Automobile Insurance SubrogationAutomobile Total Loss ThresholdsDeductible ReimbursementDiminution of ValueFirst Come, First Served: Subrogating Multiple Claims in Excess of Policy LimitsFuneral Procession Traffic LawsImputing Contributory Negligence of Driver to Vehicle OwnerLaws Regarding Using Cell Phones/Headphones/Texting While DrivingLoss Of UseMed Pay/PIP SubrogationOwner Liability For Stolen VehiclesPayment of Sales Tax After Vehicle Total LossPedestrian and Crosswalk LawsRental Car Company Physical Damage and Loss of Use ClaimsRental Car Company’s Liability Insurance Primary or ExcessSlower Traffic Keep RightSudden Medical Emergencies While DrivingSuspension of Drivers’ LicensesUse of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Federal , State, and Local Governmental EntitiesMunicipal/County/Local Governmental Immunity and Tort LiabilityState Sovereign Immunity And Tort Liability
General Tort Laws/StatutesAnti-Indemnity StatutesContribution ActionsContributory Negligence/Comparative FaultDog Bite LawsEconomic Loss DoctrineParental ResponsibilitySpoliationStatute of LimitationsStatute of Limitations Exceptions
Health Insurance SubrogationHealth and Disability Insurance
InvestigationAdmissibility of Expert TestimonyPre-Suit Disclosure of Liability Policy Limits in Third-Party ClaimsRecording Conversations
Product Liability SubrogationProduct Liability Law
Property Subrogation“Matching Regulations” And Laws Affecting Homeowners Property ClaimsCondominium/Co-Op Waiver of Subrogation LawsDamage to Property Without Market ValueGeneral Contractor Overhead And Profit Payments In First-Party ACV Property Damage ClaimsLandlord/Tenant Subrogation
Subrogation GenerallyAnti-Subrogation RuleCriminal RestitutionMade Whole DoctrineMedical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Workers’ CompensationEmployee Leasing LawsHospital Lien LawsOCIP/CCIP Subrogation In Workers’ Compensation Construction CasesRecovery Of Increased Workers’ Compensation Premiums By EmployerWhich Workers’ Compensation “Benefits” Can Be Subrogated?Workers’ Compensation Subrogation Waiver EndorsementsWorkers’ CompensationWorkers’ Compensation Claims by Undocumented Employees
Automobile Insurance Subrogation
Automobile Total Loss Thresholds
Total Loss Formula (See here for definition).
Insurer determines if a vehicle is repairable or whether it is a total loss, and must have material damage to vehicle’s frame, unitized structure, or suspension system, and cost of repairing damage exceeds market value. Haw. Rev. Stat. § 286-48.
Automobile: No applicable statute, Administrative Code provision or case law specifically setting forth a duty to reimburse a deductible. However, with regard to UM/UIM subrogation, Haw. Stat. § 431:10C-305.5 provides: “If insured is involved in accident with uninsured motorist and insured paid deductible amount for damages incurred in that accident, and if insurer recovers any money from uninsured motorist, insurer shall reimburse insured, provided that: (1) amount recovered shall be divided equally between insured and insurer; (2) amount of insured’s reimbursement shall not exceed deductible paid; and (3) if amount of damage exceeds $2,500, insurer shall: (a) pay full amount of deductible to insured; or (b) initiate proceedings against uninsured motorist to recover damages.”
Diminution of Value
First Party: Hawaii courts have used diminution in value to establish value for the purposes of condemnation, along with using diminution as the method of establishing values for loss to real property. County of Kauai v. Pacific Standard Life Ins. Co., 653 P.2d 766 (Haw. 1982); Clog Holdings, N.V. v. Bailey, 992 P.2d 69 (Haw. 2000), Opinion Ordered Depublished (April 20, 2000).
Third Party: No court decisions regarding recovery allowed for diminution in value of a damaged vehicle in a third-party claim.
First Come, First Served: Subrogating Multiple Claims in Excess of Policy Limits
There does not appear to be any authority with regard to the duties and procedures to be followed in terms of a tortfeasor’s insurer settling with only one of several claimants on a first come, first serve basis. However, Rule 22 of the Hawai’i Rules of Civil Procedure provides:
Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that the plaintiff is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of cross-claim or counterclaim. The provisions of this role supplement and do not in any way limit the joinder of parties permitted in Rule 20.  Lum v. Donohue, 70 P.3d 648 (Haw. App. 2003).
Funeral Procession Traffic Laws
There are no state laws governing funeral processions, but the Hawaii DOT Official Driving Manual gives funeral processions the right-of-way at intersections. It also discourages vehicles from driving between vehicles in the procession. Hawaii Driver’s Manual, State of Hawaii Dept. of Transportation, pg. 29 (2006).
