Burnes v. Hawaiian Electric Company, Inc

• Court: Hawaii Supreme Court
• Decided: February 10, 2026
• Docket: SCAP-25-0000531
• Status: Published

Opinion

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Electronically Filed Supreme Court SCAP-XX-XXXXXXX 10-FEB-2026 12:56 PM Dkt. 69 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

NOVA BURNES, et al., Plaintiffs-Appellees,

vs.

HAWAIIAN ELECTRIC COMPANY, INC. dba HAWAIIAN ELECTRIC, et al., Defendants-Appellees,

and

ACE AMERICAN INSURANCE COMPANY, et al., Intervenor Subrogation Plaintiffs-Appellants.

SCAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CAAP-XX-XXXXXXX; CASE NO. 2CCV-XX-XXXXXXX)

FEBRUARY 10, 2026

McKENNA, ACTING C.J., EDDINS, AND GINOZA, JJ., CIRCUIT JUDGE MORIKONE, IN PLACE OF DEVENS, J., RECUSED, AND CIRCUIT JUDGE TOMASA, ASSIGNED BY REASON OF VACANCY

OPINION OF THE COURT BY EDDINS, J.

I.

On August 8, 2023, fire devastated Lahaina, the former

capital of the Hawaiian Kingdom. Over one hundred people lost *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

their lives. Hundreds suffered physical and emotional injuries.

Properties and historic sites were destroyed. Businesses and

livelihoods impacted by the fires paused as Lahaina worked to

rebuild. The lasting physical and mental health toll, and

social, cultural, and economic impacts of this catastrophe

continue to resonate in Hawaiʻi and beyond.

Following the Lahaina fire and other same-day fires in Kula

and Olinda, individually represented plaintiffs (Individual

Plaintiffs) sued Hawaiian Electric Company, Kamehameha Schools,

the State of Hawaiʻi, the County of Maui, and others

(Defendants). Meanwhile, class actions were filed in state

court, then removed to federal court. Later those lawsuits were

consolidated and refiled in state court as a single class

action. That consolidated class action is now before us.

The class action nears finality in the Circuit Court of the

Second Circuit. Sophisticated court-ordered mediation led to a

“global settlement” in August 2024. This settlement’s initial

terms were reduced to a global settlement term sheet that

resolved all claims against Defendants for an aggregate

settlement amount. On November 1, 2024, Individual Plaintiffs

executed an individual settlement agreement with Defendants.

That same day, the class action plaintiffs (Class Plaintiffs)

signed a class action settlement agreement with Defendants.

These complementary settlement agreements constitute the “global

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settlement.” At that time, the $4.037 billion aggregate

settlement amount was not yet allocated between the class and

individual settlements.

This appeal involves Class Plaintiffs’ insurers’

(Subrogating Insurers) effort to intervene in the class action

settlement proceedings. Subrogating Insurers believe they have

an interest in the proceedings that justifies intervention by

right under Hawaiʻi Rules of Civil Procedure (HRCP) Rule 24(a)(2)

and permissive intervention under HRCP Rule 24(b)(2).

We hold that Subrogating Insurers do not have a protectable

interest that allows them to intervene. Based on applicable

Hawaiʻi statutes, In re Maui Fire Cases held that when insureds

and defendants settle, the insurer’s sole remedy is a lien on

the settlement. In re Maui Fire Cases (Maui Fires), 155 Hawaiʻi

409, 425, 565 P.3d 754, 770 (2025). In the context of a tort

settlement, insurers may not seek to recoup insurance payments

through their own lawsuits against defendants. See id. at 432,

565 P.3d at 777.

Here, Class Plaintiffs have settled with Defendants. This

settlement activated the Hawaiʻi Revised Statutes (HRS) § 663-10

lien framework. It foreclosed potential subrogation suits by

Subrogating Insurers against Defendants related to the Class

Plaintiffs.

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Still, Subrogating Insurers insist they retain equitable

subrogation rights justifying intervention. Some class members

may fail to submit their claim against the class settlement

fund. There, they receive no settlement award. Thus,

Subrogating Insurers complain that there is nothing for them to

attach liens to under HRS § 663-10. Subrogating Insurers are

wrong. A non-claiming class member’s choice does not conjure

equitable subrogation rights.

