Acol v. State.

FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
14-JAN-2025
07:57 AM
Dkt. 115 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI I

---o0o---

CHAUNTELLE ACOL, individually and as Personal Representative
of the ESTATE OF PETER J. KEMA, JR., deceased; ALLAN ACOL
and LINA ACOL, Plaintiff-Appellees,
v.
STATE OF HAWAI I, DEPARTMENT OF HUMAN SERVICES,
Defendant/Crossclaimant-Appellant; and PETER KEMA, SR.;
JAYLIN KEMA, Defendants/Crossclaim Defendants-Appellees,
and JOHN DOES 1-10, Defendants

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC181000052)

January 14, 2025

LEONARD, ACTING CHIEF JUDGE, McCULLEN, J., and
CIRCUIT COURT JUDGE ASHFORD, IN PLACE OF HIRAOKA, WADSWORTH,
NAKASONE, and GUIDRY, JJ., RECUSED

OPINION OF THE COURT BY LEONARD, ACTING CHIEF JUDGE

Years ago, many people in Hawai i asked, where's Peter

Boy? Underlying this appeal is the undisputed fact that Peter J.

Kema, Jr., widely known (and referred to herein) as Peter Boy, is

dead. This case is a wrongful death action brought by Peter
FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Boy's estate and surviving siblings (the Acols). The complaint

alleges that Peter Boy's death in 1997 at age six was due to

neglect and physical abuse inflicted by his parents and

Defendant-Appellant State of Hawaii's (the State's) failure to

timely investigate reports of abuse and to provide appropriate

services.

In the proceedings below, the State filed a motion for

summary judgment, which was denied, and the Acols filed a motion

for partial summary judgment, which was granted. The State

appeals pursuant to the June 24, 2021 Order Granting [the

State's] Motion for Leave to File Interlocutory Appeal and for

Stay of Proceedings Pending Appeal (Order Allowing Interlocutory

Appeal) entered by the Circuit Court of the First Circuit

(Circuit Court).1

On appeal, the State contends that the Circuit Court

erred in its summary judgment rulings because: (1) the Acols

lack standing to bring an action under Hawaii's wrongful death

statute, and even if the Acols have standing, the Acols' claims

are untimely and precluded as a matter of law; and (2) the

applicable statute of limitations runs from the decedent's death

and the "discovery rule" does not apply in this case. The State

challenges the Circuit Court's April 26, 2021 Order Denying

Defendant [State's] Motion for Summary Judgment [(State's MSJ)]

(Order Denying the State's MSJ) and April 26, 2021 Order Granting

Plaintiffs' Motion for Partial Summary Judgment as to the

1
The Honorable John M. Tonaki presided.

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Affirmative Defense of Statute of Limitations [(Acols' MPSJ)]

(Order Granting the Acols' MPSJ).

We hold that: (1) this case should not be dismissed at

this time due to a lack of standing because the Acols may be able

to establish their standing to bring wrongful death claims; (2)

Hawaii Revised Statutes (HRS) § 662-4 (2016) sets forth the limit

of the State's waiver of its sovereign immunity for tort claims,

absent some other clear and unequivocally-expressed waiver of

immunity in statutory text; (3) the statute of limitations

applicable to the Acols' wrongful death claim against the State

pursuant to HRS § 663-3 (2016) is within two years from the date

of death of Peter Boy, unless (a) the Acols can establish,

pursuant to HRS § 657-20 (2016), that any person who is liable

for Peter Boy's wrongful death fraudulently concealed the

existence of the Acols' cause of action, in which case (b) the

Acols' action against the State accrued when the Acols discovered

or should have discovered the existence of the cause of action

against the State, and therefore, may be commenced within two

years after the Acols discovered or should have discovered the

existence of the cause of action against the State, as set forth

in HRS § 657-20, as limited by HRS § 662-4. Accordingly, the

Circuit Court did not err in denying the State's MSJ and erred in

granting the Acols' MPSJ.

I. BACKGROUND

A. Factual Background

This is an interlocutory appeal from rulings on two

summary judgment motions. Although not all facts underlying this

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case are in dispute, many material facts remain open to

determination by a trier-of-fact. This "factual" background is

based on the submissions of the parties, and the facts of this

case remain subject to establishment and challenge through

admissible evidence and further argument.

Plaintiffs-Appellees Chauntelle Acol (Chauntelle),

individually and as Personal Representative of the Estate of

Peter J. Kema, Jr., deceased, Allan Acol (Allan), and Lina Acol

(Lina) (collectively, the Acols) are the surviving siblings of

Peter Boy.

Peter Boy was born in May of 1991 to Defendants-

Appellees Peter Kema, Sr. (Peter Sr.) and Jaylin Kema (Jaylin)

(the Kemas). Shortly after Peter Boy's birth, the State

Department of Human Services (DHS) and Child Protective Services

(CPS) removed Chauntelle and Allan from the Kema household and

initiated an investigation due to injuries suggesting physical

abuse by the Kemas. On June 26, 1991, Chauntelle and Allan were

returned to the Kema household. A Child Protective Act

proceeding was initiated in the Hilo Division of Family Court of

the Third Circuit (Family Court) and the Family Court ordered a

service plan and family supervision by CPS.

