NO. 27743 - Wednesday, November 12, 2008 - 9:00 a.m.
GEORGE'S AVIATION SERVICES, INC.; GEORGE HANZAWA; and JENNIFER OKA, Plaintiffs-Appellees, vs. XL SPECIALTY INSURANCE COMPANY, Defendant-Appellant, and MITCHELL HAYES; and NATALIE HAYES, Individually and as Personal Representative of the Estate of CHEZRAY Y. HAYES, Deceased, Defendants-Appellees. (Declaratory Judgment)
Attorney(s) for Defendant-Appellant
Tracy G. Chinen and Devon I. Peterson (Rush Moore, LLP)
Attorney(s) for Plaintiffs-Appellees
David L. Turk
Attorney(s) for Defendants-Appellees
Michael Jay Green, Earl I. Anzai and Glenn H. Uesugi
Chezray Hayes, a minor, died when the aircraft he was piloting crashed on Molokai. His parents, Defendants-Appellees Mitchell and Natalie Hayes (the Hayes), filed a wrongful death action against the plane's owner, Plaintiffs-Appellees George's Aviation Services Inc., George Hanzawa, and Jennifer Oka (collectively, George's Aviation). George's Aviation filed a declaratory judgment action against its insurer, Defendant-Appellant XL Specialty Insurance Company (XL), seeking a declaration that the total amount of coverage available under XL's policy was $300,000 ($100,000 each for claims by each of the Hayes, individually, and $100,000 for the Estate of Chezray Hayes). On three summary judgment motions, the Second Circuit Court ruled in favor of George's Aviation and the Hayes and against XL. XL timely filed this appeal.
On appeal, XL argues that the total amount of coverage available is limited by the "each person" limitation of $100,000 because the Hayes' claims are derivative of the Estate of Chezray Hayes, and not entitled to separate policy limits. The appellees argue, inter alia, that XL's derivative claim analysis should be rejected, negligent infliction of emotional distress is an independent tort entitled to a separate policy limit, and XL's policy was ambiguous.