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Diary Road Partners v. Shell Oil Company2/1/2000
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1. The Motion is denied as to the Business Automobile Insurance Policy on the basis that the involved vehicle was not listed in the policy as a covered auto. 2. The Motion is granted as to the Commercial Garage Liability Policy on the basis that there is a genuine issue of material fact as to whether Garth Nakamura's actions were operations necessary or incidental to the garage business. 3. The Motion is denied as to the Commercial General Liability Policy on the basis that Exclusion 2(g) applies, and where the involved vehicle was owned and operated by Garth Nakamura, assuming arguendo that he was an "insured" under the policy (as an employee acting within the scope of his employment). 4. The Motion is granted as to the Commercial Umbrella Insurance Policy only as it applies to commercial garage liability on the basis that there is a genuine issue of material fact as to whether Garth Nakamura's actions were operations necessary or incidental to a garage business. (Emphases added.)
The language highlighted above constitutes the only differences between the language of the circuit court's October 10 and October 16 orders.
On October 23 and 28, 1996, DRP filed two motions for reconsideration or, in the alternative, to alter or amend both of the circuit court's orders concerning the parties' motions for summary judgment. As noted supra in section I.B.2, DRP attached, inter alia, to its motions copies of "ITEM TWO of the declarations" contained in the business auto policy. In addition, on October 29, 1996, DRP filed an affidavit of Roger Yamagata, DRP's insurance agent. Yamagata averred in relevant part that
. . . o ensure that all vehicles used in connection with the business operations was a covered auto under the policy for bodily injury and property damage liability protection, purchased additional coverage for "Hired Autos" and employer's "Non Owned Autos". . . . paid additional premiums for the extended coverage as evidenced by the Renewal Certificate and Declaration page . . . .
DRP argued that, based on the "new evidence" of "ITEM TWO of the declarations" page, the circuit court should reconsider its ruling with respect to the business auto policy. DRP further argued that a possibility of coverage would remain under the commercial general liability policy even "if the jury finds that Garth Nakamura was not acting within the course and scope of his employment." (Bold face emphasis in original.) On October 30, 1996, Shell filed a joinder in DRP's motions for reconsideration. The circuit court denied both of DRP's motions by orders filed on December 11, 1996.
On December 2, 1997, Island filed a motion for certification pursuant to HRCP Rule 54(b) (1996). The circuit court granted Island's motion by an order filed on January 20, 1998 and filed a "Rule 54(b) Final Judgment" on February 24, 1998, entering judgment "in favor of Island . . . and against and Shell, that Island is not obligated to defend and/or to indemnify its insureds under the business automobile insurance policy and the commercial general liability policy" and "in favor of and Shell and against Island, that Island is obligated to defend its insureds under the commercial garage liability policy and commercial umbrella insurance policy."
Both parties filed timely appeals.
II. STANDARD OF REVIEW
We review circuit court's [grant or denial] of summary judgment de novo under the same standard applied by the circuit court. Amfac, Inc.[ v. Waikiki Beachcomber Inv. Co., ] 74 Haw. [85,] 104, 839 P.2d [10,] 22, [reconsideration denied, 74 Haw. 650, 843 P.2d 144 (1992)] (citation omitted). As we have often articulated:
ummary
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Hawaii Personal Injury Attorneys
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