Johns et al v. Wright-Scott et al
Filing
46
ORDER DENYING THIRD-PARTY DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 22 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 6/4/12. (emt, )CERTIFICATE OF SERVICEParticipants 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
TERRY JOHNS and GINNY SMITH,
)
)
Plaintiffs,
)
)
vs.
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SHEILA L. WRIGHT-SCOTT; JOHN )
DOES 1-10; JANE DOES 1-10;
)
DOE PARTNERSHIPS 1-10; DOE
)
CORPORATIONS 1-10; and DOE
)
)
ENTITIES 1-10,
)
)
Defendants,
_____________________________ )
)
)
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SHEILA L. WRIGHT-SCOTT,
)
)
Third-Party
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Plaintiff,
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)
vs.
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HALI STRANDLUND; DOES 1-10,
)
)
Third-Party
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Defendants.
_____________________________ )
CIVIL NO. 11-00634 SOM-RLP
ORDER DENYING THIRD-PARTY
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
ORDER DENYING THIRD-PARTY DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I.
INTRODUCTION.
This is a personal injury action.
While staying with
six others at a vacation rental in Kona, Hawaii, Plaintiffs Terry
Johns and Ginny Smith fell six feet onto lava rocks when a fence
they were allegedly leaning on broke.
Plaintiffs filed this
action against the owner of the home, Shelia L. Wright-Scott.
Wright-Scott then filed a third-party complaint against the
renter who signed the vacation rental agreement, Hali Strandlund,
seeking indemnity and contribution, and asserting a breach of
contract claim.
Strandlund now seeks summary judgment as to all
causes of action in the Third-Party Complaint.
The court denies
the motion.
II.
FACTUAL BACKGROUND.
Plaintiffs and Strandlund were among a group of eight
individuals from Canada who rented a vacation home in Kona,
Hawaii.
Separate and Concise Statement of Facts in Supp. of
Third-Party Def. Hali Strandlund’s Mot. for Summ. J. (“Strandlund
Facts”) No. 1, ECF No. 23.
Strandlund found the home on a
website that advertises vacation rentals and signed a lease
agreement on September 22, 2010.
Id. No. 2.
from February 5, 2011, to February 12, 2011.
The lease term was
Id. No. 5.
On the evening of February 8, 2011, after consuming
alcohol at the home, Plaintiffs went outside and allegedly leaned
against a fence.
Id. Nos. 10, 11; Def. Third-Party Pl. Separate
and Concise Statement of Facts in Opp. to Strandlund’s Facts
(“Wright-Scott’s Facts”) No. 11, ECF No. 31.
to have been a wooden fence with panels.
The fence appears
One of the panels
broke, and Plaintiffs say they fell approximately six feet onto
lava rocks below the home.
Scotts’s Facts No. 11.
injuries.
Strandlund’s Facts No. 11; Wright-
The fall allegedly caused severe
Strandlund’s Facts No. 13.
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Plaintiffs were taken to a
hospital on the Big Island.
Id.
Johns was then transported by
plane to a hospital in Honolulu.
Id.
Plaintiffs filed this action against Wright-Scott
seeking recovery for their injuries.
Wright-Scott then filed a
third-party complaint against Strandlund.
Wright-Scott seeks
indemnity and contribution to the extent she is found liable for
Plaintiffs’ injuries and also asserts a breach of contract claim.
Strandlund now seeks summary judgment on all claims in the ThirdParty Complaint.
III.
SUMMARY JUDGMENT STANDARD.
Summary judgment shall be granted when “the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
R. Civ. P. 56(a).
Fed.
A moving party has both the initial burden of
production and the ultimate burden of persuasion on a motion for
summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos.,
210 F.3d 1099, 1102 (9th Cir. 2000).
The burden initially falls on the moving party to
identify for the court “the portions of the materials on file
that it believes demonstrate the absence of any genuine issue of
material fact.”
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp.
Catrett, 477 U.S. 317, 323 (1986)); accord Miller v. Glenn Miller
Prods., Inc., 454 F.3d 975, 987 (9th Cir. 2006).
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“A fact is
material if it could affect the outcome of the suit under the
governing substantive law.”
Miller, 454 F.3d at 987.
