Petition for Writ of Certiorari — Jou v. Argonaut Insurance Insurance Insurance Co Co (No. 07-1173)

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Supreme ven

a*\ 0) 07117 3MAR 1 1 2008

No. OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

EMERSON M.F., JOU, M.D.

PETITIONER

VS.

ARGONAUT INSURANCE COMPANY, an Entity,

Form Unknown; CITY AND COUNTY OF

HONOLULU, A Self-Insured Governmental Entity;

HEMIC, aka Hawaii Employers Medical Insurance

Company, An Entity, Form Unknown; And

MARRIOTT CLAIM SERVICES CORPORATION, a

Corporation,

RESPONDENTS

On Petition For A Writ Of Certiorari

To The Supreme Court Of The State of Hawaii

PETITION FOR WRIT OF CERTIORARI

STEPHEN M. SHAW

P.O. BOX 2353

HONOLULU, HAWAII 96804

(808) 521-0800 (Telephone)

(808) 531-2129 (Facsimile)

Email: shawy001@gmail.com

Attorney for Petitioner

EMERSON M.F., JOU, M.D.

QUESTIONS PRESENTED

The Hawaii Supreme Court refused

discretionary review on December 13, 2007, over a

dispute whether a state assumpsit fee-shifting statute

applied to tort causes of action. The statute authorizes

a “loser pay" attorney fee scheme for parties

prevailing on claims for promissory notes or other

contracts in writing with attorneys fees provisions

and, vaguely, actions “in the nature of assumpsit". By

affirming the trial and appellate courts’ imposition of

over $34,000 in fees in a lawsuit for insurer bad-faith,

tortious interference and statutory tort, Hawaii's

courts decided important Federal Questions against a

physician in a way that conflicts with relevant

decisions of this Court ,

Five Questions Are Presented:

1. Does HRS §607- 14 on its face and as

applied, violate the Due Process Clause of the United

States Constitution on either of the following bases:

(a) statute and court-created conditions leave broad

and unlimited powers in the hands of judges to

decide upon the vague language of the statute what

the law should be. Giacco v. Pennsylvania, 382 US.

399, 401, 88 S.Ct. 518 (1966); Yick Wo v. Hopkins, 118

U.S. 356, 366 6 S.Ct. 1064 (1886); (b) the statute, on its

face or as applied, penalizes causes of action for

damages which are property interests protected by

the 14th Amendment Due Process Clause (Logan v.

Zimmerman Brush Co. et al, 455 U.S. 422, 428, 102

S.Ct. 1148, 1153 (1982))?

2. Does the statute or its applied

classification between owners of causes of action

whose claims are, or are not, “in the nature of

assumpsit" violate the Equal Protection Clause of the

14th Amendment and require strict scrutiny review,

because of the impact on the Petition Clause or

Expression Clause (advocacy) of the First

Amendment, and upon the property rights to causes

of action?

3. Does the statute's facial and applied

classification between Petitioner versus other owners

of causes of action which are only subjected to a 25%

cap on attorneys fees, violate the Equal Protection

Clause of the 14th Amendment and require strict

scrutiny review because of the impact on the Petition

Clause or Expression Clause (advocacy) of the First

Amendment, and upon the property rights to causes

of action?

4. Did the statute, or its application, single

Petitioner or others out with animus or ill will for

reasons wholly unrelated to any legitimate objective

under Village of Willowbrook v. Olech, 582 U.S. 562,

120 S.Ct. 1073 (2003), or the Equal Protection Clause

of the 14th Amendment of the United States

Constitution?

5. Does HRS §607-14, on its face or as

applied, burden the Petition or Expression Clause of

the First Amendment by providing no warning which

additional causes of action other than those

enumerated therein be construed for fee-shifting by a

judge at the end of litigation as “in the nature of

assumpsit"?

LIST OF PARTIES

The parties are listed in the caption, except Argonaut

Insurance Company, which is no longer a party to

these proceedings. 28 USC §2403 may apply in that

the constitutionality of a statute of the State of Hawaii

is drawn into question, and neither the state nor any

agency, officer, or employee thereof is a party. The

Attorney General of Hawaii will be served with this

Petition.

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TABLE OF CONTENTS

CPAP EEE PORATED v0 cs cncccosennsccssnarivencsuns i

ee IN ava stunchenccncadansdcensdiiesccpaxwosil iil

EE SCOR EIEU ED is khan has enecicee vansiasipecinname iv

TABLE OF CITED AUTHORITIES ...................45. Vv

EEE FREE TD iit cnicansn consasosneits coconses xi

aN MI Ses fit antied nds cncdnssennancdssenexvbonss 1

STATEMENT OF JURISDICTION ..................0.04 1

CONSTITUTIONAL AND STATUTORY

PGF w ee BPO WR MGW UURD Sasi ccccctsasresevisnssscesscces 1

STA TRG S CA EEO acini s scitessccececnesasveres 6

REASONS FOR ALLOWANCE OF THE WRIT...... 11

I. REVIEW ISWARRANTED TO RESOLVE

IMPORTANT QUESTIONS OF FEDERAL LAW

VIOLATED BY STATE OF HAWAII IN A WAY

THAT CONFLICTS WITH THIS COURTS

DECISIONS INVOLVING THE FOURTEENTH

AMENDMENT TO THE UNITED STATES

CEASA ELI RIAITE vibes kceceisnctsvasiabecasatiesis 11

Il. REVIEW IS WARRANTED TO RESOLVE

IMPORTANT QUESTIONS OF FEDERAL

LAW VIOLATED BY STATE OF HAWAII

TABLE OF CONTENTS

Page

IN A WAY THAT CONFLICTS WITH THIS

COURTS DECISIONS INVOLVING THE

FIRST AMENDMENT OF THE UNITED

STATES CONSTITUTION ............... 27

APNE aevendsusihbeaz iasaacdeniacctasinsiion 33

TABLE OF CITED AUTHORITIES

Cases

A.B. Small Co. v. American Sugar et al,

267 US. 235, 239; 455.Ct. 295 (1925).......... 17

BE&K Constr, Co. v. NLRB,

536 U.S. 516, 530, 122 S.Ct. 2390, 2399 (2002)...28, 29

Best Place, Inc. v. Penn Am. Ins. Co.,

82 Haw 120, 132, 920 P.2d 334,

Bill Johnson's Restaurants Inc. v. NLRB,

461 U.S. 731, 741, 103 S.Ct. 2161 (1983)......... 29

Canadian R.R. Co. v. Eggen,

doe Ud. So, SO St. 402 (1920) ..........060000 14

Catron v. TOKIO Marine,

90 Haw 407, 410, 978 P.2d 845, 848 (1999)...... 6

¥ *

TABLE OF CITED AUTHORITIES

Cases Page

Carey v. Brown,

447 USS. 455, 461, 100 S.Ct. 2286, 2291 (1980)... 21

Christopher v. Harberry,

536 U.S. 403, 415 n.12, 122

S.Ct. 2179, 2189 1.12 (2008).........cccceceeeeesees 10

City of Cleburne et al v. Cleburne Living Center,

473 US. 432, 440, 105 S.Ct. 3249, 3254 (1985) ... 20

Cramp v. Bd of Public Instruction etc

368 U.S. 278, 287, 82 S.Ct. 275 (1961)............... 31

Dombrowski v. Fester

380 U.S. 476, 490, 85 S.C.t 1116 (1965)............... 32

Exotics Hawaii-Kona Inc. v. E. I du Pont

de Nemours & Co.,104 Haw. 358, 361, 90

Pe NEE acai ncccvecccnsscceccosesccveccscce 29

FEC v. Wisconsin Right To Life

, US. 127 S.Ct. 2652 (4-25-07),

yg Re, Fe 20

First National Bank v. Bellotti,

435 U.S. 765, 786, 986 S.Ct. 1407 (1978)......... 21, 32

Gentile v. State Bar of Nevada,

501 U.S. 1030, 1038, 111 S.Ct 2720,

tds Gls dak lcetinvhcistntedesescveees 11, 13

TABLE OF CITED AUTHORITIES

Cases Page

Giacco v. Pennsylvania,

382 U.S. 399, 401, 86

ER a ai nrkdscsdcccesscocese 12, 15, 16, 17, 18, 30

Gonzalez v. O Centro irto etc

546 US. 418, 424, 126

eis Me ET IEEE wicnensoscnacssccceesens ences 22, 33

Gore v. Bush,

531 US. 98, 105, 121 S.Ct. 525, 530 (2000)......... 22

Grayned v. City of Rockford,

408 US. 104, 108-109, 92

Dts APM intdscssanccncasnscsaccsasacesess 16,17

Haw. Home Infusion Associates v. Befitel,

14 Haw 87, 89 157 P.3d 526, 528 (2007) ...... .7, 26

Hartman v. Moore,

547 U.S. 250, 256, 126 S.Ct. 1695 (2006)......... 29

HMA v. HMSA,

113 Haw 77, 116, 148 P.3d

Se sa) sad asapeedien 8, 27, 30

Jou v. Chang, 350 F.Supp.2d 862

IE sinkoddieneddnddcacabaconsdvacanooeen 9

[ou v. DTRIC,

116 Haw 159, 170, 172 P3d 471, 482 (2007) ....... 27

TABLE OF CITED AUTHORITIES

Cases Page

Jou v. National Interstate Insurance Company et al,

114 Haw 122, 134 157 P3d 561 (2007) ............... 26

Kahala v. Goodsill etc,

113 Haw 251, 282, 151 P.3d

Fads FERRIED sictiiedsecicesscsee: 8, 16, 17, 23, 30, 31

Keyishian v. Board of Regents etc,

385 U.S. 589, 599, 604 87 S.C.t 675

op ictessceratseunsperennrs 31

Kutcher v. Zimmerman,

87, Haw 394, 405 n.15, 957 P.2d 1076,

RE I IE oi snc riecsss enasiccscssaanconseione 8

Leonen v. Johns-Manville Corp,

7i7 FSupe. 272, 270 GIN]. 19GF)......000.s0essceeeees 17

Liljeburg v. Health Services Acquisition Corp,

486 US. 847, 861, 865 fn 12, 108,

SOF Bs iia aniaiisde cececesssccsessiesis 26

Logan v. Zimmerman Brush Co.,

455 US. 422, 428, 102 S.Ct 1148, 1153 (1982)...... 14, 20

Mores v. Frederick,

127 S.Ct. 2618, 127 S.Ct. 2630 (2007)..............008 33

McDonald v. Smith

472 U.S. 479, 482, 485, 105 S.C.t 2787 (1985)..... 28, 29

vill

TABLE OF CITED AUTHORITIES

Cases Page

NAACP vy. Clairborne Hdw. Co,

458 U.S. 886, 911-915, 102 S.Ct. 3409 (1982)....... 28

Orthopedics Associates et al v. HIG et al,

109 Haw 185, 190, 124 P3d

930, 935 (2005).......... LSE ay Pree 24, 25, 26

Papachristou et al v. City of Jacksonville,

405 US. 156, 162, 166 n.8 92 S.Ct. 839, 843,

SE abibeapdsentebsscsscccctsoccssccccsscecceses coe 14

Redish v. City of Tacoma,

123 F.3d 1216, 1223 (9% Cir. 1997).............-cc000. 21

Schulz v. Honsador Inc.,

67 Haw 433, 690 P.2d 279 (1984) (overruled

on other grounds, 96 Haw 327, 331, 31

NE Ion Sncesncdnaccdvecesecsesccccccescsscccees 13

Schad v. Borough of Mt. Ephram,

452 US. 61, 84 n.10, 101 S.Ct. 2176 (1981) ......... 31

Steffel v. Thompson,

415 US. 152, 475, 94 S.Ct. 1209 (1974)............ 30

Tulsa Prof. Coll. Serv. V. Pope,

485 U.S. 478, 485, 108 S.Ct. 1340, 1344 (1988).... 14

TABLE OF CITED AUTHORITIES

Cases Page

United Mine Workers Dist 12 v. Illinois Bar Ass‘n,

389 U.S. 217, 222, 88 S.Ct. 353 (1967)...............06. 28

Village of Willowbrook v. Olech,

528 U.S. 562, 120 S.Ct 1073 (2000).................2.- 23

Wayte v. United States,

470 U.S. 598, 610 fn 11, 105 S.Ct. 1524 (1985) ....... 28

365 U.S. 399, 423, 427, 81

S.Ct. 567, 580, 583 (1961) .............. ATR ata 19

Yick Wo v. Hopkins,

118 U.S. 356, 366, 6 S.Ct. 1064 (1886).................. 15

STATUTES AND RULES

EE ScenbthgeiAdisniardinscesccstoninacrisicsecune 1

U.S. Supreme Court Rule 10(b) ......................... 1

FERS GOG7-14 .....200.02c0ces0s. 2, 6, 9, 12, 14, 15, 17, 19, 30, 31

FRIEND vccncectcccccvescccsccncscsdevestennsboossiaesen 4,14

PEE wisin0< scakntcaveceveonsesssesdebunauesantads 5, 19

TABLE OF APPENDICES

Page

APPENDIX A- Hawaii Supreme Court:

ORDER REJECTING APPLICATION FOR

WOOD CIF CIN 00 cs cesses cesnncccesncsce ce A.1-2

and

DISSENT BY ACOBA, J. (filed 12/13/07) ....... A.1-9

APPENDIX B- Hawaii Intérmediate Court of

Appeals: JUDGMENT ON APPEAL

REET EEA B.1-2

APPENDIX C- Hawaii Intermediate Court of

Appeals: ORDER GRANTING IN PART AND

DENYING IN PART DEFENDANT-APPELLEE

HEMIC'S REQUEST FOR ATTORNEY'S FEES

AND ORDER GRANTING IN PART AND

DENYING IN PART, WITHOUT PREJUDICE,

REQUEST FOR COSTS ON APPEAL

ih ecitndacekirnndeunbubensesatiebs C.1-4

APPENDIX D- Hawaii Intermediate Court of

Appeals: ORDER GRANTING DEFENDANT-

APPELLEE MARRIOTT CLAIM SERVICES

CORPOIRATION'S REQUEST FOR ATTORNEY'S

FEES AND ORDER GRANTING IN PART AND

DENYING IN PART, WITHOUT PREJUDICE,

REQUEST FOR COSTS ON APPEAL

DE iis vis Retniieaababainvadhiednevacdse D.14

TABLE OF APPENDICES

Page

APPENDIX E- Hawaii Intermediate Court of

Appeals: ORDER GRANTING DEFENDANT-

APPELLEE CITY AND COUNTY OF

HONOLULU’S REQUEST FOR ATTORNEY’S

FEES AND GRANTING IN PART AND

DENYING IN PART, WITHOUT PREJUDICE

REQUEST FOR COSTS ON APPEAL

PI aki i dahas etka ices caste ses sarerdecsies E.14

APPENDIX F- Hawaii Intermediate Court of

Appeals: SUMMARY DISPOSITION

COE IFT a nee civ ace cg scee sence ccccses oe Fuk

APPENDIX G- 1* Circuit Court, State of Hawaii:

JUDGMENT (filed 4/22/05) .............:ceeseeee G.1-4

APPENDIX H- 1* Circuit Court, State of Hawaii:

ORDER GRANTING DEFENDANT HEMIC'S

MOTION FOR RECONSIDERATION REG

ARDING HEIOC'S MOTION FOR

ATTORNEYS' FEES FILED ON AUGUST

Cy SO AE BAS ODD oc.dnnescncssnscscrccenccss: H.1-3

APPENDIX I- 1* Circuit Court, State of Hawaii:

ORDER DENYING PLAINTIFF EMERSON M.F.

JOU, M.D.'S MOTION FOR LEAVE TO FILE

SECOND DECLARATION PURSUANT TO

HRS §601-7 TO DISQUALIFY AND TO VACATE

ORDERS MADE BY THE HONORABLE GARY W.B.

