Hawaii Appellate Opinions

LIBERTY MUTUAL INSURANCE COMPANY v. SENTINEL INSURANCE COMPANY, LTD.

No. 27429 (March 31, 2009)

Partial Opinion of the court by Watanabe, J. pdf

PARTIAL OPINION OF THE COURT BY WATANABE, J.

Plaintiff-Appellant/Cross-Appellee Liberty Mutual Insurance Company (Liberty Mutual) appeals and Defendant-Counterclaimant/Appellee/Cross-Appellant Zashell Labrador (Labrador) cross-appeals from the certified final judgment (Final Judgment) entered by the Circuit Court of the Third Circuit (circuit court) on July 21, 2005. The Final Judgment determined that Liberty Mutual must pay Labrador $50,000 in underinsured motorist (UIM) benefits for injuries Labrador sustained as a passenger in a car driven by Defendant Elisa Tolfree (Tolfree) that allegedly veered off the road to avoid an unidentified truck pulling a trailer (phantom truck).

Tolfree's car was insured under two motor vehicle policies that provided liability and uninsured motorist (UM) coverage. Labrador was insured by her father's policy with Liberty Mutual, which provided stacked UM coverage totaling $140,000 and stacked UIM coverage totaling $140,000.

Following an arbitration between Labrador and Liberty Mutual, an arbitration panel determined that Labrador's damages amounted to $250,000 and that Tolfree was sixty percent at fault and the phantom truck's driver was forty percent at fault for the damages. Labrador reached settlements with Tolfree's insurers for liability and UM benefits and then sought UM and UIM benefits from Liberty Mutual.

Liberty Mutual contends that the circuit court erred when it: (1) held Liberty Mutual liable to Labrador for UIM benefits based on Tolfree's joint-and-several liability for all of Labrador's damages, (2) failed to credit Liberty Mutual with the amounts that Labrador received in UM benefits from Tolfree's insurers in determining that Labrador was underinsured, and (3) awarded attorney's fees to Labrador.

Labrador argues in her cross-appeal that the circuit court erred by failing to: (1) award her prejudgment interest; and (2) invalidate, as against public policy, the "other insurance" clause included in Liberty Mutual's policy. [footnote omitted]

Partial Opinion of the court by Recktenwald, C.J. pdf

PARTIAL OPINION OF THE COURT BY RECKTENWALD, C.J.

2.     Whether Liberty Mutual's "Other Insurance" Clause Was Valid

The "other insurance" clause contained in Liberty Mutual's policy created a priority of coverage among multiple insurers, and did not limit or reduce Liberty Mutual's liability for UM payments to Labrador. Thus, the provision was valid and enforceable under Hawai‘i law, and the circuit court did not err in denying Labrador's motion for partial summary judgment.

We begin our analysis by recognizing that "liability insurers have the same rights as individuals to limit their liability, and to impose whatever conditions they please on their obligation, provided they are not in contravention of statutory inhibitions or public policy." First Ins. Co. of Hawaii v. State, 66 Haw. 413, 423, 665 P.2d 648, 655 (1983) (quoting 6B J. Appleman, Insurance Law and Practice § 4255 at 40 (Buckley 1979)). Thus, the question here is whether the "other insurance" clause contravenes statutory provisions or public policy. We conclude that it does not.

Dissenting Opinion by Watanabe, J. pdf

STATE v. ASUNCION

No. 28230 (March 30, 2009)

Opinion pdf

OPINION OF THE COURT BY WATANABE, PRESIDING J.

This appeal stems from a judgment entered by the District Court of the Third Circuit (district court) on October 4, 2006, convicting and sentencing Defendant-Appellant Chito Asuncion (Asuncion) for criminal contempt of court (criminal contempt) in violation of Hawaii Revised Statutes (HRS) § 710-1077 (1993), as a result of Asuncion's violation of a no-contact condition of his probation sentence. The criminal-contempt charge was filed against Asuncion after his probation period had expired and it was no longer possible to revoke probation.

Asuncion asserts that the district court: (1) erred in convicting him of criminal contempt because the proper penalty for violating a condition of probation is probation revocation; (2) unlawfully subjected him to an extension of his probation and additional punishment; and (3) erred in convicting him of criminal contempt because he was never given notice that if he violated a term or condition of his probation, he would be subject to a criminal-contempt charge after his probation period had expired. [footnote omitted]

STATE v. HINTON

No 27719 (March 19, 2009)

Opinion pdf

OPINION OF THE COURT BY MOON, C.J.

