United States District Court, D. Hawaii
PRAETORIAN INSURANCE COMPANY, a Pennsylvania corporation, Plaintiff,
THE ESTATE OF JOSHUA K. APO and KIHEI RENT A CAR, INC. dba KIHEI RENT A CAR, Defendants.
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.
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.
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.
The Underlying Lawsuit
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
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.
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.
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.
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.
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;
(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
(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
(l) Except Renter or Additional Drivers(s) shown on
the reverse sidehereof; provided
such driver(s) is a qualified licensed ...