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Diary Road Partners v. Shell Oil Company2/1/2000
As amended March 6, 2000.
DAIRY ROAD PARTNERS, DBA DAIRY ROAD SHELL, PLAINTIFF-APPELLEE/CROSS-APPELLANT,
AND
SHELL OIL COMPANY, PLAINTIFF,
V.
ISLAND INSURANCE COMPANY, LTD., A HAWAI`I CORPORATION, DEFENDANT-APPELLANT/CROSS-APPELLEE
APPEAL FROM THE FIRST CIRCUIT COURT (CIV. NO. 95-1167)
On the briefs: Eric S. Yamagata for the plaintiff-appellee/cross-appellant Dairy Road Partners, dba Dairy Road Shell Roy F. Hughes and Ross N. Taosaka (Hughes & Taosaka) for the defendant-appellant/cross-appellee Island Insurance Co., Ltd.
Moon, C.J., Klein, Levinson, Nakayama, And Ramil, JJ.
The opinion of the court was delivered by: Levinson, J.
OPINION
In this consolidated appeal, both parties challenge portions of the first circuit court's orders granting in part and denying in part their cross-motions for summary judgment. The case arises out of a complaint filed by the plaintiff-appellee/cross-appellant Dairy Road Partners, dba Dairy Road Shell [hereinafter, DRP], and the plaintiff Shell Oil Company [hereinafter, Shell] seeking a declaration that the defendant-appellant/cross-appellee Island Insurance Company [hereinafter, Island] has a duty to defend and indemnify DRP and Shell, pursuant to four separate insurance policies issued by Island to DRP, in two separate lawsuits concerning an automobile accident allegedly caused by a DRP employee (collectively, "the underlying lawsuits"). On cross-motions for summary judgment, the circuit court ruled that (1) Island is not required to defend or indemnify DRP or Shell pursuant to (a) DRP's business auto policy or (b) DRP's commercial general liability policy, but (2) a genuine issue of material fact remained with regard to whether Island is required to defend and indemnify DRP and Shell pursuant to DRP's (a) commercial garage liability policy and (b) commercial umbrella insurance policy. Accordingly, the circuit court granted Island's motion for summary judgment with respect to the business auto policy and the commercial general liability policy but denied it with respect to the commercial garage liability policy and the commercial umbrella insurance policy. The circuit court also purported to grant in part and deny in part DRP's motion for summary judgment, although it articulated the same conclusions with regard to all four policies described above.
On appeal, Island argues that the circuit court erred in denying its motion for summary judgment with respect to its duty to defend and indemnify pursuant to the commercial garage liability policy and the commercial umbrella insurance policy because Island had made an adequate showing that there is no possibility of coverage under either policy. We hold that DRP established, as a matter of law, that there was a possibility of coverage under the commercial garage liability policy at the time of tender of defense. However, inasmuch as DRP raised the issue of indemnity in its complaint, in connection with which Island adduced uncontroverted evidence demonstrating that the accident is not covered by the commercial garage liability policy, we hold that Island was entitled both to a judgment that it has no duty to indemnify DRP and that, as of the date of the entry of the circuit court's judgment to that effect, Island's duty to defend will also end. Therefore, pursuant to the commercial garage liability policy, Island is responsible for the costs of DRP's defense incurred between the date of tender and the date of the circuit court's judgment, but not for any subsequent costs. With respect t
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