Government Employees Insurance Company v. Bitonio
Filing
34
ORDER GRANTING DEFENDANT AND COUNTERCLAIMANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT re 20 , 21 - Signed by JUDGE ALAN C KAY on 8/29/2016. (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
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) Civ. No. 15-00475 ACK-KJM
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GOVERNMENT EMPLOYEES
INSURANCE COMPANY,
Plaintiff,
vs.
EDUARDO BITONIO,
Defendant.
ORDER GRANTING DEFENDANT AND COUNTERCLAIMANT’S MOTION FOR
SUMMARY JUDGMENT AND DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT
For the reasons set forth below, the Court GRANTS
Defendant and Counterclaimant Eduardo Bitonio’s Motion for
Summary Judgment, ECF No. 20, and DENIES Plaintiff Government
Employees Insurance Company’s Motion for Summary Judgment, ECF
No. 21.
PROCEDURAL BACKGROUND
On November 12, 2015, Plaintiff Government Employees
Insurance Company (“GEICO”) filed a Complaint for Declaratory
Judgment asking this Court to declare and adjudge that GEICO
does not have a duty to pay underinsured motorist (“UIM”)
benefits or provide coverage to Defendant and Counterclaimant
Eduardo Bitonio (“Bitonio”) under the subject policy in relation
to an accident involving Bitonio that occurred on December 18,
2013.
Compl. ¶ 6, ECF No. 1.
Bitonio filed a Counterclaim for
Declaratory relief on December 23, 2015, asking the Court for a
declaration that GEICO is obligated to provide him with $100,000
in UIM coverage.
Counterclaim ¶ 21, ECF No. 10-1.
On May 31, 2016, Bitonio filed a Motion for Summary
Judgment against GEICO supported by a Concise Statement of Facts
along with declarations and exhibits.
ECF Nos. 20, 26.
On May
31, 2016, GEICO filed its Motion for Summary Judgment against
Bitonio.
ECF No. 21.
GEICO’s motion was supported by a Concise
Statement of Facts along with declarations and exhibits.
Nos. 22-24.
ECF
Bitonio filed his Memorandum in Opposition on
August 8, 2016, supported by a Concise Statement of Facts in
Support of His Memorandum in Opposition (Def.’s CSF in Opp.).1
1
In Bitonio’s Concise Statement of Facts in Opposition, he
does not dispute most of GEICO’s Concise Statement of Facts
“except to the extent that the residence is characterized as an
apartment and the living spaces are characterized as apartment
units, which are matters in dispute.” Def.’s CSF in Opp., at 2.
Bitonio disputed three paragraphs of GEICO’s Concise Statement
of Facts stating that “they contain inaccurate characterizations
of the residence and living spaces” and sought to “incorporate[]
by reference the facts set forth in” his Concise Statement of
Facts from his Motion for Summary Judgment. Id. at 2-3. GEICO
argues that Bitonio failed to follow the Local Rules by not
supporting his Concise Statement of Facts in Opposition with
evidence. GEICO Reply, at 2-3, ECF No. 31. On this basis,
GEICO argues that its Concise Statement of Facts in Support of
its Motion for Summary Judgment should be deemed admitted
pursuant to Local Rule 56.1. Id. at 3.
The Court deems GEICO’s facts admitted to the extent
they are not controverted by the material facts as set forth by
Bitonio in his moving papers. Cf. Television Events & Mktg.,
Inc. v. AMCON Distrib., Co., 484 F. Supp. 2d 1124, 1128 (D. Haw.
2006) (noting that although plaintiff’s opposition does “not
(continued . . . )
2
ECF No. 28, 29.
GEICO filed its Memorandum in Opposition,
supported by a Concise Statement of Facts in Opposition on
August 8, 2016.
ECF Nos. 27, 30.
replies on August 15, 2016.
The parties filed their
ECF Nos. 31, 32.
The Court held a hearing on the motions on Monday,
August 29, 2016.
FACTUAL BACKGROUND
I.
