Gemini Insurance Company v. Kukui'ula Development Company (Hawaii), LLC.
Filing
441
ORDER GRANTING GEMINI'S MOTION FOR SUMMARY JUDGMENT AGAINST INDIAN HARBOR FOR PAYMENT OF DEFENSE FEES 333 ; AND DENYING INDIAN HARBOR'S COUNTER-MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST GEMINI 377 . Signed by JUDGE LESLIE E. KOBAYASHI o n 7/15/2013. [Order follows hearing held 5/6/2013; Minutes: doc no. 413 , and supercedes the "EO" Minute Order issued 5/31/2013 as doc. no. 415 ] (afc)CERTIFICATE OF SERVICEPa rticipants registered 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
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
GEMINI INSURANCE COMPANY,
Plaintiff,
vs.
KUKUI`ULA DEVELOPMENT COMPANY
(HAWAII), LLC; DMB KUKUI`ULA,
LLC; KDC, LLC; DMB ASSOCIATES
(HAWAII), INC.; and A & B
PROPERTIES, INC., et al.,
Defendants.
_____________________________
)
)
)
)
)
)
)
)
)
)
)
)
)
)
CIVIL NO. 10-00637 LEK-BMK
ORDER GRANTING GEMINI’S MOTION FOR SUMMARY
JUDGMENT AGAINST INDIAN HARBOR FOR PAYMENT
OF DEFENSE FEES; AND DENYING INDIAN HARBOR’S
COUNTER-MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST GEMINI
This case is a declaratory relief action arising from a
dispute over coverage between insureds Kukui‘ula Development
Company (Hawaii), LLC, DMB Kukui‘ula, LLC, KDC, LLC, DMB
Associates (Hawaii), Inc., and A&B Properties, Inc.
(collectively, “KDC”), and their three insurers, Gemini Insurance
Company (“Gemini”), Indian Harbor Insurance Company (“Indian
Harbor”), and Certain Underwriters at Lloyd’s (“Underwriters”).
Before the Court are (1) Gemini’s Motion for Summary
Judgment and Entry of Final Judgment Against Indian Harbor
Insurance Company for Payment of Defense Fees and Costs Pursuant
to the Order Filed June 29, 2012, filed March 1, 2013 (“GeminiIndian Harbor Motion”), [dkt. no. 333;] and (2) Indian Harbor’s
Counter-Motion for Partial Summary Judgment Against Gemini, filed
April 15, 2013 (“Indian Harbor-Gemini Counter-Motion”), [dkt. no.
377].1
The parties filed their respective memoranda in
opposition to the motions on April 15, 2013, replies in support
of the motions and memoranda in opposition to the counter-motions
on April 22, 2013, and replies in support of the counter-motions
on April 29, 2013.
These matters came on for hearing on May 6, 2013.
Appearing on behalf of KDC were James C. McWhinnie, Esq.,
Joseph L. Oliva, Esq., and Tred R. Eyerly; appearing on behalf of
Gemini was J. Patrick Gallagher, Esq.; appearing on behalf of
Indian Harbor were Michael N. Tanoue, Esq., and Max H. Stern,
1
Also before the Court were: (1) KDC’s Motion for Partial
Summary Judgment Against Gemini Insurance Company, filed March 1,
2013, [dkt. no. 329;] (2) Gemini’s Motion for Summary Judgment
for an Order Finding that Gemini is a Surplus Lines Insurer Not
Bound by Haw. Rev. Stat. Section 431:10-242, filed March 1, 2013,
[dkt. no. 335;] (3) Underwriters’ Motion for Summary Judgment,
filed March 1, 2013, [dkt. no. 345;] (4) Underwriters’
Substantive Joinder in the Gemini Surplus Lines Motion and Indian
Harbor-KDC Motion No. 3, filed March 8, 2013, [dkt. no. 348;]
(5) KDC’s Motion for Partial Summary Judgment Against Certain
Underwriters at Lloyd’s, filed March 1, 2013, [dkt. no. 330;]
(collectively, the “Underwriters Motions”) (6) KDC’s Motion for
Partial Summary Judgment Against Indian Harbor Insurance Company,
filed March 1, 2013, [dkt. no. 328;] (7) Indian Harbor’s Motion
for Partial Summary Judgment No. 1 against KDC (re: Indemnity
Issues), filed March 1, 2013, [dkt no. 339;] (8) Indian Harbor’s
Motion for Partial Summary Judgment No. 2 against KDC (re: Bad
Faith on Defense Costs), filed March 1, 2013, [dkt. no. 341;]
(9) Indian Harbor’s Motion for Partial Summary Judgment No. 3
against KDC (re: Attorneys’ Fees), filed March 1, 2013, [dkt no.
