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NO. CAAP-20-0000267

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE MATTER OF THE PETITION OF HANNAH HARRISON, 

Appellant-Petitioner/Appellant,

v.

GORDON I. ITO, INSURANCE COMMISSIONER, DEPARTMENT 

OF COMMERCE AND CONSUMER AFFAIRS, STATE OF HAWAI#I,1

Appellee/Appellee,

and

EVERCARE, Appellee-Respondent/Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CIVIL NO. 1CC191001415)

SUMMARY DISPOSITION ORDER

(By: Ginoza, Chief Judge, Nakasone, and McCullen, JJ.)

In this joint appeal, Petitioners-Appellants Hannah

Harrison (Harrison) and Hannah Metsch (Metsch) (collectively,

Appellants) appeal from the March 3, 2020 "Order Affirming

Insurance Commissioners' Orders filed August 8, 2019"(Order

Affirming Commissioner) and the March 17, 2020 Final Judgment

1 Pursuant to Hawai#i Rules of Appellate Procedure (HRAP) Rule

43(c)(1), Gordon I. Ito, the current Insurance Commissioner, Department of

Commerce and Consumer Affairs, is automatically substituted as

Appellee/Appellee herein in place of Colin M. Hayashida.

Electronically Filed

Intermediate Court of Appeals

CAAP-20-0000267

24-FEB-2023

11:49 AM

Dkt. 66 SO
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(Judgment) filed and entered by the Circuit Court of the First

Circuit (Circuit Court).2

On appeal, Appellants contend that the Circuit Court

erroneously affirmed the determination of Respondent-Appellee

Insurance Commissioner Gordon I. Ito, Department of Commerce and

Consumer Affairs, State of Hawai#i (Commissioner) that Appellants

were not entitled to prejudgment interest in connection with an

insurance external review involving their managed care plan,

Respondent-Appellee UnitedHealthcare Insurance Company dba

Evercare (Evercare).3

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the arguments advanced and the issues raised, we resolve

Appellants' points of error as follows, and affirm.

The underlying case arises out of external reviews

under Hawaii Revised Statutes (HRS) § 432E-6(a) (2005) (repealed

2011),4 requested by both Appellants in 2011, of Evercare's

decision regarding changes to coverage under their managed care

plan with Evercare. Following the resolution of the external

reviews, Appellants filed separate motions for attorneys' fees

and costs in 2011 that were denied by the Commissioner in 2013;

the denials were appealed to the Circuit Court in 2013; the case

was then stayed by agreement from 2013-2017; then remanded back

2 The Honorable James H. Ashford presided.

3 Evercare now operates as UnitedHealthcare Insurance Company, Inc. 

4 HRS Chapter 432E, entitled the "Patients' Bill of Rights and

Responsibilities Act," sets forth statutory requirements for managed care

plans, and includes an external review procedure by which the enrollee may

pursue a complaint against the managed care plan, in HRS § 432E-6. "'External

review' means an administrative review requested by an enrollee under 432E-6

of a managed care plan's final internal determination of an enrollee's

complaint." HRS § 432E-1 (2005).

The external review statute, HRS § 432E-6, was repealed by the

2011 Legislature, to comply with the federal Patient Protection and Affordable

Care Act of 2010. See Haw. Med. Serv. Ass'n v. Adams, No. CAAP-10-0000011,

2013 WL 4606314, at *1 n.2 (App. Aug. 29, 2013) (SDO); 2011 Haw. Sess. Laws

Act 230, § 10 at 746. 

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to the Commissioner by the Circuit Court in 2018,5 at which time

the Commissioner awarded Harrison $22,320.19 in attorney's fees

and costs, and Metsch $17,574.60 and $12,595.13 on two motions

for attorneys' fees and costs.

On August 3, 2018, Appellants filed motions for

prejudgment interest (Motions for Prejudgment Interest), arguing

that the Commissioner could award prejudgment interest 

pursuant to HRS § 432E-6(e)6 and HRS § 636-16.7

On August 8, 2019, the Commissioner denied Appellants'

Motions for Prejudgment Interest (Orders Denying PJI), on the

grounds that neither HRS § 636-16 nor HRS § 432E-6(e)

"indicate[s] express authority or an obligation for the

Commissioner to make a prejudgment interest award." 

