Siopes v. Kaiser Foundation Health Plan, Inc.. , 130 Haw. 437 ( 2013 )

Concurring Opinion by

McKENNA, J.

I concur in the result, and also with Justice Acoba’s concurring opinion that there was no valid waiver of the Siopeses’ right to jury trial under Article I, Section 13 of the Hawaii Constitution.

I write separately, however, because respectfully, I do not believe Leong v. Kaiser Found. Hosps., 71 Haw. 240, 788 P.2d 164 (1990) is distinguishable. Rather, I believe Leong should be overruled based on the lack of mutual assent to the arbitration agreement exhibited by the facts of that case, pursuant to this court’s later holding in Brown v. KFC Nat’l Mgmt. Co., 82 Hawai'i 226, 921 P.2d 146 (1996).