Founders Insurance Company v. Kim & Jon, Inc.
Filing
68
ORDER DENYING DEFENDANT/THIRD-PARTY PLAINTIFF KIM & JON, INC.'S MOTION FOR RECONSIDERATION re 62 Motion for Reconsideration. Signed by JUDGE LESLIE E. KOBAYASHI on 04/30/2015. K&J's Motion for Reconsid eration of the Order Granting in Part and Denying in Part Plaintiff Founders Insurance Company's Motion for Summary Judgment and Granting Third-Party Defendant The Burlington Insurance Company's Motion for Summary Judgment or, in the Altern ative, Partial Summary Judgment, filed March 13, 2015, is HEREBY DENIED. (eps )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
FOUNDERS INSURANCE COMPANY,
)
)
Plaintiff,
)
)
vs.
)
)
KIM & JON, INC.,
)
)
Defendant.
)
_____________________________ )
CIVIL 14-00312 LEK-BMK
ORDER DENYING DEFENDANT/THIRD-PARTY PLAINTIFF
KIM & JON, INC.’S MOTION FOR RECONSIDERATION
On February 27, 2015, this Court issued its Order
Granting in Part and Denying in Part Plaintiff Founders Insurance
Company’s Motion for Summary Judgment and Granting Third-Party
Defendant the Burlington Insurance Company’s Motion for Summary
Judgment or, in the Alternative, Partial Summary Judgment
(“2/27/15 Order”).1
[Dkt. no. 58.2]
On March 13, 2015,
Defendant/Third-Party Plaintiff Kim & Jon, Inc. (“K&J”) filed its
motion for reconsideration of the 2/27/15 Order (“Motion for
Reconsideration”).
[Dkt. no. 62.]
On March 27, 2015, Founders
and Burlington each filed its memorandum in opposition to the
1
On November 4, 2014, Plaintiff Founders Insurance Company
(“Founders”) filed its Motion for Summary Judgment (“Founders
Motion”) and, on December 1, 2014, Third-Party Defendant The
Burlington Insurance Company (“Burlington”) filed its Motion for
Summary Judgment or, in the Alternative, Partial Summary Judgment
(“Burlington Motion,” collectively “Summary Judgment Motions”).
[Dkt. nos. 27, 35.]
2
The 2/27/15 Order is also available at 2015 WL 880585.
Motion for Reconsideration and, on April 10, 2015, K&J filed its
reply.
[Dkt. nos. 64, 65, 66.]
After careful consideration of
the motion, the supporting and opposing memoranda, and the
relevant legal authority, the Court HEREBY DENIES the Motion for
Reconsideration for the reasons set forth below.
BACKGROUND
In the 2/27/15 Order, this Court, inter alia:
(1) applied the factors set forth in Brillhart v. Excess
Insurance Co. of America, 316 U.S. 491 (1942), and
Government Employees Insurance Co. v. Dizol, 133 F.3d 1220,
1225 (9th Cir. 1998), and concluded that it would be proper
to retain jurisdiction over this declaratory judgment
action; 2015 WL 880585, at *4-5;
(2) found that the underlying state complaint (“State
Complaint”), filed by Darius Davis (“Davis”) against Claude
Custard (“Custard”) and K&J, alleged a negligent shooting
claim sufficient to bring it within Founders policy number
ELHI100022 (“Founders Policy”) and Burlington policy number
087B005102 (“Burlington Policy,” collectively “Policies”),
pursuant to the complaint allegation rule; id. at *5-7;
(3) concluded that, because under Hawai`i law neither “assault”
nor “battery” requires intent, all claims from the State
Complaint would fall within Exclusion K of the Founders
Policy, and thus Founders has no duty to defend; id. at *79;
(4) concluded that, based on Exclusion BG-11 of the Burlington
Policy and the definitions of “assault” and “battery”
therein, all claims from the State Complaint are excluded
from the policy, and thus Burlington has no duty to defend;
id. at *8-9;
(5) concluded that, since the language in Exclusion K and
Exclusion BG-11 is clear and conspicuous, the “reasonable
expectation principle” does not apply and K&J is bound by
the terms of the Policies; id. at *9-10; and
(6) since there is no duty to defend, neither Founders nor
Burlington owes K&J a duty to indemnify, and thus granted
2
summary judgment for Founders as to Counts I and II of the
Complaint, and for Burlington as to Counts I and II of the
Third-Party Complaint; id. at *10.
