Mickelson v. United Services Automobile AssociationÂ

Electronically Filed
Supreme Court
SCWC-12-0000535
03-OCT-2013
01:29 PM
SCWC-12-0000535
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
MATHEW S. MIKELSON,
Petitioner/Plaintiff-Appellee,
vs.
UNITED SERVICES AUTOMOBILE ASSOCIATION,
Respondent/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000535; CIV. NO. 99-1856-05)
AMENDED1
ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI,
VACATING IN PART INTERMEDIATE COURT OF APPEALS’ JUDGMENT ON
APPEAL AND REMANDING TO INTERMEDIATE COURT OF APPEALS
(By: Recktenwald, C.J., Nakayama, Acoba, McKenna, and Pollack, JJ.)
On August 20, 2013, Petitioner/Plaintiff-Appellee
Mathew S. Mikelson (Mikelson) filed an application for a writ of
certiorari seeking review of the June 21, 2013 judgment of the
Intermediate Court of Appeals (ICA), including the ICA’s June 20,
2013 Order Approving Request for Appellate Costs. Mikelson raises
the following points of error: (1) the ICA erred in deciding
attorneys’ fees were not awardable under HRS § 431:10-242 for
1
The original order filed on October 3, 2013 is amended to correct the
misspelling of Petitioner’s last name.
arbitration after a lawsuit was required to compel the insurer’s
participation in the arbitration; and (2) the ICA erred by awarding
costs pursuant to Rule 39 of the Hawai'i Rules of Appellate
Procedure where no prevailing party was established.
On June 28, 2013, after the ICA filed its judgment, we
issued an opinion in Hawaiian Ass’n of Seventh-Day Adventists v.
Wong, 130 Hawai'i 36, 305 P.3d 452 (2013), which is applicable to
the second issue raised by Mikelson. In light of the Seventh-Day
Adventists opinion, we conclude the ICA should further consider the
award of appellate costs in this matter. Therefore,
IT IS HEREBY ORDERED that the application for a writ of
certiorari is accepted.
IT IS FURTHER ORDERED that the June 21, 2013 judgment as
it relates to the Order Approving Request for Appellate Costs is
vacated in part, and this case is remanded to the ICA to reconsider
its Order Approving Request for Appellate Costs in light of the
opinion issued in Seventh-Day Adventists, supra. The judgment is
affirmed in all other respects.
DATED: Honolulu, Hawai'i, October 3, 2013.
Gregory W. Kugle and /s/ Mark E. Recktenwald
Tred R. Eyerly,
for petitioner /s/ Paula A. Nakayama
Kevin P.H. Sumida and /s/ Simeon R. Acoba, Jr.
Ward F.N. Fujimoto,
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack