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