On January 29, 2009, this court accepted a timely application for a writ of certiorari, filed on December 17, 2008 by petitioner/defendant-appellee Marshall Hinton, seeking review of the Intermediate Court of Appeals' (ICA) September 18, 2008 judgment on appeal, entered pursuant to its August 26, 2008 summary disposition order (SDO). Therein, the ICA vacated the Circuit Court of the First Circuit's December 21, 2005 findings of fact (FOFs), conclusions of law (COLs), and order granting Hinton's motion to dismiss the indictment with prejudice. Oral argument was held on February 19, 2009.

Briefly stated, Hinton was indicted for allegedly touching the then-thirteen-year-old complainant [hereinafter, the complainant] on her genital area outside her clothing and was subsequently tried by a jury for sexual assault in the third degree, in violation of Hawai'i Revised Statutes (HRS) § 707-732(1)(b) (Supp. 2008). However, the trial court declared a mistrial after the jury was unable to reach a unanimous verdict and, upon motion by Hinton, dismissed the indictment with prejudice, pursuant to State v. Moriwake. 65 Haw. 47, 647 P.2d 705 {1982), discussed infra. On appeal by respondent/plaintiff/appellant State of Hawai'i (the prosecution) , a majority of the ICA concluded that the trial court abused its discretion in dismissing the indictment and, accordingly, vacated the trial court's dismisal. Judge Foley dissented, concluding that the "[trial] court did not abuse its discretion in dismissing the indictment against Hinton."

Hinton argues on application that "the ICA gravely erred in concluding that the trial court abused its discretion in dismissing the case under Moriwake" inasmuch as the ICA "improperly incorporated [a] novel 'separation of powers' consideration" into its analysis that "conflict[s] with Moriwake and its progeny." Based on the discussion below, we hold that the ICA erred in (1) injecting an additional "separation of powers" analysis into the Moriwake framework and (2) holding that the trial court abused its discretion in dismissing the indictment with prejudice. Accordingly, we reverse the ICA's judgment on appeal and affirm the trial court's December 21, 2005 FOFs, COLs, and order granting Hinton's motion to dismiss the indictment with prejudice. [footnotes omitted]

SCHILLER v. SCHILLER

No 27225 (March 19, 2009)

Opinion pdf

OPINION OF THE COURT BY FOLEY, J.

Plaintiff-Appellant Martin David Schiller (Martin) appeals from the following orders and decrees filed in the Family Court of the First Circuit (family court)...

On appeal, Martin argues the following points of error:

(1) In a May 4, 2004 Memorandum Opinion, the Intermediate Court of Appeals {this court or ICA) specifically vacated Findings of Fact (FOFs) 28 and 46 through 52 and Conclusion of Law (COL) 3 of the family court's November 21, 2002 Findings of Fact and Conclusions of Law (11/21/02 FOFs/COLs). Nevertheless, the family court erroneously "reissued" every one of the vacated FOFs and the vacated COL in its June 15, 2005 Findings of Fact and Conclusions of Law (6/15/05 FOFs/COLs) as FOFs 34, 54 through 56, 62, and 65 through 68 and COL 4. Therefore, of the 6/15/05 FOFs/COLs, FOFs 34, 54 through 56, 62, and 65 through 68 are clearly erroneous and COL 4 is wrong.

(2) The family court erred by deviating from Hawai'i's Marital Partnership Principles and awarding Defendant-Appellee Janet Louise Schiller (Janet) a disproportionately large share of the marital property of Janet and Martin (collectively, the parties) without identifying any valid and relevant considerations (VARCs) that would justify such a deviation. Related to this argument is Martin's contention that FOFs 10, 13 through 18, 20 through 22, 25 through 30, 33, 34, 36, 40 through 42, 45 through 49, 51 through 57, 61, 72, 73, 75, 78 through 80, 84 through 86, 88 through 92, 94, 96 through 105, 113, 115, 117, 131, 138, and 141 through 143 are clearly erroneous and COLs 5, 7 through 9, 12, 19 through 23, 26, and 28 are wrong.

(3) Martin's interest in California commercial real estate, which we will refer to as "Garnet," is marital separate property, not subject to equitable distribution. Related to this argument is Martin's claim that FOF 131 is clearly erroneous and COL 26 is wrong. He argues in the alternative that even if the family court were correct that Garnet was not marital separate property, the court nevertheless erred in classifying it as Category 5 property, when it would be Category 3 property. Martin requests that this court set aside in pertinent part and/or modify the August 7, 2001 Minute Order; Order Re 2/22/02 Motion for Reconsideration; original Divorce Decree; Order Upon Remand; Order Denying 12/30/04 Motion for Reconsideration; and First Amended Divorce Decree to reflect the appropriate division of the parties' property and the equalization of payment described in Martin's opening brief.

....

