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NO. CAAP-18-0000923

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

LOLITA SILVA, Individually and as Special Administrator

of the ESTATE OF HAL T. SILVA, deceased, BRIAN SMITH,

and KELLY HEIMAN, Plaintiffs-Appellants, v.

NELSON ALANA, in his Individual and Official Capacity,

Defendant-Appellee

and

JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10;

DOE CORPORATIONS 1-10; ROE "NON–PROFIT" CORPORATIONS 1-10;

and ROE GOVERNMENTAL ENTITIES 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT

(CIVIL NO. 12-1-0778(1))

SUMMARY DISPOSITION ORDER

(By: Leonard, Acting Chief Judge, Hiraoka and Nakasone, JJ.)

Plaintiffs-Appellants Lolita Silva, individually and as

Special Administrator of the Estate of Hal T. Silva, deceased,

Brian Smith, and Kelly Heiman (collectively, Appellants) appeal

from the Judgment (Judgment) entered by the Circuit Court of the

Second Circuit (Circuit Court) on November 21, 2018.1 Appellants

also challenge the Circuit Court's March 13, 2015 Order Denying

Plaintiffs' Motion for an Order Directing Entry of Final

1 The Honorable Rhonda I.L. Loo presided. 

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000923

27-FEB-2024

07:49 AM

Dkt. 67 SO
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Judgments Pursuant to [Court Annexed Arbitration Program (CAAP)]

Awards Dated December 8, 2014 (Order Denying Motion for Final

Judgments) and the November 21, 2018 Order Granting Defendant

Nelson Alana's [(Alana's)] Motion for Summary Judgment Filed

September 17, 2018 (Order Granting Motion for Summary Judgment). 

Appellants raise four points of error on appeal,

contending that the Circuit Court erred in: (1) ruling that

Alana properly and timely appealed the CAAP Arbitration Award for

Hal Silva (Silva) and Lolly Silva; (2) ruling that Alana properly

and timely appealed the CAAP Arbitration Award for Brian Smith

(Smith) and Kelly Heiman; (3) granting Alana's Motion for Summary

Judgment and entering a Final Judgment against Appellants; and

(4) granting Alana's post-judgment Motion for Costs. 

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

resolve Appellants' points of error as follows:

(1 & 2) Appellants argue, on various grounds, that

Alana's December 10, 2014 Notice of Appeal and Request for Trial

De Novo (the CAAP NOA) was defective and the Circuit Court erred

in concluding otherwise.

Hawai#i Arbitration Rules (HAR) Rule 22 permits parties

to request a trial de novo and after a CAAP arbitration award and

states, in pertinent part: 

Rule 22. REQUEST FOR TRIAL DE NOVO

(A) Within twenty (20) days after the award is served

upon the parties, any party may file with the clerk of the

court and serve on the other parties and the Arbitration

Administrator a written Notice of Appeal and Request for

Trial De Novo of the action. This period may be extended,

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to a period of no more than forty (40) days after the award

is served upon the parties, by stipulation signed by all

parties remaining in the action and filed with the

Arbitration Administrator within twenty (20) days after

service of the award upon the parties.

(Emphasis added).

HAR Rule 2 states: 

Rule 2. INTENT OF PROGRAM AND APPLICATION OF RULES

(A) The purpose of the [CAAP] is to provide a

simplified procedure for obtaining a prompt and equitable

resolution of certain civil matters to be designated by the

Judicial Arbitration Commission.

(B) These rules shall not be applicable to arbitration

by private agreement or to other forms of arbitration under

existing statutes, policies and procedures. 

(C) These arbitration rules are not intended, nor

should they be construed, to address every issue which may

arise during the arbitration process. The intent of these

rules is to give considerable discretion to the arbitrator,

the Arbitration Administrator, the Arbitration Judge, and

the Judicial Arbitration Commission. Arbitration hearings

are intended to be informal, expeditious and consistent with

the purposes and intent of these rules. 

(Emphasis added).

Consistent with the simplified requirements stated in

HAR Rule 22 and the intent of the CAAP program, we conclude that

the CAAP NOA complied with HAR Rule 22 and that the Circuit Court

was not deprived of jurisdiction to hear the appeal. HAR 22 does

not require an appellant to attach a copy of the award(s)

appealed from to the notice of appeal. We similarly conclude

that the reference in the CAAP NOA to the date the arbitration

awards were filed (December 9, 2014), rather than the date the

arbitration awards were signed by the CAAP arbitrator (December

8, 2014), did not render the CAAP NOA defective or deprive the

Circuit Court of jurisdiction over the appeal.

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(3) Appellants argue, on various grounds, that the

Circuit Court erred in granting Alana's Motion for Summary

Judgment. 

In this case, the discovery deadline had already passed

when the Circuit Court granted Alana's Motion for Summary

Judgment. Therefore, the applicable summary judgment standard

was as follows:

Where the moving party is the defendant, who does not bear

the ultimate burden of proof at trial, summary judgment is

proper when the non-moving party-plaintiff

fails to make a showing sufficient to establish the

existence of an element essential to that party's

case, and on which that party will bear the burden of

proof at trial. In such a situation, there can be no

genuine issue as to any material fact, since a

complete failure of proof concerning an essential

element of the nonmoving party's case necessarily

renders all other facts immaterial. The moving party

is entitled to judgment as a matter of law because the

nonmoving party has failed to make a sufficient

showing on an essential element of [his or] her case

with respect to which [he or] she has the burden of

proof. 