The Accident and Bitonio’s Living Arrangements
On or around December 18, 2013, Bitonio was involved
in a car accident on Kapiolani Boulevard in Honolulu, Hawaii.
Cruz Decl., Ex. 7, at 1, ECF No. 23-1; Defendant and
Counterclaimant’s Concise Statement of Facts (“Def.’s CSF”) ¶ 1.
Bitonio was injured in the accident.
Cruz Decl., Ex. 7, at 6,
8; Def.’s CSF ¶ 2.
At the time of the accident, Bitonio lived at 1203
Peterson Lane.
Cruz Decl., Ex. 8 (Bitonio Examination Under
Oath “Bitonio EUO”), at 11, ECF No. 23-2; Lydia Cabico Decl.
¶ 6, ECF No. 20-4.
Lydia Cabico owns 1203 Peterson Lane, and
she and her late husband built a single family home there (“the
( . . . continued)
specifically accept or deny the material facts set forth by the
Defendants,” some of plaintiff’s material facts are controverted
by plaintiff’s own set of material facts and thus the “Court
does not consider Defendants’ entire statement of facts to be
admitted”). The Court addresses the material facts at issue
throughout its Order.
3
Home”).
Lydia Cabico Decl. ¶¶ 2-3.
Cabico and her husband
expanded and modified the Home over the years to accommodate
their extended family members, some of whom emigrated to Hawaii
from the Philippines.
Id. ¶ 4.
The Home is listed in the City
and County of Honolulu Real Property Assessment Division public
records as 2,963 square feet with eight bedrooms, three full
bathrooms, and one half bathroom.
Judgment, Ex. B, ECF No. 20-7.
“RESIDENTIAL.”
Def.’s Mot. for Summary
The property class is listed as
Id.
Bitonio rents a unit on the first floor of the Home
from Cabico, who is his aunt, but there is no formal rental
agreement or a written lease.
Bitonio EUO, at 11-13; Montero
Decl. ¶ 11, ECF No. 22; Lydia Cabico Decl. ¶ 7.
other units on the first floor of the Home.
There are two
Bitonio EUO, at 13;
Montero Decl. ¶¶ 5-7; Cruz Decl., Ex. 9 (Akana Examination Under
Oath “Akana EUO”), at 14, ECF No. 23-3.
Bitonio’s unit is
separated by a common hallway from the two other units.
Montero
Decl. ¶ 7, Exs. 1-6; Bitonio EUO, at 22; Akana EUO, at 14-15.
One of the other units is rented by Maria Montero and the other
by Leroy Akana.
Cabico Decl. ¶ 7.
Cabico.
Montero Decl. ¶ 7, Akana EUO, at 15; Lydia
Bitonio, Montero, and Akana are related to
Montero Decl. ¶ 10.
brother’s wife.
Cabico is Montero’s grandmother’s
Montero Decl. ¶ 11.
Cabico and her family live
on the second floor of the Home, which is accessed via an
4
exterior staircase.
Montero Decl. ¶ 9; Bitonio EUO, at 12;
Akana EUO, at 15.
There is one mailbox on the property and associated
with the Home, but members of each unit only pick up their own
mail.
Montero Decl. ¶ 15; Akana EUO, at 18; Ruben Cabico Decl.
¶ 10, ECF No. 20-3.
The residents of the Home share a clothes
line, clothes washing area, a carport, water heater, and a
driveway.
Montero Decl. ¶ 16; Akana EUO, at 16; Ruben Cabico
Decl. ¶¶ 9-10.
The carport is used as storage space and as a
gathering place for family celebrations.
¶ 11.
Ruben Cabico Decl.
However, Montero does not “socialize” with Bitonio.
Montero Decl. ¶ 16.
Utilities are not submetered, but are
included in the rent paid to Cabico.
Montero Decl. ¶ 8; Akana
EUO, at 19; Ruben Cabico Decl. ¶ 9; Lydia Cabico Decl. ¶ 8.
Each of the downstairs units has its own front door
that leads to the common hallway and there are no other doors
that can be used to get in and out of each unit.