CHANG, FILED ON JANUARY 3, 2005

SEE HT TN sd acSecilinsicdadscedesasavebnissvactanes se [.1-2

xii

TABLE OF APPENDICES

Page

APPENDIX J- 1*t Circuit Court, State of Hawaii:

ORDER DENYING PLAINTIFF ERSON M.F. JOU,

M.D.'S MOTION FOR RECONSIDERATION; OR

FOR RELIEF FROM ORDERS (1) GRANTING

DEFENDANT CITY AND COUNTY OF

HONOLULU'S MOTION FOR ATTORNEYS'

FEES FILED ON AUGUST 2, 2004, AND (2}

GRANTING DEFENDANT HEMIC'S JOINDER

TO DEFENDANT CITY AND COUNTY OF

HONOLULU'S MOTION FOR ATTORNEY'S

FEES" FILED ON SEPTEMBER 9, 2004

(TEP WAS OE ks ded escakivachessecstasutbscats sacave J.1-3

APPENDIX K- 1* Circuit Court, State of Hawaii:

ORDER GRANTING DEFENDANT CITY AND

COUNTY OF HONOLULU'S MOTION FOR

ATTORNEYS' FEES FILED ON AUGUST 2, 2004

ERNIE ET sins dr dsvadv aucune dsnspasbavecinnads K.1-2

APPENDIX L- 1* Circuit Court, State of Hawaii:

ORDER GRANTING DEFENDANT MARRIOTT

CLAIMS SERVICE CORPORATION'S SUBSTANTIVE

JOINDER IN DEFENDANT CITY AND COUNTY OF

HONOLULU'S MOTION FOR SUMMARY

JUDGMENT, FILED FEBRUARY 24, 2004, FILED

HEREIN ON MARCH 11, 2004

SE AEE RIE

Xili

TABLE OF APPENDICES

Page

APPENDIX M- 1° Circuit Court, State of Hawaii:

ORDER GRANTING DEFENDANT HEMIC'S

JOINDERTO DEFENDANT CITY AND

COUNTY OF HONOLULU'SMOTION FOR

ATTORNEYS' FEES FILED ON AUGUST 2,

PRO OF FEF ON) on isinnse dence sinecciscons M.1-2

APPENDIX N- 1* Circuit Court, State of Hawaii:

ORDER GRANTING DEFENDANT HEMIC'S

MOTION FOR SUMMARY JUDGMENT FILED

ON MAY 12, 2004 (filed 8/5/04) ............ N.1-2

APPENDIX O- 1* Circuit Court, State of Hawaii:

ORDER GRANTING DEFENDANT CITY

AND COUNTY OF HONOLULU'S MOTION

FOR SUMMARY JUDGMENT FILED ON

FEBRUARY 24, 2004 (filed 5/14/04) ......... 0.1-3

APPENDIX P- 1* Circuit Court, State of Hawaii:

ORDER DENYING PLAINTIFF'S MOTION

FOR SUMMARY JUDGMENT AS TO

DEFENDANTS CITY AND COUNTY OF

HONOLULU, MARRIOTT CLAIMS SERVICES

CORPORATION AND HEMIC, FILED

FEBRUARY 17, 2004, AND DENYING

WITHOUT PREJUDICE DEFENDANT

MARRIOTT CLAIMS SERVICES

CORPORATION'S MOTION FOR SUMMARY

JUDGMENT FILED ON MARCH 11, 2004

ee aes cia Sirwedg ssh cannces P.1-3

TABLE OF APPENDICES

Page

APPENDIX Q- 1* Circuit Court, State of Hawaii:

ORDER DENYING PLAINTIFF EMERSON

M. F. JOU, M.D.'S MOTION TO DISQUALIFY

THE HONORABLE GARY W.B. CHANG ON

CONSTITUTIONAL GROUNDS, FILED

FEBRUARY 17, 2004 (filed 4/15/04) ...... Q.1-3

APPENDIX R- 1* Circuit Court, State of Hawaii:

ORDER DENYING PLAINTIFF EMERSON

M.F. JOU, M.D.'S MOTION FOR LEAVE TO

AMEND COMPLAINT FILED ON

SEPTEMBER 25, 2003

CERO i ID saa Sidsnn ds kasinsccxscviacksinuns’ R.1-2

OPINIONS BELOW

The orders of the lower courts are at

appendices A - F. A copy of the unpublished opinion

of the Hawaii Intermediate Court Of Appeals is at

appendix E. A copy of the Hawaii Supreme Court's

unpublished order filed December 13, 2007, rejecting

discretionary review is Appendix A pages 1,2. The

dissent by Justice Acoba is at Appendix A, separately

paginated at 1-9. Orders granting over $34,000.00 in

assumpsit attorney fees to respondents are at

appendices C to E.

STATEMENT OF JURISDICTION

This Court's jurisdiction is based on 28 USC

1257(a), or Rule 10(b) of this Court's Rules. The date

of the Hawaii Supreme Court’s order denying

discretionary review is December 13, 2007.

FEDERAL CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

First Amendment (Article I)

Congress shall make no law respecting

an establishment of _ religion, or

prohibiting the free exercise thereof; or

the right of the people peaceably to

assemble, and to petition the Government

for a redress of grievances.

Fourteenth Amendment (Article XIV)

Section1. All persons born or naturalized

in the United States, and subject to the

jurisdiction thereof, are citizens of the United

States and of the State wherein they reside.

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

Sate deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction the

equal protection of the law.

§607-14. Attorneys’ Fees In Actions In The Nature

Of Assumpsit, Etc. Hawaii Revised Statues

In all the courts, in all actions in the nature of

assumpsit and in all actions on a promissory

note or other contract in writing that provides

for an attorney's fee, there shall be taxed as

attorneys' fees, to be paid by the losing party

and to be included in the sum for which

execution may issue, a fee that the court

determines to be reasonable; provided that the

attorney representing the prevailing party shall

submit to the court an affidavit stating the

amount of time the attorney spent on the action

and the amount of time the attorney is likely to

spend to obtain a final written judgment, or, if

the fee is not based on an hourly rate, the

amount of the agreed upon fee. The court shall

then tax attorneys' fees, which the court

determines to be reasonable, to be paid by the

losing party; provided that this amount shall

not exceed twenty-five per cent of the

judgment.

Where the note or other contract in writing

provides for a fee of twenty-five per cent or

more, or provides for a reasonable attorney's

fee, not more than twenty-five per cent shall be

allowed.

Where the note or other contract in writing

provides for a rate less than twenty-five per

cent, not more than the specified rate shall be

allowed.

Where the note or other contract in writing

provides for the recovery of attorneys' fees

incurred in connection with a prior debt, those

attorneys' fees shall not be allowed in the

immediate action unless there was a writing

authorizing those attorneys' fees before the

prior debt was incurred. "Prior debt" for the

purposes of this section is the principal amount

of a debt not included in the immediate action.

The above fees provided for by this section

shall be assessed on the amount of the

judgment exclusive of costs and all attorneys'

fees obtained by the plaintiff, and upon the

amount sued for if the defendant obtains

judgment.

Nothing in this section shall limit the recovery

of reasonable attorneys' fees and costs by a

planned community association and _its

members in actions for the collection of

delinquent assessments, the foreclosure of any

lien, or the enforcement of any provision of the

association's governing documents, or affect

any right of a prevailing party to recover

attorneys’ fees in excess of twenty-five per cent

of the judgment pursuant to any statute that

specifically provides that a prevailing party

may recover all of its reasonable attorneys’ fees.

"Planned community association" for the

purposes of this section means a nonprofit

homeowners or community association existing

pursuant to covenants running with the land.

§663-1. Torts, who may sue and for what, Hawaii

Revised Statues

Except as otherwise provided, all persons

residing or being in the State shall be

personally responsible in damages, for

trespass or injury, whether direct or

consequential, to the person or property of

others, or to their spouses or reciprocal

beneficiaries, children under majority, or

wards, by such offending party, or the

offending party's child under majority, or by

the offending party's command, or by the

offending party's animals, domestic or wild;

and the party aggrieved may prosecute

therefor in the proper courts.

§663-1.3. "Ad damnum" Clause Prohibited, Hawaii

Revised Statues

(a) Notwithstanding any other provision of

law, in any action based on tort, including a

medical tort as defined in section 671-1, to recover

damages for personal injuries or wrongful death,

no complaint, counterclaim, cross claim or third

party claim nor any amendment to such

pleadings shall specify the amount of damages

prayed for but shall contain a prayer for general

relief, including a statement that the amount of

damages is within the minimum jurisdictional

limits of the court in which the action is brought.

(b) If the complaint, counterclaim, cross claim

or third party claim or any amendment to such

pleadings contains a specified amount of

damages, the claim, counterclaim, cross claim or

third party claim shall be dismissed by the court

without prejudice; provided that, upon the filing

of a motion to dismiss a complaint on the

grounds of specificity of damages, the court shall

allow the pleading to be amended in lieu of

dismissal at the request of the claimant.

STATEMENT OF THE CASE

A. Material Facts

1. Petitioner Emerson M. JouM. D. asserts

that the State of Hawaii injured him, by judicially

recasting his lawsuit, sounding in tort, as one in the

nature of assumpsit, thereby imposing $34,618.31 for

insurance defense firms’ attorneys’ fees on him, under

HRS §607-14: Appn A, Dissent Op. at pages 2-4.

2. On July 11, 2003, Petitioner sued

respondents, in tort, in the First Circuit Court, State of

Hawaii after they refused to pay him for physiatry

services provided to injured workers. Respondents’

excuse for their refusal to pay was that this licensed

medical doctor needed, according to respondents, to

be licensed as a massage establishment as well. At the

time of filing the three tort causes of action as a result

of this outrageous misconduct, Hawaii law allowed

injured workers to sue workers’ compensation

insurers in tort for bad faith. Catron v. TOKIO

Marine, 90 Haw 407, 410, 978 P.2d 845, 848 (1999).

Whether workers physicians could sue the insurers

was an open question at the time this suit was filed.

3. The services Petitioner provided were

defined and billed under Current Procedural

Terminology (AMA) as “therapeutic Procedures”. A

manner of effecting change through the application of

clinical skills and/or services that attempts to

improve function ... physician or therapist to have

direct (one on one) contact ... 97124 massage,

including effleurage, pertrissage and/or tapotement

(stroking compression percussion)”

a Petitioner could not raise tort claims in

the workers compensation system since it lacked

jurisdiction. Indeed, even when the Hawaii

Department of Labor and Industrial Relations (DLIR)

had jurisdiction over non-tortious refusals to pay

health providers, it denied health providers statutory

appellate rights. Haw. Home Infusion Associates _v.

Befitel, 14 Haw 87, 89 157 P.3d 526, 528 (2007).

5. The complaint filed by Petitioner was

never amended. Appn F.3. One party, Argonaut

Insurance Company settled with Petitioner. On 5-14-

04 (Appn O) and 8-5-04, the court filed its orders

granting summary judgment in respondents’ favor,

on all of Petitioner's causes of action. These were: (1)

insurer bad-faith, (2) tortious interference, and (3)

statutory tort. Appn A, Dissent of Justice Acoba,

pages 1 fn.2; 5; 7 and 8.

6. At the time Petitioner filed his suit

captioned “Complaint In Tort For Insurer Bad Faith”.

It was, and still is, settled that insurer bad faith is an

independent tort in Hawaii. Best Place, Inc. v. Penn

Am. Ins. Co., 82 Haw 120, 132, 920 P.2d 334, 346

(1996); also, Appn A, Dissenting Op. at page 6. The

independence of the tort from any contract meant that

the “implied covenant of good faith and fair dealing

is breached whether the carrier pays the claim or not

..."” Best Place, 82 Haw at 132, 92 P.2d at 346.

7. Also, in the tort causes of action

Petitioner filed on July 11, 2003, the tort Petitioner

alleged against respondents for interference was not

based on contract. Appn A (Dissenting Op at page 7).

Interference with contractual relations, then and now,

is a “subspecies of the broader tort of interference

with prospective economic advantage.” Kutcher v.

Zimmerman, 87, Haw 394, 405 n.15, 957 P.2d 1076,

1087 n.5 (App 1998); also, HMA v. HMSA, 113 Haw

77, 116, 148 P.3d 1179, 1221 (2006) (physician/ patient

context). Assumpsit fees were specifically disallowed

for this tort in Kahala v. Goodsill etc, 113 Haw 251,

282, 151 P.3d 732, 783 (1-11-07). Outrageously,

assumpsit fees were allowed for this tort in this case

about seven months later. Appn A. Dissenting Op. at

4; AppnC -E.

8. Finally, at the time suit was filed no

statute, or any authority, determined that a statutory

tort (Petitioner's third cause of action) was in the

nature of assumpsit. In fact, the statute involved

expressly provides: “all persons ... shall be personally

responsible in damages, for trespass or injury,

whether direct to the person or property of others ...”

This is a new tort, not previously “allowed” by a

published Hawaii decision.

9. On December 17, 2003, the trial court

filed an order denying Petitioner's motion to amend

his complaint. Appn R. His motion to disqualify the

trial judge filed 2-17-04 was denied (order filed 4-15-

04, Appn. Q). After hearings on April 2, 2004 and May

12, 2004, the court filed orders granting respondents

summary judgment motions. Appn. O (filed 5-14-04),

Appn. N (filed 8-5-04).

10. On December 7, 2004, Petitioner filed an

action in the United States District Court to enjoin

enforcement of HRS §607-14 and to deciare the statute

unconstitutional. That case was dismissed without

prejudice on December 10, 2004 on abstention

grounds. Jou v. Chang, 350 F.Supp.2d 862 (D.C. Haw.

2004)).

B. Federal Questions Preserved In The State

Courts

The Federal Questions sought to be reviewed

here were raised in a court of the first instance, the

Circuit Court of the First Circuit, State of Hawaii (trial

court); in Hawaii's Intermediate Court of Appeals

(“ICA”); and, in the Hawaii Supreme Court. The

manner of raising these federal questions was as

follows:

1. Trial Court:

Prior to the decision on attorney fees,

Petitioner argued First Amendment vagueness and

unbridled discretion at page 17 of a supplemental

brief, filed October 20, 2004. He raised Fourteenth

Amendment Due Process Clause issues in the same

document at pages 16 - 20. He argued the Fourteenth

Amendment Equal Protection Clause violations at

pages 10 - 15 of the same document. These arguments

were made in other written submittals as well.

2. Hawaii Intermediate Court of Appeals (ICA)

Petitioner argued violations of the First

Amendment Petition Clause at pages 29-30 of his

opening brief tiled on or about September 9, 2005. He

argued First Amendment Expression Clause issues at

page 31 of the same brief. Petitioner also argued

violation of the Expression Clause and Petition Clause

at pages 7-11 of his objections to respondents request

for assumpsit attorneys’ fees on appeal, filed 5-7-07

and 5-8-07.

Petitioner argued violations of the Fourteenth

Amendment Due Process Clause at pages 33 through

34 of his opening brief. He argued violations of the

Fourteenth Amendment Equal Protection Clause at

pages 7 through 11 of his objections to respondents’

request for fees on appeal filed 5-7-07 and 5-8-07.

3. Hawaii Supreme Court

Petitioner argued violations of the First

Amendment in his application for discretionary

review to the Hawaii Supreme Court filed October 29,

2007, at pages 9 and 10 (Petition/ Expression Clause).

Petitioner argued the Fourteenth Amendment Due

Process Clause at page 10 of the same application;

and, he argued the Equai Protection Clause at pages 7

to 10, of the same document. Petitioner also

incorporated constitutional arguments made in the

ICA.

REASONS FOR ALLOWANCE OF THE WRIT

This Court has stated that its cases grounded

on access to the courts have had numerous

constitutional bases. Christopher _v. Harberry, 536

U.S. 403, 415 n.12, 122 S.Ct. 2179, 2189 n.12 (2003). In

the trial court, and through two levels of state

appellate courts, Petitioner carefully asserted that

taxing attorney fees against him based on an

assumpsit fee-shifting statute, violated the following

provisions of the Federal Constitution: First

Amendment Petition Clause and Expression Clause

(advocacy), Fourteenth Amendment Due Process

Clause, and the Equal Protection Clause.

With the exception of minor appellate

acknowledgment of some of the _ Federal

Constitutional Questions (Appn A [dissenting op.] at

5 fn.5, Appn F.3, 4), the state courts evaded discussing

the assertions that the assumpsit statute, on its face

and as applied, violated the Federal Constitution.

This contrasts with appellate courts’ obligation to

“make an independent examination of the whole

record to resolve First Amendment issues. Gentile v.

State Bar of Nevada, 501 US. 1030, 1038, 111 S.Ct

2720, 2726 (1991). This writ should be allowed to

resolve this tension from Hawaii’s scheme of after-

the-fact recasting of tort claims as “in the nature of

assumpsit” as a pretext to impose significant

attorneys fees on losing tort plaintiffs. Appn A

(dissenting op) 2-4.

I. REVIEW IS WARRANTED TO RESOLVE

IMPORTANT QUESTIONS OF FEDERAL

LAW VIOLATED BY STATE OF HAWAII IN

A WAY THAT CONFLICTS WITH THIS

COURTS DECISIONS INVOLVING THE

FOURTEENTH AMENDMENT TO THE

UNITED STATES CONSTITUTION

A. The Due Process Clause Of The

Fourteenth Amendment Violation

HRS §607-14 is not a sanctions statute, like

another section irrelevant here; that is, HRS §607-14.5.

The prefatory language of HRS §607-14 provides: “In

all the courts, in all actions, in the nature of assumpsit

and in all actions on_a promissory note or other

contract in writing that provides for an attorney's fee,

there shall be taxed as attorneys fees to be paid by the

losing party...” Emphasis added.

