Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Founders Insurance Co. v. Kim & Jon, Inc.

United States District Court, District of Hawaii

April 30, 2015

FOUNDERS INSURANCE COMPANY, Plaintiff,
v.
KIM & JON, INC., Defendant.

ORDER DENYING DEFENDANT/THIRD-PARTY PLAINTIFF KIM & JON, INC.’S MOTION FOR RECONSIDERATION

Leslie E. Kobayashi United States District Judge

On February 27, 2015, this Court issued its Order Granting in Part and Denying in Part Plaintiff Founders Insurance Company’s Motion for Summary Judgment and Granting Third-Party Defendant the Burlington Insurance Company’s Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment (“2/27/15 Order”).[1] [Dkt. no. 58.[2] On March 13, 2015, Defendant/Third-Party Plaintiff Kim & Jon, Inc. (“K&J”) filed its motion for reconsideration of the 2/27/15 Order (“Motion for Reconsideration”). [Dkt. no. 62.] On March 27, 2015, Founders and Burlington each filed its memorandum in opposition to the Motion for Reconsideration and, on April 10, 2015, K&J filed its reply. [Dkt. nos. 64, 65, 66.] After careful consideration of the motion, the supporting and opposing memoranda, and the relevant legal authority, the Court HEREBY DENIES the Motion for Reconsideration for the reasons set forth below.

BACKGROUND

In the 2/27/15 Order, this Court, inter alia:

(1) applied the factors set forth in Brillhart v. Excess Insurance Co. of America, 316 U.S. 491 (1942), and Government Employees Insurance Co. v. Dizol, 133 F.3d 1220, 1225 (9th Cir. 1998), and concluded that it would be proper to retain jurisdiction over this declaratory judgment action; 2015 WL 880585, at *4-5;
(2) found that the underlying state complaint (“State Complaint”), filed by Darius Davis (“Davis”) against Claude Custard (“Custard”) and K&J, alleged a negligent shooting claim sufficient to bring it within Founders policy number ELHI100022 (“Founders Policy”) and Burlington policy number 087B005102 (“Burlington Policy, ” collectively “Policies”), pursuant to the complaint allegation rule; id. at *5-7;
(3) concluded that, because under Hawai`i law neither “assault” nor “battery” requires intent, all claims from the State Complaint would fall within Exclusion K of the Founders Policy, and thus Founders has no duty to defend; id. at *7-9;
(4) concluded that, based on Exclusion BG-11 of the Burlington Policy and the definitions of “assault” and “battery” therein, all claims from the State Complaint are excluded from the policy, and thus Burlington has no duty to defend; id. at *8-9;
(5) concluded that, since the language in Exclusion K and Exclusion BG-11 is clear and conspicuous, the “reasonable expectation principle” does not apply and K&J is bound by the terms of the Policies; id. at *9-10; and
(6) since there is no duty to defend, neither Founders nor Burlington owes K&J a duty to indemnify, and thus granted summary judgment for Founders as to Counts I and II of the Complaint, and for Burlington as to Counts I and II of the Third-Party Complaint; id. at *10.

In the instant Motion for Reconsideration, K&J argues that the Court made manifest errors in defining the terms “assault” and “battery” and in applying the complaint allegation rule as to require reconsideration of the 2/27/15 Order.[3] [Mem. in Supp. of Motion for Reconsideration at 3-4.] K&J requests that the Court vacate the 2/27/15 Order. [Id. at 10.]

STANDARD

This Court recently explained the standard for reconsideration:

A motion for reconsideration must (1) “demonstrate reasons why the court should reconsider its prior decision” and (2) “must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision.” Hele Ku KB, LLC v. BAC Home Loans Servicing, LP, 873 F.Supp.2d 1268, 1289 (D. Haw. 2012). The Ninth Circuit has held that reconsideration is appropriate if (1) the district court is presented with “newly discovered evidence, ” (2) the district court “committed clear error or the initial decision was ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.