Following a 2019 joint appeal to the Circuit Court, and

a hearing on February 21, 2020,8 the Circuit Court affirmed the

Commissioner's Orders Denying PJI in a March 3, 2020 Order

Affirming Commissioner, which concluded:

5 The Honorable Keith K. Hiraoka presiding.

6 The external review statute contains an attorney's fees and costs

provision, HRS § 432E-6(e) (2005) (repealed 2011), that provides:

[a]n enrollee may be allowed, at the commissioner's

discretion, an award of a reasonable sum for

attorney's fees and reasonable costs incurred in

connection with the external review under this

section, unless the commissioner in an administrative

proceeding determines that the appeal was

unreasonable, fraudulent, excessive, or frivolous.

7 HRS § 636-16 (1979) provides,

In awarding interest in civil cases, the judge is

authorized to designate the commencement date to conform

with the circumstances of each case, provided that the

earliest commencement date in cases arising in tort, may be

the date when the injury first occurred and in cases arising

by breach of contract, it may be the date when the breach

first occurred.

8 Appellants did not request transcripts of the February 21, 2020

hearing. 

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2. Pursuant to Hawaii Revised Statutes § 432E-6(e),

the Insurance Commissioner is neither expressly or impliedly

authorized to award prejudgment interest on the attorney fee

awards.

3. Hawaii Revised Statutes § 636-16 is inapplicable in

this case. The statute applies to the award of prejudgment

interest in civil court actions. The statute does not apply

to proceedings before the Insurance Commissioner and the

Department of Commerce and Consumer Affairs under Hawaii

Revised Statutes § 432E-6(e).

Appellants raise their points of error (POE)9 as

follows: 

II. CONCISE STATEMENT OF THE POINTS OF ERROR

Whether the circuit court erred in affirming Commr

[sic] Hayashida's orders denying the Harrison PJI Motion,

Dkt #11, JIMS #4, 3-19 and the Metsch PJI Motion Dkt #11,

JIMS #4 at 108-122 by:

1. Narrowly construing Chapter 432E at odds with

the express remedial purposes for its enactment

to reach the result that the Insurance

Commissioner is neither expressly nor impliedly

authorized to award prejudgment interest on

H.R.S. § 432E-6(e) attorney fee awards, Dkt #16

at 3;

2. Failing to provide a basis for its conclusion

that H.R.S. §636-16 "does not apply to

proceedings before the Insurance Commissioner

under . . . H.R.S. § 432E-6(e)", Dkt #16 at 3;

and

3. Failing to adhere to rules of statutory

interpretation in construing the applicability

of H.R.S. § 636-16 based upon its language, the

common law of prejudgment interest, and the

legislative history of 1979 Haw. Sess. Laws Act

78." Dkt #16 at 3.

9 Evercare argues that none of Appellants' points of error comply

with HRAP Rule 28(b)(4):

Nor do any of Appellants' points of error contain references

to "where in the record the alleged error was objected to or

the manner in which the alleged error was brought to the

attention of the court or agency" as required by HRAP Rule

28(b)(4); all references are to "Dkt #16 at 3," which is the

order appealed from.

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HRAP Rule 28(b)(4)(iii) provides that each point "shall

state . . . the manner in which the alleged error was brought to

the attention of the court or agency." This is a secondary

appeal from the Circuit Court. The record references in the POE

section above reference the motions for prejudgment interest

filed before the Commissioner.10 Each of the numbered POEs

identically refers to "Dkt #16 at 3," which is the Order

Affirming Commissioner that is the subject of this appeal, in

accordance with HRAP Rule 28(b)(4)(i) and (ii). However, each

numbered POE contains no record reference to where each argument

raised in each POE was "brought to the attention" of the Circuit

Court as required by HRAP Rule 28(b)(4)(iii). 

Notwithstanding the deficiencies in the Appellants'

opening brief, we seek to address the merits where possible. See

Schefke v. Reliable Collection Agency, Ltd., 96 Hawai#i 408, 420,

32 P.3d 52, 64 (2001). With regard to POE 1, based on a plain

reading of HRS § 432E-6(e), we conclude the Circuit Court was

correct in affirming the Commissioner's denial of prejudgment

interest because such an award is not authorized under the

statute.