On August 11, 1991, three-month-old Peter Boy was taken

to Hilo Hospital for treatment for a leg injury. X-rays revealed

one-month old fractures in his upper arms and the left sixth,

seventh, and eighth ribs, as well as more recent fractures in

both legs and the left ankle. As a result of those injuries,

Chauntelle, Allan, and Peter Boy were removed from the Kema

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household and placed in foster care in August 1991. On

September 13, 1991, Dr. Robert Di Mauro reviewed the x-rays and

wrote in a letter to Michael Hess (Hess), the DHS worker in

charge of the investigation: "The appearance and distribution of

these fractures is characteristic of child abuse."

On November 14, 1991, a court-appointed psychologist

filed his evaluation of the Kemas with the Family Court, warning

that both parents suffered from significant psychological illness

and that the chance of significant change in the parents'

behavior was extremely poor. On November 16, 1991, Chauntelle,

Allan, and Peter Boy were moved from temporary foster custody and

placed with their maternal grandparents, James Acol and Yolanda

Acol (Acol Grandparents).

On August 19, 1992, Hess wrote a memorandum to his

supervisor, Claudia Wilcox, warning her that, "These children are

at extreme risk if they are placed in the care of either parent."

He urged her to move for permanent custody and termination of

parental rights without delay.

On July 25, 1994, DHS returned Peter Boy to the custody

of the Kemas. In approximately October of 1995, based on the

report and recommendation of DHS, family supervision of Peter Boy

and his siblings was revoked and the Family Court case was

closed.

In January 1997, the Acol Grandparents reported to

Constance Santana (Santana) at the Kona CPS office that they had

seen Peter Boy with a severe injury to his arm. Santana called

the Hilo CPS office supervisor Peggy Hilton (Hilton) about the

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report. Hilton asked Santana not to file the report as a "new

intake," and advised her that she was closely monitoring the

Peter Boy case. Per Hilton's instructions, Santana logged the

report under the existing case file. Hilton did not indicate to

Santana that the case had been closed in 1995. There is no

record of any action being taken by the DHS or CPS as a result of

Santana's January 1997 report.

On April 4, 1997, Karen DeSoto, MSW, reported to DHS

that a client of hers, a teenaged cousin to Peter Boy, had

observed Peter Boy with a broken arm that she believed was caused

by Peter Sr., who was also allegedly forcing Peter Boy to eat dog

feces. The report was logged as a new intake. At the time, the

protocol for addressing an intake report of child abuse was to

assign the matter for investigation to a CPS worker within

twenty-four hours of receipt. However, the matter was not

assigned until June 17, 1997, more than two months later. By the

time CPS worker Evelyn Au was assigned and initiated an

investigation, Peter Boy had disappeared. Peter Boy was never

seen again.

According to DHS employee Sandy Vitousek (Vitousek),

the reason for the delay was chronic short staffing that required

investigations to be assigned on a priority basis. Vitousek

stated, "The information received did not warrant a high safety

factor, given that there was no indication of actual harm, and at

that time, there was no suspicion of the child being missing.

The intake was accepted solely on the perceived concerns of a

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[fifteen-year-old], coupled with a prior CPS history (Case closed

in 1995)."

The Kemas claimed that Peter Boy had been taken to

O ahu to stay with a distant relative named "Aunty Rose

Makuakane." The Kemas continued to assert this claim for the

next nineteen years. Meanwhile, local law enforcement

investigated Peter Boy's disappearance, but were unable to obtain

sufficient evidence to confirm Peter Boy's death or the

circumstances of his disappearance. The Kemas' Aunty Rose

Makuakane story, together with two credible witnesses reporting

seeing Peter Boy alive following his disappearance, complicated

the investigation. In 1998 and 1999, Hawai i Police Department

(HPD) investigators questioned the Acol siblings about the Kemas'

abuse, particularly the abuse of Peter Boy. Four-and-a-half-

year-old Lina reported that she saw Peter Boy dead based on her

recollection of an event she witnessed when she was approximately

three-and-a-half years old. Years later, in April 2001, HPD

reclassified Peter Boy's disappearance from a missing person case

to a murder investigation. Lina reported her memories of seeing

Peter Boy dead, her parents' attempts to resuscitate him, and her

father driving with her to bury Peter Boy under a tree, to HPD

and the media at ages seven, twelve, fourteen, twenty, and

twenty-three.

In March and April of 2016, prosecutors were able to

verify that both of the reported sightings of Peter Boy alive

after his disappearance and the Aunty Rose Makuakane story were

false. On April 27, 2016, Jaylin and Peter Sr. were indicted for

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the murder of Peter Boy. Ricky Roy Damerville, a Hawai i County

deputy prosecutor assigned to prosecute the Kemas, explained in a

declaration, inter alia, the difficulties with the case:
There was no forensic evidence supporting the fact of
death or the manner of death. The only evidence that [Peter
Boy] was deceased was the passage of time and the recorded
statements of [Lina].