In the instant Motion for Reconsideration, K&J
argues that the Court made manifest errors in defining the terms
“assault” and “battery” and in applying the complaint allegation
rule as to require reconsideration of the 2/27/15 Order.3
in Supp. of Motion for Reconsideration at 3-4.]
that the Court vacate the 2/27/15 Order.
[Mem.
K&J requests
[Id. at 10.]
STANDARD
This Court recently explained the standard for
reconsideration:
A motion for reconsideration must
(1) “demonstrate reasons why the court should
reconsider its prior decision” and (2) “must set
forth facts or law of a strongly convincing nature
to induce the court to reverse its prior
decision.” Hele Ku KB, LLC v. BAC Home Loans
Servicing, LP, 873 F. Supp. 2d 1268, 1289 (D. Haw.
2012). The Ninth Circuit has held that
reconsideration is appropriate if (1) the district
court is presented with “newly discovered
evidence,” (2) the district court “committed clear
error or the initial decision was manifestly
unjust,” or (3) “if there is an intervening change
in controlling law.” Nunes v. Ashcroft, 375 F.3d
805, 807 (9th Cir. 2004).
Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., Civil No.
3
K&J includes three sentences arguing that the Policies are
ambiguous and that ambiguity precludes summary judgment as to
K&J’s reasonable expectations claim. [Mem. in Supp. of Motion
for Reconsideration at 7-8.] The Court already rejected this
argument, and K&J does not provide any factual or legal argument
that this ruling was erroneous, let alone manifestly erroneous.
3
12-00064 LEK-KSC, 2015 WL 274131, at *2 (D. Hawai`i Jan. 21,
2015) (some citations omitted).
“Mere disagreement with a
previous order is an insufficient basis for reconsideration.”
White v. Sabatino, 424 F. Supp. 2d 1271, 1274 (D. Hawai`i 2006)
(citation omitted).
DISCUSSION
The crux of K&J’s argument is that the Court erred
in finding that assault and battery require intent, because
it relied in part on the criminal definition of “battery”
and did not consult the Restatement (Second) of Torts.4
[Mem. in Supp. of Motion for Reconsideration at 4-7.]
As
the Court pointed out in the 2/27/15 Order, the sum and
substance of K&J’s argument on this issue in its memoranda
in opposition to the Summary Judgment Motions was:
“A person commits the offense of assault in the
first degree if the person intentionally or
knowingly causes serious bodily injury to another
person.” HRS § 707–710 (Lexis 2014) (emphasis
added). Moreover, “‘Battery’, is an unlawful
touching of another person without his [or her]
consent.” Ozaki v. Ass’n of Apt. Owners, 87
Hawai`i 273, 289, 954 P.2d 652, 668 (App. 1998)
(citations and quotation marks omitted). In the
words of the Hawai`i courts, “[s]ince battery is a
matter of the worst kind of intentions, it is a
tort which frequently justifies punitive damages.”
Id. (emphasis added).
4
Insofar as K&J implies that this argument applies to the
ruling on the Burlington Motion, it is mistaken. In the 2/27/15
Order, the Court granted the Burlington Motion based on the
definitions and exclusions supplied within the Burlington Policy.
4
. . . .
. . . . In neither [negligence theory] could it
be said that Custard committed an assault and
battery necessary for the exclusion to apply.
2/27/15 Order, 2015 WL 880585, at *7 (quoting Mem. in Opp. to
Founders Motion at 14, 16).
Attempting to make up for that
deficit, K&J now spends nearly four pages making the same
arguments, but citing to different sources that were clearly
available when it first filed its memoranda in opposition to the
Summary Judgment Motions.
reconsideration.
