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Automobile Insurance Subrogation: In All 50 States - Hardcover
Automobile Insurance Subrogation: In All 50 States - Electronic
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§ 4.12 HAWAII
§ 4.12[1] Subrogation Rights
The State of Hawaii recognizes and enforces both contractual
subrogation and equitable subrogation.1 Hawaii recognizes that both
kinds of subrogation exist. Equitable subrogation (legal subrogation)
is a principle of equity and is effected by operation of law and arises
out of a relationship that need not be contractually based.2
Conventional subrogation (contractual subrogation) arises out of the
contractual relationship of the parties.3 Accordingly, an insurer which
pays a claim against an insured for damages caused by the default or
wrongdoing of a third party is entitled to be subrogated to the
insured's rights against such third party, irrespective of the nature of
the contract, and even though the policy contains no stipulations to
that effect.4
In subrogation actions in Hawaii, the burden of proof is on the part
of the party claiming subrogation to show that he is entitled to it.5
Hawaii law provides that an insurer who pays a claim to an insured
for damages caused by a third party is entitled to be subrogated to the
insured's rights against such third party, irrespective of the nature of
the contract, and even though the policy contains no stipulations to
that effect.6
Section 663-10 of the Hawaii statutes sets forth the manner in
which subrogation claims may be protected in the event of litigation.7
This statute--which also doubles as the state's Collateral Source
Statute--provides in part as follows:
(a) In any civil action in tort, the Court, before any judgment
or stipulation to dismiss the action is approved, shall
determine the validity of any claim of a lien against the
amount of the judgment or settlement by any person who files
timely notice of the claim to the Court or to the parties in the
action. The judgment entered, or the order subsequent to
settlement, shall include a statement of the amounts, if any,
due and owing to the person determined by the court to be a
holder of a valid lien and to be paid to the lien holder out of
the amount out of the corresponding damages recovered by
the judgment or settlement. In determining the payment due
the lien holder, the court shall deduct from the payment a
reasonable sum for the costs and fees incurred by a party
Gary Wickert is an insurance trial lawyer and is regarded as one of the world's leading experts on insurance subrogation. He is also the author of several subrogation books and legal treatises and is a national and international speaker and lecturer on subrogation and motivational topics. After 15 years as the youngest managing partner in the history of the 30-lawyer Houston law firm of Hughes, Watters & Askanase, L.L.P., Mr. Wickert returned to his native Wisconsin in 1998 and co-founded the subrogation firm of Matthiesen, Wickert & Lehrer, S.C. He oversees a National Recovery Program which includes a network of nearly 285 contracted subrogation law firms in all 50 states, Mexico, Canada and the United Kingdom and boasts recoveries of more than $500 million in recoveries and credits for more than 200 insurance companies. Licensed in both Texas and Wisconsin, Mr. Wickert is double board-certified in both personal injury law and civil trial law by the Texas Board of Legal Specialization. He is also certified as a Civil Trial Advocate by the National Board of Trial Advocacy, for whom he has both written and graded the product liability questions contained on the NBTA national certification exam taken by trial lawyers around the country. For 25 years, Mr. Wickert has served as an expert witness and insurance consultant on subrogation and insurance related issues and has been consulted by insurance carriers, lawyers, and legislative bodies from several states. He is a licensed arbitrator and has attended more than 750 mediations in more than 30 different states. He has represented subrogated insurance carriers in every state, and has been admitted pro hac vice in 17 states. Gary Wickert has worked with the Texas Legislative Oversight Committee in rewriting their workers' compensation subrogation statutes, has served on the Board of the National Association of Subrogation Professionals, and has been cited as an authority on workers' compensation subrogation by several appellate courts, including the Texas Court of Appeals. He is one of only a few lawyers to have ever represented a subrogated carrier before the United States Supreme Court, and was named as one of Law & Politics magazine's "Super Lawyers" for 2005, 2006, and 2007.
