Originally from:
Automobile Insurance Subrogation in All 50 States - Second Edition - Hardcover
Automobile Insurance Subrogation in All 50 States - Second Edition - Digital
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§ 4.12[1] Subrogation Rights
The State of Hawai'i recognizes and enforces both contractual
subrogation and equitable subrogation.1 Hawai’i 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 An insurer's right of equitable
subrogation is based on the rights of its insured against a tortfeasor,
and it may step into the shoes of its insured, pursuant to the doctrine
of equitable subrogation, when the insurer pays a debt for which
another is primarily answerable.4 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.5
In subrogation actions in Hawai’i, the burden of proof is on the
part of the party claiming subrogation to show that he is entitled to
it.6 Hawai’i 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.7
Section 663-10 of the Hawai’i statutes sets forth the manner in
which subrogation claims may be protected in the event of litigation.8
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,
Gary L. Wickert is an insurance trial lawyer and is regarded as one
of the world's leading experts on insurance subrogation. He is the
author of several subrogation books and legal treatises and is a
national and international speaker and lecturer on subrogation and
motivational topics. Mr. Wickert is also a politician in Wisconsin,
serving his fifth term as Town Supervisor in the Township of
Cedarburg. 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., he returned to his native Wisconsin in 1998 and
co-founded the firm of Matthiesen, Wickert & Lehrer, S.C. He
oversees a National Recovery Program which includes a network of
nearly 300 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 250 insurance
companies. Gary Wickert is also a commercial fiction author and his
latest political thriller, Dark Redemption (Tudor Publishing), is
available on www.Amazon.com.
Licensed in both Texas and Wisconsin, Mr. Wickert is double
board-certified in personal injury law and civil trial law by the Texas
Board of Legal Specialization. He is nationally certified as a Civil
Trial Advocate by the National Board of Trial Advocacy (NBTA), for
whom he has written and graded product liability questions contained
on the NBTA national certification exam taken by trial lawyers
around the country. For over 25 years, he has served as an expert
witness 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 is one of only a
few lawyers to have ever represented a client before the United
States Supreme Court on a subrogation issue.
In 2002, Gary Wickert authored and published a treatise entitled
Workers' Compensation Subrogation In All 50 States (Juris
Publishing, Inc., New York), which is now in its Fifth Edition. You
can preview the treatise's contents and chapter summaries at
www.jurispub.com. It serves as the bible on workers' compensation
subrogation throughout the country and is the most thorough and
complete treatise on workers' compensation subrogation ever
published.
In 2005, Gary Wickert authored and published his second treatise
entitled ERISA and Health Insurance Subrogation In All 50 States,
(Juris Publishing, Inc., New York), which is now in its Fifth Edition.
You can preview its contents and chapter summaries at
www.jurispub.com. This treatise focuses on health insurance
subrogation in all 50 states and is in as much demand as the first
treatise.
In 2006, after years of receiving subrogation questions involving
livestock/vehicle collisions in all 50 states, Gary Wickert authored
and published his third treatise entitled Where's The Beef?
Subrogating Livestock/Vehicle Collisions In All 50 States, which is
now in its Second Edition. This treatise focuses on the laws
regarding liability of livestock owners in all 50 states and to date is
the most thorough treatment of this area of subrogation law ever
assembled. This treatise is available directly through Gary Wickert's
firm or his firm's website at www.mwl-law.com.
In 2008, Gary Wickert, with the help of his partners, Bradley W.
Matthiesen and Douglas W. Lehrer, authored and published his
fourth treatise entitled Fundamentals of Insurance Coverage In All
50 States, (Juris Publishing, Inc., New York), which is now in its
Fourth Edition. You can preview this treatise's contents and chapter
summaries at www.jurispub.com. This one-of-a-kind treatise covers
common issues and common rules to coverage triggers, equitable
relief, economic loss, property damage and a variety of policy
exclusions.
For information about Matthiesen, Wickert & Lehrer's National
Recovery Program, fees, list of clients, numerous subrogation links,
reported subrogation decisions, and published articles on the issue of
subrogation, visit his firm's website at www.mwl-law.com. Gary
Wickert can be reached at gwickert@mwl-law.com.
