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Government Employees Insurance Co. v. Bitonio

United States District Court, D. Hawaii

August 29, 2016

GOVERNMENT EMPLOYEES INSURANCE COMPANY, Plaintiff,
v.
EDUARDO BITONIO, Defendant.

          ORDER GRANTING DEFENDANT AND COUNTERCLAIMANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

          Alan C. Kay Sr. United States District Judge.

         For the reasons set forth below, the Court GRANTS Defendant and Counterclaimant Eduardo Bitonio's Motion for Summary Judgment, ECF No. 20, and DENIES Plaintiff Government Employees Insurance Company's Motion for Summary Judgment, ECF No. 21.

         PROCEDURAL BACKGROUND

         On November 12, 2015, Plaintiff Government Employees Insurance Company (“GEICO”) filed a Complaint for Declaratory Judgment asking this Court to declare and adjudge that GEICO does not have a duty to pay underinsured motorist (“UIM”) benefits or provide coverage to Defendant and Counterclaimant Eduardo Bitonio (“Bitonio”) under the subject policy in relation to an accident involving Bitonio that occurred on December 18, 2013. Compl. ¶ 6, ECF No. 1. Bitonio filed a Counterclaim for Declaratory relief on December 23, 2015, asking the Court for a declaration that GEICO is obligated to provide him with $100, 000 in UIM coverage. Counterclaim ¶ 21, ECF No. 10-1.

         On May 31, 2016, Bitonio filed a Motion for Summary Judgment against GEICO supported by a Concise Statement of Facts along with declarations and exhibits. ECF Nos. 20, 26. On May 31, 2016, GEICO filed its Motion for Summary Judgment against Bitonio. ECF No. 21. GEICO's motion was supported by a Concise Statement of Facts along with declarations and exhibits. ECF Nos. 22-24. Bitonio filed his Memorandum in Opposition on August 8, 2016, supported by a Concise Statement of Facts in Support of His Memorandum in Opposition (Def.'s CSF in Opp.).[1] ECF No. 28, 29. GEICO filed its Memorandum in Opposition, supported by a Concise Statement of Facts in Opposition on August 8, 2016. ECF Nos. 27, 30. The parties filed their replies on August 15, 2016. ECF Nos. 31, 32.

         The Court held a hearing on the motions on Monday, August 29, 2016.

         FACTUAL BACKGROUND

         I. The Accident and Bitonio's Living Arrangements

         On or around December 18, 2013, Bitonio was involved in a car accident on Kapiolani Boulevard in Honolulu, Hawaii. Cruz Decl., Ex. 7, at 1, ECF No. 23-1; Defendant and Counterclaimant's Concise Statement of Facts (“Def.'s CSF”) ¶ 1. Bitonio was injured in the accident. Cruz Decl., Ex. 7, at 6, 8; Def.'s CSF ¶ 2.

         At the time of the accident, Bitonio lived at 1203 Peterson Lane. Cruz Decl., Ex. 8 (Bitonio Examination Under Oath “Bitonio EUO”), at 11, ECF No. 23-2; Lydia Cabico Decl. ¶ 6, ECF No. 20-4. Lydia Cabico owns 1203 Peterson Lane, and she and her late husband built a single family home there (“the Home”). Lydia Cabico Decl. ¶¶ 2-3. Cabico and her husband expanded and modified the Home over the years to accommodate their extended family members, some of whom emigrated to Hawaii from the Philippines. Id. ¶ 4. The Home is listed in the City and County of Honolulu Real Property Assessment Division public records as 2, 963 square feet with eight bedrooms, three full bathrooms, and one half bathroom. Def.'s Mot. for Summary Judgment, Ex. B, ECF No. 20-7. The property class is listed as “RESIDENTIAL.” Id.

         Bitonio rents a unit on the first floor of the Home from Cabico, who is his aunt, but there is no formal rental agreement or a written lease. Bitonio EUO, at 11-13; Montero Decl. ¶ 11, ECF No. 22; Lydia Cabico Decl. ¶ 7. There are two other units on the first floor of the Home. Bitonio EUO, at 13; Montero Decl. ¶¶ 5-7; Cruz Decl., Ex. 9 (Akana Examination Under Oath “Akana EUO”), at 14, ECF No. 23-3. Bitonio's unit is separated by a common hallway from the two other units. Montero Decl. ¶ 7, Exs. 1-6; Bitonio EUO, at 22; Akana EUO, at 14-15. One of the other units is rented by Maria Montero and the other by Leroy Akana. Montero Decl. ¶ 7, Akana EUO, at 15; Lydia Cabico Decl. ¶ 7. Bitonio, Montero, and Akana are related to Cabico. Montero Decl. ¶ 10. Cabico is Montero's grandmother's brother's wife. Montero Decl. ¶ 11. Cabico and her family live on the second floor of the Home, which is accessed via an exterior staircase. Montero Decl. ¶ 9; Bitonio EUO, at 12; Akana EUO, at 15.