343;] and (10) Indian Harbor’s Counter-Motion for Partial Summary
Judgment Against KDC, filed April 15, 2013, [dkt no. 375.]
2
Esq.; and appearing on behalf of Underwriters was Richard B.
Miller, Esq.
After careful consideration of the motions and
counter-motions, supporting and opposing memoranda, and the
arguments of counsel, the Court:
(1) GRANTS the Gemini-Indian
Harbor Motion; and (2) DENIES the Indian Harbor-Gemini CounterMotion.
BACKGROUND
I.
Factual Background
This case arises out of KDC’s planning, development,
and construction of the Kukui‘ula Residential Community Project
on Kaua`i (“Project”).
KDC purchased different insurance
policies from the three carriers in this action: (1) a Commercial
General Liability (“CGL”) policy from Gemini for September 23,
2005 to September 23, 2008 (“Gemini Policy”); (2) a CGL policy
from Underwriters for September 23, 2008 to September 23, 2010
(“Underwriters Policy”); and (3) a Pollution Legal Liability
policy from Indian Harbor (“Indian Harbor Policy”).
The Gemini
and Underwriters policies are both CGL policies, which were
issued for consecutive two- and three-year periods.
The relevant procedural and factual background of the
case, as well as the relevant language from the three insurance
policies, are set forth in this Court’s June 29, 2012 Order
(“6/29/12 Order”), [dkt. no. 274,] and February 29, 2012 Order
(“2/29/12 Order”), Gemini Ins. Co. v. Kukui`ula Dev. Co., 855 F.
3
Supp. 2d 1125 (D. Hawai`i 2012), and the Court will not repeat
them here, except to highlight a few facts relevant to the
instant motions.
A.
The Underlying Actions
In 2009, three lawsuits were filed against KDC,
alleging bodily injuries and property damage arising out of the
work performed on the Project: (1) Schredder v. Kukui‘ula
Development Co. (Hawaii), Civ. No. 09-1-0045, Circuit Court of
the Fifth Circuit, State of Hawai`i (the “Schredder Action”);
(2) Hawaiian Insurance & Guaranty Co. v. Kukui‘ula Development
Co. (Hawaii), Civ. No. 09-1-0046, Circuit Court of the Fifth
Circuit, State of Hawai`i (the “HIG Action”); and (3) Ass’n of
Apartment Owners of Lawai Beach Resort v. Kukui‘ula Development
Co. (Hawaii), Civ. No. 09-1-0109, Circuit Court of the Fifth
Circuit, State of Hawai`i (the “AOAO Action”) (collectively, the
“Underlying Actions”).
Gemini provided a full defense in the Underlying
Actions, subject to a reservation of rights; however, Indian
Harbor and Underwriters did not.
All three Underlying Actions
were fully settled: the Schredder Action was settled for a total
of $625,000, the HIGC Action settled for a total of $280,000, and
the AOAO Action settled for a total of $285,000.
B.
The Additional Claims and Payments
In addition to the Underlying Actions, a number of
4
neighboring homeowners made claims directly to KDC (“Additional
Claims”) that dust and dirt from the construction caused healthrelated issues or other damages.
Prior to beginning
construction, KDC instituted a program to make certain payments
to neighbors of the Project and, in January 2006, met with
neighbors to inform them of this program (the “Neighborhood
Satisfaction Program”).
The payments made to neighbors were for
a variety of services, including the increased cost of house and
pool cleaning because of dirt flowing from the Project,
installation of screens on neighboring houses to prevent dirt
from entering, and provision of air conditioning units (the
“Additional Payments”).
In June 2006, KDC hired a Neighborhood Relations
Manager (Patti Mielziner), who was primarily responsible for
communicating with neighbors regarding the Project, assessing
what payments would be made to those neighbors, and administering
those payments.
Starting in or around June 2007, KDC also
separately participated in a multi-party Dust Management Hui, a
group of developers who agreed to share the cost of payments made
to neighbors who were impacted by multiple developers.
Ms. Mielziner was also designated the Neighborhood Relations
Manager with respect to the Dust Management Hui.
Pursuant to
KDC’s efforts to address the Additional Claims, more than 1,200
invoices were paid over the course of almost four years – between
5
January 2006 and October 2009 – to more than 170 recipients,
totaling approximately $722,000.
STANDARD
The standard for summary judgment is well-known to the
parties and the Court and does not bear repeating here.
See,
e.g., Rodriguez v. Gen. Dynamics Armament & Technical Prods.,
Inc., 696 F. Supp. 2d 1163, 1176 (D. Hawai‘i 2010).
