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Oral Argument Before the Intermediate Court of Appeals

CAAP-13-0000531, Wednesday, September 10, 2014, 9:00 a.m.

CAAP-13-0000531 – (Consolidated with CAAP-13-0000551 as the Personal Representative, and Plaintiffs-Appellees, vs. State of Hawaii, CAAP-13–0000615)

William A. Arthur, Sr., Individually, and The Estate of Mona Arthur thru William A. Arthur Sr., as the Personal Representative, Plaintiffs-Appellees, vs. State of Hawaii, Department of Hawaiian Home Lands, Kamehameha

Investment Corporation, Design Partners Inc., Coastal Construction Co., Inc., Association of Kalawahine Streamside Association, Sato and Associates, Inc., Daniel S. Miyasato, Inc., Defendants-Appellees, and John and Mary Does 1-50, Doe Partnerships 1-50, Doe Corporations 1-50, and other Doe Entities 1-50, Defendants.

Kamehameha Investment Corporation, State of Hawaii, Department of Hawaiian Home Lands, Third-Party Plaintiffs-Appellees, vs. Kiewit Pacific Co., Third-Party Defendant-Appellee. Kiewit Pacific Co., Fourth-Party Plaintiff-Appellee, vs. Pacific Fence, Inc., Fourth-Party Defendant-Appellant, and John Does 1-5, Doe Corporations 1-5, Doe Partnerships 1-5, Roe Non-Profit Organizations 1-5, and Roe Governmental Agencies 1-5, Fourth-Party 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(s) for Plaintiffs/Appellees/Appellants/Cross-Appellees WILLIAM A. ARTHUR, SR., Individually, and THE ESTATE OF MONA ARTHUR THRU WILLIAM A. ARTHUR SR. AS THE PERSONAL REPRESENTATIVE:

Lester K. M. Leu, Gary Y. Okuda, and Karyn A. Doi of Leu
Okuda & Doi
Leighton K. Lee

Attorney(s) for Defendant/Appellee/Third-Party Plaintiff/Cross-Appellee STATE OF HAWAII, DEPARTMENT OF HAWAIIAN HOME LANDS:

Randall Y. Yamamoto and Brian Y. Hiyane of Yamamoto Kim, LLP

Attorney(s) for Defendant/Appellee/Third-Party Plaintiff/Cross-Appellee KAMEHAMEHA INVESTMENT CORPORATION:

Brad S. Petrus, Joseph F. Kotowski III, David R. Harada-Stone, and Lyle M. Ishida of Tom Petrus & Miller, LLLC

Attorney(s) for Defendant/Appellee/Cross-Appellee/Appellant DESIGN PARTNERS, INCORPORATED:

Arthur H. Kuwahara of Kim & Kuwahara

Attorney(s) for Defendant/Appellee/Cross-Appellant COASTAL CONSTRUCTION CO., INC.:

Wayne M. Sakai, Michiro Iwanaga, and Max J. Kimura of Sakai Iwanaga Sutton Law Group, AAL, LLLC

Attorney(s) for Defendant/Appellee ASSOCIATION OF KALAWAHINE STREAMSIDE ASSOCIATION:

Jonathan L. Ortiz, Wade J. Katano, and Christine S. Prepose-Kamihara of Ortiz & Katano

Attorney(s) for Defendants/Appellees/Cross-Appellants SATO AND ASSOCIATES, INC. and DANIEL S. MIYASATO:

Frank K. Goto, Jr., Bennett J. Chin, and Jane Kwan of the Law Offices of Frank K. Goto, Jr.

Kevin P.H. Sumida, Anthony L. Wong, and Lance S. Au of Kevin Sumida & Associates, LLLC

Attorney(s) for Third-Party Defendant/Appellee/Fourth-Party Plaintiff/Cross-Appellee KIEWIT PACIFIC CO.

Wesley H.H. Ching, Sheree Kon-Herrea of Fukunaga Matayoshi Hershey & Ching, LLP

Cary T. Tanaka and Dawn M. Nakagawa of the Law Offices of Cary T. Tanaka Greg H. Takase

Attorney(s) for Fourth-Party Defendant/Appellant/Appellee/Cross-Appellee PACIFIC FENCE, INC.:

Robert P. Richards of Hughes Richards & Associates

Michael N. Tanoue and Eric H. Kunisaki of The Pacific Law Group

COURT: Foley, Fujise, and Leonard, JJ.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