Montero Decl.
¶ 12, Ex. 6; Akana EUO, at 15, 17, 24; Bitonio EUO, at 13, 1517.
6.
The common hallway leads to the outside.
Montero Decl, Ex.
Each of the units also has its own bedrooms, living room,
kitchen, bathroom, and refrigerator.
EUO, at 21; Akana EUO, at 16.
Montero Decl. ¶ 7; Bitonio
Bitonio and Montero do not have
keys to each other’s units and Akana does not have a key to
5
either Montero or Bitonio’s unit.
Montero Decl. ¶¶ 13-14;
Bitonio EUO, at 17; Akana EUO, at 17-18.
Bitonio’s unit is comprised of himself, his wife, his
son and daughter-in-law, and their two children.
18.
Bitonio EUO,
Montero’s unit is comprised of Montero, her mother, and her
boyfriend.
Montero Decl. ¶ 5.
Bitonio does not access
Montero’s unit freely, he has never slept in the unit, nor does
he have any personal belongings in her unit.
19, 21.
Bitonio EUO, at
The individuals in Bitonio and Montero’s units do not
cook meals and do not share financial and household
responsibilities.
Montero Decl. ¶ 17; Bitonio EUO, at 22-23,
24, 28.
II.
Bitonio’s Tender to GEICO
On or around November 24, 2014, Bitonio submitted a
claim to GEICO for UIM coverage under Montero’s GEICO policy.
Cruz Decl.
Cruz Decl., Ex. 11, ECF No. 23-5; Def.’s CSF ¶ 17.
In response, on December 1, 2014, GEICO sent a letter
acknowledging receipt of the claim and informing Bitonio that it
was investigating whether Bitonio qualified for UIM coverage.
Cruz Decl., Ex. 12, ECF No. 23-6; Def.’s CSF ¶ 18.
On September
18, 2015, GEICO sent a letter to Bitonio informing him that
pursuant to its investigation, including an examination under
oath of Bitonio, Bitonio did not qualify for coverage under
Montero’s plan, as he was “not a member of the same household as
6
Ms. Montero.”
20.
Cruz Decl., Ex. 14, ECF No. 23-8; Def.’s CSF ¶
GEICO informed Bitonio that if he disagreed, GEICO was
willing to obtain a court determination of the issue and file a
declaratory judgment action.
Cruz Decl., Ex. 14.
III. The GEICO Policy
GEICO issued Montero, as the Named Insured, a Hawaii
Family Automobile Insurance Policy under Policy No. 4197-30-1288, which was effective between December 8, 2013 and June 8,
2014 (the “Policy”).
Pl.’s CSF ¶ 42, Ex. 1 to Compl.
(“Policy”), at 2, ECF No. 1-1; Def.’s CSF ¶ 21.
Under Section V-Underinsured Motorist Coverage, the
Policy provides as follows:
DEFINITIONS
The definitions of terms in Section I, Liability
Coverage apply to this coverage except for
insured. The definitions of Section IV,
Uninsured Motorists Coverage, of your policy
apply to this coverage except for the following
special definition:
Underinsured motor vehicle means a motor vehicle
with respect to the ownership, maintenance or use
of which the sum of the limits of liability under
all bodily injury liability insurance coverage
applicable at the time of loss to which
coverage afforded by such policy or policies
applies is less than the liability for damages
imposed by law.
. . . .
LOSSES WE PAY
Under the Underinsured Motorists coverage,
subject to EXCLUSIONS, we will pay damages, not
to exceed the applicable Underinsured Motorists
7
policy limits, an insured is legally entitled to
recover for bodily injury caused by accident from
the owner or operator of an underinsured motor
vehicle arising out of the ownership,
maintenance or use of the underinsured motor
vehicle. However, we will not pay until all the
bodily injury liability claims have been resolved
by judgments, awards or settlements.
Pl.’s CSF ¶ 43, Policy, at 22; Def.’s CSF ¶ 22.
