Coles v. City of Honolulu, SCRQ-22-0000097

CourtSupreme Court of Hawai'i
Writing for the CourtEDDINS, J.
PartiesBRAD COLES; KEI JA COLES REVOCABLE LIVING TRUST; and 6650 HKD LLC, Plaintiffs-Appellants, v. CITY AND COUNTY OF HONOLULU, Defendant-Appellee. CITY DAVID T. COOK, Plaintiff-Appellant, v. CITY AND COUNTY OF HONOLULU, Defendant-Appellee. MAGDY AREF and NEVINE MOUSTAFA, Plaintiffs-Appellants, v. CITY AND COUNTY OF HONOLULU, Defendant-Appellee. ERIN ISA DONLE; STANLEY ISA; and PEGGY ISA, Plaintiffs-Appellants, v. CITY AND COUNTY OF HONOLULU, Defendant-Appellee. MICHELLE KUNITAKE, Plaintiff-Appellant, v. CITY AND COUNTY OF HONOLULU, Defendant-Appellee.
Docket NumberSCRQ-22-0000097
Decision Date02 September 2022

BRAD COLES; KEI JA COLES REVOCABLE LIVING TRUST; and 6650 HKD LLC, Plaintiffs-Appellants,
v.

CITY AND COUNTY OF HONOLULU, Defendant-Appellee.

CITY DAVID T. COOK, Plaintiff-Appellant,
v.

CITY AND COUNTY OF HONOLULU, Defendant-Appellee.

MAGDY AREF and NEVINE MOUSTAFA, Plaintiffs-Appellants,
v.

CITY AND COUNTY OF HONOLULU, Defendant-Appellee.

ERIN ISA DONLE; STANLEY ISA; and PEGGY ISA, Plaintiffs-Appellants,
v.

CITY AND COUNTY OF HONOLULU, Defendant-Appellee.

MICHELLE KUNITAKE, Plaintiff-Appellant,
v.

CITY AND COUNTY OF HONOLULU, Defendant-Appellee.

No. SCRQ-22-0000097

Supreme Court of Hawaii

September 2, 2022


RESERVED QUESTIONS FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT, CASE NOS. 1CCV-21-0000655, 1CCV-21-0000662, 1CCV-21-0000672, 1CCV-21-0000695, 1CCV-21-0000750 STATE OF HAWAI'I

Lyle S. Hosoda, Kourtney H. Wong, Spencer J. Lau for Plaintiffs-Appellants

Kaliko J. Warrington for Defendant-Appellee

RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.

OPINION

EDDINS, J.

I.

First came the flood: on April 13, 2018, torrential rains pummeled O'ahu.

Then came the lawsuit: plaintiff Hakim Ouansafi filed a class action lawsuit against the City and County of Honolulu (the City) in the Circuit Court of the First Circuit. Ouansafi said that the City's failure to inspect and maintain its East Honolulu storm and drainage system (the Drainage System) was the

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reason he, and other Honolulu residents like him, had been injured by the April 13, 2018 flood (the Flood).

Ouansafi moved for class certification. But before his motion was decided, he settled on an individual basis with the City. The court denied class certification.

After the denial of class certification, individuals affected by the Flood brought twelve separate actions against the City in the Circuit Court of the First Circuit. Seven of those actions were assigned to Judge Dean Ochiai. The City filed motions to dismiss in all seven. It argued the suits were barred because they did not comply with HRS § 46-72's (2012) two-year notice requirement.

HRS § 46-72 requires plaintiffs seeking to recover damages from the City for personal injury or property damage caused by a City official or employee's negligence to file a written notice of claim with the City no more than two years after their claim's accrual.[1]

The plaintiffs argued their suits were timely because - with respect to claims arising from the Flood - HRS § 46-72's statute of limitations was tolled between October 12, 2018 (when

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Ouansafi filed his class action) and June 23, 2021 (when the court denied class certification in Ouansafi's suit).

Alongside its motions to dismiss, the City also filed motions to reserve questions pursuant to Hawai'i Rules of Appellate Procedure Rule 15(a)[2] in five of the cases before Judge Ochiai (the Individual Suits). The City asked the trial court to reserve two questions of law to the Hawai'i Supreme Court for consideration:

(1) Whether a class action complaint fails to satisfy the notice requirements of HRS § 46-72 because class action tolling does not apply to HRS § 46-72; and
(2) Whether class action tolling of the two-year statute of limitations in HRS § 657-7 applies in the context of mass tort actions where a plaintiff is seeking personal damages such as emotional distress, and where the class representative's motion for class certification is denied on all four required prongs, including commonality

The court granted the City's motions to reserve questions. We accepted these reserved questions[3] and resolve them as follows.

First, we hold that class action tolling applies to HRS § 46-72 and that a class action complaint may therefore satisfy the statute's notice requirement.

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Second, we hold that the availability of class action tolling turns not on whether or not the class action is a "mass tort," but rather on whether it provided the defendant notice of the subject matter and potential size of the litigation at issue. We conclude that because the Ouansafi complaint satisfied these requirements, class action tolling applies to the Individual Suits.

II.

Under HRS § 46-72, plaintiffs seeking to recover damages for property loss or personal injuries from a county of the State of Hawai'i have two years from the time of their loss or injury to give the county written notice of their claim:

Before the county shall be liable for damages to any person for injuries to person or property received upon any of the streets, avenues, alleys, sidewalks, or other public places of the county, or on account of any negligence of any official or employee of the county, the person injured, or the owner or person entitled to the possession, occupation, or use of the property injured, or someone on the person's behalf, within two years after the injuries accrued shall give the individual identified in the respective county's charter, or if none is specified, the chairperson of the council of the county or the clerk of the county in which the injuries occurred, notice in writing of the injuries and the specific damages resulting, stating fully when, where, and how the injuries or damage occurred, the extent of the injuries or damages, and the amount claimed.

HRS § 46-72.

Though this statute "may appear to be a mere condition precedent to liability, it operates, in reality, as a statute of limitations." Silva v. City &Cnty. of Honolulu, 115 Hawai'i 1, 10-11, 165 P.3d 247, 256-57 (2007) (cleaned up).

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In Levi v. University of Hawaii, 67 Haw. 90, 679 P.2d 129 (1984), we adopted the class action tolling rule announced in American Pipe and Construction Co. v. Utah, 414 U.S. 538 (1974), and held "that the commencement of a class action suspends the applicable statute of limitations as to all asserted members of a class who would have been parties had the suit continued as a class action." Levi, 67 Haw. at 93, 679 P.2d at 132.[4] "To hold otherwise," we explained, "would be to encourage intervention and filings of separate...

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