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: No case law.
This is likely because Hawaii became a state in 1959, long after the Imputed Contributory Negligence Doctrine had been abandoned in all the other states.
Vicarious Liability/Family Purpose Doctrine: No Vicarious Liability Statute.
No Family Purpose Doctrine.
Sponsor Liability for Minor’s Driving: Haw. Rev. Stat. § 286-112 Joint and several liability is imposed on the person verifying a minor’s driver’s license.
Laws Regarding Using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: No person shall operate a motor vehicle while using a hand-held mobile electronic device, this includes text messages. Exceptions: when being used to dial 911 or using the device hands-free. Haw. Rev. Stat. § 291C-137(a).
No driver under the age of 18 may operate a motor vehicle while using a hands-free mobile electronic device, unless you are dialing 911. Haw. Rev. Stat. § 291C-137(b).
Other Prohibitions: No Applicable Laws
Comments: All county and city laws are preempted by state law. Haw. Rev. Stat. § 291C-137(h)
Loss Of Use
Loss of Use: Yes. Loss of use is calculated by the cost of a replacement vehicle, but the insured is not required to actually rent the vehicle. Fukida v. Hon/Hawaii Serv. & Repair, 33 P.3d 204 (Haw. 2001). When the vehicle is totaled, the owner may recover for the loss of use for the period of time reasonably necessary for securing a replacement. United Truck Rental Equip. Leasing, Inc. v Kleenco Corp., 929 P.2d 99 (Haw. App. 1996). A substitute vehicle need not actually be rented. Fukida v Hon/Hawaii Serv. & Repair, supra. Damages for loss of use may also be recovered when the vehicle is totally destroyed, since economic loss to the owner for the loss of use is the same. United Truck Rental Equip. Leasing, Inc. v. Kleenco Corp., supra. (Damages are generally limited to period of time reasonably necessary to obtain a replacement). Ludlow v. Lowe’s Companies, Inc., No. 12-00476 KSC, 2014 WL 12580233, at *8 (D. Haw. Jan. 17, 2014), aff’d sub nom., Ludlow v. Lowe’s Home Centers, LLC, 713 F. App’x 673 (9th Cir. 2018).
Lost Profits: Loss of use may also be calculated by lost profits, but the replacement cost and lost profits are mutually exclusive methods of calculation and both cannot be recovered. Loss of profits [are] measured by the amount of profit that a plaintiff could prove would have been generated had the plaintiff not been deprived of the use of the property, less the amount of profit actually generated during the deprivation. Loss of use, on the other hand, is the loss of an incident of ownership-the right to use. American Tel. & Tel. Co. v. Connecticut Light & Power Co., 470 F.Supp. 105, 108 (Haw. 1979); United Truck Rental Equip. Leasing, Inc. v. Kleenco Corp., supra.
Med Pay/PIP Subrogation
Med Pay: Medical payments coverage beyond PIP is optional.
PIP: PIP subrogation is in limbo. Haw. Rev. Stat. § 431:10C-307 (1999) allows a PIP insurer to be “reimbursed” (not subrogated) 50% of the amount of no-fault benefits it pays that are duplicated in a third-party recovery, up to the maximum limit defined in § 431:10C-103. The burden of proving duplication is on the PIP carrier. However, this statute conflicts with the “Covered Loss Deductible” Statute (§ 431:10C-301.5) which provides that any bodily injury recovery is “reduced by $5,000 or the amount of PIP benefits incurred, whichever is greater, up to the maximum limit.” This conflict has not been resolved under Hawaii law. The “maximum limit” referred to in the conflicting statutes is defined in § 431:10C-103 as “$10,000 per person.” Arguably, 50% of PIP benefits paid in excess of $10K must be reimbursed, although such reimbursement is rarely done in Hawaii. Others argue that § 431:10C-307 limits reimbursement to 50% of the maximum amount, or $5K. Third-party suits of less than $5K are not allowed. If medicals are between $5K and $10K, PIP benefits are subtracted from the verdict amount. You cannot subrogate against optional additional coverages such as UM/UIM. Sol v. Hawaii Ins. Co., 875 P.2d 921 (Haw. 1994); State Farm v. Gepaya, 978 P.2d 753 (Haw. 1999).
However, the Minn. Ct. Appeals has interpreted Hawaiian law and declared that the plain language of § 431:10C–307 does not abrogate a no-fault insurer’s subrogation rights against a tortfeasor or a tortfeasor’s insurer at common law. American Family Mut. Ins. Co. v. American Automobile Ass’n d/b/a Auto Club Ins. Ass’n, 2013 WL 656493 (Minn. 2013) (applying Hawaii law).
