Case Notes

• Jurisdiction: Hawaii,United States
• Citation: Vol. 17 No. 11
• Publication year: 2013

CASE NOTES

Appeal Pointers

A motion filed in the appellate court may be summarily denied without prejudice if the motion is not accompanied by proof that the motion was served on all parties at or before the time of filing HRAP 25(b), 25(d), 27(a).

Supreme Court

Arbitration

Slopes v. Kaiser Found. Health Plan, Inc., No. SCAP-12-0000361, September 26, 2013, (Pollack, J. with Acoba, J. and McKenna, J., both concurring separately). When Appellant husband enrolled in a Kaiser health plan, the applicable agreement stated that disputes were subject to binding arbitration. Appellant husband contended that Kaiser misdiagnosed his ulcerated tumor, recommending invasive surgery that would have left him disfigured and disabled for the rest of his life. Appellant husband sought a second opinion from Duke University Medical Center that correctly diagnosed Appellant husband's cancer and recommended a course of treatment that was eventually successful. Two Kaiser physicians provided a referral for Appellant husband's treatment at Duke, and Appellant husband's personal physician requested that Appellant husband's treatment be covered by the Kaiser plan. Kaiser declined to cover the expense. The Hawaii Supreme Court decided that the Kaiser arbitration clause was not binding on either Appellant husband and Appellant wife because there was a lack of mutual assent to the contract provision.

Justice Acoba concurred in the majority's conclusion that no binding arbitration agreement existed between the parties. However, he would also hold that Appellants could not be required to arbitrate because they were guaranteed the right to a jury trial and did not knowingly, voluntarily, and intelligently waive their right.

Justice McKenna also concurred in the result and with Justice Acoba's concurring opinion that there was no valid waiver of Appellants' right to jury trial but wrote separately to state that Leong v. Kaiser Found. Hosps., 71 Haw. 240, 788 P.2d 164 (1980) should be overruled based on the lack of mutual assent to the arbitration agreement exhibited by the facts of that case, pursuant to the court's later holding in Brown v. KFC Nat'l Mgmt. Co., 82 Hawaii 226, 921 P.2d 146 (1996).

Tort

Ah Mook Sang v. Clark, No. SCAP-11-0000536, September 3, 2013, (Nakayama, J.). This appeal required the Hawaii Supreme Court to consider whether a social host who invites a minor onto his or her...