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HOWARD et al v. ACE AMERICAN INSURANCE COMPANY et al Complaint

ATTENTION: It is possible that this information may no longer be current and therefore may be inaccurate. The index contains both open and closed cases and is not a complete list of cases in which an ACE Insurance Group company is involved. This information is provided to give interested persons an idea of the issues disputed in the indexed cases. For a full understanding of a case, one should read the rest of the court file, including the response. For the most up-to-date and complete information on a case, visit www.pacer.gov or contact the clerk of the relevant court.

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Of Counsel: DAMON KEY LEONG KUPCHAK RASTERT Attorneys at Law A Law Corporation
PI~'sr C}RCmrtD6~t s IMf: or !fiAIfKIl- . . fiLED
lfiJQ DEC I 6 AM 10: 2t
. F: DrAKE
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MARK M. MURAKAl\!il 7342-0 TRED R. EYERLY 5641-0 1003 Bishop Street, Suite 1600 Honolulu, HI 96813 www.hawaiilawyer.com Telephone: (808) 531-8031 FacSimile: (808) 533-2242
Attorneys for Plaintiffs ARTURO HOWARD and GAlL HOWARD IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII ARTURO HOWARD and GAIL HOWARD, ) ) Plaintiffs, ) ) CIVIL NO. (Other Civil Action)
.
RAN
vs.
)
COMPLAINT; DEMAND FOR JURY TRIAL; SUMMONS
) ACE AMERlCAN INSURANCE ) COMPANY; CHUGACH McKINLEY, INC.;) and DOES 1-10, ) ) Defendants. )
)
COMPLAINT
C01\l£S NOW Plaintiffs ARTURO HOWARD and GAIL HOWARD, by and through their attorneys, Damon Key Leong Kupchak Hastert, and for causes of action against ACE AMERICAN INSURANCE CO., CHUGACH McKINLEY, INC., and DOES 1-10 (collectively, "Defendants"), alleges and avers as follows:
! do hereby certlfy that this i$ a full, true, and correct copy of the original ~ice.
Clerk Circuit Court, First Circuit
EXHIBIT
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PARTIES
1.
2.
Plaintiff Gail Howard ("9ai1") is a resident of Lorton, Virginia. Plaintiff Arturo Howard ("Arturo"), husband of Gail, is a resident of Lorton,
Virginia. Gail and Arturo are collectively referred to hereinafter as "Plaintiffs." 3. Upon i!1.ionnation and belief, Defendant Chugach McKinley, Inc. ("Chugach") is
and was a1 all times relevant hereto an Alaska corporation authorized to conduct business in Hawaii. 4. Upon information and belief, Defendant ACE American Insurance Company
("ACE") is and was at all times relevant hereto a Pennsylvania corporation authorized to conduct business in Hawaii. 5. Defendants DOES 1-10 are sued herein under fictitious names for the reason that
their true names, capacities and responsibilities are presently unknown to Plaintiffs, but upon information and belief they are persons, entities, governmental agencies, and/or partnerships who were in some manner presently unknown to Plaintiffs engaged in the activities alleged herein; and/or are in some manner responsible for the injuries and damages to Plaintiffs; and/or are persons who failed to fulfill a duty or obligation, which action, conduct, error or omission was the proximate cause of injuries or damages to Plaintiffs; andlor were in some manner related to the previously named Defendant that engaged in the activities alleged herein. Plaintiffs will seek leave to amend this Complaint when the true names and capacities of the Doe Defendants have been ascertained.
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JUR1SDICTION AND VENUE
6.
Jurisdiction is proper pursuant to Haw. Rev. Stat. §603-2LS. Venue is appropriate
§603~36.
in the First Circuit of the State of Hawaii pursuant to Haw. Rev. Stat. 7.
The claims for relief herein arose in the First Circuit, and all events material to
this Complaint took place in the City and County of Honolulu, State of Hawaii, within the jurisdiction of the Circuit Court of the First Circuit.
FACTS COMMON TO ALL COUNTS The Accident
8.
In late July 2005, while living in WaipahU, Hawaii, with Arturo, Gail applied ''lith
Chugach for an administrative assistant position located at Midway rsland. 9. On August 3, 2005, Chugach offered Gail the position of Temporary Site
Administrator at Midway. 10. When offering employment to Gail, Chugach indicated that more definite
employment was contingent upon the continuation of contracts with the U.S. Fish and Wildlife Service for the operation and support of Midway Atoll National Wildlife Refuge. 11. 12. Gail accepted the job offer by signing and returning the letter to Chugach. Shortly after commencing work at Midway Island, Gail was sleeping in the
company barracks when a centipede stung her in the early morning hours of August 5, 2005. 13. After being stung by the centipede, Gail presented to the medical clinic at
Midway where she remained for a day or two before being released. While in the clinic, Gail reported experiencing body aches, headache, dizziness, and slight nausea.
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14.
After returning to her barracks, Gail slept. \x/hen she arose from her sleep, she
endured an episode of vertigo and passed out. 15. 16. As Gail fell to the ground, her head struck a dresser. When Gail regained consciousness, she found herself on the floor. She called the
medical clinic on Midway and personnel came to her room to escort her back to the clinic. 17. Upon presenting to the clinic, Gail complained of increased headaches and local
pain in the nose, right eye and right arm. 18. The doctor at the medical clinic cleaned her face, applied an ice-pack, and called
for assistance to medevac Gail off of Midway.
19,
After spending five hours in the medical clinic on Midway waiting for transport
off the island, Gail was medevac'd to TripIer Anny Medical Center in Honolulu, Hawaii. 20. Gail presented at TripIer with a laceration on the bridge of her nose. Bruising
was noted from the right cheek to her nose. She c-om.plained of blurred vision to the right eye. 21. Gail was released from TripIer, but returned on August 11, 2005, still in pain and
suffering from blurry vision. 22. Between August 2005 and January 2006, Gail returned to TripIer for numerous
medical appointments regarding injuries suffered from her accident at Midway.
ACE and Chugach Neglect to Pay Compensation Benefits
23.
On infonnation and belief, Gail's accident at Midway made her eligibJe to seek
benefits under the Defense Base Act set forth at 42 U.S.C. §§1651-54. 24. Under the Defense Base Act, provisions of the Longshore Harbor and Workers'
Compensation Act ("LHWCA"), set forth at 33 U.S.c. §901, et seq., apply with respect to the
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injury or death of employees engaged in delineated employment pursuant to 42 U.S. C. §1651. 25. The employer is liable for and shall secure the payment to its employees of
compensation payable under provisions of the LHWCA at 33 U.S.C. §904.
26,
On information and belief, Chugach contracted with ACE to handle all employee
claims under the LHWCA and the Defense Base Act under. 27. On information and belief, ESIS is a wholly owned subsidiary of ACE. On
further information and belief, ESIS provides risk management services to ACE, including handling of claims for workers compensation cases. 28.
On information and belief, Gail's claim arose under the Defense Base Act, but the
provisions of the LHWCA apply to processing her claim for medical and compensation benefits due to her injury on Midway. 29. 15,2005. 30. ACE, through ESIS, was initially notified of Mrs. Howard's accident on August
In a report dated August 15, 2005, submitted by Chugach ESIS. Chugach
indicated it did not question the claim. 31. Chugach's report to ESrS also listed Gail's residential address in Waipahu,
Hawaii, and her home and cell phone numbers. 32. Chugach informed ESIS that there were no preexisting injuries and
no
prior
workers' compensation accidents. 33. Chugach further informed ESIS that there was no modified or light work
availabJe at Midway.
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34.
Chugach completed fonn LS-202, Employer's First Report of Injury or
Occupa1.ionallilness ("Notice .of Injury") soon after the injury on August 9,2005, and submitted the form to the U.S. Department of Labor, Office of Workers' Compensation Programs ("OWCP"). 35. OWCP administers claims under the Longshore Harbor and Workers
Compensation Act and the Defense Base Act. Among its statutory duties is to contact injured workers to advise them of their rights to file claims for compensation and medical needs due to an injury that is job-related.