An argument is also made that the tort liability of a tortfeasor is not limited by Hawaii’s no-fault system if the tortfeasor is operating a vehicle while under the influence. Section 431:10C-306(e)(2)(D) provides that it does not limit the civil liability, including special and general damages, of any person who operates a motor vehicle in violation of § 291E-61 (Operating a vehicle under the influence of an intoxicant).
- No-fault state. Monetary and verbal thresholds. The two year statute of limitations runs from last PIP payment. Haw. Rev. Stat. § 431z;10C-315(b)(3).
Made Whole: Applied only to UM cases to date. Subrogation rights determined by contract, not equity. State Farm Fire & Cas. v. Pacific Rent-All, 978 P.2d 753 (Haw. 1999).
Statute of Limitations: Two (2) years from date of last PIP Payment. Haw. Rev. Stat. § 431:10C-315(b)(3).
Owner Liability For Stolen Vehicles
Key In The Ignition Statutes: Haw. Rev. Stat. § 291C-121.
Common Law Rule: An owner who leaves the keys in a vehicle can be held liable for damages to third parties after the theft of the vehicle, if certain circumstances exist that make the theft foreseeable. Uy v. Spencer Homes, Inc., 354 P.3d 186 (Table) (2015); Ajirogi v. State, 583 P.2d 980 (1978).
Payment of Sales Tax After Vehicle Total Loss
First-Party Claims: Insurer must (1) offer a cash settlement based upon the ACV of a “comparable auto”, if within 30 days the insured purchases a new car, the insurer must reimburse for excise tax and ownership fees, or (2) offer a replacement comparable auto including all excise taxes and ownership fees. Haw. Rev. Stat. § 431:10C-312.
Third-Party Claims: No applicable statute, case law, or regulation governing recovery of sales tax. However, courts have applied various measures of damages to personal property. All of these measures are merely guides to common sense aimed to ultimately fully compensate the injured party. The assessment of property damage must rest on its own facts and circumstances. Richards v. Kailua Auto Mach. Serv., 10 Haw. App. 613, 623, 880 P.2d 1233, 1238 (1994).
Pedestrian and Crosswalk Laws
Haw. Rev. Stat. § 291C-72: Vehicles must stop for pedestrians on or near vehicle’s half of crosswalk. Pedestrians must not leave curb when cars are too close to stop in time.
Haw. Rev. Stat. § 291C-73: Pedestrians must yield to cars when outside of crosswalks. No crossing diagonally. At intersections with traffic signals, pedestrians must use crosswalk to cross.
Summary: Jury instructions that gave jury the impression that an injured pedestrian was not allowed to recover in civil court for their injuries if they violated a traffic law are inappropriate. Samson v. Nahulu, 363 P.3d 263, 136 Hawai’i 415 (2015).
Rental Car Company Physical Damage and Loss of Use Claims
Recovery From Renter: Recovery of physical damage regulated by statute. Car rental company cannot require any payment for damages to or loss of use of the rental vehicle, upon the lessee’s return of the vehicle in a damaged condition, until after the cost of the damage to the vehicle and liability therefor is agreed to between the lessor and lessee or is determined pursuant to law. Ga. Stat. § 437D-12. Loss of use damage not otherwise regulated or prohibited. Collision Damage Waivers must be conspicuously displayed at rental area of each rental location, in plain language and printing, containing all of the information required by Ga. Stat. § 437D-5(a)(1), (2), (5), and (6). Ga. Stat. § 437D-9.
Recovery From Third-Party: No decisions regarding recovery of loss of use by a rental company from a third-party tortfeasor. Only bailment decisions against renter. Loss of use damages must be limited to a period of time reasonably necessary for securing a replacement. The economic loss to the owner who is deprived of a vehicle because it has been totally demolished is the same as the loss to the owner who is deprived of a vehicle during the period required for repair. United Truck Rental Equipment Leasing, Inc. v. Kleenco Corp., 929 P.2d 99, 109 (Hawaii App. 1996). A substitute vehicle need not actually be rented. Fukida v. Hon/Hawaii Serv. & Repair, 33 P.3d 204 (Haw. 2001). Lost profits damages and loss of use damages are not synonymous. Loss of profits [are] measured by the amount of profit that a plaintiff could prove would have been generated had the plaintiff not been deprived of the use of the property, less the amount of profit actually generated during the deprivation. Loss of use, on the other hand, is the loss of an incident of ownership—the right to use. United Truck Rental Equip. Leasing, Inc. v. Kleenco Corp., supra. Loss of use may also be calculated by lost profits, but the replacement cost and lost profits are mutually exclusive methods of calculation and both cannot be recovered. Loss of profits [are] measured by the amount of profit that a plaintiff could prove would have been generated had the plaintiff not been deprived of the use of the property, less the amount of profit actually generated during the deprivation. Loss of use, on the other hand, is the loss of an incident of ownership-the right to use. American Tel. & Tel. Co. v. Connecticut Light & Power Co., 470 F.Supp. 105, 108 (Haw. 1979); United Truck Rental Equip. Leasing, Inc. v. Kleenco Corp., supra.