Because “in the nature of assumpsit” was not

clearly expressed or defined by the Hawaii

Legislature; and because this phrase lacks definite

character it cannot be distinctly perceived either by

Hawaii’s courts or by those who petition them. For

would-be litigants, whose causes of action are not

within the statute’s categories (promissory note or

other contract in writing) there is no understandable

warning with fixed legal standards to notify anyone,

including Petitioner, which new causes of action will

be deemed by a state circuit court to be in the nature

of assumpsit. This Court should allow this Writ,

because the statute and its judicial gloss are in direct

conflict with the relevant decisions of this Court;

particularly, Giacco_v. Pennsylvania, 382 US. 399,

401, 86 S.Ct 518 (1966). Additionally, the fees are

imposed on litigants, as here, at the end of the case.

This is after substantial attorneys’ fees have been

incurred. The courts give no consideration to the

numerous requests that since the re-characterization

was made on first impression that application would

be prospective. Appn F at 4912. Schulz v. Honsador

Inc., 67 Haw 433, 690 P.2d 279 (1984) (overruled on

other grounds, 96 Haw 327, 331, 31 P3d 184, 2001).

The vague gateway to the abyss, is the phrase

“in the nature of assumpsit” added after the statute

was enacted by King Kamehameha in 1872. Id at 435.

The King's original law was less vague, stating “in all

actions of assumpsit”. Id. Modernly, the statute is

void for vagueness. Gentile, supra, 501 U.S. at 1048

(disciplinary rule).

Court decisions subsequent to the King's

enactment nearly 140 years ago provide a single

divining rod to anyone facing a judicial test after

litigation over whether any causes of action might be

“in the nature of assumpsit”; that is, the phrase can be

interpreted in more than one way by even the most

learned jurists. Honsador, supra. Appn. A (dissent of

Associate Justice Acoba) at pages 6 and 7.

The after-the-fact determination whether to

suspend enforcement of the statute by fine

distinctions over assumpsit, results in a heavy burden

on protected property rights. Review by Certiorari

should occur here because “a cause of action is a

species of property protected by the Fourteenth

Amendment Due Process Clause” Logan _v.

Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct

1148, 1153 (1982). “A right of action to recover

damages for an injury is property which the

legislature has no power to destroy.” Canadian R.R.

Co. v. Eggen, 252 U.S. 553, 40 S.Ct. 402 (1920); Tulsa

Prof. Coll. Serv. V. Pope, 485 U.S. 478, 485, 108 S.Ct.

1340, 1344 (1988). Compare HRS §607-14 with HRS

§663-1.

The discretion to suspend enforcement of HRS

§607-14 by a judge also burdens rights under the

Petition Clause as well as to expression in the form of

advocacy. Even for litigants who are able to

accurately divine whether they will escape assumpsit

fees, there will still be a forbearance from bringing

other torts and claims wrongly decided to have been

in the nature of assumpsit.

Because the statute chills and restricts First

Amendment rights which are fundamental, the most

stringent vagueness test should apply, Papachristou

et al v. City of Jacksonville, 405 U.S. 156, 162, 166 n.8

92 S.Ct. 839, 843, 845 (1972). Since it impinged on the

rights to petition state courts, the standards or

warnings in the statute should have been more clearly

marked. Id at 109. As in Giacco, 382 U.S. at 402 n3,

this case also involves an equal protection challenge.

This Court may, as in Giacco, reverse solely on due

process grounds, without reaching the other

violation(s). Id.

Interpretation that a tort suit for damages

could be an assumpsit claim has never been expressed

in HRS §607-14 since the King enacted it in 1872.

Moreover, there is no language which authorizes the

courts’ ad hoc re-characterization of Petitioner's

causes of action as being assumpsit claims, solely to

impose attorney fees on him. In short, nothing but

vague language ever permitted the courts to convert

assumpsit to tort. This is a power “not confided to

their discretion in the legal sense of that term, but is

granted to their mere will. It is purely arbitrary, and

acknowledges neither guidance nor restraint.” Yick

Wo v. Hopkins, 118 U.S. 356, 366, 6 S.Ct. 1064 (1886).

As in Giacco, 382 US at 403, subsequent court

decisions cannot cure the constitutional failings of

HRS §607-14. As demonstrated by the facts at Bench,

“all of the so-called court-created conditions and

standards still leave ... such broad and unlimited

power” in the hands of judges. 382 US at 403. The

effect is that judges “must make determinations of the

crucial issue upon their own notions of what the law

should be instead of what it is” Id. Emphasis added.

Compare Appns C-E, where assumpsit fees were

taxed by Hawaii's appellate court nearly six months

after one of Petitioner’s tort claims (interference) was

determined not to be in the nature of assumpsit.

Kahala v. Goodsill et al, 113 Haw at 282, 151 P.3d at

783.

The facts are analogous to those in Giacco v.

Pennsylvania, supra, 382 US 399 at 401, where an

ancient costs statute, as here, did not set out sufficient

standards to constitutionally guide the courts or warn

the public. Justice Black wrote for the Court in Giacco:

“Certainly one of the most basic purposes of the Due

Process Clause has always been to protect a person

against having the Government impose burdens upon

him except in accordance with the valid laws of the

land. Implicit in this constitutional safeguard is the

premise that the law must be one that carries an

understandable meaning with Jegal siandards that

courts must enforce. This state Act as written does not

even begin to meet this constitutional requirement".

Id at 403.

Here a Hawaii King, and later the Legislature,

delegated to judges the basic policy decision of using

a statute to redesign common-law causes of action.

Judges use the Hawaii statute here to pigeonhole

causes of action as assumpsit claims on an ad hoc and

subjective basis, with all the attendant dangers of

arbitrary and discriminatory application. Grayned v.

City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294

(1972).

While the costs were imposed in Giacco after a

misdemeanor conviction, this Court clearly intended

that the standards of due process under a vague

statute must be met in both the criminal and civil

context. Id at 402; A.B. Small Co. v. American Sugar et

al, 267 US. 233, 239, 45 S.Ct. 295 (1925); Accord;

Leonen v. Johns-Manville Corp, 717 F.Supp. 272, 278

(D.N.J. 1989).

There is no guidance from the statute at Bench,

or precedents of the state courts, which causes of

action, particularly tort claims, are in the nature of

assumpsit. Kahala v. Goodsill et al, supra, 113 Haw at

282, 151 P3d at 783. After a Hawaii plaintiff loses a

tort case, as here, he or she is subject to paying

defendant's attorney fees once the judge or justice

determines whether the tort causes of action are in the

nature of assumpsit. If so, the court decides how

much attorney fees to award.

While the statute loosely limits the judges’

discretion to defined actions, and caps the awards at

25% of certain amounts, the cases show that these

confusing but minimal standards are not, as Giacco

mandates, “legally fixed” Giacco, supra 382 US at 402-

403. The vagueness of HRS §607-14 also failed to warn

which tort claims would result in taxing of assumpsit

fees, and the suspension of the statute’s 25% cap. An

ordinary person preparing to file suit would have no

notice which tort claims would be subject to this

suspension of the 25% cap on the “loser pays”

scheme, crafted here by state courts. Secondly, the

statute’s lack of standards has resulted in arbitrary

and capricious application by the courts, particularly

in this case.

Had Petitioner known that his tort causes of

action would be re-characterized by the state courts as

assumpsit claims, he would have refrained from

exercising his right to petition. “Vague laws trap the

innocent by not providing fair warning ... if arbitrary

and discriminatory enforcement is to be prevented,

laws must provide explicit standards for those who

apply them (footnote). A vague law impermissibly

delegates basic policy matters to ... judges ... for

resolution on an ad hoc and subjective basis”

Grayned, supra 408 US at 108.

It is difficult to imagine how any citizen could

have foretold which tort claims at Bench would be

reclassified by the state courts as “in the nature of

assumpsit”. The unexpected and ad hoc application of

the statute, unexplained by state appellate courts,

must be resolved through review by this Court.

B. The Equal Protection Clause Of The

Fourteenth Amendment Violation I

This Court should allow the writ because

Hawaii's assumpsit fee statute, on its face and as

applied, draws classifications that impose substantial

burdens on the capacity of citizens owning tort causes

of action, after they undergo the expense of litigation.

HRS §607 -14 was applied to Petitioner in an

intentionally punitive manner, penalizing him for

filing tort causes of action against state insurers and

self-insurers. Petitioner was treated differently than

other tort plaintiffs in the state whose causes of action

are not, or would not, be “in the nature of assumpsit”.

Certiorari should be granted because the burden on

fundamental rights and property interests requires

searching examination under the Equal Protection

Clause.

Additionally, the statute, as applied here,

penalized Petitioner to a degree greater than the 25%

allowed to other litigants by the statute. The courts

thereby set up a special classification for Petitioner,

and others so situated. There is thus a substantial

class of persons to which the 25% cap is not

applicable because state law prohibits tort plaintiffs

from demanding an amount of judgment sought. HRS

§663-1.3.

These classifications reflect the view that some

tort litigants are not as worthy or deserving as others;

and that some losing tort plaintiffs will pay more than

the statutory cap of 25%, regardiess of whether they

are precluded by HRS §663-1.3 from stating the

amount of the judgment they demand.

The statute burdens and impinges on

fundamental rights under the Petition Clause and the

Expression Clause (advocacy) of the First

Amendment. Wilkinson v. United States, 365 U.S. 399,

423, 427, 81 S.Ct. 567, 580, 583 (1961) (“fundamental to

the very idea of government, republican in form”). A

strict scrutiny standard of review is thus required.

City of Cleburne et al v. Cleburne Living Center, 473

U.S. 432, 440, 105 S.Ct. 3249, 3254 (1985). The burden

on the First Amendment, even in an “as applied”

context, subjects HRS §607-14 to strict scrutiny. FEC v.

Wisconsin Right To Life__._, U.S.___ 127 S.Ct. 2652

(4-25-07), 2007 U.S. LEXIS 8585 ****4. (Concurrence:

Chief Justice Roberts). Heightened review is also

required because causes of action are property rights

protected by the Fourteenth Amendment Due Process

Clause. Logan v. Zimmerman, supra, 455 US. at 428,

102 S.Ct. at 1153.

Drawing of lines which classified between

those causes of action subject to the “loser pay” fees

scheme in an assumpsit statute is peculiarly a

legislative task. Since the Hawaii Legislature

delegated to the judiciary its duty of making the

classification between which litigants’ causes of

action, including tort claims, are “in the nature of

assumpsit”, the statute is not a valid fee-shifting law,

providing reasonable notice in advance which claims

will be treated differently from the American Rule

(each party bears its own fees).

It is only after undertaking the painstaking

burden and expense of litiganting tort claims,

followed by a dismissal, that Petitioner and other

state litigants find out whether they guessed right.

The prejudice and antipathy reflected by the litigation

over this statute, in both trial and appellate courts,

shows no concern at all for the Petition Clause the

Expression Clause; or even the basic decency of

applying fees to reclassified causes of action

prospectively. Appn. F at 4 €12. Certiorari review

would thus provide the missing critical scrutiny

demanded under accepted First Amendment and

Equal Protection principles. First National Bank v.

Bellotti, 435 U.S. 765, 786, 986 S.Ct. 1407 (1978).

Review accorded to speech related activities

should result in scrutiny no less strict in the context of

the Petition Clause or Expression Clause. The Ninth

Circuit, for example, does not elevate the right to

litigate above the right to free speech. Redish v. City

of Tacoma, 123 F.3d 1216, 1223 (9% Cir. 1997). The

strict scrutiny standard in Carey v. Brown, 447 USS.

455, 461, 100 S.Ct. 2286, 2291 (1989) is applicable:

“When government regulation

discriminates among speech-related activities

in a public forum, the Equal Protection Clause

mandates that the legislation be finely tailored

to serve substantial state interests, and the

justifications offered for any distinctions it

draws must be carefully scrutinized.”

Emphasis added.

Fine tailoring of which causes of action are

classified as “in the nature of assumpsit” is required,

in view of the fundamental interest in the property

rights at stake. The distinctions drawn by the face of

the statute, and as it is applied to tort claims, show

that after-the-fact classifications made between some

litigants with tort causes of action versus other tort

victims, do not further a compelling government

interest; nor are the classifications the least restrictive

means emploved to serve that interest. Gonzalez vy. O

Centro Espirto etc, 546 US. 418, 424, 126 S.Ct. 1211,

1217 (2006). Merely describing things in the statute

would not have sufficed here because the conduct by

the state courts does not meet a “minimum

requirement for non-arbitrary treatment ... necessary

to secure the fundamental right”. Gore v. Bush, 531

US. 98, 105, 121 S.Ct. 525, 530 (2000).

C. Equal Protection Violation Clause Of The

Fourteenth Amendment Violation II

As an additional ground to allow Certiorari

review, the state’s action here was motivated by a

spiteful effort to chill tort and insurance litigation in

Hawaii; particularly, litigation brought by health

providers over payment delays and denials.

Under the lowest standard of equal protection

review, there has never been articulated a legitimate

state objective to penalize Petitioner by imposing fee-

shifting, after a first-time decision that three tort

causes of action were “in the nature of assumpsit".

The discriminatory treatment accorded to

Petitioner as opposed to others with similar claims

(Kahala_v. Goodsill et al, supra) is not based on

membership in a suspect class. It is based on being a

member of a class of unpaid health providers in

Hawaii; or, simply being a class of one. Village of

Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct 1073

(2000).

On January 28, 2007, the Honolulu advertiser

reported “the failing health of many private medical

practices in Hawaii is driving physicians out of the

state..." Honoluluadvertiser.com. As of October of

2004, of over 120,000 people in the State of Hawaii

who were uninsured, about 31,000 were working

adults. Honoluluadvertiser.com (10-14-04). The state’s

population is about 1.2 million. In 2002, Hawaii

hospitals lost about 95 million due to uncompensated

care. www.healthcoveragehawaii.com.

Several things are driving health professionals

out of the state: (a) low healthcare reimbursement

from casualty (workers compensation and

automobile) and health insurance companies, (b)

excessive, poorly regulated medical malpractice rates,

and (c) a judiciary strongly biased in favor of

insurance companies; particularly those in (a) above.

There is also a systemic bias by Hawaii state

government employees in favor of insurance

companies (who lobby aggressively) which stems

from premium discounts and premium “holidays”,

provided by the insurers. There are also fraudulent,

perhaps criminal, overpayments and “off the plan”

coverage provided for drugs and vitamins. In 2002

alone, an audit found that the state's largest health

insurer (which covers over half the state) overpaid

government employees’ claims up to $390,374.38, and

provided $5,343.53 in prescriptions for off the plan

"sexual dysfunction products”, vitamins and diet

pills. This audit was corroborated by allegations in

Kina v. HMSA, No. 26341, Hawaii Intermediate Court

of Appeals 2006. Haw. App. LEXIS 484 (9-5-06) page 8

(unpublished). The FBI and its public corruption unit

have not revealed if anyone is investigating this,

despite complaints and inquiries.

The most egregious source of systemic bias is

that the nine-member Hawaii Judicial Selection

Commission has exclusive control over the 10 year

reappointment of appellate justices and trial judges,

with the exception of the six-year terms for the lower

court judges. At one point in this litigation, this

Commission was packed 4:9 by representatives of the

same insurers who systematically deny and delay the

already low rates of reimbursement to Hawaii's

health providers. A name partner of the firm

representing Marriott Claims (respondent) chaired

the Hawaii Judicial Selection Commission during this

dispute.

One of the defendants in Orth ics

Associates et al v. HIG et al, 109 Haw 185, 190, 124

P3d 930, 935 (2005) was a local casualty insurer,

Island Insurance Company Limited (“Island

insurance"). On April 15 1998, the Orthopedics suit

was filed in the First Circuit, State of Hawaii against

Island Insurance and other insurers. The appellate

opinion in Orthopedics was authored (nearly 7 years

later) by Hawaii Supreme Court Chief Justice Ronald

T. Y. Moon. The dispute, as here, was over

nonpayment of valid health claims. The case is still

unresolved in the trial court, on remand.

After the Orthopedics case was filed, Chief

Justice Moon appointed a vice president of Island

Insurance, Lois Suzawa, to the Hawaii Judicial

Selection Commission. Island Insurance’s vice

president started her six year tesm on the state’s

commission on April 2, 2001. Shoxéiy afterward, on

August 30, 2001, the trial court dismissed the

Orthopedics case. It languished on interlocutory

appeal from the filing of the notice of appeal, on

October 18, 2001, to the date of Justice Moon's

decision, December 7, 2005. The 30,000 or so medical

bills involved remained unpaid. 109 Haw at 191, 124

P3d at 936.

