Yano v. Government Employees Insurance Company et al
Filing
79
ORDER GRANTING DEFENDANT GOVERNMENT EMPLOYEES INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF MARCUS YANO'S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: DECLARATORY RELIEF 46 ; 50 - Signed by CHIEF JUDGE SUSAN OKI MOLLWA Y on 10/17/12. "The court denies Marcus's motion for partial summary judgment and grants GEICO's motion for summary judgment on all claims. The Clerk of Court is directed to enter judgment for GEICO and to close this case ." (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
MARCUS YANO,
)
)
Plaintiff,
)
)
vs.
)
)
GOVERNMENT EMPLOYEES
)
INSURANCE COMPANY, a Maryland )
corporation; DOES ONE through )
ONE HUNDRED, inclusive, and
)
each of them;
)
)
Defendants.
)
_____________________________ )
CIVIL NO. 11-00745 SOM/BMK
ORDER GRANTING DEFENDANT
GOVERNMENT EMPLOYEES
INSURANCE COMPANY’S MOTION
FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF MARCUS
YANO’S MOTION FOR PARTIAL
SUMMARY JUDGMENT RE:
DECLARATORY RELIEF
ORDER GRANTING DEFENDANT GOVERNMENT EMPLOYEES INSURANCE COMPANY’S
MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF MARCUS YANO’S
MOTION FOR PARTIAL SUMMARY JUDGMENT RE: DECLARATORY RELIEF
I.
INTRODUCTION.
This diversity case involves the question of whether
Plaintiff Marcus Yano (“Marcus”) was covered by the uninsured
motorist (“UM”) provisions of the automobile insurance policy his
father had with Defendant Government Employees Insurance Company
(“GEICO”).1
Two motions are before the court: GEICO’s motion
seeking summary judgment on all claims against it, and Marcus’s
motion seeking summary judgment with respect to his claim for
declaratory relief.
1
To avoid confusion because they all have the same
last name, the court refers in this order to Plaintiff and his
parents by their first names.
Marcus was injured in an accident.
Although renting
his own apartment at the time, he sought UM benefits under his
father’s policy on the ground that he was related and a resident
of his parents’ household.
Concluding that Marcus was not
covered by the policy, the court grants GEICO’s motion and denies
Marcus’s motion.
II.
STATEMENT OF FACTS.
A.
Background Information.
Marcus is the son of Michael and Jeanie Yano.
Born in
1979, Marcus grew up in his parents’ home in Mililani on the
island of Oahu.
After he married, Marcus lived with his first
wife in their own place until he was deployed to Iraq with the
Army National Guard.
By the time Marcus returned from Iraq in
January 2006, he and his first wife were no longer together, and
Marcus went back to living at his parents’ home.
Tr. of Recorded
Interview of Marcus Yano (“Marcus Interview”) at 2-8, Def.’s Ex.
7, ECF No. 47-108.
For a few months, Marcus commuted from his
parents’ home to his job in downtown Honolulu.
Then, in the
spring of 2006, he began renting an apartment closer to work.
Marcus Interview at 4; see also Rental Agreement, Def.’s Ex. 2,
ECF No. 47-5.
Renting his own apartment meant that Marcus had to pay
rent of $700 per month.
He therefore could not save as much
money toward his goal of purchasing his own home as he had been
2
able to do while living at his parents’ home.
Marcus
nevertheless considered the rent “worth avoiding the commute”
between his parents’ Mililani home and his job.
That commute
could “at times take up to three hours round trip.”
Pl.’s Aff.
¶¶ 14-17, ECF No. 51-1.
Even after he moved into his apartment on May 1, 2006,
Marcus kept a key to his parents’ home, where he “came and went
freely.”
Pl.’s Aff. ¶ 18, ECF No. 51-1.
His bedroom at his
parents’ room remained intact, with his bed, stereo, clothes,
sports gear, computer, and military gear.
Id. ¶ 15.
Marcus
visited his parents on most weekends, doing laundry, helping his
father with yard work, showering, spending time with his parents,
sometimes eating dinner there, and occasionally sleeping there.
Id. ¶ 15-16.