Rental Car Company’s Liability Insurance Primary or Excess
Summary: The car rental company’s (referred to as “U-drive rental business” and requires less than six-month lease/rental period) liability policy will be excess to a renter’s liability policy only if all of the following are satisfied: (1) the car rental company provides any person injured in the accident with the name and address of the operator or renter, along with any information available to the rental company as to the name and address of any insurer under any liability policies applicable to the operator or renter; (2) a suit may be filed and service upon the responsible operator or renter can be made; and, (3) an insurer responds on behalf of the operator or renter to the suit. Haw. Stat. § 431:10C-305.5. In cases where the rental company’s liability insurance is primary because any of the above three circumstances have not been satisfied, a rental company may nevertheless recover from the renter or operator, or their insurers, any amounts the rental company paid out as a result of the accident, including reasonable attorney’s fees.
Slower Traffic Keep Right
Statute: Haw. Rev. Stat. § 291C-41 (a) and (b) and Haw. Rev. Stat. § 291C-43.
Summary: Hawaii requires motorists to driver in the right lane, except when overtaking and passing another vehicle proceeding in the same direction; when an obstruction exists in the right lane; when the roadway is divided into three marked lanes for traffic, or when the roadway is restricted to one-way traffic. Slower traffic must keep right. Honolulu prohibits travelling driving more than 5 MPH under the limit in the left lane. ROH 15-7.4. Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal. Any vehicle proceeding at less than the normal speed of traffic must be driven in the right-hand lane.
Sudden Medical Emergencies While Driving
Sudden Emergency Defense Not Recognized. A person generally owes a duty to all foreseeable plaintiffs who are subjected to unreasonable risk of harm by person’s conduct. A driver who suffers a sudden unforeseeable loss of consciousness does not owe a duty to others who he or she may injure while unconscious. Cruz v. United States, 987 F. Supp. 1299 (D. Haw. 1997).
In determining whether a driver’s incapacity to control his vehicle was foreseeable, a number of factors are considered including: driver’s awareness or knowledge of the condition; if driver had sought medical advice or was under a physician’s care for the condition; whether the driver had been prescribed, and had taken, medication for the condition; whether a sudden incapacity had previously occurred while driving; the number, frequency, extent, and duration of previous incapacitating episodes. Cruz v. United States, 987 F. Supp. 1299 (D. Haw. 1997).
Suspension of Drivers’ Licenses
Administrative Suspension: Administrator must suspend the driver’s license of any person who does not have on file evidence of financial responsibility. Haw. Rev. Stat. § 287-6. Suspension will remain in place until adequate security is deposited, two (2) years have elapsed and no action for damages has been filed, or there has been adjudication of non-liability. Haw. Rev. Stat. § 287-9.
Judgment: If a person fails to satisfy a judgment within sixty (60) days, the judgment creditor may request the court to forward a certified copy of the unsatisfied judgment to the Administrator. Haw. Rev. Stat. § 287-15. Suspension will continue until the judgment is satisfied and the debtor gives proof of financial responsibility. Haw. Rev. Stat. § 287-17.
Contact Information: State of Hawaii, Department of Commerce & Consumer Affairs, Insurance Division, P.O. Box 3614, Honolulu, HI 96811, (808) 586-2790, https://hidot.hawaii.gov/highways/safe-communites/motorcycle/motor-vehicle-registration/
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Authority: Haw. Rev. Stat. § 437B-1; Haw. Rev. Stat. § 437B-13; Haw. Rev. Stat. § 437B-15; Haw. Rev. Stat. § 431:10C-313.6.
Summary: The insured must be given a choice between using OEM or non-OEM parts. If the insured chooses to use the OEM part over a non-OEM part, the insured must pay for the difference in cost between the OEM and non-OEM part unless the car’s warranty specifies that OEM parts must be used. If a non-OEM part is used, the insurer must guarantee the non-OEM part for either 90 days or the same length that the OEM part would be guaranteed for, whichever is longer. All work done by the repair shop must be recorded on an invoice and note clearly where the non-OEM parts were used. Any warranties that come with the non-OEM parts must also be included with the invoice.
Federal , State, and Local Governmental Entities
Municipal/County/Local Governmental Immunity and Tort Liability
Legal Authority: Claims against cities and counties not governed by Hawaii State Tort Liability Act. Local municipalities have no sovereign immunity to waive. Kahale v. City and County of Honolulu, 90 P.3d 233 (Haw. 2004).
