On March 31, 2014, the HAWSCT accepted cert in Emerson M.F. Jou, M.D. v. Argonaut Ins. Co., et al., SCWC-30606, on the issues of what it means to be the prevailing party on appeal, and the related entitlement to costs when a party does qualify as the prevailing party.
The underlying case involved claims of insurer bad faith brought by Jou against several defendants in which Jou did not prevail, and a related case by Jou regarding a settlement agreement he entered into settling the amount of attorneys’ fees and costs that had been taxed against him in the bad faith case. The ICA (after consolidating the two appeals) affirmed in part and vacated/remanded in part the circuit court’s decisions. Jou then filed a HRAP 39(d) request for costs. The ICA denied Jou’s request on the basis that since it had remanded the case to the circuit court, he was not the prevailing party on appeal (in one appeal), and because he was not the prevailing party (in the other appeal).
On cert, Jou argues that the ICA’s decision to deny him costs is inconsistent with the HAWSCT’s prior decisions because the ICA did not “provide a readily discernable rationale” for the denial. Jou also argues that the ICA failed to apply the balancing test required by Hawaii law required to determine whether a party is considered the prevailing party in an appeal.
Circuit Court Judges Roma A. Trader and R. Mark Browning have been assigned to sit in place of Chief Justice Recktenwald and Justice Acoba, both of whom recused.
The HAWSCT’s order accepting cert is available here.
The cert app is available here.
There was no response filed. This case was not set for oral arguments.