NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CIVIL NO. 07-1-36)
Steven K. Hisaka Janice T. Futa, Dwayne S. Lerma, and Jo Anne E. Goya, with him on the briefs) for Plaintiff-Appellant.
Gregory K. Markham (Keith K. Kato, with him on the brief) for Defendant-Appellee.
Nakamura, Chief Judge, and Foley and Fujise, JJ.
SUMMARY DISPOSITION ORDER
Plaintiff-Appellant Francisco Abadilla, Jr. (Abadilla) brought various claims against Defendant-Appellee Sanford Iwata (Iwata) for alleged injuries Abadilla sustained while employed at Sanford's Service Center, Inc. (SSC). The Circuit Court of the Third Circuit (Circuit Court) granted summary judgment in favor of Iwata on all counts asserted against him in Abadilla's First Amended Complaint. On January 31, 2013, this court issued a Memorandum Opinion which vacated the Circuit Court's Final
Judgment in favor of Iwata and against Abadilla with respect to Counts I, III, and V of the First Amended Complaint and remanded the case for further proceedings. Abadilla v. Iwata, No. 29851, 2013 WL 377301 (Hawai'i App. Jan. 31, 2013) (hereinafter, "Abadilla I'M . We concluded that there were genuine issues of material fact regarding whether Iwata engaged in wilful and wanton misconduct that caused Abadilla's injuries and whether Iwata was liable for punitive damages. Id. at *7.
The Hawai'i Supreme Court granted Iwata's application for certiorari. The supreme court concluded that this court did not "gravely err" in vacating the grant of summary judgment as to Abadilla's claim for punitive damages in Count V because "[b]ased on Iddings Tv. Mee-Lee, 82 Hawai'i 1, 919 P.2d 263 (1996)], wilful and wanton conduct of a coemployee may give rise to punitive damages." Abadilla v. Iwata, No. SCWC-29851, 2013 WL 4458874, at *11 (Haw. Aug. 19, 2013) (Memorandum Opinion) (hereinafter "Abadilla II"). The supreme court, however, remanded the case back to this court "to decide, wilful and wanton liability aside, 1) what other theories of liability, if any, were subject to summary judgment and 2) in what capacities, that of co-employee aside, Defendant was entitled to summary judgment, if any." Id. The supreme court also stated that in Abadilla I, this court did not address: (1) Iwata's "argument that he was not liable as an officer or as a supervisor" for failing to provide "a safe place to work and reasonably safe machinery, " or (2) whether expert testimony was necessary on the issue of causation at the summary judgment stage. Id.
We clarify and supplement our decision in Abadilla I as follows:
The Circuit Court properly granted summary judgment on all theories of liability contained in Counts I, III, and V of the First Amended Complaint, except for liability based on Abadilla's claim that Iwata, in his capacity as a co-employee, engaged in wilful and wanton misconduct that caused injury to Abadilla and also justifies the award of punitive damages.
We read Counts I, III, and V together as providing Iwata with fair notice that Abadilla was asserting a claim for liability falling within the exception set forth in Hawai'i Revised Statutes (HRS) § 386-8 (1993) for wilful and wanton misconduct of a co-employee. See Laeroc Waikiki Parkside, LLC v. K.S.K. (Oahu) Ltd. P'shio, 115 Hawai'i 201, 215 n.17, 166 P.3d 961, 975 n.17 (2007) (construing Appellant's complaint liberally in concluding that it gave Appellees adequate notice of a claim not directly raised); Hall v. Kim, 53 Haw. 215, 221, 491 P.2d 541, 545 (1971) ("[A]11 pleadings shall be so construed as to do substantial justice." (quoting Hawai'i Rules of Civil Procedure Rule 8(f))).
In appealing the Circuit Court's grant of summary judgment on Counts I, III, and V, Abadilla argued that the Circuit Court erred because there were genuine issues of material fact regarding whether Iwata was subject to liability based on Iwata's wilful and wanton misconduct as a co-employee. In his opening brief, Abadilla did not argue that the Circuit Court had erred in granting summary judgment on any theory of liability besides Iwata's engaging in wilful and wanton misconduct in his capacity as a co-employee. Therefore, Abadilla waived all other theories of liability. See Hawai'i Rules of Appellate Procedure Rule 28(b)(7) (2008) ("Points not argued may be deemed waived."). Accordingly, the ...