Notice Deadlines: Notice of Claim within two (2) years. Haw. Stat. § 46-72.
Claims/Actions Allowed: City and County subject to the state’s tort laws in the same manner as any other private tortfeasor. Kaczmarczyk v. City and County of Honolulu, 656 P.2d 89 (Haw. 1982).
Comments/Exceptions: No public entity or public employee shall be liable for injury or damage sustained when using a public skateboard park, unless injury or damage caused by a condition resulting from failure to maintain or repair the skateboard park. Haw. Stat. § 46-72.5.
Damage Caps: None.
State Sovereign Immunity And Tort Liability
Tort Claims Act: Hawaii State Tort Liability Act. Haw. Stat. § 662-2 (1957).
Immunity waived for State employees to the same extent as private individuals under similar circumstances (“Private Analog”) unless exception. Cootey v. Sun Inv., Inc., 718 P.2d 1086 (Haw. 1986).
Notice Deadlines: Claim For Damage Or Injury must be presented to the State within two years of when claim accrues. Haw. Stat. § 662-4. Medical tort claims shall be presented within six years. Haw. Stat. § 657-7.3.
Claims/Actions Allowed: As a no-fault state, no claim arises against a liable State employee for negligently operating a motor vehicle until the accident is deemed to be “serious” (medical expenses over $5,000, use of body part permanent, in death). Property claims allowed. Haw. Stat. § 431:10C-306; Savini v. Univ. of Hawaii, 113 Haw. 459, 153 P.3d 1144 (2007). Immunity also waived to extent of insurance. Haw. Stat. § 661.11.
Comments/Exceptions: Hawaii does not waive immunity for any claim arising from:
(1) An act or omission in the execution of a statute or a discretionary duty;
(2) Any claim arising in the collection of any tax; and
(3) Any claim arising out of assault, battery, false imprisonment.
See Haw. Stat. § 662-15 for other exceptions.
Damage Caps: Non-economic damages are capped at $375,000. Haw. Stat. § 663-8.7. No punitive damages against the State. Haw. Stat. § 662-2. Any judgment over $1 million against State may be paid over five years. Haw. Stat. § 657-24.
General Tort Laws/Statutes
Prohibits Broad Indemnity. Applies to Construction Contracts or Agreements. Hawaii Rev. Stat. § 431:10-222.
Does not apply to any valid workers’ compensation claim.
Modified Joint and Several Liability. Since 1999, generally several liability; however, some exceptions include joint and several liability for personal injury claim non-economic damages and intentional tort damages. Haw. Rev. Stat. § 663-10.9.
Contribution plaintiff is entitled to contribution from a tortfeasor whose liability was extinguished by the settlement, either in main action or separate action. An independent action for contribution will not be allowed if the right can be enforced with a third-party action or cross-claim in the principal lawsuit. Haw. Stat. § 663-12 (1984); Gump v. Wal-Mart Stores, Inc., 5 P.3d 407 (Haw. 2000).
The underlying two (2) year statute of limitations appears applicable, but runs from date of settlement payment. Albert v. Dietz, 283 F.Supp. 854 (D.C. Haw. 1968).
Contributory Negligence/Comparative Fault
Modified Comparative Fault. 51% Bar. Damaged party cannot recover if it is 51% or more at fault. If 50% or less at fault, it can recover, although its recovery is reduced by its degree of fault. As long as plaintiff’s fault is not greater than combined defendants’ fault, they can recover, minus the pro-rata share of their own fault. Haw. Rev. Stat. § 663-31.
Dog Bite Laws
Haw. Rev. Stat. Ann. § 663-9 seems to establish strict liability by clearly eliminating knowledge of the dangerousness or viciousness of a dog as an element of proof. However, in Hubbell v Iseke, 727 P2d 1131 (Haw. App. 1986), the Court determined that the plaintiff must prove at least negligence on the part of the defendant. Haw. Rev. Stat. Ann. § 663-9.
Economic Loss Doctrine
Majority Rule. The ELD bars claims for relief based on products liability or negligent design and/or manufacture theory for economic loss stemming from the product alone. Bronster v. United States Steel, 919 P.2d 294 (Haw. 1996). Exceptions exist for negligent misrepresentation and fraud. In a construction context, purely economic losses cannot be recovered in tort from design professionals by those in privity of contract with those professionals. City Express, Inc. v. Express Partners, 959 P.2d 836 (Haw. 1998).
Minor’s Driving. Joint and several liability is imposed on the person verifying driver’s license. Haw. Rev. Stat. § 286-112.
Child must be under 18-years-old.