FOFs 117 and 131 and COL 26 and any portion of the (1) May 21, 2002 "Order Regarding Plaintiff's Motion for Reconsideration Filed on February 22, 2002"; (2) July 25, 2002 "Order Denying Plaintiff's Second Motion for Reconsideration Filed May 31, 2002"; (3) August 6, 2002 "Decree of Absolute Divorce"; (4) December 20, 2004 "Order Upon Remand"; (5) March 8, 2005 "Order Denying Plaintiff's Motion for Reconsideration Filed December 30, 2004"; (6) June 15, 2005 "Findings of Fact and Conclusions of Law"; and (7) April 1, 2005 "First Amended Decree of Absolute Divorce" based on FOFs 117 and 131 and COL 26, including the family court's division and distribution of the Marital Partnership Property, are vacated, and this case is remanded for further proceedings consistent with this opinion.

Any portions of the above (1) "Order Regarding Plaintiff's Motion for Reconsideration Filed on February 22, 2002"; (2) "Order Denying Plaintiff's Second Motion for Reconsideration Filed May 31, 2002"; (3) "Decree of Absolute Divorce"; (4) "Order Upon Remand"; (5) "Order Denying Plaintiff's Motion for Reconsideration Filed December 30, 2004"; (6) "Findings of Fact and Conclusions of Law"; and (7) "First Amended Decree of Absolute Divorce" unrelated to FOFs 117 and 131 and COL 26 are affirmed and shall not be disturbed on remand.  [footnotes omitted]

RAPOZO v. BETTER HEARING OF HAWAII, LLC

No. 27603 (March 19, 2009)

Opinion pdf

OPINION OF THE COURT BY ACOBA, J.

On January 22, 2009, Petitioner/Plaintiff Appellee Mervyn Rapoze (Petitioner) filed a requires for $308.77 in costs and $8,658.00 in attorneys' fees for a total of $8,964.77, from Respondent/Defendant-Appellant Better Hearing of Hawai'i, LLC (Respondent), stemming from Rapozo v. Better Hearing of Hawaii, LLC,  119 Hawai'i 483, 199 P.3d 73 (2008), as amended on recon by No. 27692, 2009 WL 84695 (Haw. Jan. 14, 2009) [hereinafter Rapozo II], aff'g in part and rev'g in part, Rapozo v. Better Hearing of Hawaii, LLC, 118 Hawai'i 285, 188 P.3d 799 (App. 2008) [hereinafter Rapozo I].  For the reasons discussed herein, Petitioner's request for costs is granted in part and denied in part, and Petitioner's request for attorney's fees is granted. [footnote omitted]

THE SIERRA CLUB v. DEPARTMENT OF TRANSPORTATION OF THE STATE OF HAWAII

No. 29035 (March 16, 2009)

Opinion pdf

OPINION OF THE COURT BY DUFFY, J.

Plaintiffs-Appellants/Cross-Appellees/Appellees/Cross-Appellants the Sierra Club, Maui Tomorrow, Inc., and the Kahului Harbor Coalition (collectively "Sierra Club") appeal from the January 31, 2008 final judgment of the circuit court and the November 14, 2007 circuit court order granting dissolution of the injunction and vacating the order to void the operating agreement. Sierra Club cross-appeals from the March 27, 2008 circuit court order granting attorney's fees and costs.  Defendants-Appellees/Cross-Appellants/Appellants/Cross-Appellees State of Hawai'i Department of Transportation (DOT); Brennon Morioka, in his capacity as Director of DOT; Michael Formby, in his capacity as Director of Harbors of DOT (collectively "DOT") appeal from the January 31, 2008 final judgment and the March 27, 2008 order granting attorney's fees and costs. Defendants-Appellees /Cross -Appellants /Appellants /Cross-Appellees Hawaii Superferry, Inc. (Superferry) appeals and cross-appeals from the January 31, 2008 final judgment, the November 14, 2007 order granting dissolution of the injunction and vacating the order to void the operating agreement, the October 9, 2007 order granting enforcement of the environmental assessment (EA) requirement and permanent injunction, the November 9, 2007 circuit court findings of fact and conclusions of law, and the March 27, 2008 order granting attorney's fees and costs.

The main issue to be determined in this appeal is whether Act 2 enacted in the second special session of the 2007 legislature is constitutional. Sierra Club challenges the constitutionality of Act 2 on three separate grounds: (1) Act 2 is unconstitutional special legislation; (2) Act 2 violates the separation of powers doctrine; and (3) Act 2 violates the due process rights of Sierra Club and the public. Based on our analysis herein, we hold that Act 2 is unconstitutional as it is a special law in violation of Article XI, section 5 of the Hawai'i Constitution. [footnotes omitted]

Concurring and Dissenting Opinion by J. Nakayama, in which C.J. Moon joins pdf