. . . .

The weakness [of the prosecution's case] was the
inconsistent statements of a four and half year old Lina
Acol, of average cognitive ability about something that she
witnessed as a three and half year old and Lina's own
uncertainty whether [Peter Boy] was deceased.

Jaylin and Peter Sr. pled guilty to reckless

manslaughter for Peter Boy's death on December 1, 2016, and

April 6, 2017, respectively.

On January 11, 2017, upon a petition, the Family Court

appointed Stephen W. Lane (Lane) as Special Master to investigate

the circumstance of Peter Boy's death and determine whether

grounds existed for filing a tort claim on behalf of Peter Boy's

estate. On April 13, 2017, Lane filed a Special Master's Status

Report wherein he stated, "I have concluded that there is

substantial evidence of colorable claims against the [State]

arising out of the care and treatment of [Peter Boy] and his

siblings." To support this conclusion, Lane cited to, inter

alia, the two-month delay by CPS in investigating the April 4,

1997 report of abuse:
By the time CPS reacted to the April 4 report in June
of 1997, it was too late. Peter Boy was dead. It is
probable that had CPS complied with their own standards and
protocols and acted on this complaint as the law required,
Peter Boy would be alive today.

On November 7, 2017, upon a petition to the Circuit

Court of the Third Circuit (Third Circuit Court) for, inter alia,

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a determination of death and adjudication of intestacy, the Third

Circuit determined that Peter Boy was deceased.

B. Procedural Background

On January 10, 2018, the Acols filed the Complaint in

this case, asserting wrongful death claims on their own behalf

and on behalf of Peter Boy's estate. The Acols allege, inter

alia, that the State, through its department and agency employees

(including DHS and CPS employees), breached its duty to the Acols

and Peter Boy by returning Peter Boy to the Kemas' household and

by supporting the termination and closure of protective

proceedings and parental supervision, despite knowledge and

information about ongoing, severe physical abuse of Peter Boy by

his parents.

On February 1, 2018, the State answered the Complaint,

asserting, inter alia, that this action is barred by the

applicable statute of limitations.

On March 2, 2021, the Circuit Court filed orders

allowing the State's MSJ and the Acols' MPSJ, including exhibits

to the motions, to be filed under seal. Both motions were filed

on March 3, 2021, and heard on April 1, 2021. The Acols sought

partial summary judgment as to the State's affirmative defense of

statute of limitations. They argued that the Complaint was

timely because the Acols did not discover Peter Boy's death until

Jaylin's confession in December 2016, and they discovered their

colorable claims against the State when they received the Special

Master's Status Report in April 2017. The State argued that the

Acols' claims were time barred by HRS § 663-3 because more than

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two years had passed since Peter Boy's death when the Acols filed

their Complaint.

On April 26, 2021, the Circuit Court entered the Order

Denying the State's MSJ and the Order Granting the Acols' MPSJ.

In both orders, the Circuit Court found as a matter of law that

the Complaint was timely filed because:
1. [The Acols'] cause of action did not accrue under
[HRS] § 663-3 two-year limitations period until
December 1, 2016 when Jaylin Kema allocuted in court
as part of her guilty plea and admitted causing the
death of Peter Boy Kema;

2. From the time of Peter Boy's disappearance in 1997
until December 1, 2016, [Jaylin] and [Peter Sr.]
fraudulently concealed the fact of Peter Boy's death,
and [HRS] § 657-20 tolled the statute of limitations
for six years following [Jaylin's] admission of guilt
as to Peter Boy's death; and,

3. For a large portion of the 19 years that Peter Boy was
missing, the [Acols] were minors, either under the
care of the Kemas themselves, or the Acol grandparents
and could not be expected under these circumstances to
bring an action within the two years after 1997 when
Peter Boy disappeared and it is thought that he had
died. The reports or multiple recollections of [Lina]
when she was 3 or 4 years old were inconsistent and it
would be manifestly unfair to commence the statute of
limitations period based upon this memory of Lina when
the relevant government authorities chose not to act
upon the same memory.

On June 24, 2021, the Circuit Court entered the Order

Allowing Interlocutory Appeal. On July 13, 2021, the State

timely filed a Notice of Appeal.

II. POINTS OF ERROR

The State raises two points of error, contending that

the Circuit Court erred: (1) in denying the State's MSJ; and (2)

by applying the discovery rule to a wrongful death action and

granting the Acols' MPSJ.2

2
The State's points of error are woefully noncompliant with Hawai i
Rules of Appellate Procedure Rule 28(b)(4). Such omissions may result in
(continued...)