Tortious Acts. Joint and several liability is imposed on parent for child’s tortious acts. Haw. Rev. Stat. § 577-3.
Child must be unmarried and under 18-years-old.
Graffiti. Parents liable for graffiti damage and obligation to clean damage up. Haw. Rev. Stat. § 577-3.5.
Child must be under 18-years-old.
There are no limits on liability.
Tort of Spoliation: Hawaii courts have not resolved whether Hawaii law would recognize a tort of spoliation of evidence. Matsuura v. E.I. du Pont de Nemours and Co., 102 Haw. 149, 168, 73 P.3d 687, 706 (Haw. 2003).
Statute of Limitations
Personal Property2 YearsHaw. Rev. Stat. § 657-7
Personal Injury/Death2 YearsHaw. Rev. Stat. § 657-7
Breach of Contract/Written6 YearsHaw. Rev. Stat. § 657-1
Breach of Contract/Oral6 YearsHaw. Rev. Stat. § 657-1
Breach of Contract/U.C.C./Goods4 YearsHaw. Rev. Stat. §490:2-725
Statute of Repose/ProductsN/AN/A
Statute of Repose/Real Property10 YearsHaw. Rev. Stat. § 657-8*
Breach of Warranty/U.C.C.4 YearsHaw. Rev. Stat. § 490:2-725
Breach of Warranty/Implied Merchantability4 YearsHaw. Rev. Stat. § 490:2-725
Workers’ Comp Third Party Case2 YearsHaw. Rev. Stat. § 386-8
Strict Product Liability2 YearsHaw. Rev. Stat. §657-7
Statute of Limitations Exceptions
*10 Years from date of completion of improvement to real property, but 2 years after accrual. Haw. Rev. Stat. § 657-8.
Health Insurance Subrogation
Health and Disability Insurance
Statute of Limitations: 2 Years. Haw. Rev. Stat. § 657-7.
Subrogation of Medical and Disability Benefits: Yes and No. Haw. Rev. Stat. Ann. § 663-10 is the exclusive right of reimbursement. Yukumoto v. Tawarahara, 140 Haw. 285, 298, 400 P.3d 486, 499 (2017) (No freestanding subrogation claim and § 663-10 limits a health insurer’s contractual subrogation rights). Made Whole Doctrine does not apply. Section 663-10 abrogates common law subrogation rules and it specifically allows for health insurers to seek reimbursement from special damages recovered in a judgment or settlement that duplicated the amounts already paid, thereby prohibiting double recovery. The only limitation is that recovery cannot come from amounts allocated to general damages. Common Fund Doctrine applies. Haw. Rev. Stat. Ann. § 663-10(a).
Admissibility of Expert Testimony
Admissibility Standards: Daubert
Case/Statutory Law: State v. Montalbo, 828 P.2d 1274 (Haw. 1992).
Pre-Suit Disclosure of Liability Policy Limits in Third-Party Claims
Duty To Disclose: No.
Failure To Disclose A Basis For Bad Faith: In Hawaii, a determination of bad faith requires inquiry into the insurer’s duty to defend, to settle, and to investigate a third-party claim. Honbo v. Hawaiian Ins. & Guar. Co., Ltd., 949 P.2d 213, 218 (Haw. Ct. App. 1997); Group Builders, Inc. v. Admiral Ins. Co., No. 29729, 2013 WL 1579600, at *13 (Haw. Ct. App. Apr. 15, 2013). The insured must prove that the decision not to pay a claim was done in “bad faith” in order to prove liability. Not mere negligence. This is a high burden. See Best Place, Inc. v. Penn Am. Ins. Co., 82 Haw. 120, 132, 920 P.2d 334, 347 (1996), as amended (June 21, 1996); Miller v. Hartford Life Ins. Co., 268 P.3d 418, 431 (Haw. 2011).
One-Party Consent: An individual has the right to record or disclose the contents of an electronic, oral or wire communication that they are a party to or if one of the parties has given prior consent to the recording of said communications. Haw. Rev. Stat. § 803-42(3)(A).
Product Liability Subrogation
Product Liability Law
Statute of Limitations/Repose: 2 years for personal injury and wrongful death. Haw. Rev. Stat. § 657-13. Discovery Rule applies.
Liability Standards: Negligence, Strict Liability.
Fault Allocations: Modified Comparative (Pure Comparative for strict liability). Haw. Rev. Stat. § 663-31.
Non-Economic Caps/Limits On Actual Damages: No.
Punitive Y/N and Limits: Yes.
Heeding Presumption?: No.
Innocent Seller Statute: No.
Joint and Several Liability: No. Haw. Rev. Stat. § 663-10.9.
