Tirona v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 16 February 1993
• Docket Number: Civ. No. 92-00347 BMK.
• Citation: 812 F. Supp. 1083
• Parties: Alfredo TIRONA, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois corporation, Defendant.
• Court: U.S. District Court — District of Hawaii

812 F. Supp. 1083

Alfredo TIRONA, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois corporation, Defendant.

Civ. No. 92-00347 BMK.

United States District Court, D. Hawaii.

February 16, 1993.

Richard M. Berger, Paul M. Dold, Law Offices of Erlinda Dominguez, Honolulu, HI, for plaintiff.

Darolyn Hatsuko Lendio, McCorriston Miho & Miller, Honolulu, HI, for defendant.

ORDER GRANTING DEFENDANT STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF ALFREDO TIRONA'S MOTION FOR SUMMARY

KURREN, United States Magistrate Judge.

The case came on for hearing on Defendant State Farm Mutual Automobile Insurance Company's Motion for Summary Judgment and Plaintiff Alfredo Tirona's Motion for Summary Judgment. Darolyn Hatsuko Lendio appeared on behalf of Defendant State Farm Mutual Automobile Insurance Company ("State Farm"), Richard M. Berger and Paul M. Dold appeared on behalf of Plaintiff Alfredo Tirona ("Plaintiff"). The court, having reviewed the motion and the memoranda in support thereof and in opposition thereto, having heard the oral arguments of counsel, and being fully advised as to the premises herein, finds as follows:

BACKGROUND

This action for declaratory relief concerns claims which have been or may be asserted for no-fault benefits and underinsured motorist ("UIM") benefits by Plaintiff. The claims brought by Plaintiff arise out of an automobile accident that occurred on July 30, 1989. On that date, a Ford Clubwagon van, rented from Budget Rent-A-Car in Reno, Nevada and driven by Teodoro Dacanay, veered off Highway 395 toward Yosemite National Park, hit an embankment and flipped over, injuring passengers Alfredo Tirona, Salome Tirona, Arceli Dacanay, Sofia Candelario and Christine Dacanay.

Plaintiff and other passengers in the van made claims against the driver of the van. Budget Rent-A-Car and State Farm of California paid the total limits of their coverages ($60,000) to the injured persons, including Plaintiff.

Plaintiff seeks in this action a declaration that he is entitled to benefits under an insurance policy issued by State Farm to Sofia Candelario ("the policy") for one automobile, a 1978 Ford Fairmont which Candelario purchased and kept in Hawaii. The policy provides for $15,000 in no-fault benefits and $35,000 in UIM benefits.

State Farm argues that no coverage is available to Plaintiff under the policy because Plaintiff is not an "insured" under the policy. Since Plaintiff is not a "named insured" under the policy, he can only qualify as an "insured" if he is married to or a relative of Sofia Candelario and lives in the same household with her. State Farm contends that Plaintiff did not live in the same household with Candelario on the date of the accident.

Plaintiff argues that he is an "insured" under the policy because he is married to Sofia Candelario and, on the date of the accident, did "temporarily reside elsewhere". Plaintiff contends that the language of the policy and the Hawaii No-Fault Law should be read broadly to afford him no-fault and UIM benefits for injuries sustained in the accident.

SUMMARY JUDGMENT STANDARD

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be entered when:

... the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.

The moving party has the initial burden of "identifying for the court those portions of the materials on file in the case that it believes demonstrate the absence of any genuine issue of material fact." T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987), Citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The movant must be able to show "the absence of a material and triable issue of fact," Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir.1987), although it need not necessarily advance affidavits or similar material to negate the existence of an issue on which the non-moving party will bear the burden of proof at trial. Cal. Arch. Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir.1987). See Celotex, 477 U.S. at 323-25, 106 S.Ct. at 2553. But cf. id. at 327-29, 106 S.Ct. at 2555-56 (White, J. concurring).

