                                                       Electronically Filed
                                                       Supreme Court
                                                       SCWC-12-0000535
                                                       03-OCT-2013
                                                       10:33 AM



                          SCWC-12-0000535


            IN THE SUPREME COURT OF THE STATE OF HAWAI'I



                      MATHEW S. MICKELSON,

                  Petitioner/Plaintiff-Appellee,


                                vs.


              UNITED SERVICES AUTOMOBILE ASSOCIATION,

                 Respondent/Defendant-Appellant. 



          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

               (CAAP-12-0000535; CIV. NO. 99-1856-05)


  ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI, VACATING IN

     PART INTERMEDIATE COURT OF APPEALS’ JUDGMENT ON APPEAL AND

             REMANDING TO INTERMEDIATE COURT OF APPEALS

(By: Recktenwald, C.J., Nakayama, Acoba, McKenna, and Pollack, JJ.)


          On August 20, 2013, Petitioner/Plaintiff-Appellee 


Mathew S. Mickelson (Mickelson) filed an application for a writ of


certiorari seeking review of the June 21, 2013 judgment of the


Intermediate Court of Appeals (ICA), including the ICA’s June 20,


2013 Order Approving Request for Appellate Costs.   Mickelson raises


the following points of error: (1) the ICA erred in deciding


attorneys’ fees were not awardable under HRS § 431:10-242 for


arbitration after a lawsuit was required to compel the insurer’s


participation in the arbitration; and (2) the ICA erred by awarding

costs pursuant to Rule 39 of the Hawai'i Rules of Appellate

Procedure where no prevailing party was established.

          On June 28, 2013, after the ICA filed its judgment, we

issued an opinion in Hawaiian Ass’n of Seventh-Day Adventists v.

Wong, 130 Hawai'i 36, 305 P.3d 452 (2013), which is applicable to

the second issue raised by Mickelson.   In light of the Seventh-Day

Adventists opinion, we conclude the ICA should further consider the

award of appellate costs in this matter.   Therefore,

          IT IS HEREBY ORDERED that the application for a writ of


certiorari is accepted.


          IT IS FURTHER ORDERED that the June 21, 2013 judgment as


it relates to the Order Approving Request for Appellate Costs is


vacated in part, and this case is remanded to the ICA to reconsider


its Order Approving Request for Appellate Costs in light of the


opinion issued in Seventh-Day Adventists, supra.   The judgment is


affirmed in all other respects. 


          DATED: Honolulu, Hawai'i, October 3, 2013.


Gregory W. Kugle and

Tred R. Eyerly,

for petitioner                      /s/ Mark E. Recktenwald


Kevin P.H. Sumida and               /s/ Paula A. Nakayama

Ward F.N. Fujimoto,

for respondent                      /s/ Simeon R. Acoba, Jr.


                                    /s/ Sabrina S. McKenna


                                    /s/ Richard W. Pollack 

