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Sprague v. California Pacific Bankers & Insurance Ltd.12/27/2001
s "associate Louan Chandler was very knowledgeable in aviation insurance."
When they rented the Grumman airplane, both William and Grace signed an express waiver, release, and assumption of the risk agreement on a form provided them by Maydwell. The waiver paragraph of the Aircraft Rental Contract states as follows:
6. WAIVER OF LIABILITY AND ASSUMPTION OF RISK: The Lessee, and any passengers or occupants of the aircraft, release for themselves, their legal representatives, heirs, and assigns, and hereby releases, Kona Aviation, and the owners of the aircraft and their agents and each of them from all liability to the Lessee, their spouse, legal representatives, heirs and assigns, for any and all loss or damage, and any claim or damages resulting therefrom, on account of injury to Lessor or any passengers or occupants of the aircraft or property, whether caused by the negligence of Lessor or anyone while the Lessee is renting or operating the aircraft.
James Nottage testified that Maydwell contacted Chandler, Chandler contacted James Nottage, and James Nottage "was working under the instructions of Louan Chandler." As his fee, James Nottage kept some money from the Millards' first check. On more than one occasion, Doris had asked James Nottage for a copy of the insurance policy. James Nottage testified that "we kept pressing [Chandler] to get the policy and we continually were assured the policies were coming, the policies were coming." James Nottage did not understand the delay. James Nottage wrote the March 1, 1993 letter to the Millards after he "received a letter saying that there was no coverage, that Kam had not passed the money on to the insurance carrier and the insurance carrier was not about to make payments or assist."
Regarding the cancellation of the policy and refund after the loss of the Grumman airplane, James Nottage testified that " ome policies have a fully earned clause in them and some policies have a clause that say that after a loss you can cancel for a refund."
Kam and Chandler are officers and directors of Aviation Insurance. The record shows that (1) Aviation Insurance did not have a Hawaii "insurance license as a general agent or surplus line broker[,]" and (2) California Pacific was not authorized to be "an insurer in the State of Hawaii."
In a letter dated November 16, 1993, to Maydwell, with a "cc" to James Nottage, Perry K. Brown (Brown) of All Claims Services wrote, in relevant part, as follows: "As you can see, we are either dealing with a non-existent insurance company or insurance agents that have taken your premium and disappeared. In either case, there is no way that our company can provide you with any refund on your premium."
In a letter dated March 24, 1993, to Maydwell, with a "cc" to James Nottage and Kam, Brown wrote, in relevant part, as follows:
It has come to our attention that you may not have had a valid insurance policy at that time. We were recently informed that California Pacific Bankers & Insurance Limited is a fictitious and non-existent company. If that is correct, then you were without any insurance when this loss occurred.
We have conducted a complete investigation of this occurrence and we are maintaining our file in the event of litigation, however, we will not provide anyone with a report until we receive instructions from you and our service bill is paid.
Our bill is enclosed for your own records only. We do not expect you to pay it unless you need further assistance.
(Emphases in the original.)
On October 31, 1994, in Sprague v. Millard, Civil No. 94-289K, Third Circuit Court of the State
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