Oral Argument Before the Hawaii Supreme Court–No. SCWC-13-0002064
No. SCWC-13-0002064, Thursday, March 2, 2017, 9:45 a.m.
JOHN HASIRCOGLU and MARIA HASIRCOGLU, Petitioners/Plaintiffs-Appellants, vs. FOPCO, INC., Respondent/Defendant-Appellee.
The above-captioned case has been set for argument on the merits at:
Supreme Court Courtroom
Aliʻiolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813
Attorneys for Petitioners:
Charles H. Brower and Michael P. Healy
Attorney for Respondent:
Jeffrey A. Griswold
NOTE: Order accepting Application for Writ of Certiorari, filed 11/03/16.
COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.
[ Listen to the entire audio recording in mp3 format ]
Petitioners-Appellants John and Maria Hasircoglu (“the Hasircoglus”) applied for a writ of certiorari from the Intermediate Court of Appeals’ (ICA) July 26, 2016 Judgment on Appeal, issued pursuant to its June 30, 2016 unpublished Memorandum Opinion, which affirmed the circuit court’s judgment in favor of Respondent-Appellee FOPCO, Inc. (FOPCO).
This case arises out of an accident that occurred on a Moloka‘i construction site where John Hasircoglu, a T&M Construction Services, Inc. (T&M) employee, sustained injuries when a 2,500 pound spool fell off of its holder. At the time, Hasircoglu was sitting in front of the spool while riding on a trailer pulled by a vehicle driven by Donald Clark, another T&M employee. Clark and T&M President Michael Estes had designed the spool holder. Prior to the accident, in 2008, the State of Hawai‘i Agricultural Resource Management Division of the Department of Agriculture (the State) and FOPCO had entered into a contract for the construction project. In connection with this project, FOPCO and T&M entered into a subcontractor agreement whereby T&M agreed to perform necessary high-voltage electrical work.
The Hasircoglus filed suit against FOPCO. FOPCO filed a motion for summary judgment (MSJ) two years later. FOPCO argued it was not liable for Hasircoglu’s injuries because T&M was an independent contractor and Hasircoglu had sustained injuries on a T&M work site solely controlled and supervised by T&M employees. The Hasircoglus opposed the motion and contended Estes and Clark were employees or agents of FOPCO; they supported their opposition to FOPCO’s MSJ with a document that FOPCO had sent to the State in which FOPCO designated Estes as Health and Safety Manager and Clark as Project Superintendent.
The circuit court granted FOPCO’s MSJ, finding: (1) there was no genuine issue of material fact that FOPCO did not control or direct T&M regarding performance of the subcontracted work, and (2) the Hasircoglus failed to proffer any admissible evidence to show FOPCO could be vicariously liable for the negligence of T&M or any of its employees. The ICA affirmed.
In their application for writ of certiorari the Hasircoglus present one question for review: “Whether the ICA committed grave error of fact or law in failing to view the evidence of an agency relationship between FOPCO and two alleged tortfeasors, Clark and Estes, in the light most favorable to the non-moving parties?”