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Jou v. Argonaut Insurance Co.

Intermediate Court of Appeals of Hawaii

November 15, 2013

EMERSON M.F. JOU, M.D., Plaintiff-Appellant,
v.
ARGONAUT INSURANCE COMPANY, An Entity, Form Unknown; CITY AND COUNTY OF HONOLULU, A Self-Insured Governmental Entity; HEMIC, aka Hawaii Employers Medical Insurance Company, An Entity, Form Unknown; and MARRIOTT CLAIM SERVICES CORPORATION, A Corporation, Defendants-Appellees and JOHN DOE 1-50; DOE ATTORNEYS 1-50; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10; and DOE GOVERNMENTAL ENTITIES 1-10, Defendants. EMERSON M.F. JOU, M.D., Plaintiff-Appellant,
v.
HEMIC, aka Hawaii Employers Medical Insurance Company, An Entity, Form Unknown, Defendant-Appellee, and DOES 1-40, Defendants.

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (Civil Nos. 03-1-1445, 09-1-1529)

Stephen M. Shaw for Plaintiff-Appellant.

Arthur S.K. Fong Peter C.K. Fong (Fong & Fong) Gary Y. Okuda (Leu & Okuda) for Defendant-Appellee HEMIC.

Nakamura, C.J., Fujise and Ginoza, JJ.

MEMORANDUM OPINION

Plaintiff-Appellant Emerson M. F. Jou, M.D. (Jou) appeals from rulings by the Circuit Court of. the First Circuit (circuit court)[1] in two separate but related underlying cases. In appellate case no. 30606, Jou appeals from an "Order Granting Defendant HEMICs Motion to Enforce Settlement" filed on June 15, 2010 (June 15 Order), in Civil No. 03-1-1445.[2] In appellate case no. 30607, Jou appeals from a Judgment filed on July 8, 2010, in Civil No. 09-1-1529, which was entered pursuant to an "Order Granting Defendant HEMICs Motion to Enforce Settlement by Dismissing Action", filed June 16, 2010 (June 16 Order). Appellate cases no. 30606 and no. 30607 have been consolidated by this court.

On appeal, Jou contends that the circuit court erred by: (1) enforcing a handwritten memorandum as a settlement agreement because a condition therein was later waived by HEMIC; (2) concluding that unknown claims were released; (3) ruling that, even if the fraud claim accrued after the settlement agreement, a fraud claim does not exist; (4) dismissing Jou's suit for1 settlement fraud and related torts; (5) not recognizing that HEMIC had a duty to disclose a judgment lien in a settlement conference; and (6) finding Jou at fault for not performing a title search before a settlement conference.

For the reasons discussed below, we affirm .as to Civil No. 03-1-1445 and vacate as to Civil No. 09-1-1529.

I. Background

In Civil No. 03-1-1445, Jou brought suit against HEMIC and other defendants for inter alia insurer bad faith. Ultimately, the circuit court and this court entered judgments (Fees/Cost Judgments)[3] awarding HEMIC attorneys1 fees and costs against Jou in the total amount of $19, 045.40. In an effort to compromise the amounts owed by Jou to HEMIC, a settlement conference was held with the circuit court on May 4, 2009. Jou, HEMIC and the court signed a handwritten memorandum (5/4/09 Memo)[4] memorializing the agreements reached that day. The 5/4/09 Memo appears to contemplate that a release and indemnity agreement (R&IA) would thereafter be executed, but an R&IA was not executed.

Jou contends that when he sought to obtain a loan, he learned that HEMIC had recorded the Fees/Cost Judgments in the Bureau of Conveyances in September 2008 as a lien against his property. Jou thus filed a complaint on July 6, 2009, and an amended complaint on July 9, 2009, initiating the action in Civil No. 09-1-1529 and asserting claims denominated as: tortious judgment lien; settlement fraud; settlement fraud (non disclosure making partial disclosure false); intentional infliction of emotional distress; and negligence.

On February 19, 2010, HEMIC filed a "Motion to Enforce Settlement" in Civil No. 03-1-1445 and a "Motion. To Enforce Settlement By Dismissing Action" in Civil No. 09-1-1529. The circuit court held consolidated hearings on both motions. In Civil No. 03-1-1445, the court issued its June 15 Order enforcing the settlement set forth in the 5/4/09 Memo. In Civil No. 09-1-1529, the circuit court issued its June 16 Order and the Judgment, which dismissed that action based in part on the settlement set forth in the 5/4/09 Memo.

II• Valid Settlement Agreement and Release

In his first point of error, Jou contends that the circuit court erred in upholding the 5/4/09 Memo as an effective settlement agreement and release. He argues that the 5/4/09 Memo was merely a proposal for a release that required the execution • of a separate R&IA in the future. Jou also argues that HEMIC abandoned a material condition of the release, ...


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