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III. APPLICABLE STANDARDS OF REVIEW

We review orders granting or denying summary judgment

de novo. Nuuanu Valley Ass'n v. City & Cnty. of Honolulu, 119

Hawai i 90, 96, 194 P.3d 531, 537 (2008).
[S]ummary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. A
fact is material if proof of that fact would have the effect
of establishing or refuting one of the essential elements of
a cause of action or defense asserted by the parties. The
evidence must be viewed in the light most favorable to the
non-moving party. In other words, we must view all of the
evidence and inferences drawn therefrom in the light most
favorable to the party opposing the motion.

Id. (citation omitted).

Questions of statutory interpretation are questions of law
to be reviewed de novo under the right/wrong standard.

Our statutory construction is guided by the following
well established principles:

our foremost obligation is to ascertain and give
effect to the intention of the legislature, which is
to be obtained primarily from the language contained
in the statute itself. And we must read statutory
language in the context of the entire statute and
construe it in a manner consistent with its purpose.

When there is doubt, doubleness of meaning, or
indistinctiveness or uncertainty of an expression used
in a statute, an ambiguity exists.

In construing an ambiguous statute, the meaning
of the ambiguous words may be sought by examining the
context, with which the ambiguous words, phrases, and
sentences may be compared, in order to ascertain their
true meaning. Moreover, the courts may resort to
extrinsic aids in determining legislative intent. One
avenue is the use of legislative history as an
interpretive tool.

[The appellate] court may also consider the
reason and spirit of the law, and the cause which
induced the legislature to enact it to discover its
true meaning.

2
(...continued)
points of error being disregarded. However, in the interest of justice, we
have exercised our discretion to address the merits of the appeal. O'Connor
v. Diocese of Honolulu, 77 Hawai i 383, 386 n.5, 885 P.2d 361, 364 n.5 (1994);
Sprague v. Cal. Pac. Bankers & Ins. Ltd., 102 Hawai i 189, 196, 74 P.3d 12, 19
(2003).

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Lingle v. Haw. Gov't Emps. Ass'n Local 152, 107 Hawai i 178, 183,

111 P.3d 587, 592 (2005) (cleaned up).

IV. DISCUSSION

The State maintains that the Circuit Court erred in its

summary judgment rulings and the State is entitled to judgment as

a matter of law because the Acols lack standing, and even if they

have standing, their claims are barred by the applicable statute

of limitations.

A. Standing

The State argues that the Acols lack standing to bring

a wrongful death action for the death of Peter Boy because they

are not among the enumerated classes of persons who may recover

under HRS § 663-3. The State further argues that even though the

issue of standing was not raised in the Circuit Court

proceedings, standing is a matter of subject matter jurisdiction,

and therefore the courts lack jurisdiction to rule in the Acols'

favor. This latter proposition was clarified, and firmly

rejected, by the Hawai i Supreme Court as follows:
In Hawai i state courts, standing is a prudential
consideration regarding the "proper – and properly limited –
role of courts in a democratic society" and is not an issue
of subject matter jurisdiction, as it is in federal courts.

Tax Found. of Haw. v. State, 144 Hawai i 175, 188, 439 P.3d 127,

140 (2019).

Hawaii's wrongful death statute provides:
§ 663-3 Death by wrongful act. (a) When the death
of a person is caused by the wrongful act, neglect, or
default of any person, the deceased's legal representative,
or any of the persons enumerated in subsection (b), may
maintain an action against the person causing the death or
against the person responsible for the death. The action
shall be maintained on behalf of the persons enumerated in
subsection (b), except that the legal representative may

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recover on behalf of the estate the reasonable expenses of the
deceased's last illness and burial.

(b) In any action under this section, such damages
may be given as under the circumstances shall be deemed fair
and just compensation, with reference to the pecuniary
injury and loss of love and affection, including:

(1) Loss of society, companionship, comfort,
consortium, or protection;

(2) Loss of marital care, attention, advice, or
counsel;

(3) Loss of care, attention, advice, or counsel of a
reciprocal beneficiary as defined in chapter
572C;

(4) Loss of filial care or attention; or

(5) Loss of parental care, training, guidance, or
education, suffered as a result of the death of
the person;

by the surviving spouse, reciprocal beneficiary, children,
father, mother, and by any person wholly or partly dependent
upon the deceased person. The jury or court sitting without
jury shall allocate the damages to the persons entitled
thereto in its verdict or judgment, and any damages
recovered under this section, except for reasonable expenses
of last illness and burial, shall not constitute a part of
the estate of the deceased. Any action brought under this
section shall be commenced within two years from the date of
death of the injured person, except as otherwise provided.

HRS § 663-3 (emphasis added).

Pursuant to HRS § 663-3(a), in her capacity as the

personal representative of Peter Boy's estate, Chauntelle has

standing to bring a wrongful death claim under HRS § 663-3. In

their individual capacities, as Peter Boy's siblings, the Acols

are not among the specifically enumerated persons (spouse,

reciprocal beneficiary, child, mother, father) who have standing

under HRS § 663-3, but they may nevertheless bring suit if they

are able to establish that they were "wholly or partly dependent

upon the deceased person," i.e., Peter Boy. See id. The State

argues that none of the Acols were wholly or partly dependent on

six-year-old Peter Boy.

