Lee-Ann RAFOL, Individually and as Personal Representative of the Estate of Tito G. Rafol, Deceased, and as next Friend of Kaylee C. Rafol and Kyle C. Rafol, Minors, Plaintiffs-Appellants,
Lito Agmata MATEO aka Hermelito Mateo; Cornelia Mateo; Henry T. Mateo; Marriott Hotel Services, Inc., dba Waikoloa Beach Marriott Resort; John Does 1-10; Doe Partnerships 1-10; Doe Associations 1-10; and Doe Corporations 1-10, Defendants-Appellees.
This decision has been designated as "Unpublished disposition." in the Pacific Reporter. See HI R RAP RULE 35
Appeal from the Circuit Court of the Third Circuit (Civil No. 09-1-065K).
Martin A. Berger, Steven D. Strauss, on the briefs, for plaintiffs-appellants.
Richard F. Nakamura, Diane W. Wong (Ayabe, Chong, Nishimoto, Sia & Nakamura) on the briefs, for defendant-appellee.
NAKAMURA, C.J., FOLEY, and FUJISE, JJ.
Plaintiffs-Appellants Lee-Ann Rafol, Individually and as Personal Representative of the Estate of Tito G. Rafol, Deceased; and as Next Friend of Kaylee C. Rafol and Kyle C. Rafol, Minors (collectively, Plaintiffs) appeal from the Judgment entered May 3, 2011 (May 3, 2011 Judgment)  in the Circuit Court of the Third Circuit  (circuit court). The circuit court entered judgment in favor of Defendant-Appellee Marriott Hotel Services, Inc. dba Waikoloa Beach Marriott Resort (Marriott) pursuant to the " Order Granting Defendant Marriott Hotel Service's, Inc. dba Waikoloa Beach Marriott Resorts Motion for Summary Judgment, Filed April 20, 2009", filed April 26, 2010 and the " Order Granting Defendant Marriott Hotel Services, Inc. dba Waikoloa Beach Marriott Resort's Motion for Certification and Entry of Final Judgment Pursuant to Rule 54(b), HRCP with Respect To Order Granting Defendant Marriott Hotel Services, Inc. dba Waikoloa Beach Marriott Resort's Motion for Summary Judgment, Filed April 20, 2009, Filed on April 26, 2010, Filed on July 13, 2010" filed March 9, 2011.
On appeal, Plaintiffs contend the circuit court erred in granting summary judgment by:
(1) finding that Plaintiffs' claims are barred by the workers' compensation exclusive remedies provision, Hawaii Revised Statutes (HRS) HRS § 386-5 (1993);
(2) finding that Plaintiffs failed to establish that Marriott had a duty to warn;
(3) failing to view all of the evidence and inferences drawn in the light most favorable to the Plaintiffs; and
(4) failing to consider Plaintiffs' claims of Marriott's duty to control its employee.
This case arises out of the death of Tito G. Rafol (Rafol), an employee with Marriott. On March 8, 2007, Rafol was walking to his vehicle after completing his work shift, when he was shot numerous times with a semi-automatic pistol by Lito Agmata Mateo (Mateo), another Marriott employee. Rafol died from his wounds. It is undisputed that Mateo shot Rafol because of an extramarital affair between Rafol and Mateo's wife. It is also undisputed that Marriott knew of the affair prior to the shooting.
On May 9, 2007, Plaintiffs filed a Dependent's Claim for Compensation with the State of Hawaii Department of Labor and Industrial Relations, Disability and Compensation Division (Disability and Compensation Division). On September 17, 2007, the Disability and Compensation Division denied the claim, stating that " [s]ince there is no work-connected motive for the shooting, it is determined that [Mateo's] willful act was due to a personal matter of unknown origin between the parties."
Plaintiffs filed a Complaint against Marriott on March 4, 2009. In response, Marriott filed a " Motion to Dismiss Pursuant to Rule 12(b)(6), HRCP" (Motion to Dismiss) on April 20, 2009. Marriott argued that Plaintiffs' claims were barred from workers' compensation, or in the alternative, that Marriott could not be held liable for the conduct of Mateo. At a hearing on June 15, 2009, the circuit court converted the Motion to Dismiss to a Motion for Summary Judgment pursuant to Hawaii Rules of Civil Procedure (HRCP) Rule 56(f).
On April 26, 2010, the circuit court issued its " Order Granting [Mariott's] Motion for Summary Judgment, Filed April 20, 2009" and found that:
1. Plaintiff's claims are barred by the worker's compensation exclusive remedies. See [HRS] § 386-5, as amended.
2. Even if Plaintiff's claims were not barred, the Court finds that Plaintiff has failed to establish that ...