Most of his “important mail” went to his parents’
home, including his voter registration, driver’s license, vehicle
registration, health insurance, military, and employment
information.
Id. ¶ 18.
On September 24, 2006, Marcus was riding his motorcycle
when a car hit him.
Am. Compl. ¶ 6.
Marcus says his parents
offered to have him to stay at their home while he was
recuperating from his injuries, but he declined.
Am. Compl.
¶ 19.
Marcus filed a claim with the other driver’s insurance
company, Progressive Insurance Company, but the claim was denied
3
because the other driver’s policy had lapsed.
See Letter from
Progressive Denying Marcus’s Claim, ECF No. 47-12.
Marcus’s
motorcycle was also insured by Progressive at the time of the
accident, but he had no UM coverage.
Marcus Interview at 7, 12.
At the time of the accident, Marcus also had two vehicles with
underinsured coverage from USAA, but Marcus declined to indicate
what, if any, contact he had with USAA concerning his accident.
Id. at 12.
In early January 2008, Marcus submitted a claim for UM
coverage under his father’s insurance policy with GEICO.
GEICO’s Letter to Marcus, ECF No. 47-6.
See
GEICO responded with a
letter stating that it was unable to confirm whether Marcus
qualified for UM coverage as a resident relative of the named
insured’s.
Id.
March 17, 2008.
GEICO interviewed Marcus with his attorney on
Def.’s Ex. 7, ECF No. 47-10.
On March 28, 2008,
GEICO denied Marcus’s UM claim on the ground that he was not
covered by his father’s policy.
Def.’s Ex. 4, ECF No. 47-7.
Marcus filed the present case on December 9, 2011.
On
December 28, 2011, GEICO interviewed Michael Yano (Marcus’s
father) and Jeanie Yano (Marcus’s mother).
Def.’s Exs. 5 and 65,
ECF Nos. 47-8 and 47-9.
Marcus is now married, and he and his second wife have
a child.
Tr. of Recorded Interview of Jeanie Yano (“Jeanie
Interview”) at 11, ECF No. 47-6.
Marcus moved straight from the
4
apartment he had been renting at the time of the accident to the
home he and his family now occupy.
Marcus Interview at 4.
Even
after he and his second wife had their son, Marcus kept some
belongings at his parents’ Mililani home.
receives mail there.
B.
He still periodically
Id. at 9-11.
The GEICO Policy.
The GEICO policy in issue lists Michael, Marcus’s
father, as the named insured and gives the Mililani home as his
address.
Def.’s Ex. 1, ECF No. 47-4.
May 1, 2006, to November 1, 2006.
Id.
The policy period ran from
The policy provides:
Under the Uninsured Motorist coverage, we will pay
damages for bodily injury caused by accident which
the insured is legally entitled to recover from the
owner or operator of an uninsured motor vehicle or
hit-and-run auto arising out of the ownership,
maintenance or use of that auto.
Def.’s Ex. 1 at pp. 13-14 (policy page numbers at the bottom of
the page), ECF 47-4.
The policy defines an “insured” as:
(a) the individual named in the declarations and
his spouse if a resident of the same household;
(b) relatives of (a) above if residents of his
household;
(c) any other person while occupying an owned
auto;
(d) any person who is entitled to recover damages
because of bodily injury sustained by an insured
under (a), (b), and (c) above.
Id. at 13.
Under the policy, a “relative” includes “any person,
other than you, living in your household who is related to you by
5
blood, marriage, or adoption.”
Id. at 7.
All references to
“you” and “your” refer to the policyholder and his spouse if a
resident of the same household.
Id. at 3.
The term “relative”
does not include “any person who is a named insured under any
other contract providing Hawaii personal injury protection
benefits.”
Id.
Now before the court are motions by both parties taking
dueling positions as to whether Marcus was a resident relative
entitled to UM coverage under Michael’s GEICO policy.2
III.
SUMMARY JUDGMENT STANDARD.
Summary judgment shall be granted when “the pleadings,
the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of
law.”
Fed. R. Civ. P. 56(c).
