Oral Arguments Schedule

Argument DetailCourt

No. SCWC-10-0000150, Tuesday, April 29, 2014, 10 a.m.

GEOFFREY MOLFINO, Petitioner/Plaintiff-Appellant, vs. CHRISTOPHER J. YUEN, in his capacity as Planning Director, County of Hawai`i; COUNTY OF HAWAIʻI; JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; DOE GOVERNMENTAL UNITS 1-10; and DOE ENTITIES 1-10, Respondents/Defendants-Appellees.

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

Kealakehe High School Gymnasium
74-5000 Puohulihuli Street
Kailua Kona, HI 96740

Attorney for Petitioner/Plaintiff-Appellant:

Peter Van Name Esser

Attorneys for Respondents/Defendants-Appellees:

Laureen L. Martin and Michael J. Udovic, Deputy Corporation Counsels

NOTE: Certificate of Recusal, by Associate Justice Simeon R. Acoba, Jr., filed 12/10/13.

NOTE: Order assigning Circuit Court Judge Karen T. Nakasone in place of Acoba, J., recused, filed 12/12/13.

NOTE: Order accepting Application for Writ of Certiorari, filed 01/17/14.

COURT: MER, CJ; PAN, SSM, & RWP, JJ; Circuit Court Judge Nakasone in place of Acoba, J., recused.

Brief Description:

This Application raises an issue of first impression in Hawaiʻi: whether a governmental entity (here, the County of Hawaiʻi’s Planning Department) owes a duty to the public to maintain accurate and complete records. Petitioner/Plaintiff-Appellant Geoffrey Molfino filed an Application for Writ of Certiorari presenting the following question: “Because the Hawaii County Planning Department maintains permanent subdivision records, for both its own purpose and public access, does the County have a duty to exercise reasonable care in their maintenance and preservation?”

According to Molfino’s Complaint, Molfino bought a 49-acre parcel of land in Ninole on June 13, 2003 and sought a determination of lots of record by letter addressed to Christopher J. Yuen, the County Planning Director, on December 24, 2003. On June 2, 2004, Yuen responded by letter stating that the parcel consisted of two pre-existing lots. In the meantime, on July 19, 2004, Molfino sold the parcel. Molfino subsequently became aware of a May 22, 2000 letter prepared by the former Planning Department Director stating that the parcel consisted of six separate lots of record. Molfino alleges that that letter was missing from the Planning Department’s files during the period he owned the parcel. The Planning Department later determined that the 49-acre parcel consisted of six lots of record and granted the new owner approval for a seven-lot subdivision.

Molfino sued the County of Hawaiʻi and Yuen (in his official capacity) for negligence, alleging that they breached a duty owed to him to maintain complete and accurate Planning Department records. Molfino alleged that the breach of this duty caused him monetary damages. Molfino supported his argument that the Planning Department had a duty to maintain accurate and complete records with the Planning Department’s Rules of Practice and Procedure, § 1-8, entitled “Public Records.” That rule states, in relevant part, “All public records shall be available for inspection by any person[.]”

The circuit court granted the defendants’ motion for summary judgment. It concluded that Rule § 1-8 requires records to be open for public inspection but does not require that the records be maintained. It also ruled that Molfino should have gone through the formal subdivision approval process instead of relying on the Planning Department’s records to determine how many lots were on his property. The circuit court then concluded that imposing a duty of care on the County would result in “unremitted liability.” The circuit court reasoned that it would be too easy for a person reviewing the Planning Department’s records to manufacture a claim against the County. Lastly, the circuit court decided that the legislative branch (not the judicial branch) was the proper entity to determine whether to impose a duty to maintain accurate records upon the County.

The Intermediate Court of Appeals affirmed the circuit court, and Molfino appealed the decision to this court.

 

Supreme
Court

No. SCWC-28958, Wednesday, May 7, 2014, 8:45 a.m.