Under SECTION IV-UNINSURED MOTORISTS COVERAGE, the
Policy contains the following definition of “insured”:
2. Insured means:
(a) The named insured shown in the declarations
and his or her spouse, if living with the
insured in the same household;
(b) Relatives living with the insured in the same
household, related by blood, marriage, or
adoption; and
(c) Any other person while occupying an
insured auto;
If there is more than one insured, our limit of
liability will not be increased.
Pl.’s CSF ¶ 44, Policy, at 19; Def.’s CSF ¶ 23.
Under SECTION I – LIABILITY COVERAGES, the Policy
contains the following definition of “relative”:
9. Relative means a person living with you in the
same household as the primary residence for both
of you and your relative, and who is related to
you by blood, marriage, or adoption, or your
reciprocal beneficiary or civil union partner
living with you in the same household as the
primary residence for you and your reciprocal
beneficiary or civil union partner.
Pl.’s CSF ¶ 45, Policy, at 6; Def.’s CSF ¶ 24.
8
STANDARD
I.
Summary Judgment
Summary judgment is proper where there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law.
Fed. R. Civ. P. 56(a).
Rule 56(a)
mandates summary judgment “against a party who fails to make a
showing sufficient to establish the existence of an element
essential to the party’s case, and on which that party will bear
the burden of proof at trial.”
Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986).
“A party seeking summary judgment bears the initial
burden of informing the court of the basis for its motion and of
identifying those portions of the pleadings and discovery
responses that demonstrate the absence of a genuine issue of
material fact.”
Soremekun v. Thrifty Payless, Inc., 509 F.3d
978, 984 (9th Cir. 2007) (citing Celotex, 477 U.S. at 323).
“When the moving party has carried its burden under Rule
56[(a)], its opponent must do more than simply show that there
is some metaphysical doubt as to the material facts [and] . . .
come forward with specific facts showing that there is a genuine
issue for trial.”
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586–87 (1986) (footnote omitted) (citations
omitted).
9
“In insurance disputes, the insurer is only required
to establish the absence of a genuine issue of material fact
regarding the question of coverage pursuant to the plain
language of the insurance policies and the consequent
entitlement to the entry of judgment as a matter of law.”
Burlington Ins. Co. v. United Coatings Mfg. Co., 518 F. Supp. 2d
1241, 1246 (D. Haw. 2007) (citation omitted).
II.
Diversity Jurisdiction
The court has diversity jurisdiction to hear this case
pursuant to 28 U.S.C. § 1332.
GEICO is a Maryland Corporation
and Bitonio is a resident of Hawaii.
Counterclaim ¶ 1.
Complaint ¶¶ 1-2;
Federal courts sitting in diversity apply
state substantive law and federal procedural law.
Hanna v.
Plumer, 380 U.S. 460, 465 (1965); Erie v. Tompkins, 304 U.S. 64,
78 (1938).
A federal court is bound by the decisions of a
state’s highest court when interpreting state law.
Ariz. Elec.
Power Coop., Inc. v. Berkeley, 59 F.3d 988, 991 (9th Cir. 1995).
However, “[i]n the absence of such a decision, a federal court
must 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. (citation omitted).
10
DISCUSSION
I.
General Law Regarding Insurance Contracts
Under Hawaii law, courts look to the plain language of
the insurance policy to determine the scope of the insurer’s
duties.
Dairy Rd. Partners v. Island Ins. Co., Ltd., 992 P.2d
93, 107 (Haw. 2000); see also Burlington Ins. Co. v. Oceanic
Design & Const. Inc., 383 F.3d 940, 945 (9th Cir. 2004) (“In
Hawaii, the terms of an insurance policy are to be interpreted
according to their plain, ordinary, and accepted sense in common
speech.”).
“In the context of insurance coverage disputes, [the
court] must look to the language of the insurance policies
themselves to ascertain whether coverage exists, consistent with
the insurer and insured’s intent and expectations.”
Hawaiian
Ins. & Guar. Co. v. Fin. Sec. Ins. Co., 807 P.2d 1256, 1260
(1991).