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The supreme court has held that HRS § 663-3 is plain

and unambiguous, and that under this statute, "the surviving

spouse, children, mother, and father of the deceased and any

person wholly or partly dependent upon the deceased may recover

damages for pecuniary injuries and for the 'loss of love and

affection' caused by the wrongful death of the deceased."

Lealaimatafao v. Woodward-Clyde Consultants, 75 Haw. 544, 552,

867 P.2d 220, 224 (1994). The court explained:
The term "dependent" has been variously construed.
But as employed in death acts it connotes the existence of
necessitous want[.]

Dependency may result from different causes. It may
result from the lack of physical necessities such as food,
shelter and clothing. It may result from moral and social
necessities such as education. Physical, moral and social
necessities are not confined to the subjects mentioned.
Others are readily conceivable.

Id. (quoting Young v. Honolulu Const. & Draying Co., 34 Haw. 426,

442 (1938)) (emphasis added). The court further clarified that

claims are not limited to pecuniary injuries, but may also arise

from a loss of love and affection. Id. at 555, 867 P.2d at 226.

In most instances where dependency is disputed,

"dependence that confers standing on [a person] to bring a

wrongful-death action for the death generally presents a question

of fact, which should be determined by the trier of fact. The

fact and degree of dependency on a decedent are matters for

determination by a jury on proper evidence." See 22A Am. Jur. 2d

Death § 359. Here, in part because the issue was raised for the

first time on appeal, there are no factual findings on the issue

of dependency. In the Complaint, the Acols alleged that as a

result of the wrongful death of Peter Boy, Plaintiffs sustained

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"conscious pain and suffering; severe emotional distress and

mental anguish; the loss of future enjoyment of life; the loss of

society, companionship, comfort, consortium, and/or protection;

and the loss of filial care and/or attention."

We cannot conclude as a matter of law that the Acols

cannot establish that they were dependent upon Peter Boy for

physical, moral, or social necessities; therefore, the Acols may

be able to establish their standing to bring wrongful death

claims under HRS § 663-3. We reject the State's argument that

this case should be dismissed on this appeal due to lack of

standing.

B. Statute of Limitations

The State argues that the Acols' claims against the

State are barred by the applicable statute of limitations, and

therefore, the Circuit Court erred in denying the State's MSJ and

granting the Acols' MPSJ.

We begin with the basic tenets of sovereign immunity.
[I]t is well established that the State's liability is
limited by its sovereign immunity, except where there has
been a clear relinquishment of immunity and the State has
consented to be sued.

. . . .

[W]hen construing statutes regarding sovereign
immunity, the following principles apply: (1) a waiver of
the Government's sovereign immunity will be strictly
construed, in terms of its scope, in favor of the sovereign;
(2) a waiver of sovereign immunity must be unequivocally
expressed in statutory text; (3) a statute's legislative
history cannot supply a waiver that does not appear clearly
in any statutory text; (4) it is not a court's right to
extend the waiver of sovereign immunity more broadly than
has been directed by the [legislature]; and (5) sovereign
immunity is not to be waived by policy arguments.

Taylor-Rice v. State, 105 Hawai i 104, 109-10, 94 P.3d 659, 664-

65 (2004) (cleaned up).

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The State Tort Liability Act waives the State's

immunity from money damages for torts as follows:
§ 662-2 Waiver and liability of State. The State
hereby waives its immunity for liability for the torts of
its employees and shall be liable in the same manner and to
the same extent as a private individual under like
circumstances, but shall not be liable for interest prior to
judgment or for punitive damages.

HRS § 662-2 (2016).

The State Tort Liability Act also includes a statute of

limitation, which states:
§ 662-4 Statute of limitations. A tort claim against
the State shall be forever barred unless action is begun
within two years after the claim accrues, except in the case
of a medical tort claim when the limitation of action
provisions set forth in section 657-7.3 shall apply.

HRS § 662-4 (emphasis added).

This is a hard deadline – the limit of the State's

waiver of its sovereign immunity for tort claims, absent some

other clear and unequivocally-expressed waiver of immunity in

statutory text. See Taylor-Rice, 105 Hawai i at 109-10, 94 P.3d

at 664-65; see also, e.g., Whittington v. State, 72 Haw. 77, 79,

806 P.2d 957, 957-58 (1991) (holding that extensions for minors

allowed under HRS § 657-13 (2016) are not applicable to tort

actions against the State because the State Tort Liability Act

does not contain an express minority tolling provision). There

is a single exception – involving HRS § 657-7.3 – that is not

applicable here.

Thus, we necessarily consider when the tort claim

accrues, i.e., when the statute of limitations begins to run

under HRS § 662-4, as well as other statutory language in and

applicable to the wrongful death statute, HRS § 663-3.