Adopting Subrogating Insurers’ position would functionally

eliminate mass tort class settlements. It would also erode HRCP

Rule 23’s framework, one that promotes uniformity, judicial and

litigation economy, and procedural remedies for under-resourced

plaintiffs who would otherwise be unable to pursue litigation.

Subrogating Insurers’ effort to narrowly construe a class

settlement inevitability as conferring subrogation rights fails.

For purposes of equitable subrogation, class members’

entitlement to recover from the settlement fund constitutes

recovery from the tortfeasor. When a class settles, insurers

are limited to their exclusive HRS § 663-10 remedy - liens. See

Maui Fires, 155 Hawaiʻi at 432, 565 P.3d at 777. Further,

because subrogation is fundamentally a derivative claim

(insurers may only subrogate when insureds have the right to

sue, and insurers have paid the insured), resolution of a tort

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lawsuit by settlement ends insurers’ subrogation rights. See

id. at 416, 432, 565 P.3d at 761, 777.

The settlement’s dispatch of Subrogating Insurers’

subrogation rights without party status satisfies due process.

We have already held that insurers suffer no prejudice when

policyholders settle and extinguish subrogation rights without

insurer consent. Id. at 437-38, 565 P.3d at 782-83. We did not

hold that HRS § 663-10’s exclusive lien remedy and process

offends due process. See id. Accordingly, a settlement

provision that allows Subrogation Insurers to file claims with

the settlement fund does not bestow class member status and the

connected due process right to opt out.

We further conclude that no protectable interest exists

based on Subrogating Insurers’ claim that the settlement fund is

insufficient. Economic interests alone do not confer

intervention rights.

It’s evident. Subrogating Insurers lack a protectable

interest justifying intervention by right. And absent a

protectable interest, the disposition of this action does not

“as a practical matter, impair or impede [Subrogating Insurers’]

ability to protect [such an] interest.” See Ing v. Acceptance

Ins. Co., 76 Hawaiʻi 266, 271, 874 P.2d 1091, 1096 (1994)

(citation omitted). Without a protectable interest, Subrogating

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Insurers cannot intervene by right. See id.; Baehr v. Miike, 80

Hawaiʻi 341, 345, 910 P.2d 112, 116 (1996).

Even if Subrogating Insurers had a protectable interest,

their motion was untimely. Subrogating Insurers should have

intervened when they knew or should have known that settlement

would adversely impact their interests. When the class action

settlement was publicized on November 4, 2024, Subrogating

Insurers knew the settlement may impact their interests.

Waiting until after our March 2025 Maui Fires opinion (when they

were certain of this court’s holding regarding their subrogation

interests) was misguided. Intervention derails a complex and

delicate settlement, substantially prejudicing the parties.

Thus, the motion to intervene was too late.

We also conclude that the circuit court properly denied

permissive intervention. See HRCP Rule 24(b)(2).

We affirm Second Circuit Court Judge Peter T. Cahill’s

order denying Subrogating Insurers’ motion to intervene.

II.

A. Circuit Court Filings

To start, we revisit the procedural posture preceding our

March 2025 Maui Fires decision and the present appeal.

As we related in Maui Fires, Individual Plaintiffs brought

numerous actions against several defendants in the Circuit Court

of the Second Circuit. 155 Hawaiʻi at 414, 565 P.3d at 759. The

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court initiated a special proceeding per Rules of the Circuit

Courts of the State of Hawaiʻi Rule 12 to “coordinate the

issuance of complex case management orders applicable to all

individual proceedings in the numerous cases arising from the

Maui wildfires.” Id. “[T]he circuit court ordered liaison

counsel to coordinate the Individual Action Plaintiffs[] . . .

then appointed a special settlement master and co-administrators

to facilitate settlement.” Id. at 414-15, 565 P.3d at 759-60.

“Separately three class action lawsuits were filed in the

First and Second Circuits in the name of injured parties that

had not yet filed individual actions (Consolidated Class

Plaintiffs). These three class actions were removed to the

United States District Court for the District of Hawaiʻi, where

they were consolidated into a single action and later re-filed

in the Second Circuit.” Id. at 415, 565 P.3d at 760.