“[B]ecause insurance policies are contracts of
adhesion, they must [] be construed liberally in favor of the
insured, [and] any ambiguities in their terms and conditions
must be resolved against the insurer.”
Estate of Doe v. Paul
Revere Ins. Grp., 948 P.2d 1103, 1114-15 (Haw. 1997).
Insurance
policies must also be “construed in accordance with the
reasonable expectations of a layperson.”
Hawaiian Isle
Adventures, Inc. v. N. Am. Capacity Ins. Co., 623 F. Supp. 2d
1189, 1194 (D. Haw. 2009).
11
II.
Bitonio Qualifies as an “Insured” Under the Terms of the
Policy
Under the terms of the Policy, Bitonio is considered
an “Insured” if he qualifies as a “[r]elative[] living with
[Montero] in the same household, related by blood, marriage, or
adoption.”
Policy, at 19.
The parties do not dispute that
Bitonio and Montero are related.
Thus, the dispositive issue is
whether Bitonio and Montero live in the same household.
Bitonio argues that he lives in the same household as
Montero pursuant to the Hawaii Supreme Court’s decision in Park
v. Government Employees Insurance Co., 974 P.2d 34 (1999).
Court agrees.
The
The Hawaii Supreme Court, in Park, declined to
adopt a multi-factor test to determine whether relatives living
in the same residence were members of the same household.
The
Park court concluded, “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.”
974 P.2d at 38.
Under this holding, Bitonio and
Montero, who live in the same residence, are members of the same
household.
In Park, claimant Park sought UIM benefits on the
basis that he was a “relative” of GEICO’s insured, Matthew
Findlay.
Id. at 35.
As here, the GEICO policy at issue defined
12
a “‘relative’ as ‘a person [1] related to you who [2] resides in
your household.’”
Id. at 36.
Park lived in a house with his
parents, which they jointly owned.
Id. at 35.
Findlay was
married to Park’s niece and both Findlay and his wife were
living at Park’s home at the time of the accident at issue.
at 35-36.
Id.
The court distinguished an earlier Hawaii Supreme
Court case and a decision from this district court, in which
“individuals who were not residing in the same residence” as the
insured at the time of the accident claimed benefits as
“‘relatives’ of the insured.”
Id. at 37.
The court noted that
“[n]either case presented the dispositive issue herein, i.e.,
whether two persons residing in the same house, with no showing
of physically separate living conditions, are residing in the
same ‘household.’”
Id.
In considering the issue, as noted above, the Park
court declined to adopt a multi-factor test to determine whether
Park and Findlay were members of the same “household,” noting
that consideration of factors such as “eating schedules and the
delegation of household chores,” as suggested by GEICO, would
run contrary to the directive to “construe policy terms
liberally, in favor of the insured, and in accord with the
reasonable expectations of a layperson.”
Id. at 38.
With
respect to the reasonable expectations of a lay person, the
court recognized the Hawaiian concept of ohana, noting:
13
Hawaiian and Asian families of this state have
long maintained strong ties among members of the
same extended family group. The Hawaiian word
[‘ohana] has been used to express this concept.
It is not uncommon in [Hawai‘i] to find several
parent-children family units, with members of
three and even four generations, living under one
roof as a single family.
Id. (alterations in original) (quoting Leong v. Takasaki, 520
P.2d 758, 766 (1974)).
The Court “therefore interpret[ed] ‘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.”
Id.
Essentially, the Park court found that because Park
and Findlay lived in the same residence, they were members of
the same household and thus considered relatives under the GEICO
policy at issue.
Here, as in Park, Bitonio and Montero are
living in the same residence, i.e., 1203 Peterson Lane.
The
residence has only one address and there is no evidence that it
is zoned for apartment use.
one driveway.
The residence has one mailbox and
Moreover, as in Park, Bitonio and Montero both
lived at 1203 Peterson Lane at the time of the accident and
there is no evidence that they maintained a residence in any
other location.