Available Defenses: Misuse; Government Contractor Defense; Alteration; Inherently Unsafe Products.
Restatement 2nd or 3rd?: Both.
“Matching Regulations” And Laws Affecting Homeowners Property Claims
Condominium/Co-Op Waiver of Subrogation Laws
Associations must maintain property, commercial general liability, and a fidelity bond. Waiver of subrogation is not discussed in the statute. Haw. Rev. Stat. § 514B-143.
Damage to Property Without Market Value
Service Value: No Case Law
Intrinsic Value: No Case Law
Sentimental Value: Measure of damages is actual compensation to injured party, unless special misconduct in aggravation warrants grant of punitive damages. Chin Kee v. Kaeleku Sugar Co., 1926 WL 3055 (Haw. 1926) (unreported).
General Contractor Overhead And Profit Payments In First-Party ACV Property Damage Claims
Payment And Depreciation OF GCOP/Sales Tax: No applicable case law, statutes, administrative rules, or other guidance with regard to the calculation and/or depreciation of GCOP.
Hawaii has not directly addressed this issue.
The Anti-Subrogation Rule is yet to be determined.
Hawaii allows for awards of criminal restitution to direct victims, “including a business entity, trust, or governmental entity,” but case law has determined that under that specific section of the statute, an insurer is not a “direct victim” and, therefore, not entitled to criminal restitution. Haw. Rev. Stat. § 706-646 (West); State v. Loebel, 127 Haw. 241, 277 P.3d 335 (Haw. Ct. App. 2012). An insurance company is not a “victim” under § 706-646, and this statute disallows restitution to the extent the victim received insurance payments. If the victim is covered by insurance, then restitution is not allowed. In Interest of CM, 2017 WL 4325895 (Haw. 2017).
Made Whole Doctrine
Hawaii requires that an insured be “made whole” before an UM carrier may require the insurer to reimburse the UM carrier after receiving a tort recovery from an UM or party jointly liable with the uninsured tortfeasor. AIG Hawaii Ins. Co., Inc. v. Rutledge, 955 P.2d 1069 (Haw. App. 1998). However, Hawaii has not specifically applied the Made Whole Doctrine in a traditional subrogation case. In Hawaii, the right to contractual subrogation, as opposed to equitable subrogation, does not depend on principles of equity. Therefore, when subrogation claimed by an insurer is based on a contract, the policy’s subrogation provisions seem to constitute the sole measure of its rights. State Farm Fire & Cas. Co. v. Pacific Rent-All, Inc., 978 P.2d 753 (Haw. 1999).
Medical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Collateral Source Rule: Hawaii adheres to common law CSR. Collateral sources will not reduce recovery from tortfeasor and should not be permitted into evidence. Standard rates and charges are relevant and admissible for (a) determining the reasonable value of medical services, (b) understanding the extent of the plaintiff’s injuries, and (c) providing a foundation for future medical care and expenses. Bynum v. Magno, 101 P.3d 1149 (Haw. 2004).
Recovery OF Medical Expenses Rule:
Private Insurance: No cases on point, although Hawaii will likely apply Bynum holding to private insurance, meaning that write-offs should not reduce a recovery and the proper measure of damages depends on reasonable value of services provided, not how much plaintiff was charged. Hawaii Civil Jury Instruction Nos. 8, 9 instruct jurors that plaintiffs are “entitled to compensation for medical treatment, but these damages are not limited to out-of-pocket expenses.”
Medicare/Medicaid: No reduction of damages to reflect Medicare and Medicaid payments actually received by health care providers. Plaintiff not limited to out-of-pocket medical expenses and can recover the full, reasonable value of medical services billed. Bynum v. Magno, 101 P.3d 1149 (Haw. 2004).
Related Law/Comments: Section 663-10 provides that party with valid lien against damages received by plaintiff through judgment or settlement can be reimbursed by plaintiff out of plaintiff’s special damages. This includes a lien arising out of a claim for payments made from collateral sources, including health insurance or benefits. Haw. Rev. Stat. § 663-10(a). As a result, although plaintiff may be able to recover the full amount of damage suffered, plaintiff may have to reimburse his medical insurer for collateral payments made by the insurer via subrogation.
Employee Leasing Laws
Hawaii’s statutes do not address the issue. Although there are no cases directly interpreting employee leasing situations, the Hawaii Supreme Court has held that a temporary employer utilizing an employee from a temporary agency was entitled to the exclusive remedy protection because it had paid a fee to the temporary agency, which the court construed to include the cost of workers’ compensation insurance premiums. Frank v. Hawaii Planing Mill Foundation, 963 P.2d 349 (Haw. 1998).
Hospital Lien Laws
Statute: Haw. Rev. Stat. § 507-4. Dentists, Doctors, Hospitals.