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Our courts have interpreted the word "accrues" under
HRS § 662–4 to mean that the statute does not begin to run
"until the plaintiff knew or should have known of the
defendant's negligence." Waugh v. University of Hawaii, 63
Haw. 117, 127, 621 P.2d 957, 966 (1980) (quotation marks and
citation omitted). The Hawai i Supreme Court later
interpreted a similar statute of limitations, HRS § 657–7
(1993), to mean that a claim against the State "accrues"
when the claimant "discovers, or through the use of
reasonable diligence should have discovered, (1) the damage;
(2) the violation of the duty [to the claimant]; and (3) the
causal connection between the violation of the duty and the
damage." Hays v. City and County of Honolulu, 81 Hawai i
391, 396, 917 P.2d 718, 723 (1996) (citation omitted)
(interpreting HRS § 657–7.3 (1993) and HRS § 657–7).

Anderson v. State, 88 Hawai i 241, 247, 965 P.2d 783, 789 (App.

1998) (footnote omitted).

Accordingly, it appears that in general, pursuant to

HRS § 662-4, the State has waived its immunity from suit for

torts, including a wrongful death action, so long as the suit is

brought within two years after the claim accrues; and, a claim

accrues when the claimant has knowledge of (1) the decedent's

death, (2) the defendant's wrongful conduct, and (3) the causal

connection between the wrongful conduct and the death. We will

return to this concept below.

But first we must also consider the State's argument

that pursuant to Hawaii's wrongful death statute, HRS § 663-3, a

wrongful death action must be commenced within two years of the

decedent's death. As set forth above, HRS § 663-3 provides, in

relevant part here:
§ 663-3 Death by wrongful act. (a) When the death
of a person is caused by the wrongful act, neglect, or
default of any person, the deceased's legal representative,
or any of the persons enumerated in subsection (b), may
maintain an action against the person causing the death or
against the person responsible for the death[.]

. . . .

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Any action brought under this section shall be commenced
within two years from the date of death of the injured
person, except as otherwise provided.

(Emphasis added).

The State points to the final sentence of HRS § 663-3

to argue that the limitations period for a wrongful death claim

is strictly based on the date of decedent's death, subject only

to tolling for infancy under the provisions of HRS § 657-13. 3

As noted above, the supreme court held in Whittington

that the tolling of the statute of limitations for minors allowed

under HRS § 657-13 is not applicable to tort actions against the

State, because the State Tort Liability Act does not contain an

express minority tolling provision. 72 Haw. at 79, 806 P.2d at

957-58. "Actions brought under HRS Chapter 662, are not actions

specified in Part I of Chapter 657, and accordingly, the

3
HRS § 657-13 provides:

§ 657-13 Infancy, insanity, imprisonment. If any
person entitled to bring any action specified in this part
(excepting actions against the sheriff, chief of police, or
other officers) is, at the time the cause of action accrued,
either:

(1) Within the age of eighteen years;

(2) Insane; or

(3) Imprisoned on a criminal charge, or in execution
under the sentence of a criminal court for a
term less than the person's natural life;

such person shall be at liberty to bring such actions within
the respective times limited in this part, after the
disability is removed or at any time while the disability
exists.

(Emphasis added).

We note that the plain language of HRS § 657-13 recognizes that
the condition of infancy, for example, does not determine when a cause of
action accrues. In other words, it recognizes that a cause of action may
occur when a person is under an enumerated disability. Rather, this statute
tolls the running of the statute of limitations until after that disability is
removed.

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extension for minors allowed in HRS § 657–13 is not applicable to

actions against the State brought under Chapter 662[.]" Id. at

79, 806 P.2d at 958 (emphasis added). The same principle is true

for actions against the State brought under HRS chapter 663. 4

Conversely, HRS § 657-20 specifically applies to HRS

§ 663-3, which provides for a tort action for wrongful death. As

set forth above, the State has specifically waived its immunity

for tort actions. HRS § 657-20 states:
§ 657-20 Extension by fraudulent concealment. If any
person who is liable to any of the actions mentioned in this
part or section 663-3, fraudulently conceals the existence
of the cause of action or the identity of any person who is
liable for the claim from the knowledge of the person
entitled to bring the action, the action may be commenced at
any time within six years after the person who is entitled
to bring the same discovers or should have discovered, the
existence of the cause of action or the identity of the
person who is liable for the claim, although the action
would otherwise be barred by the period of limitations.

(Emphasis added).

The Acols argue that HRS § 657-20 tolled the statute of

limitations for six years following Jaylin's admission concerning

Peter Boy's death. While an extension by fraudulent concealment

is expressly made applicable to wrongful death claims under HRS

§ 663-3, there is no clear and unequivocally-expressed waiver in

4
We recognize that the supreme court has interpreted the 1972
amendment to HRS § 657-13 to permit the minority tolling provision in HRS
§ 657-13 to apply to wrongful death actions brought pursuant to HRS § 663-3.
Hun v. Center Props., 63 Haw. 273, 281-82, 626 P.2d 182, 188 (1981). However,
that case did not involve a wrongful death action against the State, and
therefore, it is not dispositive of the issue here. Unlike HRS § 661-5 (2016)
(the statute of limitations for claims against the State brought under Part I
of HRS chapter 661), HRS § 662-4 does not provide for an additional period for
"persons under legal disability" – such as infancy, insanity, imprisonment
(see HRS § 657-13) – to commence a tort action against the State.