One of the principal purposes of
summary judgment is to identify and dispose of factually
2
Approximately an hour before the start of the hearing
on the present motions, the court received a call from Marcus’s
attorney indicating that Marcus, his parents, and their insurance
expert wanted to testify at the hearing. Marcus’s attorney
indicated that the testimony would respond to the written
inclinations the court had issued as part of its usual practice
of informing litigants ahead of a hearing of the court’s
preliminary view of the issues raised by a motion. See
Inclinations, ECF. No. 77. The court declined to receive
testimony, noting that summary judgment proceedings were premised
on the absence of factual questions, that the court’s practice of
issuing inclinations in no way changed the nature of the
proceeding or expanded a party’s rights, and that the time
reserved for the hearing was too short to allow live testimony.
6
unsupported claims and defenses.
U.S. 317, 323-24 (1986).
Celotex Corp. v. Catrett, 477
Accordingly, “[o]nly admissible
evidence may be considered in deciding a motion for summary
judgment.”
Miller v. Glenn Miller Prods., Inc., 454 F.3d 975,
988 (9th Cir. 2006).
Summary judgment must be granted against a
party that fails to demonstrate facts to establish what will be
an essential element at trial.
See Celotex, 477 U.S. at 323.
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 “those 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., 477 U.S. at 323); accord Miller, 454 F.3d at 987.
“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 fails to carry its initial burden
of production, “the nonmoving party has no obligation to produce
anything.”
In such a case, the nonmoving party may defeat the
motion for summary judgment without producing anything.
Fire, 210 F.3d at 1102-03.
Nissan
On the other hand, when the moving
party meets its initial burden on a summary judgment motion, the
7
“burden then shifts to the nonmoving party to establish, beyond
the pleadings, that there is a genuine issue for trial.”
454 F.3d at 987.
Miller,
This means that the nonmoving party “must do
more than simply show that there is some metaphysical doubt as to
the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986) (footnote omitted).
The
nonmoving party may not rely on the mere allegations in the
pleadings and instead “must set forth specific facts showing that
there is a genuine issue for trial.”
Porter v. Cal. Dep’t of
Corr., 419 F.3d 885, 891 (9th Cir. 2005) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)).
“A genuine
dispute arises if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
California v.
Campbell, 319 F.3d 1161, 1166 (9th Cir. 2003); Addisu v. Fred
Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000) (“There must be
enough doubt for a ‘reasonable trier of fact’ to find for
plaintiffs in order to defeat the summary judgment motion.”).
On a summary judgment motion, “the nonmoving party’s
evidence is to be believed, and all justifiable inferences are to
Miller, 454 F.3d at 988
be drawn in that party’s favor.”
(quotations and brackets omitted).
8
IV.
ANALYSIS.
A.
General Law Governing Insurance Contracts.
Federal courts sitting in diversity apply state
substantive law and federal procedural law.
See Snead v. Metro.
Prop. & Cas. Ins. Co., 237 F.3d 1080, 1090 (9th Cir. 2001).
When
interpreting state law, a federal court is bound by the decisions
of a state’s highest court.
Ariz. Elec. Power Coop. v. Berkeley,
59 F.3d 988, 991 (9th Cir. 1995).
In the absence of a governing
state decision, a federal court attempts to predict how the
highest state court would decide the issue, using intermediate
appellate court decisions, decisions from other jurisdictions,
statutes, treatises, and restatements as guidance.
Id.; see also
Burlington Ins. Co. v. Oceanic Design & Constr., Inc., 383 F.3d
940, 944 (9th Cir. 2004) (“To the extent this case raises issues
of first impression, our court, sitting in diversity, must use
its best judgment to predict how the Hawaii Supreme Court would
decide the issue.” (quotation and brackets omitted)).
Under Hawaii law, general rules of contract
construction apply to the interpretation of insurance contracts.
Dawes v. First Ins. Co. of Haw., 77 Haw. 117, 121, 883 P.2d 38,
42 (1994).
Hawaii law requires that an insurance policy be read
as a whole and construed in accordance with the plain meaning of
its terms, unless it appears that a different meaning is
intended.
Id. at 121, 883 P.2d at 42; First Ins. Co. of Haw. v.
