Mid-Block Pedestrian at Night: Fault, PIP, and UIM
A nighttime pedestrian claim on Kamehameha Highway. Our insured was traveling 15 mph over the posted limit while adjusting a phone mount and struck a pedestrian who stepped off the curb mid-block, outside any crosswalk, wearing dark clothing. The pedestrian's blood alcohol was 0.09. Injuries: open tibia fracture with an intramedullary rod, $85,000 in medical charges (PIP paid its $10,000 limit), $30,000 in lost wages (PIP paid its $6,000 wage-loss benefit), and a treating physician's rating of 8 percent permanent impairment of the leg. Our insured carries 100/300/50. The pedestrian's own auto policy carries $50,000/$100,000 UIM. Claimant's counsel demands the 100/300 policy limits and has provided the rod placement records.
1. How does Hawaii's comparative negligence rule apply, and what allocation of fault would you defend?
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Rule. Under HRS 663-31, contributory negligence does not bar recovery unless the claimant's negligence is greater than the negligence of the person against whom recovery is sought; damages are then diminished in proportion to the claimant's share. Practically, a 50/50 split still yields recovery, while 51 percent claimant fault bars the claim entirely.
Application. Both sides have real fault. The driver was speeding and visually distracted, which reduces reaction time and stopping distance; the pedestrian entered the roadway mid-block at night in dark clothing and with a 0.09 BAC, which bears on perception and on the duty to yield. Neither side is clean, and the outcome depends on evidence, not argument.
What to build. Retain a reconstruction to fix speed and sight distance, obtain the lighting and roadway survey, the toxicology report, and the driver's phone records. A defensible range is 60/40 to 70/30 against our insured; 70/30 is aggressive but supportable if reconstruction shows the pedestrian was visible for several seconds before impact. Frame the number as total damages multiplied by our insured's percentage, not as a discount off the policy limit.
2. Estimate the damages exposure and explain how PIP and the claimant's UIM coverage interact with any settlement.
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Damages model. Economic damages are $85,000 medical plus $30,000 wage loss, or $115,000. General damages for an open tibia fracture with a rod and 8 percent permanent impairment will plausibly support $60,000 to $100,000. Total exposure is roughly $175,000 to $215,000.
PIP interaction. The $10,000 medical and $6,000 wage-loss payments were made by the claimant's own PIP carrier. The claimant cannot collect those dollars twice, and that carrier may assert a reimbursement or subrogation interest against any third-party recovery. Get the PIP log and lien figure before negotiating, and address the lien in the release.
UIM interaction. At a 60/40 allocation, our insured's share of $200,000 is $80,000 - well inside the 100/300 limits. Because the tortfeasor's limits are not exhausted and are not insufficient, the claimant's UIM coverage generally does not respond, and it would not respond in any event to the portion of loss attributable to the claimant's own fault or to amounts already paid by PIP. Put the UIM carrier on notice of the demand and the liability position, since a settlement below limits will draw the carrier's attention to any claimed shortfall in a later UIM claim.
3. Does the no-fault tort threshold affect this claim, and does it change your analysis of the general damages?
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No threshold issue here. The no-fault threshold is irrelevant because the injury independently qualifies as a serious injury: an open tibia fracture requiring intramedullary fixation is a fracture and produces permanent impairment. The $5,000 medical-expense prong is not even needed, and it is met anyway by the $85,000 in charges.
Consequence. General damages for pain and suffering are fully in play; there is no defense available on threshold grounds and none should be asserted. Any attempt to argue the threshold on a documented fracture would damage credibility and create unfair-claim-practice exposure.
Analytic shift. The only real levers are (1) the comparative fault allocation, (2) the reasonableness of the medical charges and the permanency rating, and (3) whether the wage-loss figure is supported by tax returns and employer records for a self-employed or cash-wage claimant. Get the records behind the $30,000 wage claim; a downward adjustment there reduces both the economic base and the general-damages multiple the claimant's counsel will apply.