Since Hawaii has yet to legislatively prevent

litigants (particularly those providing, health

coverage) from taking turns on the states Judicial

Selection Commission, any judge or justice desiring

another term can readily predict that insurers

appearing before them may be represented on the

Commission by the end of the jurist’s term. Petitioner

made this clear in a pleading filed in the trial court on

January 20, 2005, as well is on appeal. Appn. F page 3.

Opening Brief (state) at 26.

It is against this backdrop that Hawaii

physicians and other health providers are being

systematically chilled from the exercise of their right

to petition state courts. Since the judge assigned to

this case had formerly served as an insurance defense

attorney, Petitioner moved for disqualification. Appn.

L pages 2 and 3. Appn I and Q. While oral argument

on the recusal motion provided the judge with the

opportunity to make disclosures, he did not reveal

that he had previously represented one of the parties

to this suit (respondent City and County of

Honolulu). Instead, the Judge granted his former client

$5,321.50 in attorneys’ fees. Appn A, Dissenting Op.

at 2. When Petitioner discovered the conflict, and

raised the issue, the judge again, refused to disqualify

himself. This alone requires that the fee orders be

vacated. Liljeburg v. Health Services Acquisition

Corp, 486 U.S. 847, 861, 865 fn 12, 108, S.Ct. 2194, 2205

(1988).

While health providers are leaving the state,

and about 10% of Hawaii’s residents are uninsured,

state courts and administrative agencies have worked

hard to systematically frighten and intimidate health

providers; and to create numerous common-law

defenses and delaying procedures beneficial to the

insurance industry. A few of the cases are:

Orthopedics Associates, supra (remanded); Haw.

Home Infusion Associates v. Befitel, supra, 114 Haw

at 89, 157 P3d 528 (declining jurisdiction in case

involving lack of appeals from individual

administrator's denials of medical bills, at labor

department); Jou_v. National Interstate Insurance

Company et al, 114 Haw 122, 134 157 P3d 561 (2007)

(physicians cannot sue worker's compensation

insurer for insurer bad faith since physician is merely

an incidental beneficiary); Jou_v. DTRIC, 116 Haw

159, 170, 172 P3d 471, 482 (2007) (physicians may not

sue auto insurers in tort since they are not third-party

beneficiaries); HMA v. HMSA, supra, 113 Haw at 116,

148 P3d at 1221 (“allows” tortious interference against

insurer by health providers - with restrictions).

Hundreds of thousands of American citizens

living in Hawaii are being threatened by this, and

other cases, with “loser pay” attorneys’ fees should

they sue insurers, or their insureds, over health

benefits. The pain felt by these citizens and their

health providers is not shared equally. The appellate

courts were informed in a reply brief filed 12-1-05 in

this case, that in 2002 state insurers only paid

$708,842,399.00 in claims benefits, exclusive of life and

annuity insurance, against premium earnings of

$1,981,739,030.00.

II. REVIEW IS WARRANTED TO RESOLVE

IMPORTANT QUESTIONS OF FEDERAL

LAW VIOLATED BY STATE OF HAWAII IN

A WAY THAT CONFLICTS WITH THIS

COURTS DECISIONS INVOLVING THE

FIRST AMENDMENT OF THE UNITED

STATES CONSTITUTION

Review should be granted here because the

attorney's fees awarded to respondents under

Hawaii's assumpsit statute penalized Petitioner for

exercising his right to petition state courts. This right

to petition, as well as a right to free speech, are

separate but related guaranties generally subject to

the same constitutional analysis. Wayte v. United

States, 470 U.S. 598, 610 fn 11, 105 S.Ct. 1524 (1985);

NAACP v. Clairborne Hdw. Co., 458 U.S. 886, 911-

915, 102 S.Ct. 3409 (1982).

The right to petition is “among the most

precious liberties safeguarded by the ‘Bill of Rights’

and intimately connected both in origin and purpose

with the other First Amendment rights of free speech

and the free press" United Mine Workers Dist 12 v.

Illinois Bar Ass'n, 389 U.S. 217, 222, 88 S.Ct. 353

(1967). And, there is no sound basis to grant greater

protection to statements made in a petition than other

First Amendment expressions. McDonald _v. Smith

472 US. 479, 482, 485, 105 S.C.t 2787 (1985). Review

should be granted because Hawaii courts violated the

precept that the tort complaint brought by Petitioner,

was a form of protected petitioning activity. Id 472

US. at 484.

The attorney fee award in favor of

respondents, while imposed after-the-fact, falls within

this Court's power to review the action as a penalty

on petitioning. BE&K Constr. Co. v. NLRB, 536 US.

516, 530, 122 S.Ct. 2390, 2399 (2002). While BE&K

intimated that greater protection is warranted when a

lawsuit is enjoined, the baseline for after-the-fact

litigation penalties is at least coequal to other First

Amendment violations which do not involve prior

restraint. 536 U.S. at 530.

Hawaii's ad hoc imposition of assumpsit

attorney fees on tort claims resulted from litigating in

state court; that is, exercising a right “cut from the

same cloth as the other guarantees of that

Amendment, and is an assurance of a particular

freedom of expression". McDonald v. Smith, supra,

472 US. at 482. The unlawful penalty at the

conclusion of litigation logically retaliated for filing

suit in the first place. Retaliation against the exercise

of the right to access the courts is an actionable wrong

under 42 USC §1983. Hartman v. Moore, 547 U.S. 250,

256, 126 S.Ct. 1695 (2006). The right of access is an

aspect of the right to petition under the First

Amendment. Bill Johnson's Restaurants Inc. v. NLRB,

461 U.S. 731, 741, 103 S.Ct. 2161 (1983).

Viewed prospectively, the arbitrary and

capricious imposition of attorneys’ fees against

Petitioner (by recasting his lawsuit as one in

assumpsit) works as the prior restraint analogized in

BK&K, supra, 536 U.S. at 530. Because Hawaii has

adopted the doctrine of non-mutual offensive

collateral estoppel, any lawsuit brought by Petitioner

in the future for the same torts is likely to suffer the

same unconstitutional fate, so as to act as a prior

restraint on the Petition Clause. Exotics Hawaii-Kona

Inc. v. E. [du Pont de Nemours & Co.,104 Haw. 358,

361, 90 P.3d 250, 253 (2004). Likewise, an entire class

of health providers, who Hawaii courts “allow” to sue

for the tort of interference, are now chilled from filing

suits on this ground. Interference, has been classified

aS an assumpsit case, solely to tax “loser pays”

attorneys’ fees. While Hawaii health providers may

bring tortious interference suits as allowed by HMA

v. HMSA, supra, 113 Haw at 116, 148 P3d at 1221, this

case teaches that the Hawaii courts do not have to

follow Kahala v. Goodsill, supra, 113 Haw at 282, 151

P3d at 783 when taxing attorneys’ fees. The standards

are not “fixed” as Giacco, supra, requires.

This Court should allow the Writ because the

statute, on its face, gave no advance warning that a

tort plaintiff would be subject to assumpsit attorney

fees. Nor do the interpretive decisions cure the

deficiencies. Id. Petitioner is not required to prove

others would be chilled from filing tort lawsuits in

Hawaii's courts. “The solitary individual who suffers

a deprivation is no less deserving of redress than one

who suffers together with others" Steffel_v.

Thompson, 415 U.S. 152, 475, 94 S.Ct. 1209 (1974).

Review is necessary to address whether tort

victims, as well as Petitioner, should have to gamble

over whether at the end of litigation a state judge will,

as here, recast their causes of action as being in the

nature of assumpsit. Tort victims are not informed by

the statute or decisions thereunder whether a judge

can force a losing tort plaintiff to pay the other side's

attorney fees, as this record demonstrates. It is

unknowable ahead of time which claims will be

recast. Certainly numerous tort causes of action

protected by the Petition Clause are subject to

standardless, ad hoc, judicial classification. “Words

which are vague and fluid... may be as much of a trap

for the innocent as the ancient laws of Caligula”.

Cramp v. Bd of Public Instruction etc, 368 U.S. 278,

287, 82 S.Ct. 275 (1961). The annotations under HRS

§607-14 attest to almost incomprehensible “fluidity”.

Compare the present facts with Kahala v. Goodsill,

supra, 113 Haw at 282, 151 P3d at 783.

The phrase “in the nature of assumpsit” in the

statute, as its judicial gloss proves, has virtually no

limit. “Stricter standards of permissible statutory

vagueness may be applied to the statute having a

potentially limiting effect on speech ..." Keyishian v.

Board of Regents etc, 385 U.S. 589, 599, 604 87 S.C.t

675 681, 684 (1967). This Court's scrutiny is necessary

because a statute may not have, as its only standard,

the unbridled discretion of a government official.

Schad v. Borough of Mt. Ephram, 452 US. 61, 84 n.10,

101 S.Ct. 2176 (1981) (concurring opinion). The phrase

“in the nature of assumpsit” is the same type of open-

ended authorization for unfettered discretion,

condemned in Schad.

The Writ should be allowed because there is a

censiderable burden caused by the facial overbreadth

of the statutory phrase, “in all actions in the nature of

assumpsit”. This chills activity protected by the

Petition Clause. Thousands of Hawaii's tort victims

are inhibited by the fact that their causes of action, at

the end of litigation, may be reclassified by a state

trial judge as being “in the nature of assumpsit”

solely to tax losing tort victims with insurance

defense firms’ fees.

The statute suffers from overbreadth because

while it attempts to make losers pay in assumpsit and

other defined actions, its vague language reaches to

tort cases. Since “in the nature” may be interpreted as

extending to non-assumpsit causes of action, as here,

some of this overbreadth is due to vagueness. HRS

§607-14 and its application chills the exercise of the

Petition Clause; thus, special precision was required

to identify causes of action other than “actions on a

promissory note or other contract in writing that

provides for attorney fees". Without these standards,

and the allowance of this Writ, courts will continue

enforcing the statute in an arbitrary and

discriminatory manner.

Review by this Court is imperative because no

readily apparent construction suggests itself as a

vehicle for rehabilitating the statute. Dombrowski v.

Fester, 380 U.S. 476, 490, 85 S.C.t 1116 (1965). The

statute, as this case shows, was too vague as written,

and insufficiently narrow as applied. Id at 491 n.7 (no

fair warning). By evading the Federal Constitutional

questions, duly presented to them, the state courts

failed and refused to make “the critical scrutiny

demanded under accepted First Amendment

principles" First National Bank v. Belloti, supra, 435

US. at 786, 98 S.Ct. 1407. For example, the state

court's decisions were devoid of any showing that

applying this fee-shifting statute to torts on a case-by-

case basis was (1) in furtherance of a compelling

governmental interest, and (2) is the least restrictive

means of furthering this interest. Gonzales v. O

Centro Espirito etc, supra, 546 U.S. at 424, 126 S.Ct. at

1217.

There was no reason for the state judges to

bypass reasoned analysis of the First Amendment

issues duly raised. This amendment was applied to all

States since ratification of the Fourteenth

Amendment. Mores v. Frederick, 127 S.Ct. 2618, 127

S.Ct. 2630 (2007).

CONCLUSION

For all the foregoing reasons, Petitioner

respectfully requests that the Supreme Court of the

United States grant review of this matter.

Dated: Honolulu, Hawaii, cl 10, 2008.

Respefu Submitted,

STEPHEN M. SHAW

P.O. Box 2353

Honolulu, Hawaii 96804

Tel: (808) 521-0800

Fax: (808) 531-2129

Attorney for Petitioner

EMERSON M.F., JOU, M.D.

FILED

2007 DEC 13 PM 1:22

NO. 27281

IN THE SUPREME COURT OF THE STATE OF HAWAI'I

EMERSON M.-F. JOU, M_.D.,

Plaintiff-Appellant-Petitioner,

vs.

ARGONAUT INSURANCE COMPANY, an Entity,

Form Unknown; CITY AND COUNTY OF

HONOLULU, A Self-insured Governmental Entity;

HEMIC, aka Hawaii Employers Medical Insurance

Company, An Entity, Form Unknown; And

MARRIOTT CLAIM SERVICES CORPORATION,

a Corporation,

Defendants-Appellees-Respondents.

CERTIORARI TO THE INTERMEDIATE COURT OF

APPEALS (CIV. NO. 03-1-1445)

ORDER REJECTING APPLICATION FOR WRIT

CERT R

(By: Levinson, J., for the court,

and Acoba, J., dissenting’)

Upon consideration of the application for writ of

certiorari filed on October 29, 2007, by the plaintiff-

appellant-petitioner Emerson MF. Jou, MD., the

application is hereby rejected.

DATED: Honolulu, Hawai'i, December 13, 2007.

Appendix A.1

FOR THE COURT:

whceny

STEVEN: H LEVINSON.

Ascociate

Stephen M. Shaw,

for the plaintiff-appellant-petitioner

Emerson M. F. Jou, M.D.,

on the application

Richard F. Nakamura and

Steven L. Goto of Ayabe, Chong,

Nishimoto, Sia & Nakamura, for

the defendant-appellee-respondent

Mariott Claim Services Corporation,

on the opposition

Considered by: Moon, C.J., Levinson,

Nakayama, Acoba, and Duffy, JJ.

John Reyes-Burke of

Burke McPheeters Bordner & Estes,

for the defendant-appellee-respondent

HEMIC, aka Hawaii Employers Medical

insurance Company on the joinder to

the memorandum in opposition

to the application

Appn. A.2

DISSENT BY ACOBA, J.

I respectfully disagree that the application for writ

of certiorari submitted by Plaintiff-Appellant-Petitioner

Emerson M.F. Jou, M.D. (Petitioner) should be denied.

This court should further review the summary

disposition order of the Intermediate Court of Appeals

(ICA) affirming the award of attorneys’ fees by the

Circuit Court of the First Circuit (the court)! to

Defendants-Appellees-Respondents City and County of

Honolulu (the City) and Hawaii Employers Medical

Insurance Company (HEMIC), pursuant to Hawai'i

Revised Statutes (HRS) § 607-14 (Supp. 1997) and the

ICA's orders granting the motions for attorneys’ fees on

appeal filed by the City, HEMIC, and Marriott Claim

Services Corporation (Marriott) [the City, HEMIC, and

Marriott are hereinafter collectively referred to as "the

insurers"] pursuant to HRS § 607-14 because the

complaint sounded in tort rather than assumpsit as

required under HRS §607-14. The bad faith claim,

tortious interference with a prospective business

advantage claim, and statutory tort claim under HRS§

663-1 (Supp. 1997)? asserted by Petitioner brought against

the insurers were all tort claims rather than assumpsit

claim.

Footnote

1. The Honorable Gary W.B. Chang presided.

2. Although Petitioner in his complaint cites HRS

§463-1 (1993 & Supp. 2004) in reference to his statutory

tort claim, the record indicates that he meant to cite

HRS §663-1 (Supp. 1997).

Appendix A.1 (Dissent)

Petitioner's action arises from the alleged failure

of the insurers to pay for massage therapy services

Petitioner rendered to certain clients where payment

was allegedly owed pursuant to workers’

compensation policies. The insurers refused to pay on

the basis that Petitioner did not have a massage

therapy establishment license as required under HRS

§452-3 (1993) >.

On July 11, 2003, Petitioner filed a complaint

against insurers entitled, "COMPLAINT IN TORT FOR

INSURER BAD FAITH," alleging bad faith, tortious

interference with a prospective business advantage,

and statutory tort. In his prayer for relief, Petitioner

sought (1) actual damages, (2) punitive damages, (3)

attorneys' fees and costs, and (4) other relief as the

court deemed proper. ‘

The court granted the City's motion for

summary judgment on May 14, 2004, Marriott's

substantive joinder to the City's motion for' summary

judgment on August 30, 2004, and, HEMIC's motion

for summary judgment on August 5, 2004. On August

2, 2004, the City moved for attorneys' fees under HRS

§607-14 and HEMIC filed a substantive joinder to that

motion on August 17, 2004. In its orders of August 31, 2004,

the court granted the City's motion and HEMIC'

joinder, awarding the City its requested attorneys' fees

of $5,321.50. Petitioner filed a

Appendix A.2 (Dissent)

Footnotes _

3. HRS §452-3 (1993) provides that “[nJo massage

therapy establishment shall be operated unless it has

been duly licensed as provided for in this chapter.”

motion for reconsideration of the court's decision to

grant the City's motion for attorneys' fees and

HEMIC's joinder.