9
State, 66 Haw. 413, 423, 665 P.2d 648, 655 (1983); see also Haw.
Rev. Stat. § 431:10-237 (“Every insurance contract shall be
construed according to the entirety of its terms and conditions
as set forth in the policy”).
Because insurance contracts are contracts of adhesion,
they must be construed liberally in favor of the insured, and any
ambiguity must be resolved against the insurer.
Put another way,
policies are to be construed in accordance with the reasonable
expectations of a layperson.
Dawes, 77 Haw. at 131, 883 P.2d at
42.
The burden is on the insured to establish coverage
under an insurance policy.
See Sentinel Ins. Co. v. First Ins.
Co. of Haw., 76 Haw. 277, 291 n.13, 875 P.2d 894, 909 n.13 (1994)
(as amended on grant of reconsideration).
The insurer has the
burden of establishing the applicability of an exclusion.
See
id. at 297, 875 P.2d at 914.
B.
UM Coverage.
Insurers in Hawaii are required to offer consumers the
opportunity to include in their motor vehicle insurance policies
coverage that provides benefits if they are involved in accidents
with owners or operators of uninsured motor vehicles.
Stat. § 431:10C-103(b)(3).
coverage.
Haw. Rev.
A consumer may opt to reject UM
Id.
10
The Hawaii Supreme Court has made clear that “either an
insured or an insured vehicle must be involved in the accident in
order to collect under the UM endorsement.
This is because the
uninsured motorist policy is personal to the insured, or, put
differently, the UM coverage follows the insured’s person.”
Dawes, 77 Haw. at 123-24, 883 P.2d at 45. “[T]he purpose of UM
coverage in this State is for the protection of persons insured
thereunder who are legally entitled to recover damages from
owners or operators of uninsured motor vehicles because of bodily
injury.”
Waddell v. Gov't Emps. Ins. Co., 2007 WL 2045681, at *2
(Haw. Ct. App. 2007)(quoting Haw. Rev. Stat. § 431:10C301(b)(3)).
The term “insured” as used in Hawaii’s insurance
statutes means (1) the individual named on the policy, and
(2)“[a] person residing in the same household with a named
insured.”
See Haw. Rev. Stat. § 431:10C-103.
For the purpose of
construing the insurance statutes, “A person resides in the same
household if the person usually makes the person’s home in the
same family unit . . . even though the person temporarily lives
elsewhere.”
Id.
The Hawaii Supreme Court has addressed a variety of
“resident relative” provisions in different insurance policies
and different familial contexts.
Because the question of whether
a person qualifies as a resident relative can arise in a
11
multitude of circumstances, the Hawaii Supreme Court has
carefully cabined the scope of its rulings and explicitly
rejected the notion that subsequent Hawaii Supreme Court
decisions necessarily supersede earlier decisions on the
“resident relative” question that are based on different
circumstances.
See Mikelson v. United Serv.s Auto. Ass’n, 107
Haw. 192, 205, 111 P.3d 601, 614 (2005).
C.
Marcus is Not a Resident Relative Under the UM
Provisions of His Parents’ Policy.
Marcus argues that he qualifies as a resident relative
entitled to UM benefits under Michael’s policy because he is in a
situation very similar to that of the claimant in Mikelson.
The
Hawaii Supreme Court held that that claimant, even though
physically living away from his father, fell under his father’s
policy.
The claimant in Mikelson was a University of Hawaii
student who, while riding a motorcycle on Kamehameha Highway, was
in an accident involving a car driven by an uninsured motorist.
The student claimed that he fell under the resident relative
provision of the UM coverage in a policy issued to his father,
who lived in California.
The Hawaii Supreme Court held that the student did
indeed qualify for coverage as a resident relative despite living
in a different state from his father.
The student was only
“temporarily absent from his Father’s home while attending
12
college in Hawai’i at the time of the accident.”
P.2d at 614.
Id. at 205, 111
The student maintained a room at his father’s
house, where he had left most of his possessions, having traveled
to Hawaii with only clothing and a surfboard.
P.2d at 612.