Exotics Hawaii-Kona, Inc. v. E.I. Du Pont de Nemours & Co., 116

Hawai#i 277, 302, 172 P.3d 1021, 1046 (2007) (citation omitted;

emphasis altered). 

Thus, we consider whether Alana demonstrated that there

was no evidence that Appellants would be able to carry their

burden at trial.

Workers's compensation is generally an injured

employee's exclusive remedy for an injury sustained in the course

of employment. Iddings v. Mee-Lee, 82 Hawai#i 1, 5, 919 P.2d

263, 267 (1996). HRS § 386-8(a) (Supp. 2022) "extends immunity

from suit to an injured worker's co-employees." See Iddings, 82

Hawai#i at 6, 919 P.2d at 268. HRS § 386-8(k) (Supp. 2022),

however, permits employees to sue co-employees if the personal

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injury is caused by his or her wilful and wanton misconduct. Id.

In Iddings, the supreme court held: 

[T]he term "wilful and wanton misconduct," as used in HRS §

386-8, includes conduct that is either: (1) motivated by an

actual intent to cause injury; or (2) committed in

circumstances indicating that the injuring employee (a) has

knowledge of the peril to be apprehended, (b) has knowledge

that the injury is a probable, as opposed to a possible,

result of the danger, and (c) consciously fails to avoid the

peril.

Id. at 12, 919 P.2d at 274. "Wilful and wanton misconduct" also

includes "reckless conduct that lacks a specific intent to cause

injury and intentional conduct motivated by a specific intent to

cause injury." Id. at 7, 919 P.2d at 269. Claims brought under

HRS § 386-8(k) are required to be proven by clear and convincing

evidence. Id. at 12-13, 919 P.2d at 274-75.

 Here, it is undisputed that Alana did not actually

intend to injure Silva and Smith, who were injured when they

inhaled carbon monoxide gas from a running generator in a closed

shed next to the air vent into their office. Appellants argue,

however, that there was evidence that Alana disregarded a risk

that was "known to, or so obvious that [Alana] must be taken to

have been aware of it." Appellants point to, inter alia, the

deposition testimony of Larry Gonsalves (Gonsalves), who averred:

A Yeah. So [Alana] gave me the directive to put the

generator into the shed. And at that time I told him that,

you know, you don't do that type of thing. And he looked at

me and said, "No; put it in the shed." So at that time I

said, "Okay, if I'm going to put this in the shed, you need

to leave the doors open."

So I put it in the shed. And then again I told him,

"I don't think this is a good idea." And at that point he

told me, "You can go, Larry." Like go home. And I just

remember when I was leaving, he closed the doors to the

shed.

Alana testified that he knew that the shed was not

built to "exit the exhaust" from a running generator. Alana also

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said he believed that the generator would run out of fuel after

approximately five minutes; however, this testimony was

contracted by Gonsalves who said that Alana was present when

Gonsalves refueled the generator and that Alana made various

misstatements about what Gonsalves did and said. Evidence in the

record included pictures of the shed and the air vent into the

office just above and behind the shed. There was other

testimonial evidence that arguably showed that Alana was aware of

the risk.

Viewing the evidence in a light most favorable to the

Appellants, we conclude that there is not a "complete failure of

proof" that Alana had knowledge of the peril to be apprehended. 

Similarly, we conclude that a jury could find based on, inter

alia, the testimony of Gonsalves, Alana's own testimony, issues

of credibility, and other evidence in the record that injuries

were likely to result from running a generator in a closed shed

with no proper exhaust, next to the air vent into an adjacent

building where co-workers were working. In addition, there is

evidence in the record that Appellants could meet their burden to

show that Alana consciously failed to avoid the peril. See

Iddings, 82 Hawai#i at 12, 919 P.2d at 74; see also Abadilla v.

Iwata, No. 29851, 2013 WL 5442998, *2 (Haw. App. Sept. 30, 2013),

as corrected (Dec. 11, 2013) (SDO). Accordingly, we conclude

that there were genuine issues of material fact for trial and the

Circuit Court erred in granting summary judgment.

(4) Appellants contend that the Circuit Court erred in

granting Alana's Motion for Costs. In light of the above, we

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conclude that this argument has merit and the award of costs is

vacated without prejudice.

For these reasons, the Circuit Court's November 21,

2018 Judgment and November 21, 2018 Order Granting Motion for

Summary Judgment are vacated. The Circuit Court's March 13, 2015

Order Denying Motion for Final Judgments is affirmed. This case

is remanded to the Circuit Court for further proceedings.

DATED: Honolulu, Hawai#i, February 27, 2024.

On the briefs: /s/ Katherine G. Leonard

Acting Chief Judge

Scott E. Kubota,

for Plaintiffs-Appellants. /s/ Keith K. Hiraoka

Associate Judge

Marie Manuele Gavigan,

Andrew L. Salenger, /s/ Karen T. Nakasone

Deputy Attorneys General, Associate Judge

State of Hawai#i,

for Defendant-Appellee.

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