On August 25, 2004, HEMIC moved for

attorneys’ fees in the amount of $9,491.50 under HRS

§607-14. The court granted in part and denied in part

HEMIC's motion on September 22, 2004, awarding

HEMIC $855.00 in attorneys’ fees. On October 6, 2004,

the court invited HEMIC to move for reconsideration

of its motion for attorneys’ fees because in the court's

view, the amount of punitive damages sought should

have been taken into account in determining the

amount in controversy upon which the twenty-five

percent limitation on attorneys’ fees is based,

pursuant to HRS §607-14. The court heard Petitioner's

and HEMIC's motion for reconsideration of HEMIC's

attorneys' fees motion on November 8, 2004 and

awarded HEMIC $8,750.00 in attorneys' fees.

On appeal before the ICA, Petitioner asserted

in his opening brief, inter alia, that the court erred by

(1) granting the City's motion for attorneys’ fees, (2)

granting in part and denying in part HEMIC's motion

for attorneys' fees, (3) granting HEMIC's motion for

reconsideration of its motion for attorneys’ fees, and

(4) denying his motion for reconsideration of the

attorneys’ fees orders against him.

Appendix A.3 (Dissent)

The City, HEMIC, and Marriott moved for

attorneys' fees on appeal in the amount of $6,204.09,

$9,791.72, and $4,451.50, respectively. The ICA

granted all of the attorneys' fees requested by the

insurers, again pursuant to HRS §607-14, with the

exception of that portion of HEMIC's attorneys' fees

relating to the state general excise tax.

II.

In his application for writ of certiorari before

this court, Petitioner argues, inter alia, that the court

and the ICA erred in awarding attorneys’ fees because

(1) the action was not in the nature of assumpsit

within the meaning of HRS § 607-14; (2) HRS § 386-

93(a) (1993)4 precludes an .award of attorneys’ fees

under HRS § 607-14; (3) the court and the ICA should

have apportioned fees among assumpsit and non-

assumpsit claims.5

III.

All of Petitioner's claims against the insurers

are tort claims notwithstanding the fact that it was-

alleged the insurers violated insurance contract

obligations owed to Petitioner's clients and intended

to benefit Petitioner as a third-party beneficiary to the

contract. In light of the fact that all of the claims are

clearly tort claims, no court is at

Footnotes

4. HRS §386-93(a) (1993) states as follows:

If the director of labor and industrial relations,

appellate board or any court finds that proceedings

under this chapter have been brought, prosecuted, or

Appendix A.4 (Dissent)

defended without reasonable ground the whole costs

of the proceedings may be assessed against the party

who has so brought, prosecuted, or defended the

proceedings.

5 Petitioner also argued that (4) the court's

and: the ICA's conclusion that the action is in the

nature of assumpsit should be applied prospectively;

(5) it was a violation of Petitioner's rights under the

fourteenth amendment to the United States

Constitution for the court and the ICA to award

attorneys' fees to the insurers; and (6) the attorneys'

fees requested by the insurers was excessive.

liberty to reclassify those claims as assumpsit claims

on the ground that the tort claims would not be

actionable without the existence of an insurance

contract between insurers and employers of

Petitioner's clients.

With respect to Petitioner's bad faith

claim, Petitioner stated in his complaint that

9. At all times, [the insurers] owed a

duty of good faith and fair dealing to

[Petitioner]f as their intended third-party

beneficiary, to pay for medical services

[Petitioner] rendered to (the insurers'}] other

intended beneficiaries.

10. In breach, or in circumvention of

this duty, and without proper cause, (the

insurers] are unreasonably avoiding and

Appendix A.5 (Dissent)

refusing payment, to [Petitioner] for

medical services rendered, thus

committing the independent tort of

Insurer Bad Faith.

(Emphasis added). In Best Place, Inc. v. Penn Am.

Ins.Co., 82 Hawaii 120, 132, 920 P.2d 334, 346 (1996),

this court said "there is a legal duty, implied in a a

first-and third-party insurance contract, that the

insurer must act in good faith in dealing with its

insured, and a breach of that duty of good faith gives

rise to an independent tort cause of action.” (Emphasis

added.)

Petitioner's bad faith claim was presented as a tort

claim inasmuch as Petitioner's complaint entitled

"COMPLAINT IN TORT FOR INSURER BAD FAITH"

(emphasis added), alleged that the insurers had

committed the "independent tort of Insurer Bad Faith{,]"

alleged consequences zrising from the insurers! "tortious

conduct[,]" and requested punitive damages.

It may be contended that Petitioner's bad faith

claim is a claim in the nature of assumpsit because in

requesting attorneys’ fees, Petitioner's prayer did not

expressly state that he sought actual damages that

included attorney's fees, and Petitioner therefore

arguably sought attorney's fees that were in addition to

actual tort damages. However, at the November 8, 2004

hearing on the issue of HEMIC's motion for

reconsideration of its attorneys' fees, Petitioner cited

California case law, arguing that such authority held that

"attorney's fees in a bad faith case are an element of

damage." Indeed, the California Supreme Court's

Appendix A.6 (Dissent)

decision in Brandt v. Superior Court, 693 P.2d 796 (Cal.

1985), which explained that an insurer may be liable in a

tort action for attorneys' fees, excluding the fees incurred

in bringing the bad faith action itself) if the "insurer's

tortious conduct reasonably compels the insured to retain

an attorney to obtain the benefits due under a policy[.]"

Id. at 798. See also Uyemura v. Wick, 57 Haw. 102, 108-

09, 551, P.2d 171, 176 (1976) (allowing for the recovery of

attorneys' fees in contract and tort actions where

wrongful acts of the defendant involve the plaintiff in

litigation with third parties). The mere fact that Petitioner

requested attorneys’ fees in the prayer of his complaint is

not a reasoned basis for deciding that Petitioner's bad

faith claim is not a tort claim, particularly in light of the

fact that Petitioner clearly alleges an action in tort and

Petitioner has cited authority for an award of attorneys’

fees on a tort claim.

B. —

With respect to Petitioner’s tortious

interference claim, Petitioner alleges in his

complaint that:

20. There existed a prospective

advantage, expectancy, or

professional relationship sufficiently

definite, specific, and capable of

acceptance by patients insured by

{the insurers); in the sense that there

was a reasonable probability of it

maturing into a future benefit to

both [Petitioner) and the patient.

Appendix A.7 (Dissent)

22. [The insurers]

purposefully[,] maliciously or

recklessly intended to interfere

with the advantage, relationship

or expectancy.

With respect to Petitioner’s statutory tort claim

Under HRS §663-1, Petitioner asserts that "[the insurers]

intentionally caused injury to [Petitioner] and [are] liable

to [Petitioner] for damages, according to proof."

In respect to both of the foregoing claims, Blair v.

Ing, 96 Hawai'i 327, 31 P.3d 184 (2001), also involved a

contract which gave rise to the duties allegedly owed

by the defendant, the breach of which was the basis for

the plaintiffs' tort claim of negligence. There, this court

held that the "essential character" of the plaintiffs’

action was in the nature of assumpsit. Id. at 332, 31 P.3d

at 89. Although this court cited the fact that the

plaintiffs' "negligence claim arises out of the alleged

implied contract" between the defendant and a third-

party in its determination that the action was in the

nature of assumpsit, this determination was not based

solely on the fact that the negligence claim arose out of

the alleged implied contract. Id.

In Blair, the plaintiffs asserted only two claims

for relief against the defendant, one of which was a

breach of implied contract claim and the other, the

negligence claim. Id. Because the number and scope of

the tort claims were apparently equal to those of the

Appendix A.8 (Dissent)

assumpsit claims, this court presumably looked to other

factors such as the fact that that the negligence claim

originated from the breach of duties owed under an

implied contract, in order to decide whether the action

in general sounded in tort or in contract. Furthermore,

this court concluded in Blair that "the damages alleged

were more closely akin to contract damages than to tort

damages because they were economic damages arising

out of the alleged frustrated expectation that [the

defendant] would take advantage of certain tax-saving

devices." Id. at 332-33, 31 P.3d at 189-90.

In contrast, here, all of Petitioner's claims were

tort claims. That the tort claims would not be actionable

without the existence of an underlying insurance

contract between insurers and employers of Petitioner's

clients is an _ insufficient justification to redefine

Petitioner's tort claims as assumpsit claims. In addition,

damages sought by Petitioner are more akin to tort

damages than contract damages, as they include

damages for harm allegedly suffered by Petitioner

transcending any contractual obligations such as harm

paused to _ Petitioner's prospective business

opportunities with certain clients.

YR,

NO. 27281 sale

SPS

IN THE INTERMEDIATECOURTOF 3232

-Q

Fe |

APPEALS OF THE STATE OF HAWAII

EMERSON M.F. JOU, Plaintiff-Appeliant,

ARGONAUT INSURANCE COMPANY, an Entity,

Form Unknown; CITY AND COUNTY OF

HONOLULU, A Self-Insured Governmental Entity;

HEMIC, aka Hawaii Employers Medical Insurance

Company, An Entity, Form Unknown; and MARRIOT

CLAIM SERVICES CORPORATION, a Corporation,

Defendants-Appellees,

and

JOHN DOE 1-50, DOE ATTORNEYS 1-50,

DOE CORPORATIONS 1-10, DOE PARTNERSHIPS 1-

10,

and DOE GOVERNMENTAL ENTITIES 1-10,

Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST

CIRCUIT

(CIVIL NO. 03-1-1445)

JUDGMENT ON APPEAL

(By: Foley, J., for the court?))

Pursuant to the Summary Disposition Order of

the Intermediate Court of Appeals of the State of Hawaii

entered on April 5, 2007, the Judgment of the Circuit

Appendix B.1

80:6 WY }- ony sanz

Court of the First Circuit entered on April 22, 2005

is affirmed.

DATED: Honolulu, Hawai'i, August I, 2007.

FOR THE COURT:

Associate Judge

¥ Foley, Presiding Judge, and Nakamura, J. Former

Chief Judge James S. Burns was a member of the

panel on this appeal, but has since retired from his

judgeship effective the close of business on April 18,

2007.

Appn B.2

NO. 27281 2

IN THE INTERMEDIATE COURT OF APPEALS 42/3

OF THE STATE OF HAWAI‘I Ae z

25 a

EMERSON M.-F. JOU, Plaintiff-Appellant,

ARGONAUT INSURANCE COMPANY, an Entity, Form

Unknown; CITY AND COUNTY OF HONOLULJU, A: Self-

Insured Governmental Entity; HEMIC, aka Hawaii

Employers Medical Insurance Company, An Entity, Form

Unknown; and MARRIOT CLAIM SERVICES

CORPORATION, a Corporation, Defendants-Appellees,

and:

JOHN DOE 1-50, DOE ATTORNEYS 1-50,

DOE CORPORATIONS 1-10, DOE PARTNERSHIPS 1-10,

and DOE GOVERNMENTAL ENTITIES 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST

CIRCUIT

(CIVIL NO. 03-1-1445)

ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANT-APPELLEE HEMIC'S REQUEST

FOR ATTORNEY'S FEES AND ORDER GRANTING

IN PART AND DENYING IN PART, WITHOUT

PREJUDICE, REQUEST FOR COSTS ON APPEAL

(By: Foley, Presiding Judge, and Nakamura, J. 1/)

Appendix C.1

Upon consideration of (1) the April 26, 2007 request?" for

attorney's fees in the amount of $9,791.72 and necessary costs

of $416.64 submitted by counsel for Defendant-Appellee

HEMIC, pursuant to Hawaii Revised Statutes §§ 607-9

and 607-14 and Hawaii Rules of Appellate Procedure

(HRAP) Rule 39, and the

1/ Former Chief Judge James S. Burns was a member

of the panel on this appeal, but has since retired

from his judgeship effective the close of business

on April 18, 2007.

2/ Pursuant to Hawaii Rules of Appellate

Procedure {HRAP) Rule 39(d)(1), future requests for

attorney's fees should follow the format in HRAP

Form 8a for setting forth billed hours.

memorandum and attachments thereto, and (2) the

memorandum in opposition filed on May 7, 2007 by Plaintiff-

Appellant Emerson M.F. Jou, M.D., we conclude that

attorney's fees and costs are appropriate, in part; and award

the following fees and costs:

(1) Reasonable attorneys fees in the amount of $9,395.00 3,

and

(2) Reasonable and necessary copying costs for the

answering brief in the amount of $67.20 (24 pages x

$.20/ page $4.80 x 14 copies 4).

Pursuant to Tortorello v; Tortorello, 113 Hawai'i 432,

444, 153 P.3d 1117, 1129 (2007), and ERAP Rule 3%d)(1y,

HEMIC's request for $120.64 for transcript costs, $129.20

in copying costs, $34.69 for postage, and $48.12 in

Appn C.2

messenger costs 5 is denied without prejudice to HEMIC

producing any documentation, receipts, ledger, log, or

proof of the amount being charged.

Therefore,

3/ Counsel requests $9,395.00 in attorney's fees and

$396.72 in state general excise tax thereon, and $399.85 in

costs and $16.79 in state general excise tax thereon. The

payment of state general excise tax is not authorized

under HRS §§ 607-9 or 607-14 or under Hawai'i Rules of

Appellate Procedure

Rule 39.

¥ Pursuant to Tortorello v. Tortorello, 113 Hawaii

432, 444, 153 P.3d 1117, 1129 (2007), Defendant-Appellee

HEMIC is entitled to reimbursement for 1.3 copies of the

Answering Brief (2 copies for service on each of the parties

and 5 copies for the court) plus 1 copy for HEMIC

pursuant to Kamalu v. Paren, 100 Hawaii 269, 280, 132

P.3d 378, 389 (2006).

¥ Under Kikuchi v. Brown, 110 Hawai'i 204, 212-13,

130 P.3d 1069, 107778 (API). 2006), messenger fees are

treated as overhead and are not billable costs. However,

in Buscher v. Boning, _ Hawaii __, 159 P.3d 814

(2007), the Hawai'i Supreme Court awarded costs for an

outside delivery service for documents sent from Oahu to

the Big Island where the requesting party provided detailed

documentation.

Appn C.3

IT IS HEREBY ORDERED that attorneys' fees in the

amount of $9,395.00 and costs in the amount of $67.20, for a

total of $9,462.20, incurred in connection with the appeal

are approved and awarded in favor of Defendant-Appellee

HEMIC and against Plaintiff-Appellant Emerson MF. Jou,

M.D.

DATED: Honolulu, Hawai‘, July 18, 2007.

On the request:

John Reyes-Burke and

Devin L. Choy ;

(Burke McPheeters Bordner L

& Estes) for Defendant-

— Presiding Judge

Steven M. Sha

Appn. C.4

NO. 27281

IN THE INTERMEDIATE COURT OF APPEALS

add 8s 308 £0az

OF THE STATE OF HAWATI

EMERSON MF. pM, Plaintiff-Appellant,

ARGONAUT INSURANCE COMPANY, an Entity, Form

Unknown; CITY AND COUNTY OF HONOLULU, A Self-

Insured Governmental Entity; HEMIC, aka Hawaii

Employers Medical Insurance Company, An Entity, Form

Unknown; and MARRIOT CLAIM SERVICES

CORPORATION, a ——— Defendants-Appellees,

JOHN DOE 1-50; DOE ATTORNEYS 1-50,

DOE CORPORATIONS 1-10, DOE PARTNERSHIPS 1-10,

and DOE GOVERNMENTAL ENTITIES 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST

CIRCUIT

(CIVIL NO. 03-1-1445)

ORDER GRANTING DEFENDANT-APPELLEE

MARRIOTT CLAIM SERVICES CORPOIRATION'S

REQUEST FOR ATTORNEY'S FEES AND ORDER

GRANTING IN PART AND DENYING IN PART,

WITHOUT PREJUDICE, REQUEST

FOR COSTS ON APPEAL

(By: Foley, Presiding Judge, and Nakamura, J.!/)

Appendix D.1

OS-14 4

Upon consideration of (1) the April 27, 2007 request

for attorney's fees in the amount of $4,451.50 and necessary

costs of $697.68 submitted by counsel for Defendant-Appellee

Marriott Claim Services Corporation (Marriott), pursuant to

Hawaii Revised Statutes § 607-14 and Hawaii Rules of |

Appellate Procedure (HRAP) Rule 39, and the memorandum

and attachments thereto; (2) the memorandum in opposition

filed on May 8, 2007 by Plaintiff-Appellant Emerson MF. Jou,

M.D.; and (3) the May 14, 2007 reply memorandum filed by

Marriott, we conclude that attorney's fees and costs are

appropriate and award the following fees and costs:

(1) Reasonable attorney 's fees in the amount of

$4,451.50,

Y Former Chief Judge James S. Burns was a member

of the panel on this appeal, but #5 since retired from his

judgeship effective the close of business on April 18, 2007.

(2) Reasonable and necessary copying costs for the

answering brief in the amount of $33.80 (167 pages x

$.10/ page $16.70 x 14 copies 3/), and

(3) Transcript costs of $120.64.