We further recognize that the one-year tolling provision in HRS
§ 661-5, for persons under disability, arguably could be applied to a claim
brought pursuant to HRS § 663-3 because it is a "claim against the State
founded upon any statute of the State" pursuant to HRS § 661-1(1) (2016).
However, it is undisputed that the Acols did not commence this action within
one year of reaching their respective ages of majority.

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HRS § 657-20 or HRS § 663-3 of the absolute bar of tort claims

against the State set forth in HRS § 662-4, i.e., that a "tort

claim against the State shall be forever barred unless action is

begun within two years after the claim accrues." Thus, we

conclude HRS § 657-20 cannot be construed to toll the time period

in which an action may be commenced against the State beyond the

two-year period after the cause of action accrues.

HRS § 657-20 does, however, state parameters for the

determination of when the cause of action accrues, i.e., when the

statute of limitations begins running on a wrongful death claim.

Specifically, if any person who is liable for a wrongful death

under HRS § 663-3 fraudulently conceals the existence of the

cause of action, "the action may be commenced at any time within

[the permissible number of] years after the person who is

entitled to bring the same discovers or should have discovered,

the existence of the cause of action . . ., although the action

would otherwise be barred by the period of limitations." HRS

§ 657-20 (emphasis added). Contrary to the State's argument that

the limitations period in HRS § 663-3 is fixed – running strictly

from the decedent's date of death – we conclude that if the

complainant(s) can establish that any person who is liable for a

wrongful death under HRS § 663-3 fraudulently concealed the

existence of the cause of action, then the discovery rule set

forth in HRS § 657-20 applies, even though HRS § 663-3 itself

does not contain accrual language.

Accordingly, we hold that (1) the statute of

limitations applicable to the Acols' wrongful death claim against

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the State pursuant to HRS § 663-3 (Death by wrongful act) is

within two years from the date of death of Peter Boy, unless (2)

the Acols can establish, pursuant to HRS § 657-20 (Extension by

fraudulent concealment), that any person who is liable for Peter

Boy's wrongful death fraudulently concealed the existence of the

Acols' cause of action, in which case (3) the Acols' action

against the State accrued when the Acols discovered or should

have discovered the existence of the cause of action against the

State, as set forth in HRS § 657-20, and therefore, may be

commenced within two years after the Acols discovered or should

have discovered the existence of the cause of action against the

State, as set forth in HRS § 657-20, as limited by HRS § 662-4

(Statute of limitations for tort claims against the State).

C. The Order Denying the State's MSJ

The State argues that the Circuit Court erred in

denying the State's MSJ. In accordance with the above, we reject

the State's arguments that the State was entitled to summary

judgment against the Acols because the Acols lack standing or

because the Acols' claims were time-barred pursuant to HRS

§ 663-3 and no discovery rule could be applied to extend the

statute of limitations more than two years after the date of

Peter Boy's death. Concerning fraudulent concealment, the State

argues that (1) there is no allegation that the State

participated in any act of fraudulent concealment, and (2)

regardless of any fraudulent concealment of Peter Boy's death by

the Kemas, "Lina always knew the true circumstances of the Kemas'

conduct and the death of Peter Boy based on what she witnessed."

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Regarding the State's first argument, HRS § 657-20

plainly states, in relevant part: "If any person who is liable to

any of the actions mentioned in this part or section 663-3,

fraudulently conceals the existence of the cause of action . . .,

the action may be commenced at any time within [the applicable

period] after the person who is entitled to bring the same

discovers or should have discovered[] the existence of the cause

of action." (Emphasis added). The plain and unambiguous

language of HRS § 657-20 clearly extends the time to commence an

action based on the fraudulent concealment of the existence of

the cause of action by any person who is liable – it does not

require the complainant to establish that all persons who are

liable engaged in the fraudulent concealment of the existence of

the cause of action.

Regarding the State's second argument, we conclude that

there are genuine issues of material fact in dispute as to when

the Acols discovered or should have discovered the existence of

the wrongful death cause of action. We cannot conclude as a

matter of law that Lina's varying and inconsistent recollections

of what she saw when she was three years old, which conflicted

with other accounts concerning whether Peter Boy was dead,

constituted knowledge (even by Lina) of the existence of a

wrongful death cause of action. The statute of limitations runs

from when the cause of action was discovered or should have been

discovered.