In sum, because Bitonio and Montero live in the
same residence, as in Park, they “are considered members of the
14
same household for the purposes of insurance coverage.”
974
P.2d at 38.
GEICO’s attempts to distinguish Park are unpersuasive.
GEICO points to the statement in Park, that the dispositive
issue concerned “whether two persons residing in the same house,
with no showing of physically separate living conditions, are
residing in the same ‘household.’”
Id. at 37.
GEICO claims
that here, unlike in Park, Bitonio and Montero maintained
“physically separate living conditions.”
GEICO Mem. in Support
of Mot. for Summary Judgment (“GEICO MSJ”), at 22, ECF No. 21-1.
In this respect, GEICO maintains that Bitonio and Montero live
in separate apartment units with their own bedrooms, living
rooms, kitchens, and bathrooms; do not purchase or share
groceries; do not share or divide household chores; pay rent
separately; and do not help each other financially.
Reply, at 9, ECF No. 31.
is distinguishable.
GEICO
On this basis, GEICO argues that Park
However, as Bitonio claims, read in
context, the reference to “physically separate living
conditions” in Park refers to the fact that unlike in the other
cases discussed by the Park court, there was no evidence that
Park and Findlay lived in completely separate residences at the
time of the accident.
Indeed, as noted above, prior to the
court’s use of the phrase “physically separate living
conditions,” the court contrasted two other cases in which “two
15
individuals who were not residing in the same residence at the
time of the accident, nevertheless claimed benefits as
‘relatives’ of the insured.”
Park, 974 P.2d at 37.
First, in Mun Quon Kok v. Pacific Insurance Co. Ltd.,
462 P.2d 909, 910 (Haw. 1969), discussed by the Park court, the
father of an insured claimed uninsured motorist benefits.
The
Hawaii Supreme Court affirmed a denial of coverage where the
father and son lived at different addresses (one on Maunakea
Street in Honolulu and the other at 1457 Pule Place, in
Honolulu), although there was evidence that the son took meals
to his father “at his rooming house” and received his father’s
mail and brought it to him.
Id. at 911.
The court held that
because “there was no showing of temporary absence, no showing
that appellant ever lived at named insured’s residence, [and] no
showing of support beyond two meals a day,” the evidence was
insufficient “to justify a finding that” the father and son were
residents of the same household.
Id.
As noted by the Park
court, however, Kok did not consider “the issue of what
constitutes residing in the same household, when both the
claimant and the insured are physically residing in the same
residence.”
Park, 974 P.2d at 38 (emphasis added).
Similarly, in Tirona v. State Farm Mutual Automobile
Insurance Co., 812 F. Supp. 1083, 1084, 1086 (D. Haw. 1993), the
second case discussed by the Park court, this district court
16
considered whether a claimant husband could be covered by his
wife’s insurance where on the date of the accident the wife
lived in Hawaii, while the husband lived in Las Vegas.
As noted
by the court in Park, “in Tirona, the parties had maintained
separate residences in different states for the majority of the
thirteen years preceding the accident.”
Park, 974 P.2d at 37.
On this basis, the Tirona court held that the claimant and his
wife lived in separate households.
Tirona, 812 F. Supp. at
1089.
Read in the context of the Park court’s discussion of
Kok and Tirona, the reference to “physically separate living
conditions” in the Park opinion does not apply to the facts of
this case, i.e., where the insured resides at the same physical
address as the claimant.
Accordingly, GEICO’s attempt to
distinguish Park on this basis fails.
This conclusion is further supported by the Park
court’s decision that “a complex, multi-factor analysis” should
not be applied to determine whether related individuals “who
physically reside in the same residence, are members of the same
‘household.’” 974 P.2d at 38.
Notably, although the Park court
did not provide much discussion of the facts at issue, it
appears that in Park, as in the instant case, GEICO attempted to
argue that coverage should be denied based on the theory that
separate households existed within the same physical address.
17
Indeed, in Park, GEICO argued that the court should consider,
inter alia, “separate control and furnishing of rooms within the
same house”; “separate family functions”; “separate purchases
and payments”; “separate household chores”; and “eating on
different schedules.”
Id. at 37.
The court, however, rejected
GEICO’s argument and refused to consider such factors, noting
that doing so would be antithetical to the principles that
insurance policy terms should be considered liberally, in favor
of the insured, and according to the reasonable expectations of
a layperson.
Id. at 38.2
Here, as in Park, the Court is guided
by these same principles and similarly concludes that
consideration of the factors raised by GEICO, which attempt to
Notably, in Tirona, as discussed by the Park court, the
court “recited twenty-two factors that have been utilized by
various courts to determine whether parties physically residing
together nevertheless maintained separate households.” Park,
974 P.2d at 37 (citing Tirona, 812 F. Supp. at 1088 n.1). These
factors included “where personal belongings are stored”; “where
the claimant socializes”; “flow of rent or other support between
the parties”; “shared kitchen”; “shared appliances and
utensils”; “freedom of access to all parts of household”;
“shared bedrooms”; “shared living rooms”; “shared bathing
facilities”; “shared entrances to household structures”;
“physical separation of household structures”; “joint purchase
of groceries and other necessities”; “shared payment of
utilities”; “shared laundry facilities”; and “shared household
chores.” Tirona, 812 F. Supp. at 1088 n.1. In determining that
a multi-factor test should not be applied in Park, the court
rejected the consideration of such factors where there is no
showing that the claimant and insured resided in two completely
distinct physical locations at the time of the accident.
2
18
demonstrate that Bitonio and Montero live in separate
households, is inappropriate.
GEICO additionally argues that the concept of “ohana”
as discussed in Park is not controlling because it does not
apply to the facts here, i.e., “relatives living in separate
apartments [and] separate living conditions,” and because
Bitonio and Montero were not living “as a single family.”
Mem. in Opp., at 15, ECF No. 27; GEICO Reply, at 8.
GEICO
However,
the Court agrees with Bitonio that the thrust of the Park
court’s discussion of ohana is that in Hawaii, it is common for
extended families to be living together under one roof.
Bitonio Reply, at 8, ECF No. 32.
See
Indeed on this basis—and
without considering whether Park and Findlay functioned within
the residence as a single family or lived in physically distinct
areas within the same residence—the Park court held that “‘the
reasonable expectations of a layperson’ in Hawaii” include the
expectation that “family members, living in the same residence,
are considered members of the same household for purposes of
insurance coverage.”3
974 P.2d at 38.
3
This determination is
Relatedly, in Park, the court discussed but did not adopt
a definition of “household” described by this district court in
Tirona as being based on “the existence of such domestic
arrangements and circumstances as would create separate domestic
establishments, each having its own head and separate
management.” 974 P.2d at 37 (quoting Tirona, 812 F. Supp. at
1077-88). Because the Hawaii Supreme Court has not adopted such
(continued . . . )
19
equally applicable in the instant case.
The Court additionally
agrees with Bitonio that finding otherwise based on the desire
of family members to maintain their privacy by residing in
separate living spaces within the same residence runs contrary
to the spirit of Park and to the concept of ohana.
Finally, in its Reply, GEICO claims that in a case
decided after Park, the Hawaii Supreme Court “found that the
term ‘residence’ ‘emphasizes membership in a group rather than
an attachment to a building.’”
GEICO Reply, at 6 (quoting
Mikelson v. United Servs. Auto. Ass’n, 111 P.3d 601, 611 (Haw.
2005)).
Relatedly, GEICO cites to this district court for the
proposition that “under Hawaii law, ‘what is paramount for
resident relative purposes is a claimant’s intent to be a member
of the named insured’s household.’”
Id. at 7 (quoting Yano v.
Gov’t Employees Ins. Co., No. CIV. 11-00745 SOM-BMK, 2012 WL
5037694, at *6 (D. Haw. Oct. 17, 2012), aff’d, 620 F. App’x 621
(9th Cir. 2015)).