Id. at 203, 111
After the accident, he returned to his father’s
home in California to recover from his injuries, intending to
resume his studies at the University of Hawaii at a later time.
Id. at 194, 111 P.2d at 603.
The student had a California
driver’s license that listed his father’s California home as the
student’s address.
The student was unemployed and completely
dependent on his father financially, including for education and
travel, and the father listed the student as a dependent on tax
returns.
Id. at 194, 203, 111 P.2d at 603, 612.
Pointing to
several circumstances he says mirror those of the student in
Mikelson, Marcus asserts that he too falls under his father’s UM
coverage.
This court is not persuaded.
A review of other Hawaii
Supreme Court cases makes it clear that what is paramount for
resident relative purposes is a claimant’s intent to be a member
of the named insured’s household.
Just having some of the
circumstances that the son in Mikelson had is not enough.
It is
for that reason that several individuals in other Hawaii cases
who lived apart from named insureds could not qualify as resident
relatives entitled to insurance coverage.
13
In Mun Quon Kok v. Pacific Ins. Co., 51 Haw. 470, 471,
462 P.2d 909, 911 (1969), the question was whether a father was
an insured under the UM provisions of a policy issued to his son.
The policy defined “insured” to mean “the named insured and any
relative.”
It defined “relative” as “a relative of the named
insured who is a resident of the same household.”
rented a room in Chinatown.
The father
The son, who lived in a different
place, took two meals a day to his father at the Chinatown
rooming house.
The father received his mail at the son’s home,
and the son delivered the mail to his father.
The court did not
consider the father to be a resident of the son’s household,
noting that “there was no showing of temporary absence, no
showing that appellant ever lived at named insured’s residence,
no showing of support beyond two meals a day.”
P.2d at 911.
Id. at 471, 462
While “actual residence under a common roof is not
an absolute requirement” for an individual to qualify as a
resident of the same household as the named insured, the court
had no trouble concluding that “[t]here simply are not enough
facts to justify finding that appellant was a resident of the
same household as the named insured.”
Id.
The Hawaii Supreme Court also held that the claimant in
AIG Hawaii Insurance Co. v. Estate of Caraang, 74 Haw. 620, 851
P.2d 321 (1993), was not covered.
That case involved liability
coverage provisions in an automobile policy that listed Bonifacio
14
and Cathy Godinet as named insureds.
Godinez’s father.
Bonifacio Godinet was Ilmar
While Ilmar, who regularly drove Bonifacio’s
truck, was giving a ride to Vilamor, Vilamor fired a gun at the
driver of another vehicle with whom Vilamor had a dispute,
killing that other driver.
The family of the deceased sued Ilmar
Godinet and Vilamor, and Bonifacio’s insurer challenged the
applicability of Bonifacio and Cathy Godinet’s policy to Ilmar
and Vilamor.
This court focuses on the court’s discussion
concerning Ilmar.
The policy provided coverage to (1) the named insureds,
(2) “any family member for the ownership, maintenance or use of
any auto,” and (3) any person using a covered auto with a named
insured’s permission.
The Hawaii Supreme Court held that Ilmar
Godinet qualified under the third provision but not the second.
The term “family member” in the second provision was defined as
“a person related to [the named insureds] by blood, marriage or
adoption who is a resident of [the named insureds’] household,
including a ward or foster child.”
30.
Id. at 326, 851 P.2d at 629-
The court noted that Ilmar was related to Bonifacio by blood
but lived with his biological mother, who was neither a named
insured nor related to a named insured by blood, marriage, or
adoption or living in a named insured’s household.
Ilmar
therefore did not qualify as Bonifacio’s or Cathy’s “family
member.”
Id., 851 P.2d at 629-30.
15
The United States District Court for the District of
Hawaii has also had occasion to examine whether, under Hawaii
law, a husband who had lived in a different state from his wife
for years and was not physically living with her at the time of
an automobile accident qualified for insurance benefits under her
policy.
The wife’s policy in Tirona v. State Farm Mutual
Automobile Insurance Company, 812 F. Supp. 1083 (D. Haw. 1993),
included her “spouse” as an “insured.”