C. BREWER AND COMPANY, LTD., Respondent/Plaintiff-Appellant, vs. JAMES RIVER INSURANCE COMPANY, Petitioner/Defendant-Appellee; and INDUSTRIAL INDEMNITY COMPANY; INDUSTRIAL INSURANCE COMPANY OF HAWAII, LTD; NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH; et al., Respondents/Defendants-Appellees; and STATE OF HAWAI`I, Respondent/Third-Party Plaintiff-Cross-Appellant, vs. MARSH USA, INC., Respondent/Third-Party Defendant-Appellee; and KEHALANI HOLDINGS COMPANY, INC., Respondent/Third-Party Plaintiff-Cross-Appellant, vs. UNITED NATIONAL INSURANCE COMPANY; COMMONWEALTH INSURANCE COMPANY; et al., Respondents/Third-Party 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 Petitioner James River Ins.:

Keith K. Hiraoka and Jodie D. Roeca of Roeca Luria Hiraoka LLP

Attorneys for Respondent C. Brewer & Co.:

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

Attorneys for Respondent Kehalani Holdings:

William Meheula and Natasha Baldauf

Attorney for Respondent Marine Indemnity:

Gale L.F. Ching

Attorneys for Respondent Fireman’s Fund:

Kevin S.W. Chee and Devon I. Peterson of Chee Markham & Feldman

Attorneys for Respondent State of Hawai`i:

Russell A. Suzuki, First Deputy Attorney General; Reese R. Nakamura and Michael S. Vincent, Deputy Attorneys General

Attorney for Respondents Lexington Ins. and National Union Fire Ins.:

William A. Bordner of Burke McPheeters Bordner & Estes

Attorneys for Respondent U.S. Fire Ins.:

Richard B. Miller and Patricia Kehau Wall of Tom Petrus & Miller

Attorney for Respondents Tradewind Ins. and Island Ins.:

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

Attorneys for Respondent Columbia Casualty Ins.:

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

Attorney for Respondent First State Ins.:

Peter W. Olson of Cades Schutte LLP

Attorney for Respondents Ace Property (fka CIGNA Property) and Pacific Employers Ins.:

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

Attorneys for Respondent Liberty Mutual Ins.:

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

Attorneys for Respondent Scottsdale Ins.:

Paul T. Yamamura and Wesley D. Shimazu of Yamamura & Shimazu

NOTE: Certificate of Recusal, by Chief Justice Mark E. Recktenwald, filed 12/24/13.

NOTE: Certificate of Recusal, by Associate Justice Simeon R. Acoba, Jr., filed 12/27/13.

NOTE: Order assigning Circuit Court Judges Edward H. Kubo, Jr. and Patrick W. Border, in places of Recktenwald, C.J., and Acoba, J., both recused, respectively, filed 01/14/14.

NOTE: Order accepting Application for Writ of Certiorari, filed 02/03/14.

NOTE: Order assigning Circuit Court Judge Michael D. Wilson, due to a vacancy, filed 04/08/14.

COURT: PAN, Acting C.J.; SSM & RWP, JJ.; Circuit Court Judges Kubo and Wilson, in places of Recktenwald, C.J., recused, and a vacancy, respectively.

Brief Description:

Petitioner/Defendant-Appellee James River Insurance Company (James River) applied for writ of certiorari from the Intermediate Court of Appeals’s (ICA) October 22, 2013 Judgment on Appeal, entered pursuant to its August 7, 2013 Memorandum Opinion, which vacated and remanded the Circuit Court of the Fifth Circuit’s December 21, 2007 Final Judgment entered pursuant to Hawai`i Rules of Civil Procedure Rule 54(b).

 

This case arose from the March 14, 2006 collapse of the Kaloko Dam in Kīlauea, Kauai (Dam Breach). The Dam Breach caused the release of over three million gallons of water from the reservoir, the loss of seven lives, and extensive property damage. At the time of the breach, James Pflueger (Pflueger) was the owner of the Kaloko Dam. Pflueger had purchased the land under the Kaloko Dam in 1987 from C. Brewer and Company, Ltd. (C. Brewer).

Pflueger sued C. Brewer in the Circuit Court of the First Circuit seeking damages and indemnification against claims brought against Pflueger arising out of the Dam Breach. Pflueger alleged that C. Brewer had sold the property to Pflueger fully aware that the Dam’s structural stability was questionable, failed to repair it before selling it, and intentionally concealed the Dam’s instability.

C. Brewer filed a complaint in the Circuit Court of the Fifth Circuit (circuit court) seeking a declaration regarding the insurance coverage obligations owed by seventeen insurance companies that had at varying times issued it a range of different policies. A commercial general liability policy issued to C. Brewer by James River was in effect at the time of the Dam Breach.

