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                                                    Electronically Filed
                                                    Supreme Court
                                                    SCWC-13-0002064
                         SCWC-13-0002064            21-APR-2017
                                                    07:57 AM
          IN THE SUPREME COURT OF THE STATE OF HAWAII
________________________________________________________________

                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
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(“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

Hawaii.    On that date, along with the signed contract, a

representative for the State of Hawaii 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.




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        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 Hawaii 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.

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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, Hawaii, 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




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