*1 531 SMITH, BONNIE L. and as individually of the Estate of assignee Charles M. Harting, v. NEW Plaintiff-Appellee, ENGLAND COMPANY, MUTUAL LIFE INSURANCE Defendant- Appellant
NO. 14442 (CIV. 88-2787) NO.
FEBRUARY LUM, C.J., PADGETT, HAYASHI,
WAKATSUKI, MOON, AND JJ. *2 MOON, OPINION OF THE COURT BY J. a life This is insurance for case cross-motions involving on the issues of summary judgment coverage standing. (Smith), Bonnie L. Smith that she claims plaintiff-appellee, $25,000 entitled of life insurance under a issued proceeds policy New Mutual Life Insurance by defendant-appellant England (New Smith England). The circuit court with Company agreed on both issues in her favor and granted summary judgments against New We and remand reverse on issue of England. this case for favor of New entry England.
I. are not in New an facts issued England employee dispute. (HPC) life insurance to Hawaii Pacific group College policy sister, case 1984. insured in this was Smith’s Ellen F. July (Mrs. HPC was Harting). Harting employed basis, on a continuously, part-time temporary beginning spring 1985. on August semester of She became a employee later, 2, 1987, she than three months on November Less committed suicide. an
New that benefits be England’s policy provided paid at the time of the employee’s designated beneficiary employee’s However, death. also for a provided waiting period an before insurance as fol- eligible employee coverage, lows: section of
Subject this entitled Policy “Eligibility each Coverages”, employee to be insured under any of the part hereunder shall provided be eligible upon completion shown waiting period below.
[*] [*] [*] (2) who employees Persons become after the effective
date Policy, upon completion three months continuous active service. *3 added.)
(Emphasis was defined in the as “Employee” policy [a]ny person employed compensated for services by . . . regular on a Policyholder permanent full-time basis. added.)
(Emphasis
II.
A. One circuit of the court orders now being granted appealed in favor of Smith on the issue of summary coverage. “continuous, trial court with Smith that the agreed policy language active service” as used in the three-month waiting period provi- sion was not limited to Mrs. Hart- full-time Because employment. had been Hawaii Pacific ing continuously by College employed death, for more three in fact than months at the time of her and was died, that full-time when she the court below found she with under the We eligible disagree coverage policy. the trial court because we find in this case that policy language
is clear. Smith has to create an attempted ambiguity where none exists. (HRS)
Hawaii Revised Statutes 431:10-237 provides § insurance contract shall “[e]very be construed according of its terms and entirety conditions as set forth in the policy.” Smith’s construction of the exclusion of the waiting period in question completely ignores the definition of “employee.” Under the policy, eligibility benefits vests after “completion three months of continuous active service” an who employee, is defined as ... on a “[a]ny person regular employed permanent added). basis” The clear (emphasis implication waiting period is effective after provision only three months of continuous permanent service as a full-time Smith if New this is the employee. argues meaning England intended, it could have made that clear meaning by specifically However, we find the adding implied phrase. waiting period exclusion, written, to be clear and because unambiguous the term as used therein must be read and con- “employee” strued to its as defined in the HRS according meaning policy. 431:10-237. §
The court below found that two determined cov- prerequisites one, the status of the insured as a full-time erage: employee; two, continuous, the insured of three months of completion by *4 active service. With second respect requirement, court found that Mrs. be could Harting’s part-time employment included in the three-month We satisfying disagree requirement. with the trial court’s of the we interpretation policy. Specifically, find the court’s statement not limit continu- that “the does ous, active service to to be incorrect. employees only” [full-time]
First, HRS 431:10-237 that the definition of stated requires § Thus, be used wherever that term employee appears policy. we need is used. The substitute its where the term only meaning read, would then “. . . each waiting period provision [person and for services employed compensated Policyholder... a regular full-time permanent shall be ... eligible upon basis]... of three completion months of continuous active service.” Second, it clear from is of the entire reading waiting period that “continuous active is provision service” limited to full-time service, and should not include service aas part-time employee. its entirety, period provision, reads follows: waiting
Waiting Period-Employees. the section of Subject this entitled Policy each “Eligibility Coverages”, to be under employee insured of the any part employee hereunder shall provided be eligible upon com- pletion shown waiting period below: (1) Persons who are on the effective employees date on the Policy, date issue of the or Policy upon of three completion months of continuous active
service, later; whichever is (2) Persons who become after employees the effective
date of the Policy, of three months upon completion of continuous active service. in mind that
Keeping is defined in die it “employee” policy, (1) (2) is obvious that were meant to subparagraphs separate HPC, basis, on a full-time employees into two cate- employed 1) gories: those who were full-time on the date the employees pol- issued, 2) those icy who became full-time sub- employees date of is sequent (1), issue. It clear that under subparagraph who had employee already three months completed of continuous active service would be covered as of the date issue; if on the date of issue a full-time not have did service, three months of continuous active then that employee would be the three months before required complete effective.