This is improper for a motion for
See, e.g., In re Collins, Civil No. 14-00453
SOM/BMK, 2014 WL 7185358, at *1 (D. Hawai`i Dec. 15, 2014)
(“reconsideration may not be based on . . . legal arguments that
could have been presented at the time of the challenged decision”
(citation omitted)).
Even if it were proper, the new citations provide
little support for K&J’s position.
Regarding the definition of
“assault,” K&J argues that the Court’s use of the Hawai`i
statutory definition of criminal assault was manifest error.5
Instead, it offers the Restatement (Second) of Torts, arguing
that, where there is no Hawai`i case defining assault, Hawai`i
courts look to the restatement.
[Mem. in Supp. of Motion for
5
K&J concedes that its sole basis for the argument in its
memorandum in opposition to the Summary Judgment Motions was a
Hawai`i criminal statute. [Mem. in Supp. of Motion for
Reconsideration at 5 n.2.]
5
Reconsideration at 5-6.]
As K&J acknowledges, the applicable
section provides:
(1) An actor is subject to liability to another
for assault if
(a) he acts intending to cause a harmful or
offensive contact with the person of the
other or a third person, or an imminent
apprehension of such a contact, and
(b) the other is thereby put in such imminent
apprehension.
(2) An action which is not done with the intention
stated in Subsection (1, a) does not make the
actor liable to the other for an apprehension
caused thereby although the act involves an
unreasonable risk of causing it and, therefore,
would be negligent or reckless if the risk
threatened bodily harm.
Restatement (Second) of Torts § 21 (emphases added).
This
definition clearly encompasses K&J’s theories that Custard
accidentally or negligently shot Davis.
K&J cannot, and does
not, deny that Custard and Davis were in an altercation that
escalated into a shooting.
[State Complaint at ¶¶ 18, 20.]
This
is not a case where Custard was negligent in carrying a loaded
weapon while drinking alcohol and then the firearm simply
discharged accidentally when he was passing an innocent passerby,
which might be covered by § 18(2).6
6
Thus, even applying K&J’s
Nor does Restatement (Second) of Torts § 32, which K&J
also cites, change this conclusion. See § 32(1) (“To make the
actor liable for an assault, the actor must have intended to
inflict a harmful or offensive contact upon the other or to have
put the other in apprehension of such contact.” (emphases
(continued...)
6
definition for “assault,” the claim would fall within Exclusion K
and not be covered.
Regarding “battery,” K&J now cites to Adams v. Dole
Food Co., 132 Hawai`i 478, 491, 323 P.3d 122, 135 (Ct. App. 2014)
(quoting Williams v. Aona, 121 Hawai‘i 1, 13, 210 P.3d 501, 513
(2009)), for the proposition that, “‘[a] defendant causes battery
when he or she intentionally causes bodily contact to the
plaintiff in a way not justified by the plaintiff’s apparent
wishes or by a privilege, and the contact is in fact harmful or
against the plaintiff’s will.’”7
While in isolation this
quotation appears to support K&J’s position, when read in
context, Adams supports the Court’s interpretation of “battery.”
In Adams, agricultural workers brought suit against
their employer, Dole, for injury resulting from exposure to
chemical pesticides.
132 Hawai`i at 480, 323 P.3d at 124.
The
plaintiffs included an intentional tort claim, which the trial
court dismissed as not cognizable.
Id. at 490, 323 P.3d at 134.
The appellate court reversed, finding that it stated a claim for
battery.
The court quoted from Williams, but also the
6
(...continued)
added)).
7
K&J also quotes Ozaki v. Ass’n of Apartment Owners, 87
Hawai`i 273, 289, 954 P.2d 652, 668 (Ct. App. 1998), and
acknowledges that it cited Ozaki in its memoranda in opposition.
The Court already analyzed Ozaki in the 2/27/15 Order and
reasoned that it does not support K&J’s position. 2015 WL
880585, at *8.