If the moving party meets its burden, then the opposing party may not defeat a motion for summary judgment in the absence of any significant probative evidence tending to support his legal theory. Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 282 (9th Cir.1979). The opposing party cannot stand on his pleadings, nor can he simply assert that he will be able to discredit the movant's evidence at trial. See T.W. Electrical, 809 F.2d at 630. Similarly, legal memoranda and oral argument are not evidence and do not create issues of fact capable of defeating an otherwise valid motion for summary judgment. British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979). Moreover, "if the factual context makes the non-moving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial." Franciscan Ceramics, 818 F.2d at 1468, citing Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

The standard for a grant of summary judgment reflects the standard governing the grant of a directed verdict. See Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1289 (9th Cir.1987) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-53, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). Thus, the question is whether "reasonable minds could differ as to the import of the evidence." Id.

However, when "direct evidence" produced by the moving party conflicts with "direct evidence" produced by the party opposing summary judgment, "the judge must assume the truth of the evidence set forth by the non-moving party with respect to that fact." T.W. Electrical, 809 F.2d at 631. Also, inferences from the facts must be drawn in the light most favorable to the non-moving party. Id. Inferences may be drawn both from underlying facts that are not in dispute, as well as from disputed facts which the judge is required to resolve in favor of the non-moving party. Id.

LAW TO APPLY

Plaintiff's complaint is based on diversity jurisdiction. 28 U.S.C. § 1332(a). In diversity cases, federal courts must look to the substantive law of the forum state. Thus, this court looks to the law of Hawaii to determine the issues raised by the present motions. In the absence of controlling state law, a "federal court sitting in diversity must use its own best judgment in predicting how the state's highest court would decide the case." Takahashi v. Loomis Armored Car Service, 625 F.2d 314, 316 (9th Cir.1980).

DISCUSSION

A. Undisputed Facts

Sofia Candelario is a resident of the City and County of Honolulu, State of Hawaii, and, on the date of the accident, lived at 94-229 Kahuanani Street in Waipahu, Hawaii.

Plaintiff is Candelario's husband and, on the date of the accident, lived at 499 Sierra Vista Drive, Apt. 28, in Las Vegas, Nevada.

The residential history of Plaintiff is illustrated in the following table which provides a detailed view of Plaintiff's various residences since he came to live in the United States.

1974 — Moved from Philippines to Maryland and lived with brother, Manuel Tirona.

1975 — Lived in Philadelphia, Pennsylvania and worked as a bus person at the Sheraton. Married Sofia Candelario, a registered nurse. Moved to Seattle, Washington and employed as a bus person at the Washington Athletic Club. Candelario moved to Honolulu, Hawaii and lived near School Street on Pohaku.

12/76 — Moved to Las Vegas, Nevada and worked as a bus person at the Hacienda Hotel. Candelario remained in Hawaii.

1978 — Moved to Reno, Nevada and worked at the MGM Hotel & Casino as a bus person and casino porter. Candelario remained in Hawaii.

1980 — Moved to Las Vegas, Nevada and worked at the Sundance Hotel & Casino as a casino porter. Candelario remained in Hawaii.

12/82 — Moved to Honolulu, lived with Candelario and worked at APCOA as a part-time parking attendant.

6/83 — Moved to Reno, Nevada and was unemployed. Candelario remained in Hawaii.

3/84 — Lived in Reno, Nevada and worked at the Eldorado Hotel & Casino as a casino porter. Candelario remained in Hawaii.

4/86 — Moved to Hawaii and was unemployed.

12/86 — Moved to Reno, Nevada then moved to Las Vegas, Nevada and worked at the Holiday Inn as a bus person. Candelario remained in the Hawaii.

7/30/89 — Date of Accident. Plaintiff continued to live in Las Vegas until the date of his next accident. Candelario remained in Hawaii.

9/90 — Date of an accident in which Plaintiff hit by truck in Las Vegas. Returned to Hawaii for recuperation and recovery.

4/91 — Moved to Reno, Nevada and worked at Comstock Hotel & Casino as bus person.

11/92 — Plans to return to Hawaii to live with Candelario.

Plaintiff paid federal income taxes in Nevada and his bank account was with the First Interstate Bank of Nevada in Las Vegas. Plaintiff did not purchase the Fairmont insured by State Farm nor is he listed as a registered owner on the Fairmont. He did not purchase or pay insurance on the Fairmont.

Additionally, with regard to the property owned by the couple in Waipahu, Candelario put the down payment on the house with her own money, pays the mortgage and property taxes with her wages, pays for all the utilities, food and other necessities needed to run the household, and, in the past 10 years, has received a small sum of money from Plaintiff on a handful of...