When the
moving party bears the burden of proof at trial, that party must
satisfy its burden with respect to the motion for summary
judgment by coming forward with affirmative evidence that would
entitle it to a directed verdict if the evidence were
uncontroverted at trial.
Id. (quoting C.A.R. Transp. Brokerage
Co., Inc. v. Darden Rest., Inc., 213 F.3d 474, 480 (9th Cir.
2000)).
When the nonmoving party bears the burden of proof on
one or more issues at trial, the party moving for summary
judgment may satisfy its burden with respect to those issues by
pointing out to the court an absence of evidence from the
nonmoving party.
Miller, 454 F.3d at 987.
When the moving party meets its initial burden on a
summary judgment motion, “[t]he burden then shifts to the
nonmoving party to establish, beyond the pleadings, that there is
a genuine issue for trial.”
Id.
The court must not weigh the
evidence or determine the truth of the matter but only determine
whether there is a genuine issue for trial.
See Balint v. Carson
City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999).
On a summary
judgment motion, “the nonmoving party’s evidence is to be
believed, and all justifiable inferences are to be drawn in that
party’s favor.”
Miller, 454 F.3d at 988 (brackets omitted)
(quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)).
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IV.
ANALYSIS.
A.
Indemnity.
The first cause of action in the Third-Party Complaint
states that Strandlund owes Wright-Scott a duty to defend and
indemnify her from Plaintiffs’ claims.
(“TPC”) ¶ 13, ECF No. 1-2.
Third-Party Compl.
Strandlund seeks summary judgment on
the ground that the “indemnity provision” in her lease agreement
is void.
Paragraph seven of the lease agreement, the purported
indemnity provision, states:
“Owner of said premises is not
responsible for injury to rentors, their family or guests, or to
damage to their personal property incurred during their stay.
Renters, their family and guests, bear the risk of any injury.”
Decl. of Valerie E. Clemen Ex. F ¶ 6, ECF No. 23-7.
The court first notes that paragraph seven is not an
indemnity provision.
Generally, “[a]n agreement to indemnify
another is an agreement by one person to safeguard or hold
another harmless from loss or damage as may be specified in the
agreement, or in which the indemnitor promises to reimburse his
or her indemnitee for loss suffered.”
Westlaw through 2012).
42 C.J.S. § 1 (West,
“An indemnity provision generally . . .
obligates the indemnitor to protect the indemnitee against claims
brought by third parties.”
Id.
Paragraph seven does not
obligate Strandlund to safeguard Wright-Scott against any claims
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or to reimburse her for any loss.
It instead attempts to waive
Wright-Scott’s liability.
The court agrees with Strandlund that paragraph seven
is void to the extent it purports to absolve Wright-Scott of any
liability for causing, through her actions or omissions, an
injury on her property.
Hawaii law prohibits a landlord from
waiving liability for damages caused by the landlord.
Section
521-33 of Hawaii Revised Statutes states:
A provision in a rental agreement exempting
or limiting the landlord, or requiring the
tenant to indemnify the landlord, from
liability for damages to persons or property
caused by or resulting from the acts or
omissions of the landlord, the landlord's
agents, servants, or employees, in or about
the dwelling unit covered thereby or in or
about the premises of which it is a part is
void.
Paragraph seven falls within the scope of section
521-33, and, as conceded by Wright-Scott at the hearing on this
motion, it is unenforceable to the extent it waives WrightScott’s liability for injuries she caused.
Wright-Scott cannot
rely on paragraph seven to absolve herself of all liability for
Plaintiffs’ injuries.
It remains to be seen whether any action
or omission by Wright-Scott caused any injury, a matter this
court does not address here.
Even if paragraph seven is void, Strandlund fails to
show that Wright-Scott has no possible basis for seeking
indemnification from Strandlund, as that duty might arise from a
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source other than the lease agreement.
Wright-Scott asserts that
“Strandlund owes express and implied duties to defend and
indemnify Wright-Scott from Plaintiffs’ claims brought in this
action.”
TPC ¶ 13.
Although Strandlund does not identify the
source of those express and implied duties, on a summary judgment
motion, the burden is on the moving party to show that it is
entitled to judgment as a matter of law.
meet that burden.
Strandlund does not
For example, Strandlund fails to show that she
does not have a duty to indemnify Wright-Scott that is implied in
law.