DISCUSSION
In the Gemini-Indian Harbor Motion, Gemini seeks final
judgment on Indian Harbor’s obligation to reimburse Gemini for
Indian Harbor’s share of the defense costs.
Gemini emphasizes
that it provided KDC with a full defense, subject to a
reservation of rights, in the Underlying Actions, and that this
Court has already determined in its 6/29/12 Order that Indian
Harbor had a duty to defend and are liable to Gemini for a stated
percentage share of the defense.
Gemini notes that, in a letter
dated July 12, 2012, Gemini provided Indian Harbor with redacted
copies of the defense invoices and a table summarizing the
invoices and made a demand for reimbursement of defense fees and
costs pursuant to the Court’s 6/29/12 Order.
failed to respond.
Indian Harbor
Gemini therefore asks the Court to enter
final judgment, pursuant to Rule 56(a) of the Federal Rules of
Civil Procedure, against Indian Harbor in favor of Gemini, and to
award Gemini $241,392.87, Indian Harbor’s share of the defense
6
expenses incurred by Gemini.
[Mem. in Supp. of Gemini-Indian
Harbor Motion at 4, 9.]
In the Indian Harbor-Gemini Counter-Motion, Indian
Harbor does not dispute the amount Gemini claims it is owed, or
Gemini’s request for entry of final judgment, but, rather, asks
the Court to reconsider its prior ruling in its 6/29/12 Order
that Gemini is entitled to equitable contribution and
reimbursement for defense fees incurred by KDC in the Underlying
Actions.
[Indian Harbor-Gemini Counter-Motion at 1, 11.]
As a preliminary matter, the Court notes that Indian
Harbor’s request for reconsideration of the Court’s 6/29/12 Order
is untimely.
Rule LR60.1 of the Local Rules of Practice of the
United States District Court for the District of Hawai`i states
that a motion seeking reconsideration of an interlocutory order
must be filed and served not more than fourteen days after the
Court’s written order is filed.
Indian Harbor did not file a
motion requesting reconsideration until April 15, 2013, almost
ten months after the 6/29/12 Order was filed.
Harbor’s motion is clearly untimely.
As such, Indian
Further, Indian Harbor has
demonstrated no basis for the Court to exercise its inherent
power to reconsider its previous order: Indian Harbor makes
essentially identical arguments here as it made before this Court
in the 6/29/12 Order.
Mere disagreement with the Court’s
analysis in the 6/29/12 Order is not a sufficient basis for
7
reconsideration.
See White v. Sabatino, 424 F. Supp. 2d 1271,
1274 (D. Hawai`i 2006).
The Court therefore DENIES the Indian
Harbor-Gemini Counter-Motion.
The Court found in its 6/29/12 Order that Indian Harbor
is liable for one-half (½) of the defense costs Gemini incurred
from June 13, 2007 to November 11, 2010, and for one-third (1/3)
of the defense costs incurred thereafter until the settlement.
[Dkt. no. 274, at 85.]
Indian Harbor does not dispute the amount
Gemini asserts constitutes its share.
Counter-Motion at 16.]
[Indian Harbor-Gemini
As such, the Court GRANTS the Gemini-
Indian Harbor Motion and FINDS that Gemini is entitled to
reimbursement from Indian Harbor in the amount of $241,392.87,
and DENIES the Indian Harbor - Gemini Counter-Motion.
CONCLUSION
On the basis of the foregoing, the Court:
(1) GRANTS
Gemini’s Motion for Summary Judgment against Indian Harbor for
Payment of Defense Fees [dkt. no. 333]; and (2) DENIES Indian
Harbor’s Counter-Motion for Partial Summary Judgment Against
Gemini [dkt. no. 377].
Additionally, in light of the Court’s decision GRANTING
Gemini’s Motion for Summary Judgment against Indian Harbor for
Payment of Defense Fees, [dkt. no. 333,] the Court HEREBY ORDERS
the Clerk of the Court to enter judgment as to Count V of
Gemini’s Counterclaim for Declaratory Judgment, Equitable
8
Contribution, and Other Relief Against Indian Harbor, [dkt. no.
51,] in favor of Gemini and against Indian Harbor in the amount
of $241,392.87.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, July 15, 2013.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
GEMINI INSURANCE COMPANY V. KUKUI`ULA DEVELOPMENT CO. (HAWAII)
LCC, ET AL; CIVIL NO. 10-00637 LEK-BMK; ORDER GRANTING GEMINI’S
MOTION FOR SUMMARY JUDGMENT AGAINST INDIAN HARBOR FOR PAYMENT OF
DEFENSE FEES; AND DENYING INDIAN HARBOR’S COUNTER-MOTION FOR
PARTIAL SUMMARY JUDGMENT AGAINST GEMINI
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?