White v. Sabatino

Decision Date20 July 2007
Docket NumberCiv. No. 04-00500 ACK/LEK.,Civ. No. 05-00025 ACK/LEK.
Citation526 F.Supp.2d 1143
PartiesSarah C. WHITE, Individually and as Special Administrator of the Estate of Stefan Bournakel, Deceased, and as Next Friend of Nicos Robert Bournakel, a minor, Plaintiffs, v. Carol Ann SABATINO, Bob's Maui Dive Shop, Inc. dba Maui Dive Shop, a Hawaii Corporation; 3090 Incorporated, a Hawaii Corporation; Ronald E. Wallach; County of Maui; Franklyn L. Silva, Individually and in his capacity as Director of the Department of Liquor Control, County of Maui; Wayne M. Pagan, Individually and in his capacity as Deputy Director of the Department of Liquor Control, County of Maui; John Does 1-20; Jane Does 1-20; Doe Corporations 1-20; Doe Partnerships 1-20; Doe Associates 1-20; Doe Governmental Agencies 1-20; and Other Entities 1-20, In Personam and M/V Alii Nui O.N. 567359 In rem, Defendants. Franklyn Silva, Wayne M. Pagan, and County of Maui, Cross-claimants, v. Carol Ann Sabatino, Robert Wallach, Bob's Maui Dive Shop, Inc. dba Maui Dive Shop, a Hawaii Corporation; and 3090 Incorporated, a Hawaii Corporation, Cross-Defendants. Franklyn L. Silva, Wayne M. Pagan, Third-Party Plaintiffs, v. Carol Ann Sabatino, Third-Party Defendant. In the Matter of the Complaint of 3090, Incorporated, a Hawaii Corporation as owners of the M/V Alii Nui O.N. 567359, for. Exoneration from and/or Limitation of Liability.
CourtU.S. District Court — District of Hawaii

Denise M. Hevicon, Earl I. Anzai, Law Offices of Earl I. Anzai, Glenn H. Uesugi, Michael Jay Green, Honolulu, HI, Eve M. Green, Eve M. Green Esq., Wailuku, HI, for Plaintiffs.

Michele N. Bass, Lesser & Associates, Redondo Beach, CA, Emily A. Gardner, Emily A. Gardner, Attorney at Law LLC, Honolulu, HI, Jeana Sciarappa Schott, Richard A. Lesser, Steven M. McGuire, Lesser & Associates PLC, Redondo Beach, CA, for Defendants.

ORDER GRANTING COUNTY DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON FOURTH AMENDED COMPLAINT AND GRANTING 3090, INC.'S MOTION TO STRIKE JURY

ALAN C. KAY, Senior District Judge.

PROCEDURAL BACKGROUND

On July 15, 2004, Sarah C. White, Individually and as Special Administrator of the Estate of Stefan Bournakel, Deceased, and as Next Friend of Nicos Robert Bournakel, ("Plaintiff") filed a Complaint in the Circuit Court of the Second Circuit of the State of Hawaii against Carol Ann Sabatino ("Sabatino"); and Bob's Mani Dive Shop, Inc. dba Maui Dive Shop ("Maui Dive Shop") for all damages and costs that allegedly resulted from the February 13, 2004 automobile accident between Carol Ann Sabatino and Stefan Bournakel, resulting in Bournakel's death.

On August 16, 2004, Defendant Maui Dive Shop removed the case to Federal Court pursuant to 28 U.S.C. § 1333 and 28 U.S.C. § 1441(b)1 from the Circuit Court of the Second Circuit State of Hawaii. This case was docketed Civ. No. 04-0500 (ACK/LEK).

On November 9, 2004, Plaintiff filed a Second Amended Complaint, adding Defendants 3090, Inc.; Ronald E. Wallach; and MN Alii Nui, O.N. 567359 in rem.

On January 12, 2005, as owner of MN Alii Nui, 3090, Inc. ("Limitation Plaintiff") filed a Complaint seeking exoneration from or limitation of liability to a sum equal to the amount or value of 3090, Inc.'s interest in the MN Alii Nui pursuant to Rule F(1) of the Federal Rules of Civil Procedure. This limitation action, docketed as Civ. No. 05-00025, was consolidated with Plaintiff White's action, Civ. No. 04-00500, on April 15, 2005.

On February 16, 2005, the parties stipulated to a partial dismissal with prejudice of all claims against Defendant Sabatino. On June 16, 2005, Defendant Wallach filed cross-claims against Cross-Defendants Sabatino; 3090, Inc.; and Maui Dive Shop.

Three previous motions for summary judgment were filed in this case. On October 25, 2005, Wallach filed his first motion requesting summary judgment on all of Plaintiffs claims against him. On December 14, 2005, Plaintiff filed a Motion for Partial Summary Judgment regarding 3090, Inc.'s limitation complaint.

On February 9, 2006, the Court issued an Order denying Defendant Wallach's First Motion for Summary Judgment and granting Plaintiff's Motion for Partial Summary Judgment ("Feb. 9, 2006 Order"). White v. Sabatino, 415 F.Supp.2d 1163 (D.Hawaii 2006). The Court held that there is a common law designated driver duty under Hawaii law; that Limitation Plaintiff 3090, Inc. was negligent when it violated Maui County Liquor. Rule § 08-101-69(a) ("Maui Fixed Price Rule"); and that because of such negligence Defendant and Limitation Plaintiff 3090, Inc.'s liability is not limited to the value of M/V Alii Nui. Nevertheless, the Court also ruled that material questions of fact pre eluded summary judgment on the issues of whether the crew of the Alii Nui served intoxicated passengers in violation of Hawaii's Intoxicating Liquor Statute § 281-78(b)(1)(B) or whether 3090, Inc. negligently failed to train and manage a competent crew. Id. at 1184-85.