36.
Although Defendants have provided medical benefits to Gail, to this day, no
compensation benefits have been paid to Gail. 37. Pursuant to 33 U.S.c. § 194 (a), (b), compensation benefits should have been paid
by ACE and Chugach fourteen days after Chugach was notified of Gail's injury.
Defendants Ignore Numerous Inquiries from OWCP Regarding Gail's Claim
38.
1],2006. On information and belief, OWCP first contacted ACE about Gait's claim on May
39.
The letter OWCP sent requested from ACE the LS-forms and all medical records
for Gail's August 5,2005, injury. ACE never responded to OWCP's letter. 40. Meanwhile, the OWCP had inaccurate contact information for Gail. On
September 8, 2006, the OWCP sent a letter to Gail, addressed to 94-104 Poluhi Way, WaipahU, HI,96797. 41. The September 8, 2006 letter informed Gail that she may be entitled to
compensation for her injury. The letter further advised if the employer or its insurance company 6
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were not voluntarily providing compensation for :time lost, she may want to file a written claim
to protect her rights.
42. Arturo is in the Coast Guard. Gail and Arturo were transferred by the military to
California in February 2006, and she never received the letter. 43. On September 8, 2006, the OWCP sent another letter to ACE, requesting
submission of fonn LS-206, Payment of Compensation Without Award, and seeking additional medical records for Gail. ACE never responded. 44.
In a follow-up letter dated April 27, 2007, the OWCP asked ACE to provide the
amount and dates during which compensation had been paid. 45. ACE had paid nothing in compensation benefits. The OWCP also requested all
medical reports not previously requested, a status update on the injury, and the claimant's current mailing address. ACE failed to respond. 46. The OWCP sent a fourth letter to ACE on May 13, 2008, denoted in bold print
as the "TIDRD REQUEST." The letter stated,
Please advise amount and inclusive dates for which compensation has been paid and submit a copy of any medical reports not previously submitted . ... No response was received to our requests on 04/17107 and 09/08/06.
Lastly, please provide the claimant's current mailing address . . (emphasis in original.) 47. Nearly a year later, on February 27, 2009, ACE, through its attorney, Keith L.
Flicker, entered its appearance with the OWCP and requested the Department's files relative to the claim.
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48,
The OWCP wrote to Mr. Flicker on March 12,2009, noting that none of its prior
requests for form LS-208 and medical documents had ever been answered. Further, ACE was requested to provide an updated status report on the
49,
i~ury,
ACE ignored the OWCP's March 12,2009, letter. The OWCP ,:VTOte its sixth letter on September 1, 2009, requesting Form LS-208
50.
with the amounts and dates for which compensation had been paid. The OWCP's letter stated it had never received any controversion to Gail's right to compensation from ACE pursuant to the LHWCA. 51. Therefore, for four years, ACE inexcusably ignored repeated requests to provide
Gail's address so that OWCP could [mally communicate with and advise Gail of her rights to compensation. 52. ACE also refused to provide to the OWCP requested information regarding the
amount of compensation it had paid Gail, knovving it had failed to pay any compensation.
ACE· is in Direct Communication with Gail
53. At all times after the August 2005 accident, ACE knew where Gail was located.
ACE had Gail's phone numbers as early as August 2005, constantly received medical records from her doctors, and processed her claims for medical benefits.·
54.
Further, ACE, through ESIS, was also communicating directly with Gail
regarding her claim for compensation. In 2006, Gail asked her case manager at ESIS, Stephanie Judice, about compensation for her loss of earnings after the accident. Gail explained that due to her forced unemployment, she and her husband were facing financial difficulty in making ends meet.
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55.
