Allstate Insurance Company v. Leong

Filing 57

ORDER DENYING MOTION FOR RECONSIDERATION OF ORDER ADOPTING REPORT OF SPECIAL MASTER (DOC. NO. 50 ), 55 , 56 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 8/25/10. (emt, )CERTIFICATE OF SERVICEParticipants register ed to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry .

Allstate Insurance Company v. Leong

Doc. 57

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII ALLSTATE INSURANCE COMPANY, ) ) Plaintiff, ) ) vs. ) ) RICHARD D. LEONG, ) individually and as trustee ) of the Richard D. Leong ) Revocable Trust; and ELEANOR ) LEONG, individually and as ) trustee of the Eleanor Leong ) Revocable Trust, ) ) Defendants ) _____________________________ ) CIVIL NO. 09-00217 SOM/KSC ORDER DENYING MOTION FOR RECONSIDERATION OF ORDER ADOPTING REPORT OF SPECIAL MASTER (DOC. NO. 50)

ORDER DENYING MOTION FOR RECONSIDERATION OF ORDER ADOPTING REPORT OF SPECIAL MASTER (DOC. NO. 50) Allstate Insurance Company seeks reconsideration of this court's Order Adopting Report of Special Master (Aug. 13, 2010). Allstate claims that the Hawaii Supreme Court, in

Allstate Insurance Company v. AIG Hawaii Insurance Company, 118 Haw. 174, 186 P.3d 609 (2008), expressly ruled that, unless a court orders an insurance carrier to "pay benefits" under a policy, attorneys' fees and costs may not be awarded under section 431:10-242 of the Hawaii Revised Statutes. The only

difference between this argument and the argument made earlier is the citation of this additional case. Other than citing an additional case, Allstate does not address this court's ruling that, in ordering Allstate to defend

Dockets.Justia.com

the Leongs, this court ordered Allstate to pay benefits under the applicable insurance policy within the meaning of section 431:10242. Allstate cites no case specifically indicating that the

Hawaii Supreme Court has overruled or otherwise questioned the precedential value of Commerce & Indus. Ins. Co. v. Bank of Hawaii, 73 Haw. 322, 329, 832 P.2d 733, 737 (1992), which held that, when an insurer contests its duty to provide a defense of a suit and the court orders the insurer to pay the costs of the defense, the insured is entitled to reasonable attorneys' fees and costs under section 431:10-242. Allstate Insurance Company

v. AIG Hawaii Insurance Company, 118 Haw. 174, 186 P.3d 609 (2008), does not expressly overrule Commerce & Industry Insurance Company. Although the duty to defend was at issue in Allstate Insurance Company v. AIG Hawaii Insurance Company, the circuit court in that case merely ruled that exclusions in insurance policies were inapplicable and that coverage was afforded under the policies. Without much discussion, the Hawaii Supreme Court

concluded that the circuit court's ruling was insufficient to qualify as an order requiring the payment of benefits under a policy. See id. Because this court ordered Allstate to defend

the Leongs, thereby going beyond a mere statement that insurance coverage exists, Allstate Insurance Company v. AIG Hawaii

2

Insurance Company is distinguishable on its facts. motion for reconsideration is therefore denied. IT IS SO ORDERED. DATED: Honolulu, Hawaii, August 25, 2010.

Allstate's

/s/ Susan Oki Mollway Susan Oki Mollway Chief United States District Judge

Allstate Ins. Co. v. Leong, et al., CIVIL NO. 09-00217 SOM/KSC; ORDER DENYING MOTION FOR RECONSIDERATION OF ORDER ADOPTING REPORT OF SPECIAL MASTER (DOC. NO. 50)

3