536 (2), becomes a a who
Under person subparagraph issue date would be after the policy required complete employee of continuous active service from date months upon three attained employee that full-time status. The clear implica- which a from of both from reading tion is that the point subparagraphs the three which month is from the date the is calculated period Thus, attains full-time if it can be said that status. even employee was “continu- consecutive semester Harting’s “active,” ous” and such was not rendered as an employee service full-time status. We find that the trial court’s interpretation with definition exclusion not the stated waiting only ignored period of context. but be taken out required phrases employee Brevell, Co. v. National Insurance Northwestern In Life Brevell (Tex. 1956), Ct. a case on point, Douglas S.W.2d 957 App. On June for his for several employer years. worked part-time later, months a full-time Five he became employee. 9,1954, under which he died. The life insurance policy November “new employees Brevell’s mother claimed benefits provided of completing for insurance hereunder on the day shall be eligible service with the employer.” “Employ- six months of continuous as “all full time employees.” was defined the policy ees” “no that there was requirement claimant argued service as have six months of continuous employee insurance,” in order to become eligible full time employee time “as a full had written the phrase that the insurance company Court at The Texas into the 291 S.W.2d policy. employee” as follows: commenting Appeals disagreed, be a full that an employee Obviously, requirement months is not a creature imagi- time for six of this for the company] purposes nation [insurance lawsuit, to the pol- in the amendments was included but when the deceased were in effect Such amendments icy. be conceded It must went to work for the employer. first *6 time if the did not define as a full policy “employee” of then would the employee employer], [the [claimant] have cause to that the deceased was good argue eligible under the terms of the since is no there group policy, but that he had been in the continuous service of question the than more six months at the of his company time However, death. the definition is included in the insur- ance between the and agreement company] [insurance the and it is a of the part contract. employer at 291 S.W.2d case,
In the we have a similar insurance and present policy similar in of arguments favor Smith that the coverage. argues Brevell is the case because Texas court did distinguishable not the in favor of the insured. interpret “ambiguity” According Smith, Brevell “is old, is have wrong, would been decided dif- However, under Hawaii law.” the that the ferently requirement court construe in favor of if ambiguities applies only there an is truly ambiguity.
We with New in case that agree England’s this position in an policy question clearly provided only entitled to of coverage “upon completion waiting period” “three of months continuous active service.” policy separately defined as “employee” including only permanent and that definition employees, throughout the We applied policy. see no simply is found where the ambiguity. Ambiguity only pol whole, icy, when taken as a is subject differing inter reasonably Co., Liberty Mut. Co. v. Nat’l Ins. United Ins. pretations. 69 Haw. 37, 40, 731 167, 170 (1987). P.2d A must court “respect plain terms and not create where exists.” policy none ambiguity Minami, Hawaii, First Ins. Co. Inc. v. State rel. ex 66 Haw. 413, 423-24, 665 648, 655 (1983). P.2d When we view the policy whole, here as a we how it fail to see is to more reasonably subject than one interpretation. Brevell, concede, did court that if the
We would as pol- Smith would have had not the term “employee,” good defined icy that Mrs. had been continuous active cause to argue However, than three service more months her death. prior the case here. The definition simply minority ignores the “employee” so creates specified doing ambiguity it claims exists.
We also view that with the there are disagree minority genuine issues of material fact in this case. Even the do not parties argue existence of fact that would issues material preclude fact, *7 that material facts In summary judgment. agree parties in are not dispute. affidavit of unchallenged record in this case is clear. The HPC, Gedeon, to New S. of attached
Donald Vice President states: motion for summary England’s 8. a full-time permanent That Mrs. became Harting 24, when she was of HPC as of employee August Instructor for the 1987-1988 as an of appointed English Year; Academic 24,1987, That Mrs. was August Harting
9. prior HPC; a of full-time permanent employee [and] 24,1987, Mrs. was 10.That to August Harting prior who, occasion, of on was a HPC part-time employee or assign- appointed temporary teaching part-time ments by HPC[.]