Perfecting Lien: A hospital shall have a lien in Hawaii if:
On such judgment or the proceeds thereof for the agreed or reasonable value of the services performed or the agreed or reasonable value of room, board, supplies, facilities, or accommodations furnished, if, before satisfaction of judgment is docketed, the dentist, doctor, physician, surgeon, or hospital files in the office of the chief clerk of the circuit court of the circuit in which the judgment was recovered, or, in the case of judgment recovered in a district court, in the office of the clerk of the district court of the circuit in which judgment was recovered, a notice setting forth agreed or reasonable value of services performed or the agreed or reasonable value of the room, board, supplies, facilities, or accommodations furnished. § 507-4.
Comments: A judgment debtor may choose to pay the amount of the judgment to the chief clerk of the Court in which the judgment is rendered, and thereby be release from any further obligation to the lien holder. §507-4.
OCIP/CCIP Subrogation In Workers’ Compensation Construction Cases
OCIP Law: No statute or case law specifically dealing with effect of OCIP/CCIP.
Statutory Employer Law: Haw. Rev. Stat. §§ 386-1 and 386-5 appear to deem a general contractor to be the employer of its subcontractors’ employees, and under § 386-5, Hawai’i’s exclusive remedy statute, it would appear to then be immune from suit by its “employees.” However, the Supreme Court has said that in construction settings, third-party general contractors (independent contractors) are not immune from negligence actions brought by the employees of their subcontractors, absent evidence of a true employer-employee relationship. Jordan v. Rita, 670 P.2d 457 (Haw. 1983).
Comments: There is downstream liability. When an independent contractor engages subcontractors to perform work for another person pursuant to contract, express or implied, oral or written, such independent contractor is deemed to be the employer of all employees of the independent contractor’s subcontractors and their subcontractors, performing work in the execution of the contract. Haw. Rev. Stat. § 386-1 (under definition of “employee”). If the common law employer/subcontractor fails to furnish workers’ compensation benefits pursuant to Hawai’i law, and the general contractor thereby assumes responsibility for providing such benefits, the general contractor will be able to take advantage of the Exclusive Remedy Rule and cannot be sued as a third party (upstream immunity). Jordan v. Rita, 670 P.2d 457 (Haw. 1983); Makaneole v. Gampon, 777 P.2d 1183 (Haw. 1989).
Recovery Of Increased Workers’ Compensation Premiums By Employer
Recovery For Increased Premiums? Undecided.
Statute/Case Law: None.
Rule Summary: There is no authority or precedent allowing or prohibiting the attempted recovery of damages for increased workers’ compensation insurance premiums by an employer from a third-party tortfeasor.
Which Workers’ Compensation “Benefits” Can Be Subrogated?
No statute, regulation, or case decision on point. Section 386-8 describes the carrier’s subrogation interest as follows:
“…the amount of the employer’s expenditure for compensation.”
Section 386-1 defines “compensation” as follows:
“Compensation” means all benefits accorded by this chapter to an employee or the employee’s dependents on account of a work injury as defined in this section; it includes medical and rehabilitation benefits, income and indemnity benefits in cases of disability or death, and the allowance for funeral and burial expenses.”
Workers’ Compensation Subrogation Waiver Endorsements
Subrogation Statute: Haw. Rev. Stat. § 386-8
Waiver Allowed? Nothing in the Hawaii Workers’ Compensation Act or applicable case law prohibits the use or efficacy of a waiver of subrogation.
Effect Of Waiver Endorsement on Carrier’s Right To Assert A Lien On Claimant’s Recovery: The effect of a waiver of subrogation on the carrier’s rights, including its right to enforce its statutory lien, has not yet been decided.
Other Applicable Law: None.
Statute of Limitations: 2 Years. Haw. Rev. Stat. § 386-8.
Can Carrier Sue Third Party Directly: Yes, after 9 months.
Right to Intervene: Yes.
Recovery from UM/UIM Benefits: No?
Subrogation Against Medical Malpractice: Undecided.
Subrogation Against Legal Malpractice: Undecided.
Recovery Allocation/Equitable Limitations: (1) Fees, Expenses; (2) Carrier Reimbursed, Less Pro-Rata Fees; and (3) Balance to Plaintiff.
Employer Contribution/Negligence: No.
Attorney’s Fees/Costs: Apportionment is based on the activity of each party.
Future Credit: Yes, with approval from the Department of Labor.
Auto No-Fault: Yes.
Workers’ Compensation Claims by Undocumented Employees
Statute: The statute states “any individual in the employment of another person.” The statute is silent on “aliens” as well as “legal” and “illegal aliens.” Haw. Rev. Stat. § 386-1.
Case Law: Undecided