On February 17, 2007, Defendant and Limitation Plaintiff 3090, Inc. filed a Motion for Reconsideration of the February 9, 2006 Order. 3090, Inc. attached to its Motion declarations from Maui County Liquor Department officials, Franklyn L. Silva and Wayne M. Pagan, stating that the Maui Fixed Price Rule was not intended to apply to the class 9 licensees such as 3090, Inc. On March 24, 2006, the Court issued an Order denying 3090, Inc.'s Motion for Reconsideration.

On May 11, 2006, Defendant Wallach again filed a Motion for Summary Judgment. On July 31, 2006, the Court granted Defendant Wallach's Motion for Summary Judgment in light of new judicial admissions that settled the issues of fact that had earlier precluded summary judgment on the issue of his negligence.

On September 1, 2006, Plaintiff filed a Fourth Amended Complaint, adding Defendants Maui County; Franklyn L. Silva, individually and in his capacity as the Director, Department of Liquor Control, County of Maui; and Wayne M. Pagan, individually and in his capacity as Deputy Director, Department of Liquor Control, County of Maui (collectively, "County Defendants"), based upon their declarations attached to 3090, Inc.'s Motion for Reconsideration. See Fourth Amended Complaint at ¶¶ 11-13, 25-28. The Fourth Amended Complaint alleges that the County Defendants negligently failed to enforce the Maui Fixed Price Rule against class 9 liquor licensees and that this negligence caused Plaintiffs injury. Id.

In her Fourth Amended Complaint, Plaintiff asserts that this Court has jurisdiction over the action pursuant to the general admiralty law of the United States; Rule 9(h) of the Federal Rules of Civil Procedure; and 46 U.S.C. § 740,2 the Admiralty, Jurisdiction Extension Act, which extends admiralty jurisdiction to all cases of damage and personal injury caused by a vessel on navigable water, notwithstanding that the injury occurred on land. See Fourth Amended Complaint at ¶¶ 1, 2.

On November 22, 2006, Franklyn L. Silva and. Wayne M. Pagan Answered the

Fourth Amended Complaint and filed a cross-claim in their individual capacities against Defendants Carol Ann Sabatino, Maui Dive Shop, 3090, Inc., and Ronald E. Wallach. On January 16, 2007, The County of Maui, Franklyn L. Silva, and Wayne M. Pagan, in their official capacities, filed a cross-claim against Defendants Carol Ann Sabatino, Maui Dive Shop, and 3090, Inc. The cross-claim seeks contribution and/or indemnity in full from cross-defendants. On December 4, 2006, Franklyn Silva and Wayne Pagan, in their individual capacities, filed a third party complaint against Carol Ann Sabatino asserting a right to reimbursement, contribution, and/or indemnification from Sabatino. Subsequently, on April 27, 2007, Franklyn Silva and Wayne Pagan, in their official and individual capacities, filed a Notice dismissing with prejudice all claims asserted against Ronald Wallach in their cross-claims pursuant to Fed.R.Civ.P. 41(c).

Defendant Maui Dive Shop and Plaintiff have reached a settlement agreement. On November 16, 2006, Maui Dive Shop filed a Petition for Determination of Good Faith Settlement before Magistrate Judge Kobayashi. On May 7, 2007, Magistrate Judge Kobayashi issued a Findings and Recommendation ("F & R") that the Court grant Maui Dive Shop's Petition for Determination of Good Faith Settlement as provided by Haw.Rev.Stat. § 663-15.5. On June 29, 2007, the Court rejected the May 7, 2007 F & R and found that the settlement between "Plaintiff and Maui Dive Shop is governed by admiralty rather than state law.

On April 25, 2007, the County Defendants filed a Motion for Summary Judgment on the Fourth Amended Complaint ("County Motion") and a Concise Statement of Facts ("County CSF"). On June 22, 2007, Plaintiff filed an Opposition to County Defendants' Motion ("Pl. Opp.") and a Concise Statement of Facts ("Pl. CSF"). On July 2, 2007, the County Defendants filed a Reply ("County Reply").

On June 7, 2007, Defendant 3090, Inc. filed a Motion to Strike Jury. On June 21, 2007 Defendant Maui Dive Shop filed a Statement of No Position with respect to Defendant 3090, Inc.'s Motion to. Strike Jury. However, on June 27, 2007, Maui Dive Shop filed a Statement of Position that in the event that Maui Dive Shop has not been dismissed from the action at the time of trial, it would be entitled to a trial by jury. On June 22, 2007, Plaintiff submitted a Statement of No Opposition to Defendant 3090, Inc.'s Motion to Strike Jury. On June 25, the County Defendants filed an Opposition to Defendant 3090, Inc.'s Motion to Strike Jury.

A hearing on the County Defendants' Motion for Summary Judgment on the Fourth Amended Complaint and Defendant 3090, Inc.'s Motion to Strike Jury was held Wednesday, July 11, 2007. at 10:30 a.m.

FACTUAL BACKGROUND3

On February 13, 2004, an automobile driven by Defendant Carol Ann Sabatino collided with a car driven by Stefan Bournakel, who died as a result of the collision. Prior to the...

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