by Andrew Walden
A ‘settlement’ requires agreement by all parties, but after two weeks of 100% lie mode, even Josh Green was forced yesterday to acknowledge that the insurance companies do not agree with his fake Maui Wildfire Settlement proposal.
A ruling is expected today from Maui Circuit Judge Peter Cahill, who Green admits is biased against the insurers, saying: “I feel fairly confident that Judge Cahill feels strongly the money should go to the people.”
(UPDATE: Ruling delivered. Appeal next. Ruling will be overturned.)
In reality, Hawaii’s power structure ‘feel strongly’ that Hawaiian Electric should not go in to bankruptcy. That is the true purpose of this phony 'settlement.'
Sensing the bias, insurance company lawyers announce in advance their intention to appeal in this Memorandum filed August 12, 2024:
NON-PARTY SUBROGATING INSURERS’ MEMORANDUM OPPOSING MOTION FOR ORDER REGARDING OPERATION OF HRS § 663-10
AND APPLICATION FOR INTERLOCUTORY APPEAL
I. INTRODUCTION
The reports of a global settlement are greatly exaggerated. In lieu of resolving all claims, attorneys for the Individual Action Plaintiffs (“Individual Plaintiffs”) have joined in common cause with the tortfeasor Defendants — the actual parties who bear responsibility for the inferno that destroyed the historic town of Lahaina — in an attempt to exclude the non-party Subrogating Insurers (“Subrogation Plaintiffs”) from any recovery. No party asserts that the Subrogation Plaintiffs caused the Lahaina Fire. The Individual Plaintiffs agree and acknowledge the Subrogation Plaintiffs have contributed, to date, over $2.3 billion to the reconstruction of Lahaina, and anticipate making more than $1 billion in future payments. The Subrogation Plaintiffs are not the problem; they have been part of the solution. Nevertheless, the Individual Plaintiffs’ Motion for Order Regarding the Operation of HRS § 663-10 (“Motion”) somehow frames Subrogation Plaintiffs as the obstacle to resolving this crisis. Those representations are categorically false, and the Individual Plaintiffs’ attempt to release Subrogation Plaintiffs’ claims blatantly violates controlling Hawaiʻi precedent that “in the context of fire and casualty insurance … the insurer may maintain a subrogation action against the tortfeasor regardless of outside settlement.” ...
In truth, Defendants and Individual Plaintiffs’ attorneys are openly colluding with one another in broad daylight to destroy the Subrogation Plaintiffs’ legal rights to enrich themselves…. This Court should resist the temptation to grant those tactics its official imprimatur. Stripped of its misleading rhetoric, the Motion requests that this Court summarily award the Individual Plaintiffs more than $4 billion, and their attorneys a hefty percentage of that recovery, without ever requiring them to prove the value of their claims. The Motion does not bother to attach a single document, piece of testimony, sworn declaration, or expert opinion demonstrating that the named Individual Plaintiffs have more than $4 billion in uninsured damage claims. As a result, the factual record is completely devoid of any support that could possibly justify a finding that “the totals of the aggregated liquidated claims” exceed the capacity of the tortfeasors to pay. ... There are no pending evidentiary hearings before this Court, and all discovery has been stayed. If the settlement proceeds as planned, no factual record of the IP Plaintiffs’ damages will ever exist. The Individual Plaintiffs are asking this Court to eliminate more than $3 billion in objectively verifiable subrogation claims, supported by actual checks paid and to be paid, on the strength of nothing more than whispers and rumors.
Taken collectively, the Motion asks this Court to exceed its authority with the goal of inflicting a multi-billion-dollar loss on entities that are not responsible for the underlying wildfire. To grant the Motion the Court must:
(1) exercise jurisdiction over entities that are not parties before this court;
(2) adjudicate the value of imaginary liens that Subrogation Plaintiffs have never asserted;
(3) ignore clear Hawaiʻi precedent establishing the Individual Plaintiffs cannot release subrogated claims;
(4) engage in the first ever application of the made whole rule on an aggregate basis in United States history;
(5) determine that a limited recovery fund exists without ever hearing evidence regarding the ability of the Defendants to pay a settlement or the actual amount of the Individual Plaintiffs’ damages; and
(6) effectively declare the doctrine of equitable subrogation, recognized in Hawaiʻi since at least 1885, a dead-letter; dramatically altering the insurance landscape in the State.
If the Individual Plaintiffs wish to settle their claims with Defendants, they are free to do so. Similarly, if the Defendants wish to compensate their victims in the interest of social harmony, they are encouraged to do so. However, the Individual Plaintiffs and Defendants cannot also agree amongst themselves to release the Subrogation Plaintiffs’ claims as part of that bargain. Those are simply not their claims to resolve, and it is black letter Hawaiʻi law that “the insured’s release of the tortfeasor will not affect the insurer’s subrogation right[s].” ... The tragic facts of this one fire do not justify a full scale abandonment of the rule of law.
...
IV. CONCLUSION
The old adage is that hard cases make bad law. Faced with extreme circumstances, courts are often tempted to make outcome-oriented decisions that age poorly when applied to more common circumstances. The Lahaina wildfire, and its associated human tragedy and carnage, is one of those hard cases. It need not result in bad law. Affording the Individual Plaintiffs the remedy they seek would represent a gross departure from not just established Hawai'i law, but the very norms undergirding the rule of law itself. Adjudicating the value of fictional liens, held by non-parties, in order to deprive them of their legal rights would be an Orwellian perversion of the entire concept of “equity” that this Court holds dear. The announcement of a global settlement and final resolution — in this manner and on these terms — is little more than chasing the cheap sugar high of finality while bypassing the actual detailed work that justice demands. This Court must decline the Individual Plaintiffs’ temptation to err for the sake of expediency. The fair and just administration of the law is a principle too important to be sacrificed on the altar of any one case. The Motion must be denied.
read … FULL TEXT
BACKGROUND: