached to his opposition

memorandum, then denied Mobley’s oral request for a Hawaiʻi Rules

of Civil Procedure (“HRCP”) Rule 56(f) continuance to obtain

admissible evidence of the contents of the doctor’s documents.

      In its August 15, 2019 memorandum opinion, the Intermediate

Court of Appeals (“ICA”) ruled, inter alia, that the circuit

court erred in granting summary judgment in favor of Kimura and

Espaniola for the 2008 accident.         We accepted Espaniola’s

application for a writ of certiorari, which presents two

questions, summarized as follows:

           1.    Did the ICA err in ruling the circuit court erred in
           granting Espaniola’s motion for partial summary judgment
           based on Mobley’s failure to satisfy the tort threshold?

           2.    Did the ICA err in ruling that the circuit court’s
           grant of Espaniola’s motion for partial summary judgment
           was premature because evidence had not established that, by
           the time of trial, Mobley would not be able to demonstrate
           satisfaction of the tort threshold or prove that his injury
           constitutes, in whole or in part, a significant permanent
           loss of use of a part or function of the body?

      Espaniola’s questions on certiorari relate to the ICA’s

application of the following portion of Ralston v. Yim, 129

Hawaiʻi 46, 292 P.3d 1276 (2013):




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                 In sum, this court's case law indicates that a
           summary judgment movant may satisfy [their][1] initial burden
           of production by either (1) presenting evidence negating an
           element of the non-movant's claim, or (2) demonstrating
           that the nonmovant will be unable to carry [their] burden
           of proof at trial. Where the movant attempts to meet
           [their] burden through the latter means, [they] must show
           not only that the non-movant has not placed proof in the
           record, but also that the movant will be unable to offer
           proof at trial. Accordingly, in general, a summary
           judgment movant cannot merely point to the non-moving
           party's lack of evidence to support [their] initial burden
           of production if discovery has not concluded. (“[M]erely
           asserting that the non-moving party has not come forward
           with evidence to support its claims is not enough.”).

129 Hawaiʻi at 60-61, 292 P.3d at 1290-91 (last alteration in

original) (citations omitted).

      For clarity, we address the ICA’s rulings on the tort

threshold and significant permanent loss of use exceptions

separately, rather than through the questions presented by

Espaniola.

      With respect to Mobley’s alleged failure to satisfy the

tort threshold exception, Espaniola’s motion was based on the

first Ralston prong, as Kimura and Espaniola allegedly

“present[ed] evidence negating an element of [Mobley’s] claim”

by submitting a declaration stating that no PIP benefits had

been paid for the 2008 accident.          Yet, the ICA ruled Espaniola

was not entitled to summary judgment because of a failure to

show that Mobley would be unable to offer proof at trial that he

met the tort threshold.       As indicated in the passage from

1
      In this opinion, “they, them, and their” are used where (1) those are
the pronouns used by a specific person; or (2) the gender identity of a
person referred to is unknown, unspecified, or immaterial.


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Ralston above, however, the “unable to offer proof at trial”

factor applies only when a movant seeks summary judgment based

on the second Ralston prong, by “demonstrating that the

nonmovant will be unable to carry [their] burden of proof at

trial.”   According to Hawaiʻi law, when a plaintiff asserts

applicability of the tort threshold exception, satisfaction of

the exception is jurisdictional to the filing of a lawsuit.

Therefore, the ICA erred to the extent it ruled Espaniola could

not obtain summary judgment on the tort threshold exception

unless he could show Mobley could not demonstrate he could meet

the tort threshold at the time of trial.

      We also hold, however, that the ICA did not err in vacating

the circuit court’s grant of summary judgment as to the 2008

accident based on the tort threshold exception.           This is because

Espaniola failed to meet his initial burden under the first

Ralston prong of “negating an element of [Mobley’s] claim.”              The

tort threshold exception of HRS § 431:10C-306(b)(4) requires

that a plaintiff have “incurred” PIP benefits of $5,000, and

reviewing the record de novo, Mobley’s amended answers to

interrogatories, attached to Kimura’s motion for summary

judgment,2 raised a genuine issue of material fact on the

applicability of the exception.

2
      HRCP Rule 56(e) (2000) provides in relevant part that “[s]upporting and
opposing affidavits shall be made on personal knowledge, shall set forth such
                                                              (continued. . .)

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      The ICA also did not err with respect to its application of

Ralston with respect to the significant permanent loss of use

exception.    Espaniola presented no evidence to negate this

exception to the abolition of tort liability.           Espaniola’s

motion for partial summary judgment was, therefore, based on the

second Ralston prong.      The ICA properly concluded Espaniola did

not meet his burden of establishing that Mobley would be unable

to offer proof of this exception at trial; based on the record,

whether Mobley could meet the exception was not “so clear that

reasonable minds could only come to one conclusion.”

      We therefore affirm the ICA’s August 29, 2019 judgment on

appeal, which vacated the circuit court’s March 6, 2013 judgment

and remanded the case for reinstatement of Mobley’s claims

related to both the 20053 and 2008 accidents, but as modified by

the analysis in this opinion.




(. . .continued)
facts as would be admissible in evidence, and shall show affirmatively that
the affiant is competent to testify to the matters stated therein[,]” and
HRCP Rule 56(c) provides in relevant part that “[t]he judgment sought shall
be rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
3
      See infra notes 4, 15, and 18.


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                              II.   Background

A.    HRS § 431:10C-306

      HRS § 431:10C-306,4 entitled “Abolition of tort liability,”

will be continually referenced.         It states in relevant part as

follows:

            (a) Except as provided in subsection (b), this article
            abolishes tort liability of the following persons with
            respect to accidental harm arising from motor vehicle
            accidents occurring in this State:

                  (1) Owner, operator, or user of an insured motor
            vehicle; or

                  (2) Operator or user of an uninsured motor vehicle
            who operates or uses such vehicle without reason to believe
            it to be an uninsured motor vehicle.

            (b) Tort liability is not abolished as to the following
            persons, their personal representatives, or their legal
            guardians in the following circumstances:

                  (1) Death occurs to the person in such a motor
            vehicle accident;

                  (2) Injury occurs to the person which consists, in
            whole or in part, in a significant permanent loss of use of
            a part or function of the body;

                  (3) Injury occurs to the person which consists of a
            permanent and serious disfigurement which results in
            subjection of the injured person to mental or emotional
            suffering; or

                  (4) Injury occurs to the person in a motor vehicle accident
            and as a result of such injury that the personal injury
            protection benefits incurred by such person equal or exceed
            $5,000;[5] provided that in calculating this amount:

4
      HRS § 431:10C-306 has not been amended since 2001.
5
      At all times relevant to this case, HRS § 431:10C-103.5(a) (2005)
defined “personal injury protection benefits” as follows:

            (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,
                                                               (continued. . .)

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                        (A) The following shall be included:

                           (i) Personal injury protection 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 because of the accidental harm or similar
                     benefits under social security, worker's
                     compensation, or public assistance laws;

                           (ii) The applicable amounts of deductible or
                     copayment paid or incurred;

                           (iii) Amounts paid by or on behalf of an
                     injured person who is not entitled to personal
                     injury protection benefits, by health insurance or
                     other funds; provided that payment in excess of
                     the charges or services allowable under this
                     chapter shall not be included;

                           (iv) Where an eligible injured person
                     receives coverage on other than a fee for service
                     basis including, but not limited to, a health
                     maintenance organization operating on a capitation
                     basis, the value of services provided shall be
                     determined in accordance with the fee schedules
                     allowable under this chapter for purposes of
                     threshold determination;

                       (B) When a person has optional coverage,
                 benefits received in excess of the maximum basic
                 personal injury protection limits set forth
                 in section 431:10C-103.5 shall not be included.

           (c) Subsections (a) and (b) shall apply whether or not the
           injured person is entitled to receive personal injury
           protection benefits. The party against whom the
           presumption under this section is directed shall have the
           burden of proof to rebut the presumption.




(. . .continued)
            nursing, advanced practice nursing recognized pursuant to
            chapter 457, dental, optometric, naturopathy, 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.

                 . . . .


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B.    Factual background

      Mobley was born on July, 23, 1952, and served in the United

States Army.    After leaving the military, Mobley became a junior

ROTC instructor on Maui, then on Oahu.         As of the 2011 motions

at issue in this appeal, Mobley had been a junior ROTC

instructor at Punahou School since August 2000 and had been

married to his wife, Susan, for over thirty-eight years, with

whom he had two children.

      The 2005 accident occurred on June 8, 2005.          Ching rear-

ended Mobley on the H-1 freeway.         Mobley’s motor vehicle

insurance company, GEICO, classified Mobley’s truck a total

loss, and paid him $14,050.

      The 2008 accident occurred on January 12, 2008.           Mobley was

rear-ended in a chain-reaction collision on the H-1 freeway.

Espaniola was directly behind Mobley when Kimura rear-ended

Espaniola’s vehicle, pushing it into Mobley’s truck.

C.    Procedural background

      1.   Circuit court proceedings

           a.    Pleadings and pre-trial

      On November 13, 2009, Mobley filed a complaint against

Ching and Kimura, alleging their negligence caused him injuries.

Mobley alleged the 2005 accident caused pain in his neck, back,

and shoulder; numbness in his hands and leg; and headaches.             He

also claimed he was no longer able to run or march with his

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students.     He alleged the 2008 accident aggravated his injuries

from the 2005 accident.        Mobley’s complaint also asserted his

claims against Ching and Kimura were exempted from the abolition

of tort liability because he met the required “medical

threshold” and had “permanent injury and significant loss of use

of a body part and function and continues to require medical

attention.”

      Ching’s December 10, 2009 answer asserted Mobley’s

complaint was barred by HRS § 431:10C (sometimes “no-fault

law”).    Ching later admitted liability for the 2005 accident,

but disputed causation of Mobley’s injuries and the nature and

extent of Mobley’s damages.

      On March 3, 2010, Kimura answered, also alleging Mobley’s

complaint was barred by HRS § 431:10C.           Kimura also filed a

third-party complaint against Espaniola, which was not served

until September 24, 2010.        Ching, Kimura, and Espaniola then

filed claims against each other, but Mobley did not “amend over”

to assert a direct claim against Espaniola.6

      On June 13, 2011, Kimura moved to continue the original

September 12, 2011 trial date, which had been set before


6
      HRCP Rule 14(a) (2000) provides in part that “[t]he plaintiff may
assert any claim against the third-party defendant arising out of the
transaction or occurrence that is the subject matter of the plaintiff's claim
against the third-party plaintiff, and the third-party defendant thereupon
shall assert any defenses as provided in Rule 12 and any counterclaims and
cross-claims as provided in Rule 13.”


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Espaniola appeared as a party.       The circuit court extended the

trial week to April 16, 2012, and vacated all previous

deadlines.

           b.    Kimura and Espaniola’s motions for summary
                 judgment

                 i.    Kimura’s motion for summary judgment

      On September 29, 2011, Kimura moved for summary judgment,

alleging Mobley failed to satisfy the tort threshold exception

of HRS § 431:10C-306(b)(4) with respect to the 2008 accident

(“MSJ”).   Kimura cited Parker v. Nakaoka, 68 Haw. 557, 722 P.2d

1028 (1986), and Walsh v. Chan, 80 Hawaiʻi 188, 907 P.2d 774

(App. 1995), rev’d on other grounds, 80 Hawaiʻi 212, 908 P.2d

1198 (1995), discussed in Section IV.A below.          Kimura contended

there was no evidence Mobley received PIP benefits to satisfy

the tort threshold.     To her motion, Kimura attached the

complaint, the third-party complaint, Mobley’s amended answers

to interrogatories, and a declaration from Kuʻulei Aina (“Aina

Declaration”), Mobley’s GEICO no-fault claims representative for

the 2008 accident.     The Aina Declaration stated that “as of the

date of this Declaration [September 26, 2011],” no PIP benefits

had been paid on behalf of Mobley.

      Mobley’s amended answers to interrogatories, on the other

hand, contained the following response:

           The following represents the total amount of medical
           expenses incurred by Plaintiff Gary Mobley as the result of


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           the motor vehicle accident on June 8, 2005 and in the motor
           vehicle accident on January 12, 2008:

           Tripler Army Medical Center                  $3,976.12
           Hawaii Diagnostic Fluoroscopy                  $900.00
           Dr. Chai Health Center                       $3,634.80
           Dr. Simon Kim, MD                              $216.02
           Kaimuki Chiroptactic [sic] Center            $2,260.00
           First Physical & Functional Rehab            $2,490.72
           TOTAL:                                      $13,477.66

(Formatting altered.)      Kimura argued that under Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986), HRCP Rule 56(c) (2000)

mandated entry of summary judgment, after an adequate time for

discovery, against a party who fails to make a showing

sufficient to establish the existence of an element essential to

that party’s case, and on which that party will bear the burden

of proof at trial.7     As such, Kimura asserted Mobley could not

prove he met the tort threshold or significant permanent loss of

use exceptions to the abolition of tort liability, making

summary judgment proper.

      Kimura did not present any evidence regarding the

significant permanent loss of use exception.

                 ii.    Espaniola’s motion for partial summary
                        judgment

      On September 30, 2011, Espaniola moved for partial summary

judgment also based on Mobley’s alleged failure to satisfy the

tort threshold exception under HRS § 431:10C-306(b)(4) (“MPSJ”).

Espaniola also joined Kimura’s MSJ.         In addition to asserting

7
      We rejected this ruling of Celotex in Ralston.    129 Hawaiʻi at 62, 292
P.3d at 1292.


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arguments similar to Kimura, Espaniola cited to Ho v. Leftwich,

88 Hawaiʻi 251, 965 P.2d 793 (1998), also discussed in Section

IV.A below.

      Like Kimura, Espaniola did not submit any evidence

regarding the significant permanent loss of use exception.

                 iii. Mobley’s consolidated opposition memorandum

      Mobley filed a consolidated memorandum opposing Kimura’s

MSJ and Espaniola’s MPSJ.8       He contended he met the significant

permanent loss of use exception of HRS § 431:10C-306(b)(2),

alleging there was a genuine issue of material fact created by

his inability to run or march with his students at work.                In

support, Mobley attached an independent medical evaluation

(“IME”) report and letter written by Dr. Peter Diamond (“Dr.

Diamond”) (collectively, “Dr. Diamond’s documents”).            Dr.

Diamond’s documents were attached to a declaration in which

Mobley’s counsel attested as to their authenticity.

Substantively, Dr. Diamond’s letter stated, “[a]s regards Mr.

Mobley’s inability to run or march with the students, this would

represent a significant, and likely permanent functional loss.”

Dr. Diamond’s IME report also provided a chronology of Mobley’s

treatment by the providers listed in his amended answers to

interrogatories.     In both the letter and the IME report, Dr.

8
      Ching filed statements of no position as to both Kimura’s and
Espaniola’s motions.


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Diamond indicated his opinions were expressed to a reasonable

degree of medical probability.       Dr. Diamond also apportioned

Mobley’s injuries as 50% secondary to the 2005 accident and 50%

to the 2008 accident.

      Then, in a supplemental memorandum, Mobley asserted he also

satisfied the tort threshold exception of

HRS § 431:10C-306(b)(4).      He stated he had filed a PIP claim

with GEICO to pay for medical treatments for the 2008 accident,

but that GEICO had denied all payments and that an arbitration

decision was pending.     He stated his medical service providers

had billed GEICO for treatment provided in the 2008 accident.

He also contended that

           [i]f the arbitrator orders GEICO to make payments, then
           several thousands of dollars in PIP payments will be made
           in Mr. Mobley’s second accident PIP file. Ms. Aina’s
           declaration . . . may mislead the Court as it gives the
           appearance that not only were no bills paid but also that
           no treatment services were provided to Mr. Mobley under the
           second accident PIP file. The Court should be aware that
           Mr. Mobley did in fact treat his injuries from the second
           accident and those bills were submitted to GEICO PIP claims
           for payment.

(Footnote omitted.)     In support, he attached a letter dated

October 17, 2011, from a GEICO staff attorney, which confirmed

that an arbitration hearing had taken place on June 3, 2011,

regarding Mobley’s PIP payments from the 2008 accident but that

the arbitration decision was still pending.




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                  iv.   Kimura and Espaniola’s replies

       In her reply, Kimura argued Mobley had not presented

evidence to establish he had “incurred” PIP benefits of $5,000

or that GEICO had paid any PIP benefits.

       Kimura also argued Parker, discussed in Section IV.A below,

permits a court to rule on the significant permanent loss of use

exception before trial, and that “pain” that precludes running

or marching does not qualify under that exception.9            Kimura also

attached Mobley’s May 3, 2011 deposition to her reply.             In the

deposition, Mobley testified at length regarding injuries from

the 2008 accident, including neck and back pain, headaches, and

numbness; that he was not running at all; that driving became

harder because it hurt to bend his neck and head; and that it

had become difficult to sit or perform physical activities with

his students.     Kimura argued Mobley had been unable to specify

whether he stopped running and marching before or after the 2008

accident.    Kimura argued that if Mobley’s pain while running or

marching qualified as a significant permanent loss of use,

however, “practically any injury” would fall into that

exception, which would defeat the purpose of Hawaiʻi’s no-fault

law.


9
      Kimura also cited Licari v. Elliot, 441 N.E.2d 1088 (N.Y. 1982), a case
Parker cited in its holding that trial judges are not precluded from
determining whether a plaintiff met the threshold requirement, which is also
discussed in Section IV.A below.


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      Kimura did not contest the admissibility of Dr. Diamond’s

documents attached to Mobley’s consolidated opposition

memorandum.

      In his October 21, 2011 reply, Espaniola argued Dr.

Diamond’s documents were not admissible in evidence, as Mobley’s

counsel was not competent to lay a foundation as to Dr.

Diamond’s documents.      Further, he argued that even if Dr.

Diamond’s documents were admissible, Mobley’s injuries did not

constitute the kind of “significant permanent loss of use of a

part or function of the body” the Hawaiʻi legislature sought to

exempt from tort liability.

      As to the tort threshold exception, Espaniola argued no PIP

benefits had been paid on behalf of Mobley for the 2008

accident.    Espaniola argued Mobley stated “several thousands of

dollars in PIP payments will be made,” but failed to meet the

specific requirement of a minimum of $5,000.            Espaniola argued

Mobley “clearly [knew] exactly how much he is alleging is due

pursuant to the alleged injuries arising out of [the 2008

accident], but fails to state what that amount is.”

                  v.    Circuit court’s oral ruling

      On October 26, 2011, the circuit court10 held a hearing on

Kimura’s MSJ and Espaniola’s MPSJ.            When the circuit court asked


10
      The Honorable Rom A. Trader presided.


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Mobley’s counsel whether he was maintaining that Mobley

qualified under the tort threshold exception, Mobley’s counsel

stated he was “conced[ing] that point.”11

      The circuit court questioned the admissibility of Dr.

Diamond’s documents.      The circuit court ruled that Dr. Diamond’s

documents were inadmissible through Mobley’s counsel’s

declaration, citing to Pacific Concrete Federal Credit Union v.

Kauanoe, 62 Haw. 334, 614 P.2d 936 (1980) (holding that facts

set forth in summary judgment motion affidavits must be

admissible in evidence), and Nakato v. Macharg, 89 Hawaiʻi 79,

969 P.2d 824 (App. 1998) (holding that exhibits attached to a

summary judgment motion must be authenticated by and attached to

an affidavit of a person through whom the exhibits could be

admitted into evidence).




11
      Mobley brought to the circuit court’s attention this court’s October 4,
2011 opinion in Ahn v. Liberty Mutual Fire Ins. Co., 126 Hawaiʻi 1, 265 P.3d
470 (2011), which held that insureds are real parties in interest in actions
against insurers for PIP benefits, overruling a prior decision holding
otherwise except for an insurer’s non-payment of PIP benefits required to
meet the tort threshold, for which the insured qualified as a real party in
interest.

      Mobley raised Ahn to argue insurance companies were denying PIP
benefits to their insureds, and that he was pursuing arbitration against
GEICO for payment of PIP benefits for the 2008 accident, (see 1SP101000121 in
the circuit court, in which on April 15, 2010, another circuit court judge
granted Mobley’s petition for appointment of an arbitrator and appointed
Donald Fisher as arbitrator), stating that a favorable outcome would result
in a “minimum of [$]3,500” in PIP benefits payable for the 2008 accident.
However, Mobley’s counsel then again orally conceded a failure to meet the
tort threshold exception for the 2008 accident.



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      Mobley’s counsel orally requested a HRCP Rule 56(f)

continuance to have Dr. Diamond testify as to the opinions in

his documents.     The circuit court ruled, however, that Mobley

did not meet the HRCP Rule 56(f) requirement that a party show

why the evidence could not be presented by the time of the

hearing.    The circuit court orally granted Kimura’s MSJ and

Espaniola’s MPSJ.

                  vi.   Motion for reconsideration, etc.

      On January 18, 2012, Mobley filed a motion for

reconsideration of the circuit court’s October 26, 2011 oral

orders, now attaching an affidavit from Dr. Diamond opining that

due to Mobley’s injuries and inability to march or run with his

students, it appeared to a reasonable degree of medical

probability that Mobley had suffered “a significant, and likely

permanent functional loss” because of the injuries sustained in

the 2008 accident.      Mobley asserted the circuit court had

applied erroneous summary judgment and evidentiary standards.

In the alternative, Mobley requested a HRCP Rule 54(b)

certification to allow an interlocutory appeal.            Instead, the

circuit court12 filed orders granting Kimura’s MSJ and denying

Mobley’s HRCP Rule 56(f) request on February 6, 2012, denying




12
      The Honorable Karen A. Nakasone presided, the case having been
reassigned to her effective November 2, 2011.


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Mobley’s motion for reconsideration on February 14, 2012, and

granting Espaniola’s MPSJ On February 17, 2012.

      After Mobley’s October 2012 jury trial for his claims

against Ching,13 on March 6, 2013, the circuit court entered its

judgment, and Mobley timely appealed to the ICA.14

      2.    ICA proceedings15

      On appeal, Mobley contended the circuit court erred when it

granted Kimura’s MSJ and Espaniola’s MPSJ.

      On August 15, 2019, the ICA filed its memorandum opinion.

Mobley v. Ching, No. CAAP-XX-XXXXXXX (App. Aug. 15, 2019)

(mem.).    In relevant part, the ICA concluded the circuit court




13
      The April 2012 trial week was further continued to October 16, 2012,
when Mobley proceeded to a jury trial on his claims against Ching, the
remaining defendant. Various fact and medical experts testified. At the
conclusion of Mobley’s case, Ching moved to strike the testimonies of
Mobley’s medical experts on the grounds their testimonies had not been
rendered to a reasonable degree of medical probability. On October 19, 2012,
the circuit court orally granted this motion. Ching then immediately orally
moved for a HRCP Rule 50 judgment as a matter of law (“JMOL”). Based on its
striking of the medical experts’ testimonies, the circuit court ruled there
was no evidence regarding causation and insufficient foundation for Exhibit
47 regarding PIP payments that had previously been admitted in evidence,
which alternatively meant that the tort threshold had not been met against
Ching, which meant jurisdiction was lacking, and granted the motion for JMOL.
On January 29, 2013, Mobley moved for a new trial, directed verdict on
causation and/or reconsideration. On April 23, 2013, the circuit court
orally denied Mobley’s motion.
14
      In addition to the issues we currently address on certiorari, Mobley
also appealed the circuit court’s trial rulings and grant of JMOL in favor of
Ching to the ICA. See Ching, mem. op. at 1-2, n.1. Generally, Mobley also
argued error in the circuit court’s rulings regarding the requirement of
“reasonable medical probability” testimony and the grant of the motion for
JMOL. See id.
15
      Only issues relevant to this certiorari proceeding are discussed.   See
supra notes 11 and 14.


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erred in granting Kimura’s MSJ and Espaniola’s MPSJ regarding

the 2008 accident.     Ching, mem. op. at 8.

      In reaching its conclusion, the ICA relied on this court’s

burden shifting paradigm in Ralston.        Ching, mem. op. at 9.         The

ICA observed that in cases in which the non-moving party bears

the burden of proof at trial, Ralston set forth a burden

shifting paradigm in which the moving party may fulfill the

initial burden on summary judgment of demonstrating there is no

genuine issue of material fact by either

           “(1) presenting evidence negating an element of the non-
           movant’s claim, or (2) demonstrating that the non-movant
           will be unable to carry [their] burden of proof at trial.”
           Ralston v. Yim, 129 Hawaiʻi 46, 56-57, 60, 292 P.3d 1276,
           1286-87, 1290 (2013) (quoting and citing French v. Hawaiʻi
           Pizza Hut, Inc., 105 Hawaiʻi 462, 470, 472, 99 P.3d 1046,
           1054, 1056 (2004)). In regards to the latter method, the
           movant “must show not only that the non-movant has not
           placed proof in the record, but also that the movant will
           be unable to offer proof at trial.” Id. at 60-61, 292 P.3d
           at 1290-91 (emphasis omitted) (citing French, 105 Hawaiʻi at
           472, 99 P.3d at 1056). This consideration is contingent
           upon whether discovery has concluded or not. See id. at
           61, 292 P.3d at 1291 (“[I]n general, a summary judgment
           movant cannot merely point to the non-moving party’s lack
           of evidence to support its initial burden of production if
           discovery has not concluded.” (emphasis added) (citing
           French, 105 Hawaiʻi at 472, 99 P.3d at 1056)).

Id. (second alteration in original).        The ICA noted discovery

had not yet closed when the circuit court held its October 26,

2011 hearing on Kimura’s MSJ and Espaniola’s MPSJ.           Ching, mem.

op. at 11 n.7.    Citing Rules of the Circuit Court of the State




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of Hawaiʻi (“RCCH”) Rule 12(r) (2007),16 the ICA stated discovery

would not have been cut off until February 16, 2012.            Id.

      As to the tort threshold exception of

HRS § 431:10C-306(b)(4), the ICA concluded the circuit court

erred in granting Espaniola’s MPSJ as it was “premature” because

“evidence had not established that Mobley could not demonstrate

satisfaction of [HRS § 431:10C-306(b)(4)] at the time of trial.”

Ching, mem. op. at 8.      Noting that although the circuit court’s

“only explanation” in concluding Mobley did not meet the tort

threshold exception of HRS § 431:10C-306(b)(4) was that Mobley

conceded he did not meet the threshold, the ICA also noted that,

in moving for summary judgment, the only support Kimura and

Espaniola offered was the Aina Declaration, which stated no PIP

benefits had been paid to Mobley for the 2008 accident.               Ching,

mem. op. at 10.     The ICA reasoned that “[a]lthough it may be

correct that Mobley had not met [HRS § 431:10C-306(b)(4)] at the

time of the hearing on the summary judgment motions, this does

not establish that Mobley would be unable to prove that he could

meet the threshold at the time of trial as discovery had not yet

concluded when the Circuit Court granted summary judgment and

partial summary judgment.”       Ching, mem. op. at 11.       Therefore,

citing Ralston, the ICA concluded Kimura and Espaniola did not

16
      RCCH Rule 12(r) states: “Discovery shall be cut off 60 days before the
assigned trial date.”


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satisfy their initial burden of production, and the circuit

court erred in granting summary judgment in their favor because

a genuine issue of fact existed as to whether Mobley could meet

HRS § 431:10C-306(b)(4).       Id.

      The ICA also concluded the circuit court erred in granting

Kimura’s MSJ and Espaniola’s MPSJ based on Mobley’s alleged

failure to satisfy the significant permanent loss of use

exception of HRS § 431:10C-306(b)(2).          Id.   As in its analysis

of HRS § 431:10C-306(b)(4), the ICA concluded that although

Mobley may not have met the “exception under HRS section

431:10C-306(b)(2) when the defendants moved for summary

judgment, this does not establish that Mobley would have been

unable to prove at trial that he met the threshold,” citing

Ralston.   Ching, mem. op. at 12.         Thus, the ICA concluded Kimura

and Espaniola failed to carry their initial burden of

production, and the circuit court erred in granting Kimura’s MSJ

and Espaniola’s MPSJ.17      Id.


17
      The ICA also concluded the circuit court erred in awarding JMOL at
trial in the 2005 accident case. See Ching, mem. op. at 12-23.
Specifically, the ICA concluded: (1) the circuit court did not abuse its
discretion when it considered Ching’s motion to strike Mobley’s medical
experts’ testimonies; (2) the circuit court did not abuse its discretion when
it determined Dr. Kientz did not testify to a “reasonable medical
probability,” but did abuse its discretion when it determined Dr. Kaan failed
to express his opinion to that same standard and (3) the circuit court did
not abuse its discretion in refusing to admit Dr. Kaan’s report at trial on
the basis that it was cumulative and was contrary to the circuit court’s
ruling on a prior motion in limine. Id. Because of its rulings, the ICA did
not address Mobley’s remaining points of error. Ching, mem. op. at 12, 17,
23, 24.

                                                              (continued. . .)

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      The ICA therefore vacated the circuit court’s judgment,

reinstated Mobley’s claims as to both the 2005 and 2008

accidents, and remanded the case to the circuit court for

further proceedings consistent with its decision.            Ching, mem.

op. at 24.    On August 29, 2019, the ICA filed its judgment on

appeal.

      3.   Certiorari application

      Espaniola presents two questions on certiorari, summarized

as follows:

           1.    Did the ICA err in ruling the circuit court erred in
           granting Espaniola’s motion for partial summary judgment
           based on Mobley’s failure to satisfy the tort threshold?

           2.    Did the ICA err in ruling that the circuit court’s
           grant of Espaniola’s motion for partial summary judgment
           was premature because evidence had not established that, by
           the time of trial, Mobley would not be able to demonstrate
           satisfaction of the tort threshold or prove that his injury
           constitutes, in whole or in part, a significant permanent
           loss of use of a part or function of the body?




(. . .continued)
      In discussing whether medical experts should state their conclusions to
a “reasonable medical probability” or “reasonable medical certainty,” the ICA
cited several cases from other jurisdictions. Ching, mem. op. at 15 (citing
Moses v. Drake, 109 A.3d 562, 558 (Del. 2015); Griffin v. Univ. of Pittsburgh
Med. Ctr.-Braddock Hosp., 950 A.2d 996, 1000 (Pa. Super Ct. 2008). In
Bachran v. Morishige, 52 Haw. 61, 469 P.2d 808 (1970), this court has also
stated that “for the purpose of apportioning damages between two accidents,
there is no necessity that an expert witness’ testimony be limited or
restricted by labels such as ‘certainty,’ ‘reasonable medical certainty,’
‘probability,’ ‘possibility,’ etc.” 52 Haw. at 67, 469 P.2d at 812.


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                       III.   Standards of review

A.    Summary judgment

      The circuit court’s grant or denial of summary judgment is

reviewed de novo.    Ralston, 129 Hawaiʻi at 55, 292 P.3d at 1285.

Furthermore,

                 [S]ummary judgment is appropriate if the pleadings,
           depositions, answers to interrogatories and admissions on
           file, together with the affidavits, if any, show that there
           is no genuine issue as to any material fact and that the
           moving party is entitled to judgment as a matter of law. A
           fact is material if proof of that fact would have the
           effect of establishing or refuting one of the essential
           elements of a cause of action or defense asserted by the
           parties. The evidence must be viewed in the light most
           favorable to the non-moving party. In other words, we must
           view all of the evidence and inferences drawn therefrom in
           the light most favorable to the party opposing the motion.

129 Hawaiʻi at 55-56, 292 P.3d at 1285-86 (alteration in

original).   Ralston also provides:

                 In sum, this court's case law indicates that a
           summary judgment movant may satisfy [their] initial burden
           of production by either (1) presenting evidence negating an
           element of the non-movant's claim, or (2) demonstrating
           that the nonmovant will be unable to carry [their] burden
           of proof at trial. Where the movant attempts to meet
           [their] burden through the latter means, [they] must show
           not only that the non-movant has not placed proof in the
           record, but also that the movant will be unable to offer
           proof at trial. Accordingly, in general, a summary
           judgment movant cannot merely point to the non-moving
           party's lack of evidence to support [their] initial burden
           of production if discovery has not concluded. (“[M]erely
           asserting that the non-moving party has not come forward
           with evidence to support its claims is not enough.”).

129 Hawaiʻi at 60-61, 292 P.3d at 1290-91 (last alteration in

original) (citations omitted).

B.    Statutory interpretation

                 Statutory interpretation is reviewed de novo by [the
           appellate] court. When construing a statute, our foremost
           obligation is to ascertain and give effect to the intention

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               of the legislature, which is to be obtained primarily from
               the language contained in the statute itself. Moreover, it
               is a cardinal rule of statutory interpretation that, where
               the terms of a statute are plain, unambiguous and explicit,
               we are not at liberty to look beyond that language for a
               different meaning. Instead, our sole duty is to give
               effect to the statute's plain and obvious meaning.

Bank of New York Mellon v. R. Onaga, Inc., 140 Hawaiʻi 358, 365,

400 P.3d 559, 566 (2017) (alteration in original) (citation

omitted).

                                 IV.   Discussion

A.    Nature of the exceptions to the abolition of tort
      liability in HRS § 431:10C-306(b)

      According to HRS § 431:10C-306, Mobley was required to

satisfy one of the exceptions to the abolition of tort liability

in HRS § 431:10C-306(b) quoted in Section II.A above.18


      18
            Before enacting HRS Chapter 294, the predecessor to HRS Chapter
431:10C, the Hawaiʻi legislative auditor had found, in relevant part, in a
study of Hawaiʻi’s motor vehicle liability insurance system, that: (1)
relatively minor losses were being overcompensated, serious injuries were
being undercompensated, and many automobile accident victims were not being
compensated at all; (2) due to the high administrative costs and legal
expenses underlying the adversary procedure, victims received only a fraction
of the benefits; (3) there were long delays in receiving benefits due to the
“machinery” of the fault-finding process, with an average claim being settled
between nine and twelve months; (4) there was duplication among the
liability, medical, wage loss, and property damage compensation systems; and
(5) the costs of obtaining automobile liability insurance were high and
continually rising. Parker, 68 Haw. at 558-59, 722 P.2d at 1029-30 (citing
Legislative Auditor, A Study of Hawaii’s Motor Vehicle Insurance Program 5
(1972)).

      The legislature enacted HRS Chapter 294 “to create a system of
reparations for accidental harm and loss arising from motor vehicle
accidents, to compensate these damages without regard to fault, and to limit
tort liability for these accidents.” 1973 Haw. Sess. Laws Act 203, § 1 at
381. It stated

               [e]lements of the old tort system have been retained for
               the serious cases involving death, disfigurement, and when
               medical-rehabilitative expenses reach a certain ‘threshold’
               amount set by the insurance commissioner. Any person whose
                                                                 (continued. . .)

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      In Ho, construing a prior version of HRS § 431:10C-306,

this court upheld the trial court’s grant of the defendant’s

motion for directed verdict at the end of the plaintiff’s case,

holding:

                 Because Ho neither presented (1) evidence that the
           medical expenses that she claimed in her motor vehicle tort
           lawsuit against Leftwich were paid, thereby triggering the
           statutory presumption that they were reasonable and
           necessary, nor (2) expert testimony establishing that the
           expenses were reasonable and necessary, we hold that she
           did not satisfy the minimum level of qualifying expenses
           necessary to maintain her action pursuant to the provisions
           of HRS § 431:10C–306.



(. . .continued)
            expenses exceed that threshold within the statute of
            limitations may sue for recovery. The threshold is set at
            a level to ensure that approximately 90 per cent of such
            cases are resolved by the no-fault system.

1983 Haw. Sess. Laws Act 245, § 1 at 519.

      HRS § 294-6 was revised and recodified in HRS § 431:10C-306. 1987 Haw.
Sess. Laws Act 347, § 2 at 148, 167. Both HRS § 294-6 and
HRS § 431:10C-306 sought to abolish tort liability for accidental harm
arising from motor vehicle accidents, limiting tort liability to specific
situations. See 1973 Haw. Sess. Laws Act 203, § 1 at 381 (“The purpose of
this chapter is to create a system of reparations for accidental harm and
loss arising from motor vehicle accidents, to compensate these damages
without regard to fault, and to limit tort liability for these accidents”);
1974 Haw. Sess. Laws Act 168, § 1 at 317 (repeating the purpose as stated in
1973); 1983 Haw. Sess. Laws Act 245, § 1 at 521 (“[T]he purpose of this Act
is to expressly restate, reiterate, and clarify the intent of the legislature
in enacting sections 294-6(a) and 294-36(b), Hawaii Revised Statutes,
concerning the barring of suits by uninsured motorists for injuries sustained
in motor vehicle accidents was originally, and is now: (1) To prevent a
person who is ineligible for no-fault benefits from bringing a civil action
if the medical rehabilitative limit is not reached within two years of the
dates of the motor vehicle accident”); 1987 Haw. Sess. Laws Act 347, § 2 at 1
(“[T]he legislature hereby declares that the purpose of this chapter is to
recodify, without substantive change, the insurance law in effect immediately
prior to the effective date of this chapter.”); 1987 Haw. Sess. Laws Act 347,
§ 2 at 148 (“The purpose of this article is to: (1) Create a system of
reparations for accidental harm and loss arising from motor vehicle
accidents; (2) Compensate these damages without regard to fault; and (3)
Limit tort liability for these accidents.”); 1997 Haw. Sess. Laws Act 251 §§
43, 61, and 70 at 542, 551, 553 (repealing the floating medical-
rehabilitative limit and fixing the tort threshold at $5,000).



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88 Hawaiʻi at 260, 965 P.2d at 802.

      In Parker, a post-jury trial case, this court, construing

HRS § 294-6, stated:

                 Although the no-fault law is silent on this point,
           the scheme and objectives of the law suggest that meeting
           [a] threshold requirement is an essential condition and
           element of [a plaintiff’s] claim. [The plaintiff] is the
           one who has personal knowledge and information as to
           whether the threshold condition is met. Therefore, it
           stands to reason that in order to achieve fairness and
           efficiency in implementing the objectives of the law, [the
           plaintiff] should have the burden of proving that the claim
           is one that has escaped the general abolition of tort
           liability decreed by HRS § 294-6.

                 . . . .

           Allegations alone are not sufficient to meet the threshold
           requirements. Appellee must carry the burden of proving
           that her injury meets or exceeds the threshold requirement
           in question.
                 . . . .

                 Hawaii's no-fault law does not give any guidance as
           to whether the judge, as a matter of law, should determine
           if the threshold requirement had been met, or whether the
           jury should determine that question. We hold that whether
           Appellee met the threshold requirement is for the jury to
           determine inasmuch as the facts relating to Appellee's
           injury are in dispute and reasonable minds could differ on
           whether Appellee sustained an injury which consists, in
           whole or in part, in a significant permanent loss of use of
           a part or function of her body.

                 This is not to say, however, that a trial judge is
           precluded from determining, as a matter of law, whether a
           plaintiff met the threshold requirement. When the evidence
           is so clear that reasonable minds could only come to one
           conclusion, it is not error for the trial judge to remove
           the threshold question from the jury and to determine that
           question as a matter of law.

                 As to Appellant's proposed special verdict
           interrogatory number 5, we hold that the trial court erred
           in refusing to submit the proposed interrogatory to the
           jury in view of our holding that the threshold requirement
           is a necessary condition and element of Appellee's cause of
           action. It is essential that the triers of fact make a
           finding that Appellee did in fact sustain an injury which
           consists, in whole or in part, in a significant permanent
           loss of use of a part or function of her body in order for



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            Appellee to maintain her negligence tort claim against
            Appellant.

68 Haw. at 561-62, 722 P.2d at 1031 (emphases added) (internal

citations and quotation marks omitted).

      In Walsh, also construing a previous version of

HRS § 431:10C-306(b), the ICA stated:

                  The intent of the legislature in establishing the
            medical-rehabilitative limit in the no-fault law was to
            provide a jurisdictional requirement similar to the then
            $10,000 jurisdictional amount in diversity suits in the
            federal court: “In order to maintain an action, the
            claimant must show that the amount in controversy exceeds
            $5,000 (this amount being intended by your committee to be
            a jurisdictional requirement similar to the $10,000
            jurisdictional requirement in federal diversity suits).”
            Hse.Stand.Comm.Rep. No. 187, 1973 House Journal, at 837.

80 Hawaiʻi at 192, 907 P.2d at 778.        The ICA ruled that because

the plaintiff had introduced in evidence medical-rehabilitative

expenses well exceeding the $7,600 in “paid or accrued” medical-

rehabilitative expenses in effect at the relevant time, the

circuit court erred in entering judgment in favor of the

defendant on the grounds the jury awarded less than that

amount.19   Id.

      Finally, in Savini v. Univ. of Haw., 113 Hawaiʻi 459, 153

P.3d 1144 (2007), this court ruled that a plaintiff’s claim, if

brought under the tort threshold exception, does not accrue

19
      At that time, HRS § 431:10C-306(b)(2) provided that tort liability is
not abolished where “[i]njury occurs to such person in a motor vehicle
accident in which the amount paid or accrued exceeds the medical-
rehabilitative limit established in section 431:10C–308 for expenses provided
in section 431:10C–103(10)(A) and (B); provided that the expenses paid shall
be presumed to be reasonable and necessary in establishing the medical-
rehabilitative limit[.]” As discussed by the ICA in its memorandum opinion
in this case, this language differs from the current HRS § 431:10C-306(b)(4).


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until the plaintiff meets that threshold, holding that “under

Hawaiʻi law, a plaintiff who relies on the medical-expense

threshold as opposed to a verbal threshold,[20] . . . has no claim

at all . . . until the plaintiff has actually received the

requisite amount of ‘reasonably necessary’ medical-

rehabilitative treatment, as manifested through bills received

or paid.”       113 Hawaiʻi at 465, 153 P.3d at 1150 (emphasis added).

The tort threshold exception of HRS § 431:10C-306(b) at the time

provided:

               (b) Tort liability is not abolished as to the following
               persons . . . in the following circumstances:

                     . . . .

                     (2) Injury occurs to such person in a motor vehicle
               accident in which the amount paid or accrued exceeds the
               medical-rehabilitative limit established in
               [HRS § ] 431:10C–308 for expenses provided in
               [HRS § ] 431:10C–103(10)(A) and (B)[ (concerning personal
               injury protection benefits) ]

                     . . . .

113 Hawaiʻi at 461 n.2, 153 P.3d at 1146 n.2 (alterations in

original).

      Savini stated that “HRS § 431:10C-306 enables, indeed

requires, would-be plaintiffs to ‘wait and see’ whether their

expenses will be great enough to shift responsibility to another

party.”     113 Hawaiʻi at 466, 153 P.3d at 1151.           This court stated

20
      Savini    described the “verbal threshold” as HRS § 431:10C-306(b)(1),
(2), and (3)    (Supp. 2001), in which “sufficiently serious and permanent
injuries (or    death) are deemed to trigger tort liability without proof that
the monetary    threshold has been exceeded.” 113 Hawaiʻi at 462 n.4, 153 P.3d
at 1147 n.4.


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this was necessary to effectuate the legislature’s intent to

abolish most motor vehicle tort lawsuits.         113 Hawaiʻi at 465,

153 P.3d at 1150.    Savini also stated:

                 In sum, construing HRS §§ 431:10C–306(b)(2) (1993)
           and 431:10C–315(b) so as to postpone “accrual” of claims
           based upon the medical-rehabilitative limit is necessary to
           effectuate the legislature's “aboli[tion]” of most motor
           vehicle tort lawsuits. For a plaintiff to sue based on the
           mere expectation that expenses might exceed the medical-
           rehabilitative threshold would be to pursue a claim that
           the legislature has expressly abolished. Moreover, the
           possibility of an eventually ripe claim does not justify a
           premature complaint: not even the best expert witness can
           ensure that such an inchoate claim will accrue before the
           plaintiff convalesces or dies due to causes unrelated to
           the alleged tort.

                 . . . .

           We recognize that today's holding might inconvenience
           future parties who would prefer to litigate early under
           circumstances where it is virtually certain that the
           plaintiff's injuries will give rise to medical expenses
           over $5,000.00 (the current threshold, see
           HRS § 431:10C–306(b)(4) (2005)), but will not do so until
           considerable time has elapsed. Such a scenario would be
           exceptional and capable of amelioration by the legislature.

113 Hawaiʻi at 466-67, 153 P.3d at 1151-52 (footnote omitted).

      Under this backdrop, we address the issues on certiorari.

B.    The ICA correctly ruled the circuit court erred in granting
      Espaniola’s MPSJ, but it erred in applying the second
      Ralston prong to Espaniola’s MPSJ to the extent it was
      based on Mobley’s alleged failure to meet the tort
      threshold; rather, Espaniola failed to meet his burden
      under the first Ralston prong

      This section addresses Espaniola’s assertions with respect

to the tort threshold exception.

      Pursuant to Ralston, quoted in Section III.A above,

Espaniola had the option of either (1) putting forth evidence

negating an element of Mobley’s claim, or (2) demonstrating

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Mobley could not carry his burden of proof at trial.             Espaniola

argues he met his initial burden of production by satisfying the

first Ralston prong, namely, by “presenting evidence negating an

element of the non-movant’s claim.”

      As discussed in Section IV.A, when a plaintiff’s claim is

based on the tort threshold exception, pursuant to Walsh and

Savini, meeting the threshold is a jurisdictional requirement to

the filing of a lawsuit.21      The ICA ruled, however, that

Espaniola could not obtain summary judgment on the tort

threshold exception even if he had met a movant’s burden under

the first Ralston prong.       Espaniola moved for summary judgment

based on the first prong by introducing evidence that GEICO had

not paid any PIP benefits for the 2008 accident.            According to

language within the ICA’s memorandum opinion, however, the

circuit court was required to wait until trial to ascertain

whether Mobley could meet the tort threshold exception.



21
      HRS § 431:10C-315(b) (2005) governs the statute of limitations for
lawsuits arising out of motor vehicle accidents, and accordingly extends the
limitations period for filing a lawsuit as follows:

                  (b) No suit arising out of a motor vehicle accident
            shall be brought in tort more than the later of:

                  . . . .

                        (2) Two years after the date of the last
                  payment of motor vehicle insurance or optional
                  additional benefits; or
                        (3) Two years after the date of the last
                  payment of workers' compensation or public assistance
                  benefits arising from the motor vehicle accident.


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      Thus, the ICA appears to have conflated the first and

second Ralston prongs with respect to its tort threshold

exception analysis.      Because Espaniola only moved for summary

judgment under the first Ralston prong, the circuit court and

the ICA should not have considered the second Ralston prong to

determine whether Mobley would be able to meet his burden at

trial.22

      With respect to the first Ralston prong upon which

Espaniola’s MPSJ was based, construing the statutory language of

the tort threshold exception at that time, Savini ruled that a

plaintiff’s claim must have “accrued” under the tort threshold

exception for a cause of action to exist allowing a lawsuit to

be filed.    We turn now to address whether Espaniola actually met

his burden under the first Ralston prong by presenting evidence

negating an element of Mobley’s claim.

      To satisfy the first Ralston prong, Espaniola was required

to present evidence negating that Mobley met the tort threshold.

In this regard, however, Espaniola presented evidence that GEICO

had not paid any PIP benefits for the 2008 accident.            In fact,

Espaniola focuses on the payment of PIP benefits as an exception

to tort liability.     Yet, as the ICA pointed out,

22
      We do not preclude parties from moving for summary judgment under both
the first and second Ralston prongs. In that case, it would be appropriate
for courts to consider both prongs. Here, however, Espaniola only moved for
summary judgment under the first prong, and so the circuit court and the ICA
should not have considered the requirements of the second prong.


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HRS § 431:10C-306(b) now states in subsection (b)(4)(A)(i) that

PIP benefits incurred are to be included in the $5,000 tort

threshold amount.

      In any event, the record before the circuit court on

summary judgment showed Mobley had incurred $13,477.66 in

medical expenses for the June 2005 and January 2008

accidents.    At the time of summary judgment, there was no

evidence in the record apportioning that amount between the two

accidents.    Accordingly, viewing the evidence in the light most

favorable to Mobley for purposes of the MPSJ, these PIP expenses

should have been apportioned between the two accidents equally,

with $6,738.83 attributed to the 2008 accident at issue.

See Montalvo v. Lapez, 77 Hawaiʻi 282, 297, 884 P.2d 345, 360

(1994) (explaining that when a rough apportionment between two

accidents is not possible, damages are apportioned

equally).    Because this amount was sufficient to meet the tort

threshold exception, the Aina Declaration stating that no PIP

benefits had been paid to-date for the 2008 accident was

insufficient to show there was no genuine issue of material

fact, and thus, summary judgment should not have been granted on

this basis.

      Therefore, although based on incorrect reasoning, the ICA

reached the correct result by concluding the circuit court erred



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by granting Espaniola’s MPSJ as to HRS § 431:10C-306(b)(4)’s

tort threshold exception.23

C.    The ICA correctly ruled the circuit court’s grant of
      Espaniola’s MPSJ was premature on the grounds that
      Mobley would be unable to prove that his injury
      constitutes, in whole or in part, a significant
      permanent loss of use of a part or function of the
      body at the time of trial

      This section addresses the significant permanent loss of

use exception.      It also addresses another argument raised by

Espaniola with respect to the significant permanent loss of use

exception: whether the injuries alleged by Mobley can qualify as

a significant permanent loss of use of a part or function of the

body.

      With respect to the significant permanent loss of use

exception to the abolition of tort liability, neither Espaniola

nor Kimura, whose MSJ Espaniola joined, presented any evidence

to “negate” this exception, as required by the first Ralston

prong.    Thus, this part of Espaniola’s MPSJ was necessarily

based on the second Ralston prong.
23
      Satisfaction of the tort threshold exception is a jurisdictional
requirement to the filing of a lawsuit “similar to the [amount in
controversy] jurisdictional requirement in federal diversity suits.” H.
Stand. Comm. Rep. No. 187, in 1973 House Journal, at 837. In a federal
court, if the “amount in controversy threshold” of 28 U.S.C. 1332 is not met,
the court lacks subject matter jurisdiction, and a complaint must be
dismissed in its entirety. Arbaugh v. Y&H Corp., 546 U.S. 500, 514-15
(2006). Likewise, HRCP Rule 12(h)(3) (2000) requires dismissal when subject
matter jurisdiction is lacking. See HRCP Rule 12(h)(3) (“Whenever it appears
by suggestion of the parties or otherwise that the court lacks jurisdiction
of the subject matter, the court shall dismissal the action.”). To the
extent the circuit court disposed of Mobley’s complaint based on an alleged
failure to meet the tort threshold, its order should have indicated a
“dismissal” rather than a “partial summary judgment.”


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      In Parker, this court stated a plaintiff has the burden of

proving their injury meets or exceeds the “significant permanent

loss of use of a part or function of the body.”           68 Haw. at 561,

722 P.2d at 1031.    Parker also stated allegations alone are not

sufficient and that the plaintiff bears the burden of proving an

exception to the general abolition of tort liability.            Id.

Parker was a post-trial case, however, and as noted in Section

IV.A above, this court indicated that the question of whether a

plaintiff has suffered a significant permanent loss of use of a

part or function of the body is a jury question to be submitted

to the jury in a special interrogatory.

      In addition, in Ralston, this court stated that “in

general, a summary judgment movant cannot merely point to the

non-moving party’s lack of evidence to support its initial

burden of production if discovery has not concluded.”            129

Hawaiʻi at 61, 292 P.3d at 1291.          As discovery had not yet

concluded as to the significant permanent loss of use exception,

the ICA correctly analyzed Espaniola’s MPSJ under the second

Ralston prong.

      Thus, the ICA correctly ruled that, pursuant to Ralston,

the circuit court erred in granting summary judgment as to this

exception to the abolition of tort liability, as neither

Espaniola nor Kimura had presented any evidence negating the

exception and discovery had not yet concluded.

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      The circuit court alternatively ruled that even if Dr.

Diamond’s documents were considered, Mobley’s injuries, in any

event, did not constitute injuries that would qualify him for

the significant permanent loss of use exception.            Citing Licari

and Falcone v. Branker, 342 A.2d 875 (N.J. Super. Ct. Law Div.

1975), Parker indicated that judges are not precluded from

determining, as a matter of law, whether a plaintiff met the

significant permanent loss of use exception.           68 Haw. at 562,

722 P.2d at 1031.     As the circuit court alternatively ruled on

this basis and Espaniola continues to argue the issue, we

briefly address it.

      In addition to Licari and Falcone, Parker cited to Murray

v. Walter, 269 N.W.2d 47 (Minn. 1978), and Fleet Transport Co.

v. Holland, 304 S.E.2d 76 (Ga. Ct. App. 1983), regarding whether

an injury can qualify as a significant permanent loss of use of

a part or function of the body.        68 Haw. at 562, 722 P.2d at

1031.

      The statutory language of the exceptions discussed in these

cases differ from the language of HRS § 431:10C-306(b)(2), which

provides an exception to the abolition of tort liability for an

“[i]njury [] which consists, in whole or in part, in a




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significant permanent loss of use of a part or function of the

body[.]”24


      24
            In Licari, the New York Court of Appeals upheld a trial court
ruling that the personal injuries alleged did not constitute a “serious
injury” within the meaning of New York’s no-fault law. 441 N.E.2d at 1092-
93. New York’s no-fault law required a “serious injury” for there to be an
exception to the abolition of tort liability. 441 N.E.2d at 1090. “Serious
injury” was defined as

               “a personal injury which results in death; dismemberment;
               significant disfigurement; a fracture; permanent loss of
               use of a body organ, member, function or system; permanent
               consequential limitation of use of a body organ or member;
               significant limitation of use of a body function or system;
               or a medically determined injury or impairment of a non-
               permanent nature which prevents the injured person from
               performing substantially all of the material acts which
               constitute such person's usual and customary daily
               activities for not less than ninety days during the one
               hundred eighty days immediately following the occurrence of
               the injury or impairment.”

Id. (emphases added) (quoting N.Y. Ins. Law, § 671, subd. 4). The New York
Court of Appeals, examining the legislative intent of the no-fault law, held
that the question of whether a plaintiff suffered a serious injury is not
always a fact question for the jury. 441 N.E.2d at 1091. It noted that even
if the plaintiff’s contention that he suffered a “significant limitation of
use of a body function or system” was taken in a light most favorable to him,
the plaintiff did not offer any evidence “as to the extent of the limitation
of movement.” 441 N.E.2d at 1092.

      In Falcone, the New Jersey Superior Court held the plaintiff’s argument
that the small scars on his nose and knee that resulted from a three-car
automobile collision were not exempt from New Jersey’s no-fault law as a
“permanent significant disfigurement.” 342 A.2d at 882. The defendant
“move[d] for summary judgment dismissing the [plaintiff’s] complaint for
failure to state a claim upon which relief could be granted”; the New Jersey
Superior Court granted the motion in favor of the defendant. 342 A.2d at
877, 884. It found the associated words of New Jersey’s no-fault law all
connoted injuries of a substantial nature; thus, it found the term
“significant” within the “permanent significant disfigurement” exemption to
be synonymous with “serious” as used in workers’ compensation cases dealing
with serious disfigurement. 342 A.2d at 880.

      In Murray, the Minnesota Supreme Court held a party satisfied the
“permanent injury” threshold of Minnesota’s no-fault law by pleading and
proving facts that he suffered “permanent injuries, including but not limited
to permanent injury to his neck and back.” 269 N.W.2d at 50. It also held
that party “met, by means of Dr. Johnson’s testimony, [its] burden of proving
‘permanent injury.’” Id. It also stated, however, that because the opposing
party failed to argue satisfaction of the “permanent injury” threshold, it
resulted in a waiver of that issue. Id.
                                                              (continued. . .)

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      Although the circuit court alternatively ruled that even if

Dr. Diamond’s documents were considered, Mobley did not suffer a

“significant permanent loss of use of a part or function of the

body” as a matter of law, even without Dr. Diamond’s documents,

based on Mobley’s deposition, the evidence was not so clear that

reasonable minds could only come to one conclusion.             At minimum,

whether Mobley’s inability to run or march with the students

presents a genuine issue of material fact on whether Mobley’s

injuries qualify for the HRS § 431:10C-306(b)(2) exception to

the abolition of tort liability arising from motor vehicle

accidents.    Reasonable minds could differ on whether an

inability to “march” or “run” is a “significant permanent loss

of use of a [] function of the body,” if proximately caused by

the 2008 accident.25     Thus, the circuit court also erred in

granting Espaniola’s MPSJ on this alternative basis.26



(. . .continued)
      Finally, in Holland, the Georgia Court of Appeals held that the jury
was properly instructed on whether a plaintiff, who alleged a “whiplash” type
of injury but also had preexisting neck and back problems, had sustained a
“serious injury” under Georgia’s no-fault law. 304 S.E.2d at 77.

25
      The issue was whether the injury alleged could constitute a
“significant permanent loss of use of a part of function of the body,” not
whether the injuries alleged were proximately caused by the 2008 accident.
26
      The circuit court also abused its discretion by not granting Mobley’s
request for a HRCP Rule 56(f) continuance to present and then consider
admissible evidence from Dr. Diamond that Mobley’s inability to march and run
was a “significant permanent loss of use of a part or function of his body.”

      HRCP Rule 56(f) provides:

                                                              (continued. . .)

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(. . .continued)
            When Affidavits are Unavailable. Should it appear from the
            affidavits of a party opposing the motion that the party
            cannot for reasons stated presented by affidavit facts
            essential to justify the party’s opposition, the court may
            refuse the application for judgment or may order a
            continuance to permit affidavits to be obtained or
            depositions to be taken or discovery to be had or may make
            such other order as is just.

       In Ralston, we stated, “HRCP Rule 56(f) is the proper procedure to
request and obtain additional time to respond to a motion for summary
judgment that is filed prior to the discovery deadline.” 129 Hawaiʻi at 62,
292 P.3d at 1292. We stated that, “Had Dr. Yim provided a proper expert
affidavit in support of his motion, Ralston [,the non-movant plaintiff,]
would have been required to submit his expert’s affidavit or request a
HRCP Rule 56(f) continuance to allow more time to produce an admissible
affidavit.” Id. In Ralston, we also rejected the ruling in Celotex that
summary judgment may be appropriate before a discovery deadline if the non-
movant had “adequate time to conduct discovery and to identify experts.” 129
Hawaiʻi at 62, 292 P.3d at 1292. In rejecting that ruling, we stated such an
approach would be inconsistent with French v. Hawaii Pizza Hut, Inc., 105
Hawaiʻi 462, 99 P.3d 1046 (2004), as “the clear import of French is that
summary judgment should not be granted when there is still time for the non-
movant to develop evidence for use at trial, unless there is a basis for
concluding (as was the case in Celotex) that such an effort would be futile.”
129 Hawaiʻi at 63, 292 P.3d at 1293. Further, we stated HRCP Rule 56(f)
provides non-movants with protection against a premature grant of a motion
for summary judgment. Id. We also noted it was generally recognized that:

           The purpose of subdivision (f) is to provide an additional
           safeguard against an improvident or premature grant of
           summary judgment and the rule generally has been applied to
           achieve that objective. Consistent with this purpose,
           courts have stated that technical rulings have no place
           under the subdivision and that it should be applied with a
           spirit of liberality.

Id. (emphasis added) (citing 10B Charles Alan Wright, Arthur R. Miller, &
Mary Kay Kane, Federal Practice and Procedure Civil 3d § 2740, at 402
(1998)).

      As noted, Mobley did not “amend over” against Espaniola, who Kimura
impleaded as a third-party defendant regarding the 2008 accident. Kimura,
the only party against whom Mobley had a direct claim with respect to the
2008 accident, did not object to the admissibility of Dr. Diamond’s
documents. Although HRCP Rule 14 entitled Espaniola to assert defenses
available to Kimura against Mobley (“The third-party defendant may assert
against the plaintiff any defenses which the third-party plaintiff has to the
plaintiff’s claim.”), especially because Kimura did not raise the
admissibility of Dr. Diamond’s documents as an issue, the circuit court
abused its discretion by denying Mobley’s request for a HRCP Rule 56(f)
continuance. Also, although Mobley proposed to bring Dr. Diamond to testify,
Dr. Diamond would not have had to testify; all that was required was a
                                                              (continued. . .)

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                              V.    Conclusion

      Based on the reasons above, we affirm the ICA’s August 29,

2019 judgment on appeal, which vacated the circuit court’s March

6, 2013 judgment and remanded the case for reinstatement of

Mobley’s claims related to both the 2005 and 2008 accidents, but

as modified by the analysis in this opinion.

Michael H. Tsuchida,                /s/ Mark E. Recktenwald
for petitioner
                                    /s/ Paula A. Nakayama
Walter J. Rodby and
John Y.U. Choi,                     /s/ Sabrina S. McKenna
for respondent/
plaintiff-appellant                 /s/ Richard W. Pollack

Randall Y.S. Chung,                 /s/ Michael D. Wilson
Rayni M. Nakamura, and
Michael S. Hult,
for respondent/
defendant-appellee

Jonathan L. Ortiz and
Wade J. Katano,
for respondent/defendant/
third-party plaintiff-appellee




(. . .continued)
declaration or affidavit from Dr. Diamond to cure the foundational
deficiency, which Mobley’s counsel was able to obtain after the hearing and
presented in his motion for reconsideration. As indicated above, Mobley was
able to later secure an admissible affidavit from Dr. Diamond creating a
genuine issue of material fact as to the significant permanent loss of use
exception. But even if Mobley had amended over against Espaniola, the
circuit court’s refusal of the Rule 56(f) continuance request constituted an
abuse of discretion.



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