Further, for in Smith’s own cross-motion summary judgment facts in case are on the issue of she this agrees coverage, “[t]he F. HPC on a continu- Ellen was undisputed. Harting employed ous, She a part-time beginning active basis as 1985. employee 24, a on 1987.” permanent August became employee had states that Harting] Smith also original.) “[Mrs. (Emphasis continuous, of HPC since 1985. part-time active been death, the date of her she and that This undisputedf,]” “[b]efore had served HPC as a for continuously actively part-time employee at added.) least two and one-half In years.” (Emphasis support her contention that there are no factual Smith attached disputes, cross-motion, business her records HPC to which included part-time letter be- temporary faculty appointment agreements tween HPC Each and Mrs. letter Harting. agreement temporary covered the one semester employment period and indicated that Mrs. an instructor was either Harting’s appointment “part-time” or with the semester of “temporary.” Beginning spring 1985 up semester of HPC and through spring Mrs. en- Harting tered into five letter agreements for separate temporary employ- 20,1987, On ment. February and HPC entered into a sixth agreement for the 1987-1988 academic 24, 1987, year, which began on wherein August her status to full-time. changed at the
Additionally, on the hearing cross-motions for sum- 14, 1990, mary judgment February following exchange between court counsel occurred: In England’s ... this case Mrs. Hart-
[New Counsel]: full-time, became a ing regular, permanent employee HPC on August
THE COURT: That’s not is it? disputed, really, all, Not at Your I [Smith’s Honor. don’t Counsel]: think there’s factual at all. dispute evidence, From our review the the including business records HPC, we with the that is agree 1) there no that Mrs. parties dispute became full-time on permanent employee August 24,1987, 2) and prior August Harting’s status was on a part-time, basis. temporary
As Smith in her brief so states: “The answering aptly question for the court is to take these facts undisputed the apply However, to them.” wording the that despite position parties law, the question is one of the presented appeal minority points the to the record and seeks to advocate existence of curiously genu- ine issues of fact where themselves that none parties agree exist. that a minority urging issue of fact exists
states:
Why Halt- appellee’s counsel’s concession Mrs. was a ing “part-time” is conclusive employee while the concession of the majority, appellant full- that she was company’s counsel at oral argument time in the is of no significance semester preceding is in the context a little difficult to majority comprehend of a summary judgment.
(Emphasis original.) refers to of the oral argument minority portion
as follows: When what
Justice you.say part-time, Padgett: — know, for a we’re to do is to find out you trying there, moment I were a situation you describing thought doesn’t consider her a college where full-time her semester they employing because are one employee time, working at a she is the same number even if hours semester as a during that working. would be be, ah, what the situation
Counsel: That appears ah, issued on a semester basis is. You’ve contracts got, to an entire took the college position opposed year virtue of the contract that she became “instructor” by a[n] went one .... year above added.) exchange The minority misinterprets (Emphasis “was that Mrs. Halting as a concession New counsel England’s semester,” context of the issue within the full time in the preceding *9 court, in responding Counsel for New England, presented. were, is, with what the facts that merely agreed undisputed HPC did not consider be a Mrs. full-time Harting employee while a basis. on semester New counsel working England’s simply with the court that if even Mrs. was agreed working number same of hours a semester as a during particular regular HPC did not consider her employee, to be “full-time.” It is common a knowledge many hire workers on employers basis, or and that such actu- part-time temporary employees may work While ally eight-hour days weeks. such forty-hour “full-time,” be consider themselves to employees may working their status employment is determined their and not by employer Thus, themselves. by employees the fact that Harting, 24,1987, the same prior August amount hours as working a regular full-time does not her change status. Co., (9th v.
Lloyd Franklin
Insurance
take notice. facts should established and the be laid in only law can thereof. light case, In Smith this no placed condition on her representation were that the facts undisputed for the of only her motion purpose Moreover, for summary judgment. she does not assert on appeal that such concessions of facts were erroneous admissions. Nor do we find that were they erroneous.
Counsel’s decision to controvert or admit in a facts summary is to be based on proceeding presumed examining available, of all analyzing evidence which has especially been submitted in of the motion for support summaiy judgment. Such decisions be tactical and are best left to coun- may strategic or sel, who have full of all their presumably knowledge aspects cases. Where the that the facts are undis- respective agree parties law, and the for the court is one of puted question application role of the court in review should not include second appellate counsel’s his or her reasons for guessing position. that,
In Smith also to the fact as of urging coverage, points 1, 1987, October New a and collected England charged premium from Hawaii Pacific cover Mrs. New College Harting. England did not refund the after it learned Mrs. payments until Harting’s death. Smith that New course of Accordingly, England’s argues it was not conduct from that Mrs. entitled estops Harting claiming However, to be covered on date of her death. it is apparent a the reason New for Mrs. England premium charged that it was incorrect information Hawaii Pacific Col- supplied short, In has no this case. lege. bearing estoppel argument The life insurance was an benefit question for which the insured was her- not required pay any premiums Moreover, self. her the information provided employer the insurance based company company insurance which upon its circumstances collection Such do premiums. support that Mrs. was entitled to insurance at the finding Halting time of her death.