         There is one mailbox on the property and associated with the Home, but members of each unit only pick up their own mail. Montero Decl. ¶ 15; Akana EUO, at 18; Ruben Cabico Decl. ¶ 10, ECF No. 20-3. The residents of the Home share a clothes line, clothes washing area, a carport, water heater, and a driveway. Montero Decl. ¶ 16; Akana EUO, at 16; Ruben Cabico Decl. ¶¶ 9-10. The carport is used as storage space and as a gathering place for family celebrations. Ruben Cabico Decl. ¶ 11. However, Montero does not “socialize” with Bitonio. Montero Decl. ¶ 16. Utilities are not submetered, but are included in the rent paid to Cabico. Montero Decl. ¶ 8; Akana EUO, at 19; Ruben Cabico Decl. ¶ 9; Lydia Cabico Decl. ¶ 8.

         Each of the downstairs units has its own front door that leads to the common hallway and there are no other doors that can be used to get in and out of each unit. Montero Decl. ¶ 12, Ex. 6; Akana EUO, at 15, 17, 24; Bitonio EUO, at 13, 15-17. The common hallway leads to the outside. Montero Decl, Ex. 6. Each of the units also has its own bedrooms, living room, kitchen, bathroom, and refrigerator. Montero Decl. ¶ 7; Bitonio EUO, at 21; Akana EUO, at 16. Bitonio and Montero do not have keys to each other's units and Akana does not have a key to either Montero or Bitonio's unit. Montero Decl. ¶¶ 13-14; Bitonio EUO, at 17; Akana EUO, at 17-18.

         Bitonio's unit is comprised of himself, his wife, his son and daughter-in-law, and their two children. Bitonio EUO, 18. Montero's unit is comprised of Montero, her mother, and her boyfriend. Montero Decl. ¶ 5. Bitonio does not access Montero's unit freely, he has never slept in the unit, nor does he have any personal belongings in her unit. Bitonio EUO, at 19, 21. The individuals in Bitonio and Montero's units do not cook meals and do not share financial and household responsibilities. Montero Decl. ¶ 17; Bitonio EUO, at 22-23, 24, 28.

         II. Bitonio's Tender to GEICO

         On or around November 24, 2014, Bitonio submitted a claim to GEICO for UIM coverage under Montero's GEICO policy. Cruz Decl. Cruz Decl., Ex. 11, ECF No. 23-5; Def.'s CSF ¶ 17. In response, on December 1, 2014, GEICO sent a letter acknowledging receipt of the claim and informing Bitonio that it was investigating whether Bitonio qualified for UIM coverage. Cruz Decl., Ex. 12, ECF No. 23-6; Def.'s CSF ¶ 18. On September 18, 2015, GEICO sent a letter to Bitonio informing him that pursuant to its investigation, including an examination under oath of Bitonio, Bitonio did not qualify for coverage under Montero's plan, as he was “not a member of the same household as Ms. Montero.” Cruz Decl., Ex. 14, ECF No. 23-8; Def.'s CSF ¶ 20. GEICO informed Bitonio that if he disagreed, GEICO was willing to obtain a court determination of the issue and file a declaratory judgment action. Cruz Decl., Ex. 14.

         III. The GEICO Policy

         GEICO issued Montero, as the Named Insured, a Hawaii Family Automobile Insurance Policy under Policy No. 4197-30-12-88, which was effective between December 8, 2013 and June 8, 2014 (the “Policy”). Pl.'s CSF ¶ 42, Ex. 1 to Compl. (“Policy”), at 2, ECF No. 1-1; Def.'s CSF ¶ 21.

         Under Section V-Underinsured Motorist Coverage, the Policy provides as follows:

DEFINITIONS
The definitions of terms in Section I, Liability Coverage apply to this coverage except for insured. The definitions of Section IV, Uninsured Motorists Coverage, of your policy apply to this coverage except for the following special definition:
Underinsured motor vehicle means a motor vehicle with respect to the ownership, maintenance or use of which the sum of the limits of liability under all bodily injury liability insurance coverage applicable at the time of loss to which coverage afforded by such policy or policies ...

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