United States District Court, D. Hawaii
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois corporation, Plaintiff,
ARBORSCAPES SERVICES LLC aka ARBORSCAPES HAWAII, Defendants.
& 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
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
KENNETH J. MANSFIELD, UNITED STATES MAGISTRATE JUDGE
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.
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
The Underlying Lawsuit.
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.
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.
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.
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.
and Pinky Tows allege that ARBORSCAPES is liable for damages
in the total amount of $110, 481.39. Id.
November 20, 2018, STATE FARM filed its Complaint for
Declaratory Judgment against ARBORSCAPES. ECF No. 1.
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.
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.