FINDINGS AND RECOMMENDATION TO GRANT PLAINTIFF LISA CIMINO, DEFENDANT AND THIRD-PARTY PLAINTIFF KOHALA ZIPLINE, LLC, THIRD-PARTY DEFENDANT ARBOR GLOBAL LLC, AND THIRD-PARTY DEFENDANT BONSAI DESIGN, LLC'S JOINT PETITION FOR DETERMINATION OF GOOD FAITH SETTLEMENT BY AND BETWEEN KOHALA ZIPLINE, LLC AND PLAINTIFF LISA CIMINO

KENNETH J. MANSFIELD, Magistrate Judge.

Plaintiff LISA CIMINO ("Plaintiff"), Defendant and Third-Party Plaintiff KOHALA ZIPLINE, LLC ("KOHALA"), Third-Party Defendant ARBOR GLOBAL LLC ("Arbor Global"), and Third-Party Defendant BONSAI DESIGN, LLC ("Bonsai") filed a Joint Petition for Determination of Good Faith Settlement by and between Kohala Zipline, LLC and Plaintiff Lisa Cimino on October 26, 2016 (ECF No. 159) ("Joint Petition").

The Court held a hearing on the Joint Petition on November 16, 2016 at 9:00 a.m. Howard G. McPherson, Esq. and Tad S. Shapiro, Esq. appeared on behalf of Plaintiff. David M. Louie, Esq., Nicholas R. Monlux, Esq. and Kyleigh F.K. Nakasone, Esq. appeared on behalf of Kohala. Michael C. Bird, Esq. and Summer H. Kaiawe, Esq. appeared on behalf of Bonsai. There were no appearances on behalf of Arbor Global.

Upon consideration of the Joint Petition and supporting documents, the arguments of counsel in open court, and being duly advised of the record and file herein, and for good cause appearing therefore,

IT IS FOUND AND RECOMMENDED that the Joint Petition be GRANTED as follows:

1. The totality of circumstances and the factors set forth in Troyer v. Adams, 102 Haw. 399, 77 P.3d 83 (2003) reflect that the Settlement Agreement, Joint Tortfeasor Release and Indemnification Agreement ("Confidential Release and Agreement"), attached as Exhibit "A" to the Joint Petition (submitted under seal), is not collusive or aimed at injuring the interests of Arbor Global and/or Bonsai, and Kohala and Plaintiff entered into the Confidential Release and Agreement in good faith pursuant to Hawaii Revised Statutes ("HRS") § 663-15.5;

2. The amount of monetary consideration paid by Kohala on behalf of the "Releasees" and the "Other Releasees" (as those terms are defined in the Confidential Release and Agreement and which includes Kohala, Arbor Global, and Bonsai) to compensate Plaintiff for damages suffered on account of personal physical injuries sustained by Plaintiff in the "Subject Accident" (as defined in the Confidential Release and Agreement), and in exchange for the "Release," "Joint Tortfeasor Release," or "Joint Obligations Release" (as those terms are defined and/or explained in the Confidential Release and Agreement), and any other release provided for in the Confidential Release and Agreement, is reasonable and will be paid in good faith under HRS § 663-15.5;

3. Arbor Global and Bonsai do not have any claims against Plaintiff in or arising out of Bonsai's Counterclaim (ECF No. 103-1), Arbor Global's Counterclaim (ECF No. 104-1), and/or any other pleadings in the above-captioned lawsuit;

4. The only remaining claims in this matter are: (1) the claims by Kohala against Bonsai as set forth in Kohala's First Amended Third-Party Complaint ("TPC") (ECF No. 97); (2) the claims by Bonsai against Kohala as set forth in Bonsai's Counterclaim; (3) the claims by Kohala against Arbor Global as set forth in the TPC; (4) the claims by Arbor Global against Kohala as set forth in Arbor Global's Counterclaim; and (5) the claims by and between Arbor Global and Bonsai as set forth in their respective Crossclaims against one another. See ECF Nos. 103-2 and 104-2;

5. The main remaining issues to be adjudicated in this matter are the allocation of fault or liability between Kohala, Arbor Global and Bonsai, if any, and any legal issues relating to their claims against one another as set forth in Kohala's TPC, Arbor Global's Counterclaim and Crossclaim, and Bonsai's Counterclaim and Crossclaim;

6. The reasonableness of the amounts paid by Kohala to Plaintiff pursuant to the Confidential Release and Agreement is not and shall not be at issue; and

7. Any other joint tortfeasor or co-obligor shall be barred from any further claims against Kohala, except those based on a written indemnity agreement and as otherwise specified above.

IT IS SO FOUND AND RECOMMENDED.