A “spouse” was defined as
the named insured’s “husband or wife while living with” the named
insured.
Id. at 1087.
The court concluded that the claimant and
his wife had separate households that did not entitle the
claimant to coverage under his wife’s policy.
Id. at 1089.
Mikelson is the only one of the above cases
that
concludes that related persons living apart are in fact residents
of the same household.
Although Marcus repeatedly urges this
court to rely also on Park v. Government Employees Insurance
Company, 89 Haw. 394, 974 P.2d 34 (1999), the claimant in Park
indeed lived with the named insured.
Park lived in a house with
his parents, Park’s niece, and the niece’s husband, Findlay.
There was “no showing of physically separate living conditions.”
Id. at 397, 974 P.2d at 37.
Park sought underinsured motorist
benefits under Findlay’s policy, contending that he qualified as
an “insured” under Findlay’s policy, which included “relatives”
as insureds.
The term “relative” was defined in Findlay’s policy
16
as “a person related to you who resides in your household.”
court held that Park qualified as Findlay’s relative.
The
Id. at 35,
38, 974 P.2d at 395, 398.
Marcus asks the court to focus on the recognition in
Park of the concept of `ohana, a concept Marcus sees as relevant
to what he says is his status as a member of his parents’
household.
It is true that the Park decision, citing Leong v.
Takasaki, 55 Haw. 398, 410, 520 P.2d 758, 766 (1974), refers to
the practice among Hawaiian and Asian families in Hawaii of
preserving strong ties within their extended families.
However,
while the concept of `ohana is not always limited to residents of
the same household, the specific example the Park decision points
to involves “members of three and even four generations, living
under one roof as a single family.”
Id., 520 P.2d at 766
(emphasis added by Park to quote from Leong).
The court said,
“We therefore interpret the ‘reasonable expectations of a
layperson’ in Hawaii as an expectation that family members,
living in the same residence, are considered members of the same
household for the purposes of insurance coverage.”
at 398.
Id., 974 P.2d
The Hawaii Supreme Court in Park did not rely on the
concept of `ohana to cover the situation of relatives not living
in the same residence.
The reason coverage was found in Mikelson was that the
son in that case, unlike the claimants in Kok, Caraang, and
17
Tirona, intended to return to the insured’s residence, from which
the son was only temporarily absent.
Nothing in the other cases
suggests that the claimants in those other cases were only
temporarily absent from the named insureds’ homes or that they
intended to live in the same household with the insureds.
Those
claimants were not, for example, college students away for finite
periods, or members of the military on tours of active duty.
Marcus submits no express statement of his own that, at
the time of the accident, he intended to return to live with his
parents.
His affidavit is silent in that regard, as is the
transcript of his interview by GEICO.
The court is left to glean
from the circumstances of his life what his intent was.
The
circumstances he identifies for this court’s consideration are
insufficient to demonstrate that, at the time of the accident, he
was a resident of his parents’ household.
Clearly, Marcus was welcome at his parents’ home.
He
visited his parents with some frequency, came and went as he
pleased, spent time with his parents, ate meals with them, did
laundry at their home, and sometimes even slept there.
His
parents appear to have been consistently generous and supportive,
but not part of the same household as Marcus at the time of his
accident.
Indeed, Marcus declined their offer that he stay at
their home to recover from the injuries he sustained in the
accident.
He preferred to stay at his own apartment.
18
Unlike the college student in Mikelson, Marcus was not
just temporarily living on his own.
dependent on his parents.
Nor was Marcus financially
He had a job, paid rent on his
apartment, owned a motorcycle and several other vehicles, and was
saving toward the purchase of his own home.
There is no evidence that the reason Marcus’s bedroom
was unchanged at his parents home and that he kept many
belongings there was that he intended to live in his parents’
house.
To the contrary, Jeanie said in her interview that his
bedroom and belongings remained untouched long after Marcus
married for the second time, had a son, and purchased his own
home.
Thus, Marcus appears to have used his parents’ home as a
convenient and cost-free storage place for his belongings, not
just while renting a small apartment, but even after he himself
would be forced to admit he had a separate household.
His
bedroom and belongings therefore cannot be said to indicate an
intent on his part to return to live in his parents’ home.
Similarly, Marcus’s receipt of mail and use of his
parents’ address do not signify his intent to be part of his
parents’ household.
When interviewed in 2011, which was after
Marcus had remarried, had a child, and bought his own home,
Marcus’s mother said that Marcus still received mail at her home.
This indicates that Marcus used his parents’ home and address
simply as a convenience that freed him from the nuisance of
19
processing address changes while renting an apartment in
anticipation of yet another address change when he had saved
enough money to buy his own home.
like a post office box.
His parents’ home functioned
Marcus was not just temporarily away
from his parents’ home while receiving mail there.
The only
thing that was temporary was Marcus’s own separate address.
But
having a temporary separate address in no way indicated an intent
to return to living with his parents.
Marcus takes the position that Hawaii law allows a
person to have two residences simultaneously.
Thus, he argues,
this court should view Marcus as residing simultaneously both at
his parents’ home and at his apartment, not as having moved out
of his parents’ home or as needing to show an intent to return
there.
Marcus claims never to have left his parents’ home.
contention finds no support in the record.
This
There is, for
example, no evidence that Marcus treated household bills at both
his apartment and his parents’ home the same way, or felt equally
at home in both places.
There is certainly evidence that he was
very comfortable in his childhood home.
He stored belongings
there, had mail sent there, felt free to visit.
But if that were
enough to make him a resident of his parents’ household, he would
be considered a resident relative to this day!
Not even Marcus
claims that he is covered by his parents’ policy today.
situation is a far cry from that in Mikelson.
20
Marcus’s
Because Marcus is not entitled to a declaration by this
court that he was an “insured” under Michael’s policy, the court
denies Marcus’s motion seeking such a declaration and grants
summary judgment to GEICO on Marcus’s First Cause of Action
(Declaratory Judgment).
E.
GEICO is Entitled to Summary Judgment on Marcus’s
Other Claims.
Marcus asserts numerous other claims, but none raises a
triable issue.
The Second Cause of Action purports to be a negligence
claim and alleges a breach of duty by GEICO.
However, the duty
that Marcus identifies is the duty “to timely accept Plaintiff’s
UM claim under his parents’ GEICO policy.”
¶ 27, ECF No. 1-1.
First Am. Compl.
Notwithstanding its reference to negligence,
the Second Cause of Action is a breach of contract claim that
mirrors the request for declaratory relief in the First Cause of
Action.
Like the First Cause of Action, the Second Cause of
Action fails.
The Third Cause of Action asserts a breach of contract
and/or contractual warranties.
It complains that GEICO “failed
to offer Plaintiff UM insurance coverage arising from the subject
collision as required by Mikelson v. USAA.”
Id. ¶ 34.
Given
this court’s conclusion that Marcus is not entitled to coverage
under Mikelson, the Third Cause of Action also fails.
21
The Fourth Cause of Action asserts that GEICO committed
unfair and deceptive trade practices in violation of section 4802 of Hawaii Revised Statutes, while the Fifth Cause of Action
asserts breaches of the covenant of good faith and fair dealing.
To the extent these claims are premised on the proposition that
the mere denial of coverage was a violation of section 480-2 or
of the covenant of the good faith and fair dealing, they fail,
because GEICO’s denial was grounded in law.
The claims continue to fail even if premised on any
alleged bad faith mishandling of Marcus’s claim.
(In referring
in his papers to “bad faith,” Marcus is presumably viewing his
Fifth Cause of Action as a bad faith claim.)
No bad faith claim
is cognizable under the facts of this case.
As evidence of bad faith, Marcus points to GEICO’s
interviews of his parents.
manner of the interviews.
Marcus complains about the timing and
The interviews occurred after this
lawsuit was filed, without notice to his counsel, and included
what Marcus views as unfair questions.
Marcus cites no law
suggesting that the pendency of litigation prevents an insurer
from interviewing a named insured who is not a party to that
litigation and is not represented by counsel.
It is unclear on
what basis he is contending that his attorney should have been
notified about interviews of his parents that Marcus
characterizes as tantamount to depositions.
