United States District Court, D. Hawaii
ORDER GRANTING DEFENDANT AND COUNTERCLAIMANT'S
MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT
C. Kay Sr. United States District Judge.
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.
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.
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.). 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.
Court held a hearing on the motions on Monday, August 29,
The Accident and Bitonio's Living Arrangements
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
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.”
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.
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. ¶
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
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.
Bitonio's Tender to GEICO
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.
The GEICO Policy
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.
Section V-Underinsured Motorist Coverage, the Policy provides
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 ...