This case arises out of an alleged wrongful death that occurred on or about November 10, 2003 at the Kalawahine Streamside Housing Development, located on 27 acres of land owned by Defendant/Appellee/Third Party Plaintiff/Cross-Appellee State of Hawai?i, Department of Hawaiian Home Lands (DHHL) in Honolulu. Plaintiffs/Appellees/Appellants/Cross-Appellees William A. Arthur, Sr., individually and the Estate of Mona Arthur, through William A. Arthur, as Personal Representative (collectively, Arthur) brought suit against DHHL, the developer Defendant/Appellee/Third Party Plaintiff/ Cross-Appellee Kamehameha Investment Corporation (KIC), the general housing contractor Defendant/Appellee/Cross-Appellant Coastal Construction Co., Inc. (Coastal), the architecture firm Defendant/ Appellee/Cross-Appellee/Appellant Design Partners, Inc. (Design Partners), the civil engineer Defendants/Appellees/Cross-Appellant Sato and Associates, Inc. and Daniel S. Miyasato (Sato) (collectively, Sato), and the Defendant/Appellee Association of Kalawahine Streamside Association (AOAO). KIC filed a third-party Complaint for indemnification and contribution against the general site development contractor, Third-Party Defendant/Appellee/Fourth-Party Plaintiff/ Cross-Appellee Kiewit Pacific Co. (Kiewit). DHHL also filed a third-party Complaint for indemnification and contribution against Kiewit. Kiewit filed a fourth-party Complaint against the subcontractor who furnished and installed a chainlink fence, Fourth-Party Defendant/ Appellant/Appellee/Cross-Appellee Pacific Fence Inc. (Pacific Fence). Defendant parties filed counterclaims for indemnification and contribution against other defendant parties.

On April 30, 2013, Pacific Fence filed an appeal from the Circuit Court of the First Circuit’s (circuit court) Amended Final Judgment, entered April 2, 2013 (Amended Final Judgment), and underlying orders. The Amended Final Judgment superseded the Judgment entered January 9, 2012, and was entered in favor of DHHL, KIC, Design Partners, Coastal, AOAO, and Sato against Arthur. Concerning the Third- and Fourth-Party Complaints, the Amended Final Judgment was entered in favor of Kiewit against KIC and in favor of Pacific Fence against Kiewit. The Amended Final Judgment also provided judgment on specific claims of contribution, equitable indemnity, and contractual defense amongst the parties. Several appeals had arisen from the Arthur Complaint and on June 4, 2013, this court entered an order consolidating the appeals in case nos. CAAP-13-0000531, CAAP-13-0000551, and CAAP-13-0000615 under CAAP-13-0000531.

On appeal, Arthur contends the circuit court erred by:

(1) granting AOAO’s motion for summary judgment on any and all claims asserted by plaintiffs due to lack of causation;

(2) granting KIC’s motion for partial summary judgment as to plaintiff’s claim for punitive damages; and

(3) denying Arthur’s motion for leave to file a complaint over and against Kiewit.

On appeal, Sato contends the circuit court erred by:

(1) holding Sato had a joint and several duty to defend KIC as of December 15, 2005;

(2) finding Sato was obligated to pay KIC fees or costs;

(3) finding Sato had a contractual duty to indemnify and defend KIC and that Sato had a joint and several duty to defend KIC.

On appeal, Pacific Fence contends the circuit court erred by:

(1) granting Kiewit’s motion for partial summary judgment in 2007, which included the circuit court’s holding that “[a]ny obligation Kiewit has to defend KIC and [Sato] passes through Kiewit, as a matter of law, to Pacific Fence[;]”

(2) granting KIC’s motion for partial summary judgment in 2010, which included the circuit court’s holding that “Pacific Fence had a joint and several duty to defend KIC from February 9, 2006[;]”

(3) granting KIC’s motion regarding Coastal in 2010;

(4) granting KIC’s motion regarding Design Partners;

(5) granting KIC’s motion for partial summary judgment regarding Kiewit and Sato in 2010;

(6) granting Kiewit’s motion in 2010, which included the circuit court’s holding that “Kiewit’s obligation to reimburse KIC and/or make future payments for KIC’s defense fees and costs . . . [passed] through Kiewit as a matter of law to Pacific Fence[;]” and

(7) holding Pacific Fence was required to pay KIC fees and costs incurred for periods and in percentages set forth in an exhibit to the Amended Final Judgment.

Coastal contends the circuit court erred by holding:

(1) Coastal and Kiewit assumed KIC’s contractual duty to defend DHHL in litigation and thus relieved KIC from obligations to defend DHHL;

(2) KIC’s contractual duty to defend DHHL included defense of claims regarding the negligence or willful acts, omissions, failure to act, or misconduct of DHHL;

(3) Coastal was bound to defend DHHL against all claims asserted in litigation and not only against claims attributable to work by Coastal or its subcontractors; and

(4) Coastal had a contractual duty to defend DHHL in litigation brought by Arthur under a contract between KIC and Coastal.