Oral Argument Before the Intermediate Court of Appeals

No. 28958, Wednesday, April 3, 2013, 1:30 p.m.

C. BREWER AND COMPANY, LTD., Plaintiff-Appellant, vs. INDUSTRIAL INDEMNITY COMPANY, et al., Defendants-Appellees.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorneys for Plaintiff-Appellant C. Brewer & Co.:

Kenneth R. Kupchak, Tred R. Eyerly and Mark M. Murakami of Damon Key Leong Kupchak Hastert

Attorneys for Defendant-Cross-Appellant State of Hawai`i:

Reese R. Nakamura and Michael S. Vincent, Deputy Attorneys General

Attorneys for Defendant-Cross-Appellant Kehalani Holdings Co., Inc.:

Andrew S. Winer and William K. Meheula of Winer Meheula & Devens, LLP

Attorney for Appellee United States Fire Insurance Co.:

Lissa H. Andrews of Case Lombardi & Pettit

Attorney for Appellees Tradewind Insurance Co. and Island Insurance Co.:

Michelle-Lynn E. Luke of Kessner Umebayashi Bain & Matsunaga

Attorneys for Appellees Lexington Insurance Co. and National Union Fire Insurance Co. of Pittsburgh:

William A. Bordner and Devin L. Choy of Burke McPheeters Bordner & Estes

Attorneys for Appellee Columbia Casualty Insurance Co.:

Jeffrey A. Griswold and Bradford F.K. Bliss of Lyons Brandt Cook & Hiramatsu

Attorneys for Appellee Marine Indemnity Insurance Co. of America:

Gale L.F. Ching and Mitzi A. Lee of Ching & Lee

Attorney for Appellee First State Insurance Co.:

Peter W. Olson of Cades Schutte LLP

Attorney for Appellees Ace Property & Casualty Insurance Co. (fka CIGNA Property) and Pacific Employers Insurance Co.:

Shelton G.W. Jim On of SJO & Associates, LLLC

Attorney for Appellees Fireman’s Fund Insurance Co. of Hawaii, Inc. and James River Insurance Co.:

Keith K. Hiraoka of Roeca Louie & Hiraoka

Attorneys for Appellee Liberty Mutual Insurance Co.:

Randall Y.S. Chung and Ward F.N. Fujimoto of Matsui Chung

Attorneys for Appellee Scottsdale Insurance Co.:

John Price and Amanda Weston Halvorson

COURT: Nakamura, CJ; Foley, J.; and Circuit Court Judge Alm.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

C. Brewer and Company, Ltd. (C. Brewer) filed a complaint in the Circuit Court of the Fifth Circuit (Circuit Court) seeking declaratory relief concerning the obligation of numerous insurance companies to defend and/or indemnify C. Brewer against claims made against it in lawsuits (Underlying Lawsuits) arising out of the March 2006 breach of the Kaloko Dam on Kauaʻi. C. Brewer named as defendants insurance companies that had issued insurance policies, including commercial general liability (CGL), excess/umbrella, and first-party property policies, to C. Brewer with policy periods from 1987 through the date of the Kaloko Dam breach. The State of Hawaiʻi (State) and Kehalani Holdings, Company, Inc. (Kehalani), who were sued in the Underlying Lawsuits and were listed as additional insureds in certain of the insurance policies, were also made parties to the declaratory relief action and filed claims for declaratory relief against various insurers.

The Circuit Court ruled in favor of the insurers and dismissed the claims brought by C. Brewer, the State, and Kehalani (collectively, the "Insureds") seeking a declaration that the insurers had a duty to defend and/or indemnify the Insureds. On appeal, the Insureds argue that the Circuit Court erred in: (1) determining that the insurers who issued CGL policies with policy periods that ended before the date of the Kaloko Dam breach had no duty to defend the Insureds; (2) determining that the insurer who issued the CGL policy with the policy period that included the date of the Kaloko Dam breach had no duty to defend the Insureds; (3) dismissing the claims against the insurers who issued excess/umbrella policies; and (4) dismissing the claims against insurers who issued first-party property policies and adopting a manifestation trigger for those policies.

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