This same also issue was raised in Brevell. The employer Brevell deducted an amount from the deceased’s paycheck cover the for a life premium insurance Plaintiff in group policy. that case that the deduction argued the deceased was proved for the eligible The Texas Court of coverage. Appeals otherwise, held stating:
We are unable to see how this deduction payroll can oper- liable, ate to make the insurance carrier when all of the evidence shows that under the terms conclusively of the itself the deceased was not in policy eligible participate made, insurance at time the deduction group was not so at the time of his death in eligible Novem- ber, 1954.
Brevell, case, 219 S.W.2d at In the we also present conclude that the of an insurance payment by Mrs. premium Harting’s does not to make New when the employer operate England liable excluded policy her from at the time provisions clearly eligibility of her death.
B. The second order also being appealed, granting summary Smith, in favor of of judgment concerns the issue standing Smith’s to claim life claims insurance benefits. Smith to be entitled to of the insurance as a benefi- proceeds either designated or as the ciary of Mrs. husband’s estate. assignee Harting’s Having found in of England favor New on the of we need issue coverage, not consider issue of Smith’s standing.
m. on the we Based reverse the foregoing, summary judgment the issue in favor of Smith and remand this case for entry summary favor New judgment England.
David F. Simons Bonnie L. Smith. plaintiff-appellee (Ward T.Ikehara F. Archie N. brief) Fujimoto with him on the New for defendant-appellant Mutual Life Insurance England Company. PADGETT, J.,
DISSENTING OPINION OF LUM, C.J., WITH WHOM JOINS We dissent. respectfully in a case where cross-motions majority today, filed, were and the motion
summary judgment granted, appellee’s orders a remand for favor entry appellant insurance company. with the flat that the facts in this assertion majority begins so,
case are That demonstrated is undisputed. simply below in the extended discussion of the facts in the record. *12 below,
The in in arguing appellee, support in brief decedent became a conceded her here the permanent 24, 1987, and of HPC on or about August concession, the in the court made the same for same purpose, below. counsel’s that Mrs. was a Harting concession
Why appellee’s is conclusive to the while the con- “part-time” employee majority, of at oral cession the counsel appellant company’s argu- semester is of no sig- ment was full-time in that she the preceding in the is a little difficult to majority, comprehend nificance of a context summary judgment proceeding. to our construction of coun-
The refers majority appellant’s the as a but sel’s admission at oral argument “misinterpretation,” a carrying show that Mrs. had been Harting letters employment hours for several semesters to full load of academic teaching prior
545 construction, admission, so our and counsel’s is in August weighs the accord with facts. majority’s opinion expressly admissions, as it does the in the record. That is these evidence not be what should done on exactly summary judgment. view, is, It in our the exam- court’s to appellate responsibility below, ine the documents in the record which were called to the attention, to determine there a whether issue judge’s of material fact with to whether Mrs. for respect Halting qualified function, at the time her death. It is not our on this appeal, the evidence as the does. weigh majority We think that the authorities our view that we support amply should our not abdicate to examine the in facts the responsibility contracts, record including simply because of concessions that counsel have made may purposes argu- their ing legal theory that Mrs. was covered even if she was a part-time That is employee. that those conces- say cannot, not, sions and should be taken into consideration in decid- ing factual issue when the has reached the litigation stage where factual issues are determined. It be is to supposed say record, should, if there is a issue factual issue pur- such, remain poses summary judgment, and not now be decided evidence, in or weighing concession not. argument, case, from a ninth circuit Lloyd v. majority, quoting Co., Franklin Insurance (9th 1957), Cir. F.2d makes Life concession, below, counsel’s brief and appellant’s principal basis for claim its that the facts are undisputed.
However, Lloyd before the dictum from quoted majori- the Court of for Ninth ty’s opinion, Circuit had this to Appeals say: *13 however,
After was rendered for judgment the Company, she made a motion to vacate on judgment ground there were material of fact unresolved. If this questions true, found had
Court cause appeal proposition reversed, been must have of the fact that each irrespective the contesting parties filed a motion for respectively court, summary judgment. The able of the trial judge however, found there remained on expressly record no “issue as to material fact.” The record so shows. We affirm this holding.