Appn D. 2

Pursuant to Tortorello v. Tortorello, 113 Hawai'i 432, 444,

153 P.3d 1117, 1129 (2007) and HRAP Rule 19(d)(1),

Marriott's request for additional costs of $343.24 is denied

without prejudice to Marriott filing an amended request

citing to the appropriate statute and producing any

documentation, receipts, ledger, log, or proof of the

amount being charged.

Therefore,

IT IS HEREBY ORDERED that attorneys' fees in the

amount of $4,451.50 and costs in the amount of $354.44, for

a total of $4,805.94, incurred in connection with the

appeal are approved and awarded in favor of

Defendant-Appellee Marriott Claim Services Corporation

and against Plaintiff-Appellant Emerson M.F. Jou, M.D.

DATED: Honolulu, Hawaii, July 18, 2007.

Appn D. 3

On the request:

Richard F.

Nakamura and

Steven L. Goto

(Ayabe, Chong,

Nishimoto, Sia & . : wees

NakaMura) | Uribe

for Defendant- .

Appellee Marriott Presiding Judge

Claim Services

Corporation.

Steven. M. Shaw

on the objection for

Plaintiff-A ppellant. Associate Judge

2/ Pursuant to Tortorello v. Tortorello, 113

Hawai'i 432, 444, 153 P.3d 1117, 1129 (2007),

Defendant-Appellee Marriott is entitled to

reimbursement for 13 copies of the Answering

Brief (2 copies for service on each of the parties

and 5 copies for the court) plus 1 copy for

Marriott pursuant to Kamalu v. Paren, 100 Hawai'i

269, 280, 1321 P.3d 378, 389 (2006).

Appn. D.4

FILED

2007 JUL 18 AM 11:54

NO. 27281

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWATI

EMERSON M.-F. JOU, Plaintiff-Appellant,

Vv.

ARGONAUT INSURANCE COMPANY, an Entity, Form

Unknown; CITY AND COUNTY OF HONOLULU, A Self-

Insured Governmental Entity; HEMIC, aka Hawaii

. Employers Medical Insurance Company, An Entity, Form

Unknown; and MARRIOT CLAIM

SERVICES CORPORATION, a Corporation, Defendants-

Appellees,:

and

JOHN DOE 1-50, DOE ATTORNEYS 1-59,

DOE CORPORATIONS 1-10, DOE PARTNERSHIPS 1-10,

and DOE GOVERNMENTAL ENTITIES 1-10, Defendants

APPEAL FROM FROM THE CIRCUIT COURT OF THE FIRST

CIRCUIT

(CIVIL NO. 03-1-1445)

ORDER GRANTING DEFENDANT-APPELLEE CITY

AND COUNTY OF HONOLULU’S REQUEST FOR

ATTORNEY’S FEES AND GRANTING IN PART AND

DENYING IN PART, WITHOUT PREJUDICE,

REQUEST FOR COSTS ON APPEAL

(By: Foley, Presiding Judge, and Nakamura, J. ¥)

Appendix E. 1

Upon consideration of (1) the April 27, 2007 request 7

for attorney's fees in the amount of $6,204.00 and necessary

costs of $139.80 submitted by counsel for Defendant-

Appellee City and County of Honolulu (CCH), pursuant to

Hawaii Revised Statutes §607-14 and Hawaii Rules of

Appellate Procedure (HRAP) Rule 39, and the

memorandum and attachments thereto; (2) the

memorandum in opposition filed on May 8, 2007 by

Plaintiff-Appellant Emerson M.F. Jou, M.D.; and (3) the

May 15, 2007 reply memorandum filed by CCH, we

conclude that attorney's fees and costs are appropriate and

award the following fees and costs:

1/ Former Chief Judge James S. Burns was a member of

the panel on this appeal, but has since, retired from his

judgeship effective the close of business on April 18,

2007.

2/ Pursuant to Hawaii Rules of Appellate

Procedure (BRAP) Rule 39(d)(1), future requests

for attorney's fees should follow the format in

HRAP Form 8a for setting forth billed hours.

Appn E.2

(1) Reasonable attorney's, fees in the

amount of $6,204.00, and

(2) Reasonable and necessary copying costs for the

answering brief in the amount of $71.40 (34 pages x

$.15/ page = $5.10 x 14 copies 3/).

Pursuant to Tortorello v. Tortorello, 113 Hawaii

432, 444, 153 P.3d 1117, 1129 (2007), and HRAP Rule

39(d)(1), CCH's request for $9.37 in transcript costs, $20.39

for postage, and $38.40 in additional copying costs is

denied without prejudice to CCH filing an amended

request and producing any documentation, receipts,

ledger, log, or-proof of the amount being charged.

Therefore,

IT IS HEREBY ORDERED that attorneys' fees in

the amount of $6,204.00 and costs in the amount, of

$71.40, for a total of $6,275.40, incurred in connection with

the appeal are approved and awarded in favor of

Defendant-Appellee City and County of Honolulu and

against Plaintiff-Appellant Emerson M.F. Jou, M.D.

DATED: Honolulu, Hawaii, July 18, 2007.

Appn E.3

On the request:

Steven J.T. Chow and ;

Jeffrey S. Masatsugu kbp sae

dge

(The Pacific Law Group) ' Presidiag Ju

for Defendant-Appellee le

City and County of v

Honolulu.

Associate Judge

Steven M. Shaw

on the objection for Plaintiff-A ppellant.

3/ Pursuant to Tortorello v. Tortorello, 113

Hawaii 432, 444, 153 P.3d 1117, 1129 (2007),

Defendant-Appellee CCH is entitled to

reimbursement for 13 copies of the Answering Brief

(2 copies for service on each of the parties and 5

copies for the court) plus 1 copy for CCH pursuant to

Kamalu v. Paren, 100 Hawaii 269, 280, 132 P.3d 378,

389 (2006).

Appn E. 4

YWYON

QZ ONY S- UAV LOGE

gas

NOT FOR PUBLICATION IN WEST'S HAWAFI REPORTS AND

PACIFIC REPORTER

NO. 27281

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAII

EMERSON M.-F. JOU, Plaintiff-Appellant,

ARGONAUT INSURANCE COMPANY, an Entity, Form

Unknown; CITY AND COUNTY OF HONOLULU, A Self-

Insured Governmental Entity; HEMIC, aka Hawaii Employers

Medical Insurance Company, An Entity, Form Unknown; and

MARRIOT CLAIM SERVICES CORPORATION, a

Corporation,. Defendants-Appellees,

and

JOHN DOE 1-50, DOE ATTORNEYS 1:50,

DOE CORPORATIONS 1-10, DOE PARTNERSHIPS 1-10,

and DOE GOVERNMENTAL ENTITIES 1-10, Defendants

Appendix F.1

APPEAL FROM THE CIRCUIT COURT OF THE FIRST

CIRCUIT

(CIVIL NO. 08-1-1445)

SUMMARY DISPOSITION ORDER

(By: Burns, C_J., Foley and Nakamura, JJ.)

Plaintiff-Appellant Emerson M.F. Jou, M.D. (Jou) appeals

from the Judgment filed on April 22, 2005 in the Circuit Court of

the First Circuit (circuit court) y in favor of Defendants-

Appellees Argonaut Insurance Company (Argonaut), City and

County of Honolulu (City), HEMIC aka Hawaii Employers

Medical Insurance Company (HEMIC), and Marriott Claim

Services Corporation (Marriott) (Argonaut City, HEMIC, and

Marriott are collectively referred to as Appellees) and against

Jou. On appeal, Jou advances thirteen points of error:

(1) Judge Karen Blondin, the circuit court civil

Administrative Judge, erred by assigning this case to Judge

Gary W.B. Chang when Judge Blondin knew should have known

that, prior to becoming .a judge, Judge Chang had worked for .an

insurance defense law firm and had represented the City.

(2) The circuit court erred by denying Jou's motion to

disqualify Judge Chang.

(3). The circuit court erred by 'refusing to permit filing of

second [Hawaii Revised Statutes (HRS)] § 601-7 [(1993)] declaration

to disqualify Judge Chang and to vacate orders made by the

Footnote

1/ The Honorable Gary W.B. Chang presided.

Appn F. 2

judge grounded on [Jou's] discovery that Judge Chang previously

represented [the City), and made an ex parte contact with its

counsel, for violations of [the Fourteenth Amendment to the

United States Constitution and Article I, § 5 of the Hawari

Constitution], and the possibility of future employment."

(4) The circuit court erred by denying Jou's motion to

amend the complaint.

(S) The circuit court erred by denying Jou's motion for

summary judgment.

(6) The circuit court erred by granting the City's motion

for summary judgment, joined by Marriott.

(7) The circuit court violated Jou's rights under the

petition clause of the First Amendment to the United States

. Constitution by ruling in favor of the City and Marriott on Jou's

tort claims.

(8) The circuit court violated Jou's rights under the

petition clause of the First Amendment to the United States

Constitution "by implicitly finding in favor of [the City], joined by

[Marriott], that the action by the department of Labor in favor of

[the City] (only) was justification for [the City] not paying [Jou].

(9) The circuit court violated Jou's rights to due

process and equal protection by refusing to grant a continuance

of the summary judgment hearing to permit the deposition of

state official.

Appn F.3

Rie

(10) The circuit court erred by granting HEMIC's motion

for summary judgment.

(11) The circuit court erred and violated Jou’s

constitutional rights by ‘granting the Appellees' motions for

attorneys’ fees and thereby Violated ‘other constitutional

provision8 including the separation Of power8 doctrine; ad hoc

rule-making violating the state and federal constitution; [the

Fourteenth Amendment to the United States Constitution] and

the due process clause of the state and federal constitutions." The

circuit court also violated the takings clause of the Fifth

Amendment to the United States Constitution, "and deprived

[Jou] of meaningful remedies, in violation of [the] due process

and equal protection Clause[s] of the [Fourteenth Amendment to

the United States Constitution and Article I § 5 of the Hawaii

Constitution].

(12) The circuit court erred "by refusing to give its

novel application of HRS § 607-14 [Supp. 2006] prospective effect

because substantial prejudice would befall [Jou]; instead, the court

applied HRS §607-14 retrospectively to [Jou].”

(13) The circuit court erred by denying Jou’s motions

for reconsideration of the attorneys’ fee orders.

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration

to the arguments advanced and the issues raised by the

parties, we conclude that Jou’s points of error are without

merit.

Appn F.4

Therefore,

The Judgment filed on April 22, 2005 in the Circuit

Court of the first Circuit is affirmed.

DATED: Honolulu, Hawaii, April 5, 2007.

On the briefs:

Stephen M. Shaw

for Plaintiff- Appellant.

Steven J.T. Chow and Jeffrey S. Masatsugu (The Pacific Law

Group) for Defendant- Appellee

City and County of Honolulu.

John Reyes7Burke

(Burke McPheeters Bordner & Estes) for

Defendant-Appellee HEMIC .

Richard F. Nakamura and

Steven L. Goto

(Ayabe, Chong, Nishimoto, Sia & Nakamura)

for Defendant-Appellee

Marriott Claim Services Corporation

Chief Ju ige

Mere Le Judge }

Cy WN Flake

Associate Judge

Appn F.5

1575-132 FILED 2005 APR 22

Of Counsel:

BURKE, SAKAI, McPHEETERS, BORDNER, IWANAGA

& ESTES

EDMUND BURKE 704-0 PATRICIA C. ABURANO >

3598-0 JOHN REYES-BURKE 6251-0 Suite 3100 - Mauka

Tower Pacific Guardian Center

737 Bishop Street

Honolulu, Hawaii 96813 Telephone No. (808) 523-9833

Fax No. (808) 528-1656

Attorneys for Defendant HEMIC

PLEASE NOTE CHANGES

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

EMERSON M.-F. JOU, M.D., ) Civil No.

Plaintiff, ) 03-1-1445-07

vs. ) (GWBC)

) (Other Non

ARGONAUT INSURANCE COMPANY, Vehicle Tort)

An Entity, Form Unknown; CITY AND

COUNTY OF HONOLULU, A Self-Insured )

Governmental Entity; HEMIC, aka Hawaii )

Employers Medical Insurance Company,

An Entity, Form Unknown; And

MARRIOTT CLAIM SERVICES

CORPORATION, A Corporation; JOHN

DOE 1-50, DOE ATTORNEYS 1-50,

DOE CORPORATIONS 1-10,

DOE PARTNERSHIPS1-10, and DOE

GOVERNMENTAL ENTITIES 1-10,

Defendants.

ll le i

Appendix G. 1

JUDGMENT

Pursuant and the following orders:

(1) The Order Granting Defendant Argonaut

Insurance Company’s Motion TO Dismiss Complaint, Or, In

The Alternative, To Sever Claims, Filed On August 27, 2003,

entered herein on December 10, 2003;

(2) the Order Granting Defendant City and

County Of Honolulu’s Motion For Summary Judgment

Filed On February 24, 2004 and Defendant Marriott Claims

Services Corporation’s Substantive Joinder in Defendant

City And County Of Honolulu’s Motion For Summary

Judgment Filed February 24, 2004, filed on March 11, 2004,

entered herein on May 14, 2004; and

(3) The Order Granting Defendant HEMIC’s

Motion for Summary Judgment Filed On May 12, 2004,

entered herein on August 5, 2004;

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that judgment is entered in favor of Defendant

ARGONAUT INSURANCE COMPANY, CITY AND

COUNTY OF HONOLULU, HEMIC aka Hawaii Employers

Medical Insurance Company, and MARRIOTT CLAIM

SERVICES CORPORATION (hereafter collectively

“Defendants”) and against Plaintiff EMERSON M.F. JOU,

M.D. (hereafter “Plaintiff’) as to all claims made in the

Complaint filed herein on July 11, 2003.

It is further ordered that attorneys fees and costs are

hereby awarded against Plaintiff and in favor of the

Defendants as follows:

Appn G. 2

Pursuant to the Order Granting Defendant Argonaut

Insurance Company's Motion for Attorneys’ Fees filed

September 14, 2004, entered on 01/18/05, $12,500 in

attorneys’ fees is awarded to Defendant ARGONAUT

INSURANCE COMPANY;

Pursuant to the Order Granting Defendant City and

County Of Honolulu’s Motion for Attorneys’ Fees Filed on

August 2, 2004, entered on 08/31/04, $5,321.50 in attorneys’

fees, and $238.69 in costs is awarded to Defendant CITY

AND COUNTY OF HONOLULU

Pursuant to the Order Granting Defendant HEMIC’s

Motion For Reconsideration Regarding HEMIC’s Motion for

Attorneys’ Fees Filed on August 25, 2004, entered on march

21, 2005, $8,750.00 in attorneys’ fees and $833.20 in costs is

awarded to Defendant HEMIC aka Hawaii Employers

Medical Insurance Company.

There are no remaining claims, cross-claims,

counterclaims, or parties. Post-judgment interest shall

accrue on monetary amounts awarded in this judgment as

provided by law. Any and all remaining claims are

dismissed with prejudice (GWBChang)

DATED: Honolulu, Hawaii, APR 21, 2005.

PLEASE NOTE CHANGES

IT ISSO ORDERED:

GARY W.B.CHANG

HONORABLE GARY W.B.CHANG

Appn G. 3

APPROVED AS TO FORM:

STEPHEN M. SHAW, ESQ.

Attorney for Provider-Appellant

EMERSON M.F. JOU, M.D.

PATRICK K. KELLY

PATRICK K. KELLY, ESQ.

Attorney for Defendant

CITY AND COUNTY OF HONOLULU

STEVEN L. GOTO, ESQ.

Attorney for Defendant

MARRIOTT CLAIM SERVICES CORPORATION

BRAD S. PETRUS, ESQ.

Attorney for Defendant

ARGONAUT INSURANCE COMPANY

Jou v. Argonaut Insurance Company, et al.;

Civil No. 03-1-1445-07, Circuit Court of the First Circuit;

FINAL JUDGMENT

AppnG. 4

FILED

2005MAR21 PM 4:06

1575-132

Of Counsel:

BURKE, SAKAI, McPHEETERS, BORDNER,

IWANAGA & ESTES

PATRICIA C. ABURANO 3598-0

JOHN REYES-BURKE 6251-0

ANDREW D. STEWARD 7810-0

Suite 3100 - Mauka Tower, Pacific Guardian Center,

737 Bishop Street

Honolulu, Hawaii 96813

Telephone No. (808) 523-9833

Fax No. (808) 528-1656

Attorneys for Defendant HEMIC

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

EMERSON M.F. JOU, M.D., ) Civil No.

Plaintiff, ) 03-1-1445-07

VS. ) (GWBC)

) (Other Non

ARGONAUT INSURANCE COMPANY, ) _ Vehicle Tort)

An Entity, Form Unknown; CITY AND )

COUNTY OF HONOLULU, A Self-Insured )

Governmental Entity; HEMIC, aka Hawaii )

Employers Medical Insurance Company, __)

An Entity, Form Unknown; And )

MARRIOTT CLAIM SERVICES )

Appendix H. 1

CORPORATION, A Corporation; JOHN

DOE 1-50, DOE ATTORNEYS 1-50,

DOE CORPORATIONS 1-10,

DOE PARTNERSHIPS 1-10, and DOE

GOVERNMENTAL ENTITIES 1-10,

Defendants.

ORDER GRANTING DEFENDANT HEMIC'S

MOTION FOR RECONSIDERATION REGARDING

HEIOC'S MOTION FOR ATTORNEYS'

FEES FILED ON AUGUST 25, 2004

Defendant HEMIC’s MOTION FOR

RECONSIDER REGARDING HEMIC’S MOTION FOR

ATTORNEYS’ FEES FILED ON AUGUST 25, 2004 came

on for hearing in the normal course before the Honorable

Gary W.B. Chang on August 25, 2004, on November 8,

2004, at 3:00 p.m. Stephen Shaw, Esq. appeared on behalf

of Plaintiff Emerson Jou, M.D., Patrick Kelly, Esq.

appeared on behalf of Defendant City and County of

Honolulu, Brad Petrus appeared on behalf of Defendant

Argonaut Insurance Company, and John Reyes-Burke

appeared on behalf of Defendant HEMIC. No other party

appeared at the hearing.

The Court having considered the submissions of

the parties and the records and files herein, and good

cause appearing therefore,

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that HEMIC's Motion For Reconsideration

Regarding HEMIC's Motion For Attorneys’ Fees Filed

Appn H. 2

On August 25, 2004 is GRANTED, and the Court awards

to Defendant HEMIC its requested attorneys’ fees in the

amount of Eight Thousand Seven Hundred and Fifty

Dollars ($8,750.00).

DATED: Honolulu, Hawaii, MAR 21, 2005.

IT ISSO ORDERED:

GARY W.B.CHANG

HONORABLE GARY W.B.CHANG

Approved as to form:

Stephen M. Shaw, Esq.

Attorney for Provider-Appellant

EMERSON M.F. JOU, M.D.

PATRICK K. KELLY

Patrick K. Kelly, Esq.

Attorney for Defendant

City and County of Honolulu

BRAD S. PETRUS, ESQ.

Attorney for Defendant

ARGONAUT INSURANCE COMPANY

Jou v. Argonaut Insurance Company, et al.;

Civil No. 03-1-1445-07 (GWBC)

ORDER GRANTING DEFENDANT HEMIC'S MOTION

FOR RECONSIDERATION REGARDING HEMIC'S

MOTION FOR ATTORNEYS' FEES FILED ON

AUGUST 25, 2004

Appn H. 3

TOM PETRUS & MILLER, LLLC

e FILED- *

2005 FEB 16 AM 11:12

BRAD S. PETRUS 4586-0

Telephone: (808) 792-5803

Finance Factors Center

1164 Bishop Street Suite 650

Honolulu, Hawaii 96813

Facsimile: (808) 792-5809

Attorneys for Defendant

ARGONAUT INSURANCE COMPANY

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

EMERSON M.-F. JOU, M.D., ) Civil No.

Plaintiff, ) 03-1-1445-07

vs. ) (GWBC)

) (Other Non

ARGONAUT INSURANCE COMPANY, )_ Vehicle Tort)

An Entity, Form Unknown; CITY AND )

COUNTY OF HONOLULU, A Seif-Insured )

Governmental Entity; HEMIC, aka Hawaii )

Employers Medical Insurance Company,

An Entity, Form Unknown; And

MARRIOTT CLAIM SERVICES

CORPORATION, A Corporation; JOHN

DOE 1-50, DOE ATTORNEYS 1-50,

DOE CORPORATIONS 1-10,

DOE PARTNERSHIPS 1-10, and DOE

GOVERNMENTAL ENTITIES 1-10,

Defendants. _

Nee Ne Ne Noe eee” ee” Nee” Nee Nee”

Appendix I. 1

ORDER DENYING PLAINTIFF EMERSON M.F.

JOU, M.D.'S MOTION FOR LEAVE TO FILE

SECOND DECLARATION PURSUANT TO HRS

§601-7 TO DISQUALIFY AND TO VACATE

ORDERS MADE BY THE HONORABLE GARY

W.B. CHANG, FILED ON JANUARY 3, 2005

Plaintiff EMERSON M.F. JOU, M.D.'s Motion For

Leave to File Second Declaration Pursuant To HRS 601-7

to Disqualify and to Vacate Orders Made by The

Honorable Gary W.B. Chang, filed on January 3, 2005,

having come on for hearing before The Honorable Gary

W.B. Chang on January 26, 2005, and Stephen M. Shaw

having appeared for the Plaintiff EMERSON M.F. JOU,

M.D., Brad S. Petrue having appeared for Defendant

ARGONAUT INSURANCE COMPANY, Steven L. Goto

having appeared for Defendant MARRIOTT CLAIM

SERVICES CORPORATION, John Reyes-Burke having

appeared for Defendant HEMIC, and Patrick K. Kelly

having appeared ror Defendant CITY AND COUNTY OF

HONOLULU, the Court having considered the written

and oral submissions of counsel and the record and files

herein, and being otherwise fully advised,

IT IS HEREBY ORDERED, ADJUDGED AND >

DECREED that Plaintiff EMERSON M.-F. JOU, M_D.'s

Motion For Leave to File Second Declaration Pursuant To

HRS §601-7 to Disqualify and to Vacate Orders Made by

The Honorable Gary W.B. Chang, filed on January 3, 2005,

be and is hereby DENIED.

DATED: Honolulu, Hawaii, FEB 15, 2005.

THE PACIFIC LAW GROUP

Attorneys At Law, A Law Corporation

STEVEN J. T. CHOW 2927-0 FILED

PATRICK K. KELLY 7290-0 2004 NOV 30 PM 4:07

Topa Financial] Center

Bishop Street Tower, Suite 2000

700 Bishop Street

Honolulu, Hawaii 96813

Telephone No.: 523-2999

Attorneys for Defendant CITY AND COUNTY OF

HONOLULU

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

EMERSON M.-F. JOU, M.D., ) Civil No.

Plaintiff, ) 03-1-1445-07

vs. ) (GWBC)

) (Other Non

ARGONAUT INSURANCE COMPANY, )_ Vehicle Tort)

An Entity, Form Unknown; CITY AND )

COUNTY OF HONOLULU, A Self-Insured )

Governmental Entity; HEMIC, aka Hawaii _ )

Employers Medical Insurance Company,

An Entity, Form Unknown; And

MARRIOTT CLAIM SERVICES

CORPORATION, A Corporation; JOHN

DOE 1-50, DOE ATTORNEYS 1-50,

DOE CORPORATIONS 1-10,

DOE PARTNERSHIPS! -10, and DOE

GOVERNMENTAL ENTITIES 1-10,

Defendants.

Ne ee ee eae wae GS

Appendix J. 1

ORDER DENYING "PLAINTIFF ERSON M.F. JOU,

M.D.'S MOTION FOR RECONSIDERATION; OR FOR

RELIEF FROM ORDERS (1) GRANTING

DEFENDANT CITY AND COUNTY OF HONOLULU'S

MOTION FOR ATTORNEYS' FEES FILED ON

AUGUST 2, 2004, AND (2) GRANTING DEFENDANT

HEMIC’S JOINDER TO DEFENDANT CITY AND

COUNTY OF HONOLULU'S MOTION FOR

ATTORNEY'S FEES" FILED ON SEPTEMBER 9, 2004

Plaintiff EMERSON M. F. JOU, M.D., having

moved this Honorable Court for reconsideration or for

relief from the Order: granting Defendant CITY AND

COUNTY OF HONOLULU's Motion for Attorneys'

Fees and Defendant HEMIC's joinder therein, said

Orders being filed on August 31, 2004;

Said Motion having come for hearing on

November 8, 2004, at 3:00 p.m., before the Honorable

Gary W. B. Chang, Judge of the above-entitled Court;

Plaintiff being represented by Stephen M. Shaw, Esq.;

Defendant CITY AND COUNTY OF HONOLULU

being represented by Patrick K. Kelly, Esq.; Defendant

ARGONAUT INSURANCE COMPANY being

represented by Brad S. Petrus, Esq.;

Defendant HEMIC being represented by John

N.K. Reyes-Burke, Esq.; Defendant MARRIOTT CLAIM

SERVICES CORPORATION having filed a Statement of

No Position and Non-Appearance; the Court having

reviewed the records and files herein, heard the

arguments of counsel, and being duly advised in the

premises;

Appn J. 2

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that Plaintiff EMERSON M. F. JOU, M.D.'s

Motion for Reconsideration; or for Relief from Orders

(1) Granting Defendant City and County of Honolulu's

Motion for Attorneys' Fees Filed on August 2, 2004, and

(2) Granting Defendant HEMIC's Joinder to Defendant

City and County of Honolulu's Motion for Attorney's

Fees is DENIED.

DATED: Honolulu, Hawaii,

JUDGE OF THE ABOVE-ENTITLED COURT

APPROVED AS TO FORM:

STEPHEN M. SHAW

Attorney for Plaintiff

EMERSON M. F. JOU, M.D.

BRAD S. PETRUS

Attorney for Defendant

ARGONAUT INSURANCE COMPANY

a. \

JOHN N.K. REYES-BURKE

Attorney for Defendant

HEMIC Appn. J.3

THE PACIFIC LAW GROUP

Attorneys At Law, A Law Corporation

STEVEN J.T. CHOW 2927-0 FILED

PATRICK K. KELLY 7290-0 2004AUG31 PM3%54

Topa Financial Center

Bishop Street Tower, Suite 2000

700 Bishop Street

Honolulu, Hawaii 96813

Telephone No.: 523-2999

Attorneys for Defendant CITY AND COUNTY OF

HONOLULU

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

EMERSON M.-F. JOU, M.D., ) Civil No.

Plaintiff, ) 03-1-1445-07

vs. ) (GWBC)

) (Other Non

ARGONAUT INSURANCE COMPANY, ) _ Vehicle Tort)

An Entity, Form Unknown; CITY AND ) |

COUNTY OF HONOLULJU, A Self-Insured )

Governmental Entity; HEMIC, aka Hawaii )

Employers Medical Insurance Company,

An Entity, Form Unknown; And

MARRIOTT CLAIM SERVICES

CORPORATION, A Corporation; JOHN

DOE 1-50, DOE ATTORNEYS 1-50,

DOE CORPORATIONS 1-10,

DOE PARTNERSHIPS 1-10, and DOE

GOVERNMENTAL ENTITIES 1-10,

Defendants.

Nee Nee ee Ne ee Nee” ee” Nee”

Appendix K. 1

ORDER GRANTING DEFENDANT CITY AND

COUNTY OF HONOLULU'S MOTION FOR

ATTORNEYS' FEES FILED ON AUGUST 2, 2004

Defendant CITY AND COUNTY OF HONOLULU,

having moved this Honorable Court for an Order

awarding attorneys' fees;

Said Motion having regularly come for hearing

on August 25, 2004, at 3:00 p.m., before the Honorable

Gary W. B. Chang, Judge of the above-entitled Court;

Defendant CITY AND COUNTY OF HONOLULU being

represented by Patrick K. Kelly, Esq.; Defendant HEMIC

being represented by John N.K. Reyes-Burke, Esq and no

other party appearing; the Court having reviewed the

records and files herein, heard the arguments of counsel,

and being duly advised in the premises;

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that Defendant CITY AND COUNTY OF

HONOLULU's Motion for Attorneys' Fees is GRANTED

and Defendant CITY AND COUNTY OF HONOLULU is

hereby awarded attorneys' fees in the amount of

$5,321.50.

DATED: Honolulu, Hawaii,

JUDGE OF THE ABOVE-ENTITLED COURT

APPROVED AS TO FORM:

Appn K. 2

AYABE, CHONG, NISHIMOTO, SIA & NAKAMURA

A Limited Liability Law Partnership FILED

2004 AUG 31 AM 11:08

RICHARD F. NAKAMURA 1817-0

STEVEN L. GOTO 6041-0

Bishop Square - Pauahi Tower

1001 Bishop Street, Suite 2500

Honolulu, Hawaii 96813

Tel. No.: (808) 537-6119

Attorneys for Defendant MARRIOTT

CLAIM SERVICES CORPORATION, A

Corporation

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

EMERSON MF. JOU, M.D., ) Civil No.

Plaintiff, ) 03-1-1445-07

vs. ) (GWBC)

) (Other Non

ARGONAUT INSURANCE COMPANY, )_ Vehicle Tort)

An Entity, Form Unknown; CITY AND )

COUNTY OF HONOLULU, A Self-Insured)

Governmental Entity; HEMIC, aka Hawaii )

Employers Medical Insurance Company,

An Entity, Form Unknown; And

MARRIOTT CLAIM SERVICES

CORPORATION, A Corporation; JOHN

DOE 1-50, DOE ATTORNEYS 1-50,

DOE CORPORATIONS 1-10,

DOE PARTNERSHIPS|1-10, and DOE

GOVERNMENTAL ENTITIES 1-10,

Defendants. _

tll i i i i

Appendix L. 1

ORDER GRANTING DEFENDANT MARRIOTT CLAIMS

SERVICE CORPORATION'S SUBSTANTIVE JOINDER |

IN DEFENDANT CITY AND COUNTY OF HONOLULU'S

MOTION FOR SUMMARY JUDGMENT,

FILED FEBRUARY 24, 2004, FILED HEREIN ON

MARCH 11, 2004

The matter of Defendant MARRIOTT CLAIMS SERVICE

CORPORATIONS Substantive Joinder to Defendant City

and County of Honolulu's Motion for Summary Judgment,

filed February 24, 2004, filed on March 11, 2004, having come

on for hearing before the Honorable Gary Won Bae Chang on

April 2, 2004, at 10:30 a.m., and Stephen M. Shaw, Esq,

appeared on behalf of Plaintiffs, Steven L. Goto, Esq., appeared

on behalf of Defendant Marriott Claims Service Corporation,

John Reyes-Burke, Esq. appeared on behalf of Defendant

HEMIC, and Patrick Kelly, Esq., having appeared on behalf

of Defendant the City and County of Honolulu, and the

Court having fully considered Defendant The City and County

of Honolulu's Motion for Summary Judgment, Memorandum

in Support of Motion,' Supporting Declaration and Exhibits

attached thereto, Defendant Marriott Claims Services

Corporation's Substantive Joinder and the oral arguments in

support of, and in Opposition thereto, and the records and files

herein, and the Court being fully apprised in the premises,

Appn L.2

IT IS HEREBY ORDERED that Defendant Marriott Claims

Services Corporation's Substantive Joinder to Defendant City

and County of Honolulu's Motion for Summary Judgment,

filed on February 24, 2004, filed herein on March 11, 2004 is

GRANTED.

DATED: Honolulu, Hawaii, AUG 30,2004 .

JUDGE OF THE

APPROV FORM:

ay on —iitiniiidiatcaeeivens

STEPHEN M. SHAW, ESO. Attorney for Plaintiff

EMERSON M.F. JOU, M.D.

sagas

Atomeys

HEMIC

=_ <a

PATRICK K. KELLY, ESQ.

Attorneys for Defendant

CITY AND COUNTY OF HONOLULU

Emerson M.F. Jou, M.D., Plaintiff, V..Argonaut Insurance

Company, et al.; Civil No.: 03-11445-07; ORDER GRANTING

DEFENDANT MARRIOTT CLAIMS SERVICE

CORPORATION'S SUBSTANTIVE JOINDER IN DEFENDANT

CITY AND COUNTY OF HONOLULU'S MOTION FOR

SUMMARY JUDGMENT, FILED FEBRUARY 24, 2004.

Appn L. 3

1575-132

Of Counsel: FILED

BURKE, SAKAI, McPHEETERS, 2004 AUG 31 PM 4:00

BORDNER, IWANAGA & ESTES

PATRICIA C. ABURANO 3598-0

JOHN REYES-BURKE 6251-0

ANDREW D. STEWART 7810-0

Suite 3100 - Mauka Tower

Pacific Guardian Center

737 Bishop Street

Honolulu, Hawaii 96813

Telephone No. (808) 523-9833

Fax No. (808) 528-1656

Attorneys for Defendant

HEMIC

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

EMERSON M.F. JOU, M.D., ) Civil No.