"[T]he moment at which a statute of limitations is

triggered is ordinarily a question of fact." Norris v. Six Flags

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Theme Parks, Inc., 102 Hawai i 203, 206, 74 P.3d 26, 29 (2003)

(citing Blair v. Ing, 95 Hawai i 247, 267, 21 P.3d 452, 472

(2001)). When a discovery rule applies, a cause of action

accrues when the plaintiff discovers or should have discovered

the wrongful act, the damage, and the causal connection between

the former and the latter. Hays, 81 Hawai i at 396, 917 P.2d at

723. A plaintiff's lack of knowledge regarding the legal duty

upon which they may base a cause of action does not delay the

start of the limitations period. Id. at 398, 917 P.2d at 725.
Concerning the issue whether the plaintiff, through the use
of reasonable diligence, should have discovered the
[wrongful] act, the damage, and the causal connection
between the two, that issue is for the trier of fact. It
bears repeating, however, that even when there is no dispute
as to the facts, it usually is for the jury to decide
whether the conduct in question meets the reasonable man
standard.

Ass'n of Apartment Owners of Newtown Meadows v. Venture 15, Inc.,

115 Hawai i 232, 277, 167 P.3d 225, 270 (2007) (cleaned up).

On the record in this case, we cannot conclude there is

no genuine issue of material fact regarding whether the Acols,

through the use of reasonable diligence should have discovered

the wrongful acts at issue here, the damage, and the causal

connection between them more than two years prior to their

commencement of this lawsuit. Therefore, we conclude that the

Circuit Court did not err in entering the Order Denying the

State's MSJ.

D. The Acols' MPSJ

The State further argues that the Acols' MPSJ was

improperly granted. As stated above, the Circuit Court found as

a matter of law:

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1. [The Acols'] cause of action did not accrue under
[HRS] § 663-3 two-year limitations period until
December 1, 2016 when Jaylin Kema allocuted in court
as part of her guilty plea and admitted causing the death of
Peter Boy Kema;

2. From the time of Peter Boy's disappearance in 1997
until December 1, 2016, [Jaylin] and [Peter Sr.]
fraudulently concealed the fact of Peter Boy's death,
and [HRS] § 657-20 tolled the statute of limitations
for six years following [Jaylin's] admission of guilt
as to Peter Boy's death; and,

3. For a large portion of the 19 years that Peter Boy was
missing, the [Acols] were minors, either under the
care of the Kemas themselves, or the Acol grandparents
and could not be expected under these circumstances to
bring an action within the two years after 1997 when
Peter Boy disappeared and it is thought that he had
died. The reports or multiple recollections of [Lina]
when she was 3 or 4 years old were inconsistent and it
would be manifestly unfair to commence the statute of
limitations period based upon this memory of Lina when
the relevant government authorities chose not to act
upon the same memory.

Regarding the Circuit Court's first finding and

conclusion, there was at least some evidence in the record that

the Acols knew of the Kemas' wrongful acts that caused Peter

Boy's death, that Peter Boy was dead, and a reasonable trier-of-

fact could find that, through reasonable diligence, the Acols

should have discovered the alleged wrongful acts of the State, as

well as the causal connection between those acts and Peter Boy's

death.

There also appear to be genuine issues of material fact

concerning whether the Kemas fraudulently concealed their

wrongful acts causing Peter Boy's death from the Acols, as well

as Peter Boy's death, in light of, inter alia, Lina's

attestations concerning what she witnessed as a young child, and

the other reports of the extreme abuse suffered by Peter Boy.

The Circuit Court's third finding and conclusion in sum

concludes that it would be "manifestly unfair" to bar the Acols'

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claims on statute of limitations grounds based on Lina's memories

when, inter alia, for many years the State failed to act upon

Lina's accounts of Peter Boy's death. However, as the supreme

court has held, sovereign immunity cannot be waived based on

policy arguments. See, e.g., Taylor-Rice, 105 Hawai i at 110, 94

P.3d at 665. Nor can the statute of limitations for claims

against the State be waived or modified on equitable grounds.

See Okutsu v. State, 153 Hawai i 192, 197-99, 528 P.3d 956, 961-

63 (App. 2023) (holding, inter alia, that HRS § 662-4 cannot be

waived or tolled by the conduct of the executive branch).

Accordingly, we conclude that the Circuit Court erred

in granting partial summary judgment in favor of the Acols and

concluding as a matter of law that the Complaint was timely

filed.

V. CONCLUSION

For the reasons set forth above, the Circuit Court's

April 26, 2021 Order Denying the State's MSJ is affirmed and the

Circuit Court's April 26, 2021 Order Granting the Acols' MPSJ is

vacated. This case is remanded to the Circuit Court for further

proceedings consistent with this Opinion.

DATED: Honolulu, Hawai i, January 14, 2025.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Caron M. Inagaki,
Kathy K. Higham, and /s/ Sonja M.P. McCullen
Skyler G. Cruz, Associate Judge
Deputy Attorneys General,
for Defendant-Appellant /s/ James H. Ashford
Circuit Court Judge
Randall L.K.M. Rosenberg
Ryan M. Kaufman
(Rosenberg McKay Hoffman),
for Plaintiffs-Appellees

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