And after the dictum to the concession that had been alluding made, in the which the Court of language the majority quotes, Circuit, here, for the Ninth Appeals unlike the meticu- majority that, went the record to on the docu- lously through demonstrate record, ments in the there was no issue of mate- genuine disputed fact, rial and that the which had been rendered below judgment should be affirmed as a matter of law. reason this found sentence immediately majori- opinion following That sentence reads: “The facts should be established ty’s quote. first, and the law can thereof.” Id. be laid down in only light
In the law on cross-motions for reviewing summary judgment rule, under the identical in 10A C. federal is stated following Wright, Kane, A. Miller and M. Federal Practice and Pro- (2d 1983): cedure: Civil 2d at ed. 16-19 § However, the fact that both are simultaneously parties that there is no issue of fact does arguing that a trial is establish unnecessary thereby empowering the court to enter as it sees fit. As the Third Circuit in Rains v. Cascade explained by Industries, Inc.: are no each
Cross-motions more than a claim by side that it alone is to summary entitled and the of such making inherently judgment, claims does not constitute an contradictory
547 that if one is the other is agreement rejected or necessarily justified that the losing party waives consideration judicial and determination whether issues of material fact exist. If issue such exists it must be a disposed by trial and not on plenary summary judgment. short,
In mere fact that both seek parties summary not constitute does a waiver of a full trial or the judgment to have case to a right presented jury.
There are three reasons cross-motions basically why under Rule 56 do not indicate that the case is necessarily First, for final resolution and the ripe entry judgment. the determination whether a a genuine issue concerning material fact exists is itself a of law that must be question decided the court. It does not what either by depend upon or both of the have about the matter.1 parties may thought (Footnotes omitted.)
In view of the some reiteration of the basic majority opinion, rules, when are applying summary judgments granted, appears necessary. Technicolor,
As we said in Haw. Traeger, Inc. v. 57 118-19, (1976): 551 P.2d 168
On review of a summary judgment proceeding, standard to be this court is identical to that applied by tion, [1] It is in the text referred interesting to note to, is the case of Brawner v. Pearl Assurance among the cases cited in support of that Co., proposi 267 (9th 1958), opinion by Judge F.2d 45 an Cir. written the same Fee who wrote the contrast, definition, Lloyd opinion in stating: summary and who after “In a granted cannot be if there be disputed question material fact. This depend upon may thought determination does not parties what either or both have matter!,]” (267 46), about the F.2d at cites in a opinions support other thereof Cir., Lloyd Company, footnote and then adds v. Franklin Insurance 245 “[s]ee F.2d 896.” the trial court. . . . This means that “. . .
employed by to be drawn the inferences from the facts underlying (such in the materials alleged answers depositions, interrogatories, affidavits) admissions and considered by the court in its determination must be viewed making *15 in the light most favorable to the party opposing Nakamura, 39, 549 motion.” Gum v. Haw. 471 57 P.2d (1976); Lewis, 366, 477 (1970); Aku v. 52 Haw. P.2d 162 628, Abraham v. Garages, Onorato 50 Haw. 446 P.2d Further, (1968). 821 in considering validity under H.R.C.P. Rule granting summary judgment 56(c), the court must determine whether any appellate and, as to a material was raised if not issue fact raised, was entitled to judg whether moving party ment as a of law. . . . matter Keala, 513, (1979); v. Haw. 621 See also Gealon 60 591 P.2d 608, (1979). Hunt v. 60 Haw. P.2d 118 Chang, 594 much reliance for its majority opinion places “finding” 24, a full-time until that Mrs. was not Halting August 1987, Gedeon, Donald S. President of on the affidavit of one Vice is, however, HPC, which it is fact says “unchallenged.” HPC, spring Mrs. Harting’s employment beginning 1985, and a series of letter contracts between her was fixed by HPC. 56(e)
HRCP provides: be and affidavits shall made on per- Supporting opposing facts as would be sonal shall set forth such knowledge, evidence, in shall show affirmatively admissible is to the matters stated testify the affiant competent or therein. Sworn or certified of all parts copies papers in shall be attached thereto thereof referred to an affidavit or served therewith.