Plaintiff, ) 03-1-1445-07

vs. ) (GWBC)

) (Other Non

ARGONAUT INSURANCE COMPANY, )_ Vehicle Tort)

An Entity, Form Unknown; CITY AND }

COUNTY OF HONOLULU, A Self-Insured )

Governmental Entity; HEMIC, aka Hawaii )

Employers Medica] Insurance Company,

An Entity, Form Unknown; And

MARRIOTT CLAIM SERVICES

CORPORATION, A Corporation; JOHN

DOE 1-50, DOE ATTORNEYS 1-50,

DOE CORPORATIONS I-10,

DOE PARTNERSHIPS 1-10, and DOE

GOVERNMENTAL ENTITIES 1-10,

Defendants.

Nee eee ee ee “ee

Appendix M. 1

ORDER GRANTING DEFENDANT HEMIC'S

JOINDERTO DEFENDANT CITY AND COUNTY

OF HONOLULU'SMOTION FOR ATTORNEYS'

FEES FILED. ON AUGUST 2, 2004

Defendant City and County of Honolulu's Motion

For Attorneys' Fees filed on August 2, 2004, came on for

hearing in the normal course before the Honorable Gary

W.B. Chang on August 25, 2004, at 3:00 p.m. Patrick K.

Kelly, Esq. appeared on behalf of Defendant City and

County of Honolulu, and John Reyes-Burke appeared on

behalf of Defendant HEMIC. No other party appeared at

the hearing.

The Court having considered the submissions of

the parties and the records and files herein, and good

cause appearing therefore,

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that HEMIC's joinder in Defendant City and

County of Honolulu's Motion For Attorneys' Fees filed on

August 2, 2004 is GRANTED.

DATED: Honolulu, Hawaii, _AUG 31, 2004 .

JUDGE OF THE ABO

APPROVED AS TO FORM:

Pe a

PATRICK K. KELLY, ESQ.

Attorneys for Defendant

CITY AND COUNTY OF HONOLULU

Appn M. 2

1575-132

Of Counsel: FILED

BURKE, SAKAI, McPHEETERS, 2004 AUG 5 AM 11:19

BORDNER, IWANAGA & ESTES

PATRICIA C. ABURANO 3598-0

JOHN REYES-BURKE 6251-0

ANDREW D. STEWART 7810-0

Suite 3100 - Mauka Tower

Pacific Guardian Center

737 Bishop Street

Honolulu, Hawaii 96813

Telephone No. (808) 523-9833

Fax No. (808) 528-1656

Attorneys for Defendant

HEMIC

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

EMERSON M.F. JOU, M.D., )

Plaintiff, )

vs. )

)

ARGONAUT INSURANCE COMPANY, )

An Entity, Form Unknown; CITY AND )

COUNTY OF HONOLULU, A Self-Insured )

Governmental Entity; HEMIC, aka Hawaii )

Employers Medical Insurance Company,

An Entity, Form Unknown; And

MARRIOTT CLAIM SERVICES

CORPORATION, A Corporation; JOHN

DOE 1-50, DOE ATTORNEYS 1-50,

DOE CORPORATIONS 1-10,

DOE PARTNERSHIPS1-10, and DOE

GOVERNMENTAL ENTITIES 1-10,

Defendants.

Nee Nee Nee ee Ne Nee ee ee” ee”

Appendix N. 1

Civil No.

03-1-1445-07

(GWBC)

(Other Non

Vehicle Tort)

ORDER GRANTING DEFENDANT

HEMIC'S MOTION FOR SUMMARY JUDGMENT

FILED ON MAY 12, 2004

Defendant HEMIC'’s Motion For Summary

Judgment filed on May 12, 2004, came on for hearing in the

normal course before the Honorable Gary W.B. Chang on

June 18, 2004. Stephen M. Shaw, Esq. appeared on behalf of

Plaintiff Emerson M.F. Jou, M.D., Patrick K. Kelly, Esq.

appeared on behalf of Defendant City and County of

Honolulu, and John Reyes-Burke appeared on behalf of

Defendant/ Movant HEMIC.

The Court having considered the submissions of the

parties and the arguments of counsel, and good cause

appearing therefore,

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that HEMIC's Motion For Summary Judgment

filed on May 12, 2004 is GRANTED.

DATED: Honolulu, Hawaii, AUG 04 2004 .

GARY W. B. CHANG

JUDGE OF THE ABOVS

APPROV FORM:

STEPHEN M. SHAW, ESQ.

Attorney for Plaintiff EMERSON M.-F. JOU, M.D.

on ae

Attorneys for Defendant

CITY AND COUNTY OF HONOLULU

Appn N. 2

PATRICK K. KELLY, ESQ.

THE PACIFIC LAW GROUP

Attorneys At Law, A Law Corporation

STEVEN J. T. CHOW 2927-0 FILED

PATRICK K. KELLY 7290-0 2004 MAY 14 PM 3:43

Topa Financial Center

Bishop Street Tower, Suite 2000

700 Bishop Street

Honolulu, Hawaii 96813

Telephone No.: 523-2999

Attorneys for Defendant

CITY AND COUNTY OF HONOLULU

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

EMERSON M.F. JOU, M.D., ) Civil No.

Plaintiff, ) 03-1-1445-07

vs. ) (GWBC)

) (Other Non

ARGONAUT INSURANCE COMPANY, ) _ Vehicle Tort)

An Entity, Form Unknown; CITY AND )

COUNTY OF HONOLULU, A Self-Insured)

Governmental Entity; HEMIC, aka Hawaii )

Employers Medical Insurance Company,

An Entity, Form Unknown; And

MARRIOTT CLAIM SERVICES

CORPORATION, A Corporation; JOHN

DOE 1-50, DOE ATTORNEYS 1-50,

DOE CORPORATIONS 1-10,

DOE PARTNERSHIPS 1-10, and DOE

GOVERNMENTAL ENTITIES 1-10,

Defendants.

Nem Ne Ne ee ees ea ws

Appendix O. 1

ORDER GRANTING DEFENDANT CITY AND

COUNTY OF HONOLULU'S MOTION FOR

SUMMARY JUDGMENT FILED ON

FEBRUARY 24, 2004

Defendant CITY AND COUNTY OF HONOLULU,

having moved this Honorable Court for an Order granting

summary judgment on all causes of action against it;

Said Motion having regularly come for hearing on

April 2, 2004, at 10:30 a.m. before the Honorable Gary W. B.

Chang, Judge of the above-entitled Court; Plaintiff being

represented by Stephen M. Shaw, Esq.; Defendant CITY

AND COUNTY OF HONOLULU being represented by

Patrick K. Kelly, Esq.; Defendant MARRIOT CLAIM

SERVICES CORPORATION being represented by Steven L.

Goto, Esq.; Defendant HEMIC being represented by John

N.K. Reyes-Burke, Esq.; the Court having reviewed the

records and files herein, heard the arguments of counsel, and

being duly advised in the premises;

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that Defendant CITY AND COUNTY OF

HONOLULU's Motion for Summary Judgment is

GRANTED.

Appn O.2

DATED: Honolulu, Hawaii, MAY 14 2004 .

GARY W.B. CHANG

JUDGE OF THE ABOVE-ENTITLED COURT

“ty TO FORM:

JOHN N.K. REYES-BURKE

STEPHEN M. SHAW JOHN N.K. REYES-BURKE

Attomey for Plaintiff Attorney for Defendant

EMERSON M.-F. JOU, M.D. HEMIC

STEVEN L. GOTO

Attorney for Defendant

MARRIOT CLAIM SERVICES CORPORATION

Appn O. 3

1575-132

Of Counsel: FILED

BURKE, SAKAI, McPHEETERS, 2004 APR 15 AM 11:20

BORDNER, IWANAGA & ESTES

EDMUND BURKE 704-0

PATRICIA C. ABURANO 3598-0

JOHN REYES-BURKE 6251-0

Suite 3100 - Mauka Tower

Pacific Guardian Center

737 Bishop Street

Honolulu, Hawaii 96813

Telephone No. (808) 523-9833

Fax No. (808) 528-1656

Attorneys for Defendant

HEMIC

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

EMERSON M.F. JOU, M.D., ) Civil No.

Plaintiff, ) 03-1-1445-07

vs. ) (GWBC)

) (Other Non

ARGONAUT INSURANCE COMPANY, )_ Vehicle Tort)

An Entity, Form Unknown; CITY AND )

COUNTY OF HONOLULU, A Self-Insured)

Governmental Entity; HEMIC, aka Hawaii )

Employers Medical Insurance Company,

An Entity, Form Unknown; And

MARRIOTT CLAIM SERVICES

CORPORATION, A Corporation; JOHN

DOE 1-50, DOE ATTORNEYS 1-50,

DOE CORPORATIONS 1-10,

DOE PARTNERSHIPS1-10, and DOE

GOVERNMENTAL ENTITIES 1-10,

Defendants.

Ne Nee eee ee ee ee”

Appendix P. 1

ORDER DENYING PLAINTIFF'S MOTION FOR

SUMMARY JUDGMENT AS TO DEFENDANTS

CITY AND COUNTY OF HONOLULU,

MARRIOTT CLAIMS SERVICES CORPORATION

AND HEMIC, FILED FEBRUARY 17, 2004, AND

DENYING WITHOUT PREJUDICE DEFENDANT

MARRIOTT CLAIMS SERVICES

CORPORATION'S MOTION FOR SUMMARY

IUDGMENT FILED ON MARCH 11, 2004

Plaintiff Emerson M. F. Jou, M.D.'s ("Plaintiff's")

Motion For Summary Judgment As To Defendants City

And County of Honolulu, Marriott Claims Services

Corporation, and HEMIC, filed on February 17, 2004,

and Defendant Marriott Claims Services

Corporation's request for summary judgment made

on March 11, 2004, came on for hearing before the

Honorable Gary W. B. Chang, on March 19, 2004.

Stephen M. Shaw appeared for Plaintiff, Steven L.

Goto appeared for Defendant Marriott Claims Services

Corporation, Patrick K. Kelly appeared for Defendant

City and County of Honolulu, and John Reyes-Burke

appeared for Defendant HEMIC.

After reviewing the submissions and arguments

of the parties, the Court is unable to conclude there are

no disputed issues of material fact, or that the Movant

is entitled to judgment as a matter of law.

IT IS HEREBY ORDERED that Plaintiff's above-

described Motion is DENIED.

Appn P. 2

With respect to the request for summary

judgment made by Marriott Claims Services

Corporation, the Court finds that the request made on

March 11, 2004 does not afford the requisite period of

notice, and therefore the Court DENIES Marriott's

above-described request for judgment WITHOUT

PREJUDICE.

DATED: Honolulu, Hawaii, _APR 13, 2004 .

APPROV O FORM:

STEPHEN M. SHAW, ESO.

Attorney for Plaintiff

EMERSON M-F. JOU, M.D.

STEVEN L. GOTO

Attorney for Defendant

MARRIOT CLAIM SERVICES CORPORATION

PATRICK K. KELLY.

PATRICK K. KELLY, ESQ.

Attorneys for Defendant

CITY AND COUNTY OF HONOLULU

[JOHN REYES-BURKE

JOHN REYES-BURKE

Attorney for Defendant

HEMIC

Appn P. 3

1575-132

Of Counsel: FILED

BURKE, SAKAI, McPHEETERS, 2004 APR 15 AM 11:20

BORDNER, IWANAGA & ESTES

EDMUND BURKE 704-0

PATRICIA C. ABURANO 3598-0

JOHN REYES-BURKE 6251-0

Suite 3100 - Mauka Tower

Pacific Guardian Center

737 Bishop Street

Honolulu, Hawaii 96813

Telephone No. (808) 523-9833

Fax No. (808) 528-1656

Attorneys for Defendant

HEMIC

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

Civil No.

03-1-1445-07

(GWBC)

(Other Non

ARGONAUT INSURANCE COMPANY, )_ Vehicle Tort)

An Entity, Form Unknown; CITY AND )

COUNTY OF HONOLULU, A Self-Insured)

Governmental Entity; HEMIC, aka Hawaii )

Employers Medical Insurance Company,

An Entity, Form Unknown; And

MARRIOTT CLAIM SERVICES

CORPORATION, A Corporation; JOHN

DOE 1-50, DOE ATTORNEYS 1-50,

DOE CORPORATIONS 1-10,

DOE PARTNERSHIPS!1-10, and DOE

GOVERNMENTAL ENTITIES 1-10,

Defendants.

EMERSON M.F. JOU, M.D.,

Plaintiff,

vs.

New eee ee ee ee Nee ee Ne”

Appendix Q. 1

ORDER DENYING PLAINTIFF EMERSON M. F.

JOU, M.D.'S MOTION TO DISQUALIFY THE

HONORABLE GARY W.B. CHANG ON

CONSTITUTIONAL GROUNDS, FILED

FEBRUARY 17, 2004

Plaintiff Emerson M. F. Jou, M.D.'s

("Plaintiff's") Motion To Disqualify The Honorable

Gary W.B. Chang On Constitutional Grounds, filed

herein on February 17, 2004 ("Motion to Disqualify"),

came on for hearing in the normal course before the

Honorable Gary W. B. Chang on March 19, 2004. Stephen

M. Shaw appeared for Plaintiff, Steven L. Goto appeared

for Defendant Marriott Claims Services Corporation,

Patrick K. Kelly appeared for Defendant City and

County of Honolulu, and John Reyes-Burke appeared

for Defendant HEMIC.

After due consideration of the submissions and

the arguments of the parties,

IT IS HEREBY ORDERED that Plaintiff's Motion to

Disqualify is DENIED.

Appn Q.2

DATED: Honolulu, Hawaii, APR 13, 2004 .

APPROVED A FORM:

STEPHEN M. SHAW, ESQ.

Attorney for Plaintiff

EMERSON M.F. JOU, M.D.

STEVEN L. GOTO

Attorney for Defendant

MARRIOT CLAIM SERVICES CORPORATION

PATRICK K. KELLY.

PATRICK K. KELLY, ESQ.

Attorneys for Defendant

CITY AND COUNTY OF HONOLULU

JOHN REYES-BURKE

Attorney for Defendant

HEMIC

Appn Q.3

TOM PETRUS & MILLER, LLLC

e FILED-«.

2003 DEC 17 AM 11:53

BRAD S. PETRUS 4586-0

Telephone: (808) 792-5803

Finance Factors Center

1164 Bishop Street, Suite 650

Honolulu, Hawaii 96813

Facsimile: (808) 792-5809

Attorneys for Defendant .

ARGONAUT INSURANCE COMPANY

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

EMERSON M.F. JOU, M.D., ) Civil No.

Plaintiff, ) 03-1-1445-07

vs. ) (GWBC)

) (Other Non

ARGONAUT INSURANCE COMPANY, )_ Vehicle-Fert)-

An Entity, Form Unknown; CITY AND )

COUNTY OF HONOLULU, A Self-Insured )

Governmental Entity; HEMIC, aka Hawaii )

Employers Medical Insurance Company,

An Entity, Form Unknown; And

MARRIOTT CLAIM SERVICES

CORPORATION, A Corporation; JOHN

~~ DOE 1-50, DOE ATTORNEYS 1-50,

DOE CORPORATIONS 1-10,

DOE PARTNERSHIPS!-10, and DOE

GOVERNMENTAL ENTITIES 1-10,

Defendants.

Appendix R. 1

ORDER DENYING PLAINTIFF EMERSON MF. JOU,

M.D.'S MOTION FOR LEAVE TO AMEND

COMPLAINT FILED ON SEPTEMBER 25, 2003

Plaintiff EMERSON M.F. JOU, M.D.

("Jou"), by and through his attorney, filed a Motion for

Leave to Amend Complaint herein on September 25, 2003

(hereinafter "Plaintiff Jou's Motion"). Defendants

ARGONAUT INSURANCE COMPANY and CITY AND

COUNTY OF HONOLULU, by and through their respective

counsel, filed Memoranda in Opposition to Plaintiff Jou's

Motion on October 6, 2003 and October 7, 2003,

respectively. Defendants HEMIC and MARRIOTT CLAIM

SERVICES CORPORATION, by and through their

respective counsel, filed Joinders to Defendant Argonaut

Insurance Company's Memorandum in Opposition to

Plaintiff Jou's Motion. Plaintiff Jou's Motion is a non-

hearing Motion.

The Court, having reviewed Plaintiff Jou's Motion

and the Memoranda in Opposition to Plaintiff Jou's Motion

and being duly advised of the record and file herein, for

good cause appearing therefor hereby ORDERS,

ADJUDGES AND DECREES that Plaintiff EMERSON M.F.

JOU, M.D.'s Motion for Leave to Amend Complaint filed

herein on September 25, 2003 be and is hereby DENIED on

the grounds of futility.

DATED: Honolulu, Hawaii, DEC 16, 2003.

GARY Wi. &. Cisnnc f° CRAY

JUDGE OF THE ABOVE-EN@&TLED-

Appn R. 2

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.