James River moved for summary judgment in the circuit court arguing, inter alia, that its policy’s Designated Premise Endorsement (DPE) limited coverage to liability arising out of the ownership, maintenance, or use of a very specific number of identified premises, none of which included the Kaloko Dam site. James River also argued that its Classification Limitation Endorsement limited coverage to those operations specified in the policy, described as “real estate owners,” but that C. Brewer did not own the Kaloko Dam site at the time of the Dam Breach. C. Brewer argued that the DPE was ambiguous and could be interpreted as covering injuries resulting from decisions made at C. Brewer’s headquarters, a location covered by the DPE. The circuit court granted James River’s motion for summary judgment, concluding that James River was not obligated to provide coverage to C. Brewer for the Dam Breach.

On appeal, the ICA vacated the circuit court’s judgment, concluding that the James River policy was ambiguous with respect to whether the DPE barred coverage because C. Brewer and James River had presented differing, but reasonable interpretations of the clause; therefore, the parties’ intent in using this endorsement raised genuine issues of material fact.

On application for writ of certiorari, James River presents the following question:

“Did the ICA gravely err when it reversed the Circuit Court’s finding that the ‘Limitation of Coverage to Designated Premises Endorsement’ in the James River liability policy issued to C. Brewer, considered in the context of the entire policy, unambiguously precludes coverage, as a matter of law, for the bodily injury and property damage claims stated against C. Brewer in underlying actions arising from the March 2006 failure of the Ka Loko Dam and Reservoir.”

Supreme Court

No. SCWC-29036, Monday, May 12, 2014, 8:45 a.m.

(Amended 03/28/14)

BENJAMIN PAUL KEKONA and TAMAE M. KEKONA, Petitioners/Plaintiffs-Appellees, vs. MICHAEL BORNEMANN, M.D., Respondent/Defendant-Appellant, and PAZ FENG ABASTILLAS, also known as PAZ A. RICHTER; ROBERT A. SMITH, personally; ROBERT A. SMITH, Attorney at Law, a Law Corporation; STANDARD MANAGEMENT, INC.; U.S. BANCORP MORTGAGE COMPANY, an Oregon company; Respondents/Defendants.

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

Attorney for Petitioners/Plaintiffs-Appellees:

Fred Paul Benco

Attorney for Respondent/Defendant-Appellant:

Peter Van Name Esser

NOTE: Order accepting Application for Writ of Certiorari, filed 11/26/13.

NOTE: Certificate of Recusal, by Associate Justice Simeon R. Acoba, Jr., filed 01/06/14.

NOTE: Order assigning Circuit Court Judge Rom A. Trader in place of Acoba, J., recused, filed 01/31/14.

COURT: MER, CJ; PAN, SSM, & RWP, JJ; Circuit Court Judge Trader, in place of Acoba, J., recused.

Brief Description:

Petitioners/Plaintiffs-Appellees Tamae and Benjamin Kekona (the Kekonas) have applied for a writ of certiorari from the Intermediate Court of Appeals’s (ICA) September 16, 2013 Judgment on Appeal filed pursuant to its May 31, 2013 Published Opinion (opinion). The opinion vacated the Circuit Court of the First Circuit’s (circuit court) final judgment.

This case arose in the aftermath of a 1993 civil trial that resulted in an approximately $191,000 judgment in favor of the Kekonas against Dr. Paz Abastillas (Abastillas), Robert Smith (Smith), and their corporation, Standard Management Inc. (SMI). Immediately following that trial, Abastillas and Smith transferred substantially all of their real and personal property to Dr. Michael Bornemann (Bornemann) to shield those assets from the Kekonas’ judgment.

The Kekonas filed suit against Abastillas, Smith, and Bornemann in the instant action, alleging that these conveyances were fraudulent. After various appeals and three jury trials, the Kekonas obtained a judgment against Bornemann in the amount of $253,075.29 in actual damages, and $1,641,857.13 in punitive damages. The punitive damage award was based on the jury’s determination that Bornemann participated in one fraudulent real estate conveyance. On appeal, the ICA held, among other things, that the punitive damages award violated Bornemann’s federal due process rights, and remanded the case with instructions that the circuit court offer the Kekonas the option of seeking a fourth trial or of accepting a remittitur that would reduce the punitive damages award to $250,000.

On application for writ of certiorari to this court the Kekonas argue that the ICA gravely erred in vacating the circuit court’s $1,642,857.13 punitive damages award against Bornemann and remitting those punitive damages down to $250,000.

Supreme Court
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