NO. 28641 - Wednesday, July 8, 2009 - 9 a.m.
CIVIL NO. 02-1-0691 KRISTIE TOKUHISA, Court-Appointed Class Representative, individually and on behalf of all others similarly situated, Plaintiff-Appellant, and CYNTHIA ALTMAN and KELLY MULLER, individually and on behalf of all others similarly situated, Plaintiffs, v. CUTTER MANAGEMENT CO.; Et al., Defendants-Appellees, and DOE DEFENDANTS 1-50, Defendants, and CUTTER MANAGEMENT CO.; Et al., Third-Party Plaintiffs/Counterclaim Defendants-Appellees, v. SAFE-GUARD PRODUCTS INTERNATIONAL, INC., Third-Party Defendant/Counterclaim Plaintiff.
CIVIL NO. 02-1-2915 KRISTIE TOKUHISA, Court-Appointed Class Representative, individually and on behalf of all others similarly situated, Plaintiff-Appellant, and WALTER CALIZO, Et al., Plaintiffs, v. CUTTER MANAGEMENT CO.; Et al., Defendants-Appellees, and DOE DEFENDANTS 1-50, Defendants, and CUTTER MANAGEMENT CO.; Et al., Cross-Claim Plaintiffs-Appellees, v. SAFE-GUARD PRODUCTS INTERNATIONAL, INC., Cross-Claim Defendants-Appellees, and DOE DEFENDANTS 1-50, Cross-Claim Defendants, and SAFE-GUARD PRODUCTS INTERNATIONAL, INC., Cross-Claim Plaintiff-Appellee, v. CUTTER MANAGEMENT CO.; Et al., Cross-Claim Defendants-Appellees.
Attorney(s) for Plaintiff-Appellant
Paul Alston and Peter Knapman (Alston Hunt Floyd & Ing)
George Van Buren and Robert Campbell (Van Buren Campbell & Shimizu)
Attorney(s) for Defendants/Third-Party Plaintiffs/Counterclaim Defendants/Appellees
Lisa W. Munger, Joachim P. Cox and Robert K. Fricke (Goodsill Anderson Quinn
Attorney(s) for Third-Party Defendant/Counterclaim Plaintiff
Terence J. O'Toole , Lane C. Hornfeck and Wil K. Yamamoto (Starn O'Toole Marcus & Fisher)
Attorney(s) for Defendant-Appellee
William J. Deeley, Dennis W. King and Glenn S. Horio (Deeley King & Pang)
SPECIAL NOTE: The above argument will take place in the Supreme Court courtroom on the Second Floor of Ali`iolani Hale, 417 South King Street, Honolulu, Hawai`i.
COURT: Watanabe, Foley, and Fujise, JJ.
This case arose out of the sale of Vehicle Theft Registration systems (VTR(s)) in conjunction with the sale of automobiles.
In two consolidated class action complaints, Plaintiffs alleged, in general, that various Cutter dealerships had marketed VTRs by promising or deceptively appearing to promise to pay a specified amount to purchasers upon the theft of the automobile. Plaintiffs argued that such actions on the part of Cutter Defendants constituted "the unlawful marketing and sale of insurance without a proper certificate of authority and the unlawful marketing of insurance without a proper license," pursuant to Hawaii Revised Statutes (HRS) Chapter 481, and that Cutter Defendants' attempts to obtain money from and receipt of money from the Class as a result of marketing and selling insurance constituted an unfair and deceptive trade practice [UDAP] pursuant to HRS Chapter 480.
Cutter Defendants filed a motion for partial summary judgment (Motion for Partial SJ), arguing, in sum, that the VTRs did not constitute insurance. The circuit court granted the Motion for Partial SJ.
Tokuhisa, court-appointed class representative, appeals the Final Judgment, arguing that the circuit court:
(1) committed reversible error in granting Cutter Defendants' Motion for Partial SJ because (a) there are genuine issues of material fact as to whether Cutter Defendants committed a UDAP in marketing and selling insurance without a license under the guise of a warranty for the VTRs and (b) the determination of whether VTRs constitute insurance, at a minimum, involved a genuine issue of material fact and did not dispose of Plaintiffs' VTR claims;
(2) abused its discretion in narrowly construing Plaintiffs' complaint and by denying Plaintiffs' motion to amend the complaint; and
(3) abused its discretion by denying Plaintiffs' motion to certify a class and subclass and certifying an arbitrarily narrow VTR subclass of consumers who used credit sales contracts and "alleged" that the VTR system is insurance.