549 Park This court stated Cahill v.Hawaiian Paradise Corp., 522, 539, 1356, (1975): 56 Haw. 543 P.2d 1367 H.R.C.P., 56(e), Rule that affidavits in requires support or a motion for “shall be opposing summary judgment made on shall set forth facts as personal such knowledge, evidence, would be admissible in and shall show affirma- affiant that the to the matter tively testify competent stated therein.” To the extent that affidavits did not with this rule should be ... comply they disregarded. Weeks, in First Hawaiian Bank v. Haw. Again, 396-97, (1989), 772 P.2d we stated in footnote 2: 56(e)
HRCP provides part affidavits shall be made on [supporting opposing shall set forth such wouldbe personal knowledge, facts as *16 evidence, admissible in show affirmatively and shall the affiant is testify the matters stated competent therein.
Thus, of an affidavit inadmissible consisting hearsay cannot serve as a basis for or awarding summary denying Nishiki, 430, 434 n.3, Rodriguez v. 65 Haw. judgment. 1145, (1982); 653 P.2d 1148 see Cahill v. n.3 also 522, 539, Hawaiian Paradise 56 543 Corp., Park Haw. 1356, 1367 (1975) (“To P.2d the extent that the affidavits 56(e)] with be disre should comply they [do] [HRCP garded.”). affidavit,
Mr. Gedeon’s insofar as it the terms vary purports of the written of contracts between Mrs. Harting HPC, 1002, violates HRE which provides:
To the content of a or prove writing, photo- recording, the or original graph, writing, recording, photograph 550 as otherwise
required, except in these rules or provided statute. by
Mr. Gedeon’s affidavit falls within none of the set forth exceptions 1003, HRE 1004 and 1007.
In of analysis HRE Bowman, contained in A. Hawaii 1002-2, Rules of (The Evidence Manual at 396 § 1990), Michie Co. it is stated:
“The modem
justification
docu
[original
rule has
from
of
expanded
ment]
fraud to a
prevention
recognition
central
in the
writings occupy
position
law,”
Ltd.,
court Seiler v.
observed the
Lucasfilm,
denied,
(9th Cir.),
F.2d
cert.
basis, semester She beginning of 1985. spring *17 24, became a full-time on August 1987.... In whether there is a on those vital we deciding dispute points, should look at the admissible affidavit of only questionably Gedeon, Mr. and at the statements of counsel at oral argument, briefs, below, and in the at con- memoranda but primarily HPC, tracts between Mrs. well as employment Halting 18, form dated appellant’s 1987. August contracts in the record show that Mrs. Halt- 25, a letter ing, dated October agreement, 1984 and signed by 9,1984, the decedent on November was as a employed “temporary instructor” of for the English 1985 semester to do Spring twelve semester hours of classes and hours twenty week per registration services. preregistration Identical were entered agreements 1985, into before the commencement of the Fall semester for 1986, 1986, semester for Spring the Fall semester for and the Then, 10, 1987, semester for Spring 1987. Hawaii February Pacific wrote a letter to the College decedent her as an appointing “instructor” of for the English 1987-1988 school to do year $12,880 semester hours of twenty-four classes with the salary for the twelve-month period.
Aside from the first which fixed the paragraph salary, hours, title, semester and the the letter was identical with the previ- 18, ous letters. The decedent executed that letter on February for an academic year start 1987.2 August The difference between the four semester contracts previously into, 1987-1988, entered and the contract year are as follows: 1. The first four were for one agreements semester only, i.e., last one a full academic year, two semesters. 2. In the four semester agreements the decedent is referred to instmctor, as a “temporary” the word one-year agreement does not “temporary” appear. hours, first four agreements are for twelve semester That, however,
the last one is for semester twenty-four hours. There are two forms in the record indicating part-time arrangement with two respect to courses in the fall explanation of 1986. There is no in the record of why agreements these were light pre-existing arrangement entered into in for that semester. *18 two, the fact that it explicable by covered rather than
apparently one, semesters.
4. The compensation was somewhat more than doubled. contracts, is, record, In addition to the in there the appel- form, 18, lant’s apparently turned in the decedent on by August It 1987. contains under Full-Time” an which “Employed entry, 1979,”3 crossed-out, to be appears “January and the apparently “10-1-87,” date written in an unknown hand. apparently There is no in the record for explanation this somewhat anomalous entry, and no could be as to it on oral explanation given argument.