7
Restatement (Second) of Torts.
The pertinent section – also
quoted by the Adams court – provides:
(1) An actor is subject to liability to another
for battery if
(a) he acts intending to cause a harmful or
offensive contact with the person of the
other or a third person, or an imminent
apprehension of such a contact, and
(b) an offensive contact with the person of
the other directly or indirectly results.
(2) An act which is not done with the intention
stated in Subsection (1, a) does not make the
actor liable to the other for a mere offensive
contact with the other’s person although the act
involves an unreasonable risk of inflicting it
and, therefore, would be negligent or reckless if
the risk threatened bodily harm.
Restatement (Second) of Torts § 18 (1965) (emphases added).8
The
Restatement, therefore, does not require intent to harm or touch
to prove battery.
Likewise, the facts of Adams show that battery does not
require intent to make contact.
The appellate court reasons
immediately after quoting the Restatement: “Plaintiffs’
intentional tort claim alleges that the Dole
Defendants, . . . intentionally exposed [the plaintiffs] to [the
pesticides] knowing of the hazards posed by the chemical and
knowing of the hazards posed by the method of application
utilized.
This is sufficient to allege a non-futile battery
8
K&J also cites to § 18 approvingly. [Mem. in Supp. of
Motion for Reconsideration at 6 n.3.]
8
claim.”
Adams, 132 Hawai`i at 492, 323 P.3d at 136.
The Court
therefore CONCLUDES reconsideration of its conclusion – that the
State Complaint must fall within Exclusion K – is unwarranted
because neither assault nor battery requires intent to harm or
touch.
Related to its “assault” and “battery” argument, K&J
argues, in essence, that the Court misread or did not properly
apply Great Southwest Fire Insurance Co. v. H.V. Corp., 3 Haw.
App. 664, 658 P.2d 337 (1983).
Reconsideration at 8-10.]
[Mem. in Supp. of Motion for
K&J argues that Great Southwest stands
for the proposition that “if an insurer seeks to avoid coverage
due to an ‘assault/battery’ exclusion, there must be sufficient
facts in the record to indicate that an assault and/or battery
actually occurred” and that this rule is “entirely consistent”
with the complaint allegation rule.
[Id. at 8-9.]
The Court already considered this argument and rejected
it.
2/27/15 Order, 2015 WL 880585, at *9 n.12.
Whether or not
Great Southwest has been expressly overruled, the rule it
purportedly states, that the insurer must show that the assault
actually occurred, is inconsistent with the well-established rule
that the insurer must “prove that it would be impossible for the
[claimant] to prevail against [the insured] in the underlying
lawsuit[] on a claim covered by the policies.”
Tri-S Corp. v. W.
World Ins. Co., 110 Hawai`i 473, 488, 135 P.3d 82, 97 (2006)
9
(brackets and emphasis in Tri-S).
It would make no sense to
require the insurer to prove the assault if, even if the assault
had occurred, it would not be covered.
case here.
That is precisely the
The Court thus again rejects K&J’s argument on this
point, and denies the Motion for Reconsideration on this issue.
This Court therefore CONCLUDES that Plaintiff has
failed to identify any ground which warrants reconsideration of
the 2/27/15 Order, and therefore DENIES the Motion for
Reconsideration.
CONCLUSION
On the basis of the foregoing, K&J’s Motion for
Reconsideration of the Order Granting in Part and Denying in Part
Plaintiff Founders Insurance Company’s Motion for Summary
Judgment and Granting Third-Party Defendant The Burlington
Insurance Company’s Motion for Summary Judgment or, in the
Alternative, Partial Summary Judgment, filed March 13, 2015, is
HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, APRIL 30, 2015
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
10
FOUNDERS INSURANCE COMPANY VS. KIM & JON, INC.; CIVIL 14-00312
LEK-BMK; ORDER DENYING DEFENDANT/THIRD-PARTY PLAINTIFF KIM & JON,
INC.’S MOTION FOR RECONSIDERATION
11
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