Ms. Judice told Gail not to worry because she would be offered a settlement for
both compensation and medical expenses. 56. On May 14,2008, Gail e-mailedhernewcasemanager.StaciDelany.Gail noted
her understanding from communications with prior case managers that once Dr. Padgett, her treating physician at the time, completed the permanent and stationary evaluation, a monetary settlement offer would be forthcoming from ESIS. Gail further explained she had never received any compensation, although it was now two and a half years after her accident.
57.
Ms. Delany responded the next day, promising she would "review your file for
closing/rating evaluation in order to review for settlement. Based on the rating exam I will be able to send you the amount due." 58. Seven months later, ESIS finally responded on December 9, 2008, offering to
settle Gail's claims for a fraction of her compensation and medical claim. 59. After receipt of December 9, 2008 offer, Gail inquired the same day how the
anticipate~
settlement amount was determined, fearing it would be insufficient to even cover her
future medical expenses related to the August 2005 accident. Gail again noted she had never received any compensation benefits, even though the insurer had previously told her "not to worry, I would get it as a part of the settlement.:' 60. ACE responded over a week later on December 18, 2008, through Michael R.
Fisackerly. Mr. Fisackerly stated, "I was not aware that this is a claim for disability. I will need to research further and get back to you." Mr. Fisackerly never sent any further response. 61. After receiving no response from Mr. Fisackerly for several months, Gail again e-
mailed him on March 19, 2009, inquiring about the status of the settlement offer, noting her
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confusion and the lack of information she was receiving.
62.
Mr. Fisackerly responded on March 19, 2009, stating the offer was still on the
table, but never providing any information on how the monetary settlement amount was determined and how it could be expected to cover not only her medical expenses related to the accident, but her claim for compensation.
63.
.After retaining counsel, Mrs. Howard filed a Notice of Compensation under the
LHWCA with the
owep on September 14, 2009.
Botox Injections AIJeviate Headaches
64.
Since the accident at Midway in August 2005, Gail has sought medical attention She has worked with various doctors in seeking a proper remedy for her
for her injury. headaches.
65.
In December 2007, Dr. Walter W. Strauser was Gail's treating doctor in San
Diego, California, where Gail and Arturo had relocated.
66.
Dr. Strauser recommended Botox injections to address Gail's headaches.
67.
Strauser. 68.
In February 2008, Gail received her first Botox treatment administered by Dr.
After Gail and Arturo relocated to Walnut Creek, California, Gail's treating
doctor was Dr. David K. Padgett. Dr. Padgett continued treating Gail 'A--ith Botox injections to control her headaches. 69. In January 2009, Dr. Padgett informed ACE that Botox injections would be
required "indefinitely," with treatments every three to four months for the next three or four years.
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70.
Since she started receiving Botox injections, the injections have been the most
effective treatment for Gail's headaches.
Gail Searches for a Doct{)r to Administer Botox Treatments After Moving to Virginia
71. 72. Gail and Arturo moved to Lorton, Virginia in May 2010. Upon arriving in Virginia, Gail spent several months searching for a doctor who
would continue administering the Botox treatments. ACE Takes Months to Assist Gail in Locating a New Doctor 73. On information and belief, after Gail's re-Iocation to Lorton, Virginia, ACE hired
a case manager, Sharon Wiseman, to work on Gail's claim and to assist her in finding a doctor. 74. After Gail reLocated to Virginia, ACE requested that she submit to independent
medical examinations. 75. 76. Gail was examined at ACE's request by Dr. Jonathan Amy on June 30, 2010. On behalf of ACE, Sharon Wiseman scheduled an independent medical exam for