We note that under the Mrs. was to render agreement Harting services and but the during “registration preregistration period” silent as record is to when those commenced so that they periods have commenced to 1987. might prior August filed, After a claim for New had been England Mutual returned the life insurance for Mrs. Harting premium Hawaii Pacific College. record,
On this order to grant summary judgment making rather than majority, appellant company, fact, (1) was a should have determined whether: there findings issue of material fact as to whether genuine Harting until less than three months working only “part-time” prior up 2, 1987; (2) November and of material there was a issue fact that Mrs. was not a until less “permanent” employee than three months to November prior It is obvious from the five contracts in the record that Mrs. whether she was a instructor” or an merely Harting, “temporary time, at the carried a full academic load of teaching “instructor” involved, hours hours the semesters up twenty put “Employed 3 Theuse of Full-Time” is some evidence that “continuous means “full-time.” week
per during registration each preregistration period semester, other just instructor did. It is also obvi- apparently *19 ous from the that record there are between semesters when gaps “instructors,” instructors, at including Hawaii “temporary” Pacific are not College teaching.
It
obvious. from the
equally
record that Mrs. Harting,
semester,
whether she was
for a
or for an
employed
academic
semesters,
of
year consisting
school
two
was
on con
employed
for a fixed
of
tracts
time. There is
in
period
nothing
the record to
contract,
that
indicate Mrs.
a
Harting, by receiving year’s
received
tenure, and so
as far as the record
Hawaii
Col
legally,
Pacific
goes,
was not
to
lege
offer her a new
for
obliged
contract
the ensuing
We have been
hold
year.
to
unwilling
contracts
employment
term,
contracts,
fixed
a
or indefinite
can be termi
Inc.,
only
nated
cause.
v.
good
Hotels,
Parnar Americana
65
370,
Haw.
(1982);
afinding: with the semester of Mrs. beginning Spring teacher, as a was Harting a full load at Hawaii academic carrying Pacific of College, full other services rendering required teachers; (2) services, teachers, that her like those of other were breaks; (3) interrupted by semester that she executed the contract 1987, for the 1987-1988 and so year February during semester of while she was a full Spring academic carrying instructor, load aas she had been hired for temporary already instructor; (4) as an that under year that contract she ensuing services, teacher, like rendering was other begin toup week hours twenty per during registration and preregistration which record, is not period defined period, and thus may have commenced prior August 1987.
Thus in our view there were
issues of material fact in
genuine
this case. There was a
issue of
genuine
material fact as to whether
was
a
Harting
“full-time” basis for three
employed
2,1987.
months prior to November
There was a
issue
material fact as to whether Mrs.
employed upon
2,1987
“permanent” basis
in view of the execution
prior August
of the 1987-1988 academic
year contract in
February
case,
National
Northwestern
a Texas
majority, following
Brevell,
Insurance Co. v.
(Tex.
Ct.
by the terms of the written con- simple expedient ignoring terms, tracts of and their on to hold that the employment, goes insurance contract in was clear and question unambiguous. of the insurance as fol- pertinent contract were provisions lows:
Subject to the section of this entitled Policy “Eligibility for each Coverages”, be insured under employee of the part hereunder shall provided be of the eligible shown upon completion waiting period below:
[*] [*] [*] (2) who become after the effec- persons employees
tive date of the Policy, upon completion three months of continuous active service. is defined in the as: “Employee” policy and for [a]ny person employed by services compensated the ... on a Policyholder regular full-time permanent basis. the
Thus there are two decedent to have requisites quali- (1) fied under the she must have been an policy: in (2) defined the “employee” must have policy, completed three months of continuous active term service. The “continuous service,” however, active defined in the policy. decedent, There is no but that the dispute Harting, had for 2,1987, much more than three months before November been ren- “active service” dering Hawaii Pacific employer College. There be a of whether may question that service “continuous.” “full-time,” We note that the words “regular,” “permanent,” are adjectives used in the word in policy “basis” the qualify definition of are not “employee.” They used to adjectives qualify the words “active in service” period waiting provision, although could have been obviously they easily put insurer there appellant drafting contract. Thus is on face as to the grammatical meaning ambiguity “continuous,” word the critical word in issue here.
The waiting does not as the period provision say, majority *21 concludes, that
“each [person and for services employed by compensated ... Policyholder regular permanent be shall ... of three eligible upon completion basis]... months of continuous active service.”4 words, policy 4 Evenif ambiguity used those would be an as there still to meaning of “continuous active service.” 556 its to alteration of the policy language buttress majority, 431:10-237 that the stated definition requires
states: “HRS § wherever that term be used in the HRS appears policy.” 431:10-237 provides: §
Construction of insurance contract policies. Every shall be construed of its according terms entirety as conditions set forth in the and as amplified, policy, extended, rider, restricted, or modified endorse- ment or attached to and made a of the pol- application part icy.