In October 2024, the Consolidated Class Plaintiffs and

Defendants stipulated to dismiss the federal class action

complaints. Id. at 415 n.2, 565 P.3d at 760 n.2. On October

30, 2024, Class Plaintiffs refiled a single complaint in the

Circuit Court of the Second Circuit. Id.

Before then, the Individual Plaintiffs, Class Plaintiffs,

Defendants, and Subrogating Insurers had participated in court-

ordered mediation to resolve the pending actions. Id. at 415,

565 P.3d at 760. In early August 2024, all parties (minus the

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Subrogating Insurers) signed a settlement term sheet. Id. That

document detailed a global settlement resolving all claims

against Defendants. Id. The settlement required either (1)

written release by all Subrogating Insurers of claims against

Defendants, or (2) “a judgment, order, or opinion determining

that if the Settlement Agreement between the [Individual and

Class Plaintiffs] and the Paying Parties becomes

effective, . . . the Subrogating Insurers’ exclusive remedy for

any Maui Fires Claims would be asserting liens, if any, against

their policyholders for their respective shares of the Aggregate

Settlement Amount[.]” Id. (brackets in original omitted).

As Maui Fires explained, “[o]n August 19, 2024, pursuant to

the proposed global settlement, the circuit court issued an

order declaring itself to have ‘exclusive jurisdiction,

authority, and legal duty to review and resolve any and all

subrogation claims or liens arising out of claims for payments

under HRS § 663-10 in the event the global settlement of the

Maui Fires claims between Plaintiffs and Defendants becomes

effective.’” Id. at 416, 565 P.3d at 761.

On September 12, 2024, the circuit court reserved three

questions to this court. Id. We accepted the reserved

questions on September 25, 2024, ordered briefing, held oral

argument, and on March 17, 2025, published our opinion answering

the reserved questions. See id.

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We held that “the lien-claim process established by HRS

§ 663-10 provides the exclusive remedy for an insurer to recover

for claims paid to an insured for damages caused by a third-

party tortfeasor where the insured has settled with the

tortfeasor[.]” Id. at 425, 565 P.3d at 770.

Days later, on March 24, 2025, Class Plaintiffs moved for

preliminary class certification, settlement agreement approval,

and appointment of class counsel. The settlement agreement

provides for a class settlement fund totaling $135 million.

B. The Class Settlement

On November 1, 2024, as part of the global settlement and

shortly after Class Plaintiffs re-filed their action in state

court, Class Plaintiffs and Defendants executed a Class

Settlement Agreement. On the same day, the Individual

Plaintiffs executed an Individual Settlement Agreement with

Defendants.

The Class Settlement Agreement conditioned the settlement

on either a written release by “[e]ach and every” Subrogating

Insurer of all claims against Defendants, or a final and

unappealable decision that

if the Class and Individual Settlement Agreements become effective, (a) the Subrogation [Insurers’] exclusive remedy for any claims arising out of the Maui Fires would be asserting liens, if any, against their policyholders for their respective shares of the Aggregate Settlement Amount, and (b) the Subrogation [Insurers] shall be barred from bringing or maintaining any claims arising out of the Maui Fires against the Defendants.

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To meet this condition, the settlement agreement states

that Judge Cahill’s August 19, 2024 special proceeding order

regarding the operation of HRS § 663-10 “constitutes a decision

of a trial court that, if rendered Final and Unappealable, would

satisfy Section 5.1.2.”

According to the settlement agreement, the “Settlement

Class” is defined as all persons who suffered injuries (physical

or economic), or who had property damage or damages to their

businesses arising from the fires. The Settlement Class also

includes other “eligible” family or personal representatives of

injured or deceased individuals. The “Settlement Class”

excludes defendants and “insurers and insurance syndicates that

claim or could claim damage or harm regarding the Maui Fires

arising out of a right of subrogation or reimbursement[.]”

“Class Plaintiffs” are “all Persons included within the

Settlement Class who do not timely and validly elect to opt-out

of the Settlement Class pursuant to the procedures set forth in

the Class Notice.” Class Plaintiffs are thus class members (or

those who fall under the broad Settlement Class definition) who

remain part of the class after the opt-out deadline.

The settlement agreement also defined “Class Claimant.” A

“Class Claimant,” as defined by the settlement agreement, is

“any Person who files a claim for or receives a Monetary Award

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from