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State Farm Mutual Automobile Insurance Co. v. Arborscapes Services LLC

United States District Court, D. Hawaii

September 16, 2019

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois corporation, Plaintiff,
v.
ARBORSCAPES SERVICES LLC aka ARBORSCAPES HAWAII, Defendants.

          ORTIZ & ASSOCIATES A LAW CORPORATION JONATHAN L. ORTIZ 2297-0 CHRISTINE S. PREPOSE-KAMIHARA 9039-0 CATHY S. JUHN 7877-0 Attorneys for Plaintiff STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

          FINDINGS AND RECOMMENDATION GRANTING PLAINTIFF STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY'S MOTION FOR DEFAULT JUDGMENT OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT AGAINST DEFENDANT ARBORSCAPES SERVICES LLC AKA ARBORSCAPES HAWAII

          KENNETH J. MANSFIELD, UNITED STATES MAGISTRATE JUDGE

         Before this Court is Plaintiff STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY's (“STATE FARM”) Motion for Default Judgment or, in the Alternative, for Summary Judgment Against Defendant Arborscapes Services LLC aka Arborscapes Hawaii. Said Motion came on for hearing on August 30, 2019 at 9:00 a.m., with Christine S. Prepose-Kamihara appearing on behalf of State Farm. Three calls were made for Defendant ARBORSCAPES SERVICES LLC aka ARBORSCAPES HAWAII (“ARBORSCAPES”) with no response. Upon careful consideration of the Motion, supporting memoranda, and the arguments of counsel, the Court hereby finds and recommends that STATE FARM's Motion be GRANTED.

         I. BACKGROUND

         The instant declaratory relief action was brought by STATE FARM so that it may obtain a judicial determination as to its defense and indemnity obligations, if any, to ARBORSCAPES with respect to the claims asserted against it in the civil action encaptioned Dongbu Insurance and Pinky Tows Hawaii, Inc. v. Arborscapes Services LLC, Civil No. 17-1-1628-10 VLC, filed in the Circuit Court of the First Circuit, State of Hawaii (the “Underlying Lawsuit”).

         A. The Underlying Lawsuit.

         On October 5, 2017, Dongbu and Pinky Tows filed a Complaint against ARBORSCAPES in the Circuit Court of the First Circuit of the State of Hawaii, encaptioned, Dongbu Insurance and Pinky Tows Hawaii, Inc. v. Arborscapes Services LLC, Civil No. 17-1-1628-10 VLC (the “Underlying Lawsuit”). ECF No. 26, at Exh. A.

         The Complaint in the Underlying Lawsuit alleges that ARBORSCAPES owned a 2004 F550 truck (“F550 truck”) with a boom and basket attached. Id. On or about December 14, 2016, an ARBORSCAPES' employee, agent, and/or representative requested that Pinky Tows Hawaii, Inc. (“Pinky Tows”) tow the F550 truck, and in the course of doing so, the F550 truck's boom and basket crashed on top of Pinky Tows' tow truck with the operator still inside the basket. Id.

         The Complaint in the Underlying Lawsuit also alleges that Pinky Tows' tow truck sustained damage in the amount of $12, 313.19 as a result of ARBORSCAPES' boom and basket crashing into it. Id. Pinky Tows had to rent a replacement tow truck at a cost of $98, 167.50. Id. Pinky Tows tendered the repair estimate for its tow truck and the rental of the replacement tow truck to ARBORSCAPES and its insurance carrier, and they refused to pay. Id.

         The Complaint in the Underlying Lawsuit further alleges that Pinky Tows was insured by an insurance policy issued by Dongbu Insurance (“Dongbu”), and thus, it requested Dongbu pay for the damages. Id. Dongbu alleges that it was required to and did pay the cost to repair the tow truck, which was $11, 319.19, less $1, 000.00 for Pinky Tows' deductible under Pinky Tows' insurance policy, and thus, became subrogated to Pinky Tows' rights. Id. Dongbu also alleges that Pinky Tows' insurance policy with it did not provide for reimbursement of the costs to rent a replacement tow truck. Id. Dongbu further alleges that it made a demand on ARBORSCAPES and its insurance company for payment of the monies expended for the property damage and the replacement rental costs, but it has not received payment. Id.

         Dongbu and Pinky Tows allege that ARBORSCAPES is liable for damages in the total amount of $110, 481.39. Id.

         B. Procedural History.

         On November 20, 2018, STATE FARM filed its Complaint for Declaratory Judgment against ARBORSCAPES. ECF No. 1.

         On December 15, 2018, the Complaint and Summons were personally served on ARBORSCAPES by leaving the Complaint and Summons at ARBORSCAPES' Agent's address with Jo Aweau, a person of suitable age and discretion who resided at the property. ECF No. 10.

         On May 31, 2019, STATE FARM filed its Motion for Entry of Default and Default Judgment Against Defendant Arborscapes Services, LLC aka Arborscapes Hawaii, on the basis that (1) the time within ARBORSCAPES could have answered or otherwise moved or defended against STATE FARM's Complaint, as provided in the Federal Rules of Civil Procedure or any other rule of the court expired; and (2) no extension having been granted, ARBORSCAPES failed to answer or otherwise move in accordance with Rule 12 of the Federal Rules of Civil Procedure. ECF No. 18. On May 31, 2019, the Clerk of the Court entered default against ARBORSCAPES. ECF No. 19. ARBORSCAPES has not moved to set aside the Entry of Default against it.

         C. The ...


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