Gail with a clinical neuropsychologist, Dr. Mercedes H. Alfaro, on August 4, 2010, but never notified Gail of the appointment. Gail's legal counsel was notified of the appointment on August 3, 2010. Gail was unable to attend the appointment on such short notice, but had several
subsequent appointments with Dr. Alfaro at ACE's request. 77. ACE was solicited in August 2010, through its legal counsel, to assist in finding
a doctor for Gail in the Lorton, Virginia area. 78. In September 2010, Gail located on her own the Neurology and Headache
Alexandri~
Treatment Center in
Virginia, as a potential provider of Botox treatments. Gail was
informed by the Neurology and Headache Treatment Center, however, that her case worker 11
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would have to be notified about Gail's request to receive medical care from their Center. 79. On September 24, 2010, counsel for ACE was notified by Gail's counsel that the
case worker needed to approve Gail's treatment at the Neurology and Headache Treatment Center. 80. On September 28, 2010, Gail presented to the emergency room, having lost
feeling from her shoulder down to her hand. She was also experiencing a massive headache. 81. On September 28, 2010, Gail's legal counsel again sought assistance from ACE's
~i.th
legal counsel to assist Gail in arranging an appointment
the Neurology and Headache
Treatment Center so that Gail could again start receiving Botox treatments. 82. On September 30,2010, ACE, through its legal counsel, finally authorized Gail to
see Dr. Patricia J. Mullins at the Neurology an.d Headache Treatment Center. 83. Finally, in November 2010, Gail was given a prescription for Botox, but was told
either she or Ms. Wiseman would have to take the prescription to a pharmacy to have it filled. On information and belief, ACE told Ms. Wiseman the prescription would not be covered if filled by a pharmacy and suggested that Gail should change doctors. 84.
Finally, on December 1,2010, Gail received a Botox injection at the Neurology
and Headache Treatment Center, her first treatment with Botax since relocating to Virginia in May 2010. FIRST CLAIM FOR RELIEF - INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 85. 86. Plaintiffs incorporate the paragraphs above as if set forth in full herein. The actions of Defendants ACE and Chugach in failing to make any payment for
compensation were and are intentional, reckless, extreme and outrageous, and were and are
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knovvn by Defendants to be substantially certain to cause Gail great emotional distress.
In
particular, Defendants have refused to pay compensation benefits for over five years, even though it was statutorily obligation under 33 V.S.c. §914 (b) to commence payment of such benefits within fourteen days of the injury. 87. Defendants were well aware that Gail and Arturo were facing financial difficulty
in making ends meet because Gail was unable to work and not receiving the compensation
benefits to which she was entitled. ACE's response was to assure Gail not to worry, but no .compensation benefits have been paid to this day. pefendants were aware that Gail relied upon ACE to pay compensation benefits for her financial security and well-being, and that the arbitrary refusal to pay such benefits would cause Gail and Arturo great emotional and fmancial distress.
88.
ACE was also aware that Gail moved from California to Virginia in May, 2010,
and had no doctor to administer Botox treatments in Virginia. Despite Gail's request to ACE for assistance in locating a new doctor in Virginia who would administer Botox treatments, ACE made little, if any, effort to assist for several months. As a result Botox treatments were delayed for over seven months.
89.
In December 2008, Defendants made an unrealistic settlement offer insufficient to
cover both Gail's disability and compensation claims, knovving that the expense of Gail's Botox treatments alone would quickly exhaust the amount offered. Defendants were also aware of the unequal positions between themselves and Gail due to Gail's inability to work and her need for fmancial assistance.
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90.