GEICO claims that Bitonio’s intent can be
( . . . continued)
a definition of “household,” GEICO’s reliance on cases from
other jurisdictions is also misplaced. See, e.g., Buxton v.
Allstate Insurance Co., 434 So. 2d 605, 607, 610-12 (La. App.
1983) (finding the insured’s sister did not live in the same
household as the insured where the sister lived in a separate
area of the house with a separate kitchen, bathroom, and living
room, based on a definition of household similar to the one
described in Tirona); Estate of Sturgill v. United Servs. Auto.
Ass’n, 930 P.2d 945, 947 (1997) (holding claimant lived in
separate household from insured where they “maintained separate
domestic units under a common roof”).
20
gleaned from his testimony that he lived in his apartment with
his wife, son, his son’s wife and two kids and that no one else
lived in his apartment.
¶ 20).
GEICO Reply, at 10-11 (citing Pl.’s CSF
However, both Mikelson and Yano involved situations,
unlike Park and the instant case, in which the claimant and the
insured lived in physically distinct locations at the time of
the accident.
In Mikelson, the Hawaii Supreme Court determined
that based on the facts of the case, a college student remained
a resident of his father’s California household while attending
college in Hawaii.
111 P.3d at 614.
In Yano, the claimant
lived in an apartment in a completely different location from
his insured father’s home, and the court determined that there
was no evidence that the claimant intended to return to live
with his parents.
2012 WL 5037694, at *1-2, 8.
Thus, the court
determined the claimant was not a resident of his parents’
household.
Id. at *8.
Because these cases involved individuals
living in physically distinct locations at the time of the
accident at issue, they do nothing to disturb the Hawaii Supreme
Court’s decision in Park, and are likewise inapplicable in the
instant case.4
4
In its Opposition, GEICO discusses Hawaii’s “Ohana” zoning
laws to argue that any argument made by Bitonio that the laws
bolster his claim for coverage is unavailing. GEICO Mem. in
Opp. at 18, ECF No. 27. However, Bitonio states in his Reply
that he does not rely on the zoning laws in support of his
(continued . . . )
21
In sum, the Court finds that under the facts of this
case, Bitonio and Montero are considered members of the same
household for purposes of insurance coverage.
Bitonio and
Montero physically reside at 1203 Peterson Lane and there is no
evidence that they resided at a different address at the time of
the accident.
The Court is guided by Hawaii law, in which
insurance policies must be construed liberally in favor of the
insured and any ambiguity must be resolved against the insurer.
Estate of Doe, 948 P.2d at 1114-15.
Because there is no dispute
that Bitonio and Montero are related, Bitonio and Montero are
“relatives” as defined by the GEICO Policy.
Accordingly,
Bitonio is entitled to UIM coverage as an insured under
Montero’s GEICO Policy.
( . . . continued)
Motion for Summary Judgment, and as noted by Bitonio, “[t]here
is no evidence before the Court about the nature or extent of
any ohana permits for 1203 Peterson Lane.” Bitonio Reply, at 8.
Thus, the Court does not consider this issue.
The Court also notes that during the hearing on the
motions, GEICO argued that to qualify as an insured, Bitonio
must be a member of Montero’s household as opposed to a member
of the “Cabico household.” However, the Policy language states,
instead, that a relative living with the insured “in the same
household” is considered an insured. Policy, at 19 (emphasis
added).
22
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant
and Counterclaimant Eduardo Bitonio’s Motion for Summary
Judgment, ECF No. 20, and DENIES Plaintiff Government Employees
Insurance Company’s Motion for Summary Judgment, ECF No. 21.
IT IS SO ORDERED.
DATED:
Honolulu, Hawaii, August 29, 2016.
________________________________
Alan C. Kay
Sr. United States District Judge
GEICO v. Bitonio, Civ. No. 15-00475 ACK-KJM, Order Granting
Defendant and Counterclaimant’s Motion for Summary Judgment and
Denying Plaintiff’s Motion for Summary Judgment
23
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