See, e.g., Kaleel Builders, Inc. v. Ashby, 161 N.C. App.
34, 38, 587 S.E.2d 470, 474 (N.C. Ct. App. 2003) (“[A] party's
rights to indemnity can rest on three bases: (1) an express
contract; (2) a contract implied-in-fact; or (3) equitable
concepts arising from the tort theory of indemnity, often
referred to as a contract implied-in-law.” (citations omitted)).
Whether Hawaii law recognizes such a duty is not a matter
Strandlund establishes.
Summary judgment is denied as to Wright-
Scott’s indemnity claim.
B.
Contribution.
Wright-Scott’s second cause of action seeks
contribution and asserts that, if Wright-Scott is found liable
for Plaintiffs’ injuries, Wright-Scott is entitled to
contribution from Strandlund.
TPC ¶ 17.
It also states that
Wright-Scott did not cause Plaintiffs’ injuries.
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Id. ¶ 18.
Although Strandlund’s motion states that she seeks
summary judgment on all claims asserted in the Third-Party
Complaint, she conceded at the hearing that her motion fails to
address Wright-Scott’s contribution claim.
The court thus denies
summary judgment on Wright-Scott’s contribution claim, although
the court notes that, as stated above, because paragraph seven is
unenforceable, Wright-Scott cannot, without more, rely on that
paragraph to absolve herself of all liability for Plaintiffs’
injuries.
C.
Breach of Contract.
Wright-Scott’s third cause of action asserts that
Strandlund “materially breached” her contractual obligations
under the lease agreement.
TPC ¶ 21.
Although the cause of
action itself does not identify the provisions that Strandlund
allegedly breached, elsewhere the Third-Party Complaint states
that Strandlund threw a “house party” at the property the night
Plaintiffs were injured, “in material breach” of the lease
agreement, and “failed to report problems with the premises.”
Id. ¶ 10.
The lease agreement states: “Absolutely no pets,
fireworks, or house parties allowed.”
Strandlund argues that she
is entitled to summary judgment on the ground that she did not
throw a “house party.”
She argues that whether a “house party”
actually occurred is a question of law.
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The court disagrees.
“Where the terms of a contract are ambiguous, the
ambiguity raises the question of the parties’ intent, which is a
question of fact that will often render summary judgment
inappropriate.”
Wittig v. Allianz, A.G., 112 Haw. 195, 201, 145
P.3d 738, 744 (Haw. Ct. App. 2006); see also Hanagami v. China
Airlines, Ltd., 67 Haw. 357, 364, 688 P.2d 1139, 1145 (Haw.
1984); Bishop Trust Co. v. Central Union Church of Honolulu,
3 Haw. App. 624, 628–29, 656 P.2d 1353, 1356–57 (Haw. Ct. App.
1983).
“House parties” is not defined in the agreement, and
Strandlund is not persuasive in arguing that the term “house
parties” is unambiguous.
What one person may consider a “house
party,” another may consider a meeting or private dinner.
See
Amfac, Inc. v. Waikiki Beachcomber, Inv. Co., 74 Haw. 85, 107,
839 P.2d 10, 24 (Haw. 1992) (“Inasmuch as the term
‘reasonableness’ is subject to differing interpretations (i.e.,
is relative and not readily definable), it is inherently
ambiguous.” (internal quotation marks omitted)).
Strandlund maintains that she cannot be said to have
been throwing a party because there were no guests present (only
the eight renters), and because the lease agreement permits a
maximum occupancy of ten people.
Her position appears to be that
a party requires outside guests in excess of the maximum capacity
permitted.
Wright-Scott, on the other hand, maintains that a
house party can occur among several people who are temporarily
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occupying one house.
A genuine issue of material fact exists as
to whether a “house party,” as understood by the parties when
they entered into the lease agreement, actually occurred.
Strandlund also fails to address Wright-Scott’s
allegation that Strandlund breached the lease agreement by
failing to report problems with the premises.
Summary judgment
is not warranted with respect to Wright-Scott’s breach of
contract claim.
V.
CONCLUSION.
Strandlund’s summary judgment motion is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 4, 2012.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Johns v. Wright-Scott; Civil No. 11-00634 SOM/RLP; ORDER DENYING THIRD-PARTY
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
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