***NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Electronically Filed
Supreme Court
SCWC-13-0002064
SCWC-13-0002064 21-APR-2017
07:57 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
________________________________________________________________
JOHN HASIRCOGLU AND MARIA HASIRCOGLU,
Petitioners/Plaintiffs-Appellants,
vs.
FOPCO, INC., Respondent/Defendant-Appellee.
________________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0002064; CIV. NO. 11-1-0111(1))
SUMMARY DISPOSITION ORDER
(By: McKenna, Pollack, and Wilson, JJ., with
Nakayama, J., dissenting, with whom Recktenwald, C.J., joins)
Petitioners/Plaintiffs-Appellants John Hasircoglu
(“Hasircoglu”) and Maria Hasircoglu seek review of the
Intermediate Court of Appeals’ (“ICA”) July 26, 2016 Judgment on
Appeal, entered pursuant to its June 30, 2016 Memorandum
Opinion.
This case arises out of a February 26, 2009 accident at a
tunnel construction project on Molokai. Hasircoglu was an
employee of T&M Construction Services, Inc. (“T&M”),
subcontractor to the general contractor, Respondent/Defendant-
Appellee FOPCO, Inc. (“FOPCO”). Hasircoglu was riding on a
trailer being pulled by another vehicle driven by Donald Clark
***NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
(“Clark”) when a large spool holding cables weighing 2,500
pounds fell off its spool holder, hitting Hasircoglu’s head,
neck, and back.
FOPCO was the general contractor on the project through an
August 27, 2008 Prime Contract with a department of the State of
Hawaii. On that date, along with the signed contract, a
representative for the State of Hawaii sent a letter to FOPCO,
asking it to submit the “[n]ame of superintendent or qualified
representative on the job site” as required by contract
specifications.
In response, on its letterhead, FOPCO identified the
following three people as the “PROJECT SUPERINTENDENT AND KEY
PERSONNEL”: Dennis McElrath, as the “Project Manager,” Clark as
“Project Superintendent,” and Michael Estes as “QA/QC Health and
Safety Manager.” McElrath was the President of FOPCO; Estes was
the President of and was employed by T&M. Clark was also a T&M
employee. Neither Estes nor Clark were employees of FOPCO. The
subcontract between FOPCO and T&M was executed by McElrath for
FOPCO and Estes for T&M. The October 8, 2008 subcontract called
for T&M to undertake “complete performance” of the work FOPCO
was to provide under the Prime Contract, and refers back to
FOPCO’s Prime Contract and its supplemental documents.
2
***NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
The Circuit Court of the Second Circuit (“circuit court”)1
granted summary judgment in favor of FOPCO on all claims. The
ICA affirmed on the grounds that Estes and Clark were not agents
of FOPCO and that FOPCO could therefore not be held vicariously
liable for their alleged negligence. Hasircoglu v. FOPCO, Inc.,
CAAP-13-0002064 (App. June 30, 2016) (mem.) We conclude that
the circuit court and ICA erred under standards applicable to
summary judgment motions.
FOPCO’s response to the State of Hawaii identifying Clark
and Estes as “project superintendent and key personnel” raises a
genuine issue of material fact as to whether there was an agency
relationship between FOPCO and Estes and/or Clark based on
actual express or implied authority. See Cho Mark Oriental Food,
Ltd. v. K&K Intern., 73 Haw. 509, 515-16, 836 P.2d 1057, 1061-62
(1992). Although Clark and Estes were employed by T&M, pursuant
to Section 226 of the Restatement (Second) of Agency (1958), “A
person may be the servant of two masters, not joint employers,
at one time as to one act, if the service to one does not
involve abandonment of the service to the other.” Accordingly,
based on the instant record showing a lack of a genuine issue of
material fact, summary judgment was proper as to plaintiffs’
product liability claims in Counts III, IV, and V; it was error
to grant summary judgment in favor of FOPCO on the negligence
1
The Honorable Rhonda I.L. Loo presided.
3
***NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
claims in Counts I and II of the February 22, 2011 complaint as
well as on Maria Hasircoglu’s emotional distress and consortium
claims in Count VII. As there was no genuine issue of material
fact, summary judgment was proper on the claim for punitive
damages in Count VIII. Therefore,
IT IS HEREBY ORDERED that the ICA’s July 26, 2016 Judgment
on Appeal, filed pursuant to its June 30, 2016 Memorandum
Opinion, is vacated in part as to Counts I, II, and VII of the
complaint, and otherwise affirmed, and the case is remanded to
the circuit court for further proceedings consistent with this
summary disposition order.
DATED: Honolulu, Hawaii, April 21, 2017.
Charles H. Brower /s/ Sabrina S. McKenna
and Michael P. Healy
for petitioners /s/ Richard W. Pollack
Jeffrey A. Griswold /s/ Michael D. Wilson
for respondent
4
Hasircoglu v. FOPCO, Inc.
Combined Opinion