IN THE SUPREME COURT OF THE STATE OF HAWAI`I





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SANDRA JEAN DELMONTE, Plaintiff-Appellant, v. STATE FARM

FIRE AND CASUALTY COMPANY, an Illinois corporation, Defendant-Appellee, and WATANABE ING & KAWASHIMA, a Hawai`i corporation; and DOES 1-50, Defendants and



JAMES RICHARD DELMONTE, Plaintiff-Appellant, v. STATE FARM

FIRE AND CASUALTY COMPANY, an Illinois corporation, Defendant-Appellee, and WATANABE ING & KAWASHIMA, a Hawai`i corporation; and DOES 1-50, Defendants.





NO. 21351





ORDER OF AMENDMENT





(CIV. NOS. 96-0434 and 96-2698)





MARCH 15, 1999





MOON, C.J., KLEIN, LEVINSON, NAKAYAMA, AND RAMIL, JJ.



The opinion of the court, filed on February 3, 1999, is hereby amended as follows:

1. Page 2. Add the following as the first sentence in section I. Background. "The following facts were determined by the circuit court in the underlying action."

2. Page 34. Heading E is amended to read "The circuit court did not rule on the Delmontes' claims for unfair and deceptive acts and practices and breach of fiduciary duty." (Changes emphasized.)

3. Page 34. First sentence of section E is amended to read "The Delmontes' complaint contained, inter alia, claims of unfair and deceptive acts and practices and breach of fiduciary duty." (Changes emphasized.)

4. Page 34. Immediately after footnote numbered 14, add footnote to be numbered 15. Footnote 15 is to read as follows: "Although we reinstate the Delmontes' claim of breach of fiduciary duty (count IV), we emphasize that this does not resurrect any argument subsumed within this issue which was ruled upon by our opinion, supra. Therefore, the Delmontes may not, for example, relitigate the argument that State Farm had a duty to defend their case insofar as the circuit court's declaratory ruling on this issue was not challenged on appeal and is, therefore, final."

5. Pages 34-35. First sentence of the conclusion is modified to read as follows: "For the foregoing reasons, we vacate the circuit court's grant of summary judgment in favor of State Farm on the Delmontes' claims of (1) bad faith (counts III and VII), (2) breach of fiduciary duty (count IV), and (3) unfair and deceptive trade practices (counts V and VI)." (Changes emphasized.)

The Clerk of the Court is directed to incorporate the foregoing changes into the original opinion and take all necessary steps to notify the publishing agencies of these changes.