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Sprague v. California Pacific Bankers & Insurance Ltd.12/27/2001
of Hawaii (Civil No. 94-289K), Plaintiffs commenced a wrongful death suit against Maydwell, Doris, and Kona Aviation.
In a letter dated December 29, 1994, and signed by Reynolds, California Pacific wrote to counsel for Maydwell and Doris, in relevant part, as follows:
It appears that the coverage/s were cancelled by our British Underwriter, Corporate Risk Management, on or about the 27th day of January, 1993.
The file information indicates that AIA failed to remit due Premium/s for such coverages and also failed to deliver required documents and materials to our underwriter for processing.
Furthermore, the file information does not evidence that AIA ever advised Corporate Risk Management or our firm of the concerned loss.
We can only presume that AIA rewrote the business with another carrier.
In light of these circumstances and facts, our firm can not extend or otherwise offer your client any form of insurance coverage.
By letter dated January 5, 1995, counsel for Maydwell and Doris tendered the defense to California Pacific. California Pacific did not provide a defense for Maydwell and Doris.
Maydwell and Doris filed a counterclaim for the loss of the Grumman airplane.
In Civil No. 94-289K, on March 27, 1995, Maydwell and Doris moved for summary judgment on the grounds that: (a) there was no evidence of (i) death, (ii) negligence by Maydwell or Doris, or (iii) breach of warranty by Maydwell or Doris; (b) there was no basis for strict liability; (c) res ipsa loquitur was inapplicable because William controlled the instrumentality of alleged harm; and (d) William and Grace had signed an express waiver of their rights.
Before their motion for summary judgment was decided,
Maydwell and Doris stipulated to the entry of a stipulated order which included the following: (a) the entry of a $3,000,000 judgment in favor of Plaintiffs; (b) the dismissal of the counterclaim; (c) the assignment to Plaintiffs of all of the rights of Maydwell and Doris against the insurance agents, brokers, carriers, and all other persons or entities who may have been involved in the fruitless attempt by Maydwell and Doris to receive insurance coverage; and (d) an agreement that each side would bear their own attorney fees and costs. The court ordered the stipulated judgment and, on August 24, 1995, entered it as a final judgment against Maydwell and Doris.
In a separate Agreement Regarding Stipulated Judgment and Assignment of Rights that was not presented to or considered by the court when it ordered the stipulated judgment, Plaintiffs, Maydwell, and Doris agreed that (a) Plaintiffs would never record, execute, or levy said judgment upon Maydwell and Doris; (b) Plaintiffs would defend Maydwell and Doris against any attack based upon the Assignment of Rights given by Maydwell and Doris to Plaintiffs; (c) Maydwell and Doris would cooperate fully with Plaintiffs but without financial cost or obligation; (d) if Plaintiffs, as judgment creditors, actually receive more than $100,000, Plaintiffs shall pay to Maydwell and Doris $15,000 for loss of the airplane and $5,000 in reimbursement of attorney fees; and (e) Maydwell and Doris would advise Plaintiffs of their whereabouts.
On November 8, 1995, Plaintiffs commenced the instant case, Civil No. 95-291K, against the Defendants. Thus, Plaintiffs in the instant case and the prior settled case, Civil No. 94-289K, are the same.
The complaint in the instant case asserts three counts. Count I asserts that Defendants were negligent in failing to provide aviation liability insurance coverage, were negligent in failing t
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