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Praetorian Insurance Co. v. Estate of Apo

United States District Court, D. Hawaii

September 6, 2019

PRAETORIAN INSURANCE COMPANY, a Pennsylvania corporation, Plaintiff,
v.
THE ESTATE OF JOSHUA K. APO and KIHEI RENT A CAR, INC. dba KIHEI RENT A CAR, Defendants.

         (Declaratory Judgment)

          Of Counsel: FUKUNAGA MATAYOSHI CHING & KON-HERRERA, LLP WESLEY H. H. CHING 2896 SHEREE KON-HERRERA 6927 Attorneys for Plaintiff PRAETORIAN INSURANCE COMPANY

          PROPOSED FINDINGS AND RECOMMENDATION GRANTING PLAINTIFF PRAETORIAN INSURANCE COMPANY'S MOTION FOR DEFAULT JUDGMENT OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT AGAINST DEFENDANT THE ESTATE OF JOSHUA K. APO

          Kenneth J. Mansfield, United States Magistrate Judge.

         Before this Court is Plaintiff PRAETORIAN INSURANCE COMPANY'S (“Praetorian”) Motion for Default Judgment or, in the Alternative, for Summary Judgment Against Defendant THE ESTATE OF JOSHUA K. APO (“Estate”). Said Motion came on for hearing before Magistrate Judge Kenneth J. Mansfield on July 18, 2019 at 10:00 a.m., with Sheree Kon-Herrera appearing on behalf of Plaintiff Praetorian and Ward Jones appearing on behalf of Defendant KIHEI RENT A CAR, INC. dba KIHEI RENT A CAR (“Kihei”). Upon calling the case, Defendant Estate did not appear nor did any counsel appear on the Estate's behalf. Upon careful consideration of the Motion, the supporting memoranda, and the arguments of counsel and taking judicial notice of no appearance or communication from the Estate, the Court hereby finds and recommends that Praetorian's Motion be GRANTED.

         I. BACKGROUND

         The instant declaratory judgment action was brought by Praetorian for a judicial determination as to its defense and indemnity obligations, if any, to the Estate under the Praetorian Policy issued to Kihei for the claims in the civil action Cathlene Egbert and Jennifer Williams, Individually and as Co-Special Administrators of The Estate of Melissa M. Egbert, deceased, Corinne Weitzel and Rebecca Reither v. The Estate of Joshua Apo; Maui Police Department, County of Maui; Kawika Ornellas; James Burkett; Terence Gomez; et al., Civil No. 17-1-0240(2) (Motor Vehicle Tort) in the Circuit Court of the Second Circuit, State of Hawaii (the “Underlying Lawsuit”). See ECF No. 1-1.

         A. The Underlying Lawsuit

         On May 24, 2018, Plaintiffs Cathlene Egbert and Jennifer Williams, Individually and as Co-Special Administrators of The Estate of Melissa M. Egbert, deceased, Corinne Weitzel, and Rebecca Reither (collectively, “Egbert Plaintiffs”) filed a First Amended Complaint against the Estate, Maui Police Department (“MPD”), and three MPD officers in the Underlying Lawsuit. See ECF No. 26-5, First Amended Complaint.

         The First Amended Complaint asserts an action for damages against Defendants “for conduct that led to the October 29, 2016 motor vehicle collision on the Island of Maui, State of Hawaii, resulting in the death of MELISSA M. EGBERT.” Id. at ¶1. The basis for the claim against the Estate includes the following pertinent allegations.

         On or about October 29, 2016, MPD received a call complaining about an individual who appeared to be asleep in a silver 2011 Nissan Sentra that was partially parked on the driveway in front of the caller's residence. Id. at ¶22; see also Exhibits A and F to First Amended Complaint (dispatch transcript identifying LBZ-805). The person asleep in the vehicle was later identified as Joshua Apo. Id. at ¶28.

         After the MPD officers woke Mr. Apo, he reversed the Nissan Sentra and collided into a MPD vehicle. Id. at ¶¶30, 35. After fleeing the residence, Joshua Apo led MPD officers on a high-speed pursuit. Id. at ¶¶44-76 (describing the high-speed pursuit lasting more than 4 minutes and covering approximately 5 miles). During the pursuit, Joshua Apo crossed a grassy median and turned left onto Kuihelani Highway, such that he was driving the Nissan Sentra in the wrong direction on the opposing side of traffic. Id. at ¶¶55-56. As Joshua Apo reached the vehicle driven by Melissa Egbert, the Nissan Sentra was traveling approximately 90 mph in the wrong direction of Kuihelani Highway. Id. at ¶¶61-69. The speed of the Nissan Sentra being driven by Joshua Apo at the time of impact was calculated at 93 mph. Id. at ¶69.

         As the basis for a Negligence claim against the Estate, the First Amended Complaint alleges the following:

98. On or about October 29, 2016 at approximately 3:49 PM, Melissa was driving south in her 2011 Scion two-door sedan in the southbound lane of the Kuihelani Highway when she was suddenly struck head-on by the Apo Nissan, which was fleeing the police (“collision”).
99. At the time of the collision, the Apo Nissan was travelling north in the southbound lane of the Kuihelani Highway at a high rate of speed, far in excess of the posted speed limit, while being pursued by multiple MPD vehicles.
100. At the time of the collision, Mr. Apo was operating the Apo Nissan at an excessive rate of speed, in a reckless manner, and was under the influence of illegal drugs.
101. As a result of the collision, Melissa and Mr. Apo both passed away due to their injuries.

Id. at ¶¶ 98-101.

         B. Rental Agreement

         On or about October 9, 2016, JONATHAN MANIBOG (“Manibog”) rented a 2011 Nissan Sentra, License Plate #LBZ805 from Kihei Rent A Car. See ECF No. 26-3 at Exhibit 1, Rental Agreement, and ECF No. 26-4 at Nos. 1 and 2. The Rental Agreement was for two days from October 9, 2016 to October 11, 2016. Id. The Rental Agreement lists the word “None” under the section for “Additional Drivers.” See ECF No. 26-3 at Exhibit 1. The Rental Agreement signed by Manibog provided as follows -

I AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS RENTAL AGREEMENT AND TO RETURN VEHICLE TO KIHEI RENT A CAR ON OR BEFORE THE SPECIFIED DUE BACK DATE SHOWN ABOVE. I FULLY UNDERSTAND THAT IT IS A MISDEMEANOR FOR FAILURE TO RETURN VEHICLE OR NOT NOTIFYING KIHEI RENT A CAR OF A DESIRE TO EXTEND RENTAL.

Id. The terms and conditions on the reverse side of the Rental Agreement included but were not limited to the following - 2. The following restrictions are cumulative and each shall apply to every use, operation or driving of vehicle. Under no circumstances shall vehicle be used, operated or driven by any other person;

(a) For transportation of persons or property for hire; or
(b) Under the age of 21; or
(c) Who does not have a valid driver's license on person; or
(d) Who has given Kihei Rent A Car a false name, age or address or other fraud or misrepresentation; or
(e) In any race, speed test or contest; or
(f) For any illegal purpose; or ·
(g) To propel, push or tow any vehicle or trailer; or
(h) While under the influence of intoxicants or narcotics; or
(i) Loading vehicle beyond its rated capacity; or
(j) Where the speedometer of vehicle has been tampered with or disconnected; or
(k) To carry persons other than in the passenger compartment of vehicle;
or
(l) Except Renter or Additional Drivers(s) shown on the reverse sidehereof; provided such driver(s) is a qualified licensed ...

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