These acts all were intended to and did cause Gail grave financial and emotional
distress, and they were all a part of a corporate plan of Defendants to wrongfully deny benefits to claimants, in hopes that they would forego their administrative and legal remedies and never pursue their rights to compensation benefits. 91. The actions of Defendants in refusing to approve and pay compensation benefits
payments to Gail were known by Defendants to be substantially certain to vex, injure, harass, and annoy Gail and were known by Defendants to violate her statutory rights to compensation benefits. 92. The actions of Defendants have been and are causing Gail great emotional and
financial distress. Defendants' actions have aggravated the financial stress and loss of security attendant to Gail's already existing disability, thereby impairing her ability to manage her illness and minimize the physical distress which it causes her. SECOND CLAIM FOR RELIEF - ARTURO'S LOSS OF CONSORTIUM 93. 94. 95. Plaintiffs incorporate the paragraphs above as if set forth in full herein. At all relevant times herein, Gail and Arturo were married. After the injury caused by Defendants' intentional conduct, Gail's comfort,
companionship, and commitment to the needs of Arturo ceased. Due to her il'\iuries, including severe headaches, Gail was no longer able to be affectionate, nor intimate with Arturo. Gail's injury interfered with her's and Arturo's happy and healthy marital life. 96. As a result of Gail's inability to provide Arturo with affection, society,
companionship and sexual relations, which inability was caused by Defendants' negligence, Arturo is entitled to damages for such loss of consortium in amounts to be proven at triaL 14
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\\THEREFORE, the Plaintiff<:; respectfully request the Court adjudge and declare: 1. That Judgment be entered in favor of the Plaintiffs and against Defendants ACE
and Chugach for damages on all applicable claims according to the proof to be adduced at trial; 2. owed. 3. That to the extent available by law, the Plaintiffs be awarded their costs, expenses That Plaintiffs be awarded prejudgment interest according to proof on all sums
and attorneys' fees on all applicable claims; and
4.
That the Court award such other and further relief as it deems proper.
DATED: Honolulu, Hawai'i, December 16,2010.
DAMON KEY LEONG KUPCHAK HASTERT
MARK M. :MURAKAMI TRED K EYERLY
Attorneys for Plaintiffs ARTIJRO HOWARD and GAIL HOWARD
15
130799P
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IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII ARTURO HO\VARD and GAIL HOWARD,) ) Plaintiffs, ) CIVIL NO. _--:--_ _ _ _ _ _ __ (Other Civil Action)
vs.
) ) )
DEMAl'm FOR JURY TRIAL
ACE AMERICAN INSURANCE ) COMP ANY; CHUGACH McKINLEY, INC.; ) and DOES 1-10, ) ) Defendants. )
DEMAND FOR JURY TRIAL
Plaintiffs ARTURO HOWARD and GAIL HOWARD, by and through their attorneys, Damon Key Leong Kupchak Hastert, hereby demand a trial by jury on all issues so triable in the instant action. DATED: Honolulu, Hawai'i, December 16: 2010.
DAMON KEY LEONG KUPCHAK HASTERT
MARK M. MURAKAMI TRED R. EYERLY
Attorneys for Plaintiffs ARTURO HOWARD and GAIL HOWARD
130799P
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IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII ARTURO HOWARD and GArL HOWARD,) ) Plaintiffs, ) ) vs. ) ) ACE AMERICAN INSURANCE ) COMPANY; CHUGACH McKINLEY, INC.;) and DOES 1-10, ) ) Defendants. ) CIVIL NO. _ _ _ _ __ (Other Civil Action) SUMMONS
SUMMONS STATE OF HAWAII TO: THE AEOVE-NA.cVfED DEFENDANT(S): You are hereby summoned and required to serve upon Damon Key Leong Kupchak Hastert. Plaintiffs' attorneys, whose address is 1003 Bishop Street, Suite 1600, Honolulu, Hawaii, 96813-6452, an answer to the Complaint which is herewith served upon you, within twenty (20) days after service of this summons upon you, exclusive of the day of service.
If you fail to do so, judgment by default will be taken against you for the relief demanded in the
Complaint. This summons shall not be personally delivered between 10:00 p.m. and 6:00 a.m. on premises not open to the general public, unless a judge of the above-entitled court permits, in writing on this summons, personal delivery during those hours.
130799P
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A failure to obey this summons may result in an entry of default and default judgment against the disobeying person or party. DA TED: Honolulu, Hawai' i, _ _ _ _ _ _ _ _ _ DE_C.-::::;:1:::::;6~20:_1O--_.
F.OTAKE
Clerk of the Above-Entitled Court
SUMMONS; Arturo Howard and Gail Howard v. Ace American Insurance Company, et al.,· Circuit Court of the First Circuit, State of Hawaii, Civ. No. _ _.. _ _ _ _ _ __
2
130199P

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