Thus the does what claims it states statute not state the majority with term statute does certainly and that respect “employee,” or an unambiguous make what is ambiguous policy provision indis- language reading make the strained majority’s policy putable. view, as we
In is ambiguous our language policy out, are also have the facts record pointed ambiguous we have out. pointed construed, the law
When insurance contracts are be Hawaii, in an has We until been clear. have said today, “ambiguity the insured.” Gov will be in construed favor of 385, 662 Franklin, 384, Co. v. Haw. Employees ernment Ins. 66 (1983). 1118 we said: P.2d Again, is construed an clause
Ambiguity exception the insurer to favor of the insured. The burden is upon itself clearly unequivocal language bring provide will be strictly An exclusion clause within the exclusion. the insurer. construed against Kama, (1970). On v. P.2d 517 Haw. Retherford we another occasion stated: policy- reasonable expectations objectively the terms and intended beneficiaries
holders regarding
557 of insurance contracts will be honored even though painstaking study policy would have provisions those negated expectations. Brooks,
Hawaiian Ins. & Guar. Co. v. 285, 285, 686 67 Haw. P.2d (1984). 24 This because the approach required typical is purchased by persons: with
utterly unacquainted the niceties of life insurance. ... It is the of such understanding that counts. . .. persons ordinary appli- [T]he cant who has his first and paid premium has suc- examination, his cessfully passed physical would not by remotest chance understand the clause this him uncov- leaving [in case] ered until the insurer at its leisure approved risk; he would assume that he was getting immediate for his man money____A must indeed read what he and signs, he is not; if he charged, does but insurers who seek to words of impose common an upon eso- speech teric craft, significance to their intelligible only must bear the burden of any confusion. resulting (Citation omitted).
The insurer must be held responsible achieving in the field certainty clarity of insurance. Co.,
Law v. Hawaiian 288, 292, 459 Ins. 51 Haw. P.2d Life (1969). All this time honored law the majority today sidesteps by pro- nouncing clear and policy language find- unambiguous, letters, ing, despite that Mrs. was only Halting who had not “part-time” rendered three months of *23 io active service her to her death on “continuous” employer prior 2, 1987. November it
If on trial that Mrs. was in fact develops Harting only to the employed part-time prior commencement of her rendering contract, under services the final and if the date of that commence- 2,1987, ment was later than then we well August that might agree she had not rendered continuous active service for three months to her death. But on this record facts in doubt. prior those are rules of construction the use of the word “full-
By general time,” in the taken in its definition must be employee, ordinary sense, and if Mrs. was in fact a full aca- common Harting carrying semester, in the we do how demic load then not see she previous can be classified a employee. “part-time” death, As to the word at the time her Mrs. Hart- “regular,” contracts, was in the sixth semester of ing, according carry- seem make her a a full-time academic load. This would ing in the sense of the word. “regular” employee ordinary As to the word if it is used in its regular “permanent,” ordinary sense, a since she was Mrs. was not Harting permanent employee, contract in at the time of her death a only year’s employed not as a “perma- which she was as an “instructor” only designated four contracts nent instructor.” The fact that the semester previous word the word as an contain “temporary” adjective qualifying issue, establish “instructor” raises an but does not conclusively If a when she became on a basis. having employed “permanent” her as seems to be the contract made assump- yearly “permanent,” tion, 1987, then well that contract was entered into February before August it even if the were concluding
Finally,
majority
right
was a
part-time
was clear and
unambiguous
contract,
she
under the
until
became
employed
yearly
under
must have been rendered for three months
and that service
2,1987,
that contract
to November
prior
there remains the question
when
registration
which
preregistration periods, during
contract,
she was to render services under that
commenced.
with this case is
problem
majority reversing
that,
below.
summary judgment granted
With
we are in complete
Moreover,
is no
agreement.
there
doubt that this court can enter a
in favor of an
summary judgment
appealing
where
appellant
cross-motions for summary judgment had been made below and
is,
record,
motion granted, where there
no
appellee’s
MacKenzie,
issue of
material fact. Flint v.
53 Haw.
(1972).
In this while the have parties may argued on the case basis “full-time” versus oral “part-time,” the argument the record make clear is that there a issue of material fact with to whether respect Mrs. had her Halting served for “full-time” three employer months before her death. Since the record below contains some records conflicting with to Mrs. respect we Harting’s would overrule the employment, appellant over company’s quibble which the standing, with, it does not need to deal majority says and remand case a determination of whether Harting was continuous rendering active service her on or employer before This August case, record, on this not an one simply summary appropriate for either party.