Tred R. Eyerly | Insurance Law Hawaii
Although the court was incredulous that the parties were disputing the possession of a gate opener allegedly damaged in a lightning strike, it granted the insured’s motion for partial summary judgment finding the insurer had converted the gate opener. Privratsky v. Liberty Mut. Fire Ins Co., 2022 U.S. Dist. LEXIS 196002 (D. Haw. Oct. 27, 2022). (Full disclosure, our office is co-counsel for the insured).
Mr. Privratsky alleged his home on Maui was struck by lightning which caused an electrical surge. The home and personal property were damaged. The alleged cost of repair work at one point was as much as $325,000. A claim was submitted under a homeowner’s policy issued by Liberty Mutual. Liberty paid for only some of the damage. Privratsky filed suit alleging three causes of action for: (1) declaratory judgment that the losses were covered by the policy issued by Liberty; (2) bad faith; and (3) conversion of personal property, namely, the damaged gate operator.
Privratsky filed a motion for partial summary judgment on the conversion claim, arguing that after taking the gate operator during an inspection, Liberty refused to return it despite multiple demands to do so.
Hawaii courts required the following with respect to conversion: (1) a taking form the owner without his consent; (2) an unwarranted assumption of ownership; (3) an illegal use or abuse of the chattel; and (4) a wrongful detention after demand. Freddy Nobriga Enters., Inc. v. Dept of Haw. Home Lands, 295 P. 3d 993, 999 (Haw. Ct. App. 2013). The parties disagreed over whether each of these acts had to be proven to establish Liberty’s conversion or whether any one, if proven, would suffice. The court agreed with Privratsky that, in Hawaii, any one of the four acts, if proven would establish a claim for conversion.
Here, Privratsky owned the gate operator. After the lightning strike, Liberty sent an inspector to the home who removed the gate operator and took it with him. On numerous occasions, Privratsky requested the return of the gate operator, but Liberty refused to do so. Instead, Liberty remained in possession of the gate operator.
The court found these facts were sufficient to prove liability on the conversion claim because Privratsky had demanded the return of his property and it had been refused. Therefore, Privratsky’s motion was granted and Liberty’s counter-motion for partial summary judgment was denied.
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