22
In cases involving
insurers as well as in cases in unrelated contexts, attorneys
frequently interview potential trial witnesses without notice to
an opposing party and without taking depositions.
Marcus’s own
attorney obtained affidavits from Marcus’s parents outside of any
deposition context.
Marcus does not explain why an insurance
claims agent is more restricted than an attorney would be.
It is
simply not the law that, once litigation begins, contact with
potential witnesses is barred in the absence of opposing counsel.
Nor does the law say that unrepresented nonparty witnesses may
only be spoken with during depositions, or that interviews taken
long after an accident are forbidden.
Even if there were some impropriety connected with the
interviews, Marcus does not even hint at why he should be allowed
to sue GEICO over them.
He does not identify a response by his
parents during the interviews that was incorrect.
In fact,
nothing in the affidavits his parents have submitted to this
court contradicts anything they said in their interviews.
In
short, the interviews cannot be said to have caused Marcus to
suffer any cognizable injury.
Similarly unredressable is GEICO’s alleged failure to
fully investigate Marcus’s claim before denying coverage.
Marcus
does not show that, had GEICO conducted what he would deem to
have been a satisfactory investigation, GEICO’s decision would
have been different.
Moreover, an insufficient investigation is
23
not, without more, bad faith.
The court is not finding that
GEICO’s investigation was insufficient, but even if that were the
case, the insufficiency could be mere sloppiness, not bad faith.
As the party who would have the burden of proving bad faith if
that claim went to trial, Marcus had the burden of coming forth
with evidence that he was injured by GEICO’s alleged mishandling
of its investigation.
injury.
There is a complete failure to prove
In fact, Marcus confusingly appears to be arguing that
GEICO did too much (e.g., by interviewing his parents) while also
doing too little.
The court’s analysis of what Marcus identifies as bad
faith is entirely consistent with the Hawaii Supreme Court
decisions Marcus cites.
Enoka v. AIG Hawaii Insurance Co., Inc.,
109 Haw. 537, 128 P.3d 850 (2006), holds that an insured may sue
an insurer for bad faith mishandling of the insured’s claim even
if the insurer was not obligated to pay the insured any benefits.
But Enoka does not stand for the proposition that the kind of
things Marcus complains about constitute bad faith for which
Marcus may recover damages.
As the Hawaii Supreme Court said in Miller v. Hartford
Life Insurance Co., 126 Haw. 165, 176, 268 P.3d 418, 429 (2011),
its decisions evidence “an intent to provide the insured with a
vehicle for compensation for all damages incurred as a result of
the insurer’s misconduct, including damages for emotional
24
distress, without imposing a threshold requirement of economic or
physical loss.”
But there still must be evidence of the bad
faith mishandling of a claim.
“[B]efore the issue of damages
(emotional distress and others) may be considered, the plaintiff
must first prove liability for bad faith . . . .
The burden of
proof for bad faith liability is not insubstantial.”
268 P.3d at 431.
Id. at 178,
And there must be evidence of a resulting
injury of some sort.
Marcus presents evidence of neither
liability nor injury.
Finally, Marcus’s Sixth Cause of Action (Negligent
and/or Intentional Infliction of Emotional Distress) and Seventh
Cause of Action (Punitive Damages) are derivative claims.
That
is, Marcus may only proceed with them if he prevails on a
substantive claim.
As Marcus’s other claims fail, the Sixth
Cause of Action and the Seventh Cause of Action also fail.
The
court notes that the Sixth Cause of Action additionally fails
because, while seeking summary judgment, Marcus provides no
evidence at all that he has actually suffered serious emotional
distress.
V.
CONCLUSION.
The court denies Marcus’s motion for partial summary
judgment and grants GEICO’s motion for summary judgment on all
claims.
The Clerk of Court is directed to enter judgment for
GEICO and to close this case.
25
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 17, 2012.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Marcus Yano v. GEICO, CIVIL NO. 11-00745 SOM/BMK; ORDER GRANTING DEFENDANT GOVERNMENT
EMPLOYEES INSURANCE COMPANY’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF MARCUS
YANO’S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: DECLARATORY RELIEF
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