Evercare argues that the specific arguments in POEs 2

and 3 regarding HRS § 636-16 are waived because they were not

argued before the Circuit Court.11 In addition to a noncompliant

points of error section, the argument section also does not

contain any citations to the record for arguments Appellants

purportedly made before the Circuit Court regarding their

10 The record references to "Harrison PJI Motion, Dkt #11, JIMS #4, 

3-19" and "Metsch PJI Motion[,] Dkt. #11, JIMS #4 at 108-122" pertain to the

prejudgment interest motions filed before the Commissioner.

11 Evercare argues: "Appellants failed to raise before the circuit

court any of their arguments regarding statutory interpretation of HRS § 636-

16, the common law of prejudgment interest, or the legislative history of 1979

Haw. Sess. Laws Act 78." Appellants did not file a Reply Brief to Evercare's

Answering Brief.

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entitlement to prejudgment interest.12 See HRAP Rule 28(b)(7)

(requiring that argument on the points presented contain

citations to the "parts of the record relied on."); State v.

Hoglund, 71 Haw. 147, 150-51, 785 P.2d 1311, 1313 (1990)

(citation omitted) ("Generally, the failure to properly raise an

issue at the trial level precludes a party from raising that

issue on appeal."). 

"[A]ppellant has the burden of furnishing the appellate

court with a sufficient record to positively show the alleged

error." Bettencourt v. Bettencourt, 80 Hawai#i 225, 230, 909

P.2d 553, 558 (1995) (quoting Union Building Materials Corp. v.

The Kakaako Corp., 5 Haw. App. 146, 151, 682 P.2d 82, 87 (1984)).

The Appellants' POEs challenge various aspects of the Circuit

Court's reasoning in arriving at its conclusions, yet provide no

transcript of the hearing before the Circuit Court. See HRAP

Rule 10(b)(1)(A) (requiring transcripts for "any point on appeal

that requires consideration of the oral proceedings before the

court appealed from . . . ."). "The burden is upon appellant in

an appeal to show error by reference to matters in the record,

and he [or she] has the responsibility of providing an adequate

transcript." Bettencourt, 80 Hawai#i at 230, 909 P.2d at 558. 

Without a transcript there is no basis upon which to review the

alleged errors in the Circuit Court's reasoning in arriving at

its conclusion. 

An appellate court is not "obligated to sift through

the voluminous record to verify an appellant's inadequately

documented contentions[.]" Haw. Ventures, LLC v. Otaka, Inc.,

114 Hawai#i 438, 480, 164 P.3d 696, 738 (2007) (citations and

internal quotation marks omitted). Thus, as to POEs 2 and 3, we

conclude they are waived, and alternatively, Appellants have

12 The argument section contains a single record reference to "Dkt

#11, JIMS #4 at 71, 190," which are the Commissioner's 2013 orders denying

attorneys' fees and costs for Appellants. This reference is to the record

before the Commissioner, not the appeal to the Circuit Court.

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failed to demonstrate error. See HRAP Rule 28(b)(4) and (b)(7);

10(b)(1)(A); Bettencourt, 80 Hawai#i at 230, 909 P.2d at 558;

Hoglund, 71 Haw. at 150-51, 785 P.2d at 1313. 

For the foregoing reasons, we affirm the March 3, 2020

"Order Affirming Insurance Commissioners' Orders filed August 8,

2019" and the March 17, 2020 Final Judgment filed and entered by

the Circuit Court of the First Circuit.

DATED: Honolulu, Hawai#i, February 24, 2023.

On the briefs:

Rafael G. Del Castillo

(Rafael Del Castillo &

Associates) for AppellantPetitioner/Appellant

Dianne Winter Brookins

(Dentons US LLP) for AppelleeRespondent/Appellee

Daniel K. Jacob

Deputy Attorney General

for Appellee/Appellee

/s/ Lisa M. Ginoza

Chief Judge

/s/ Karen T. Nakasone

Associate Judge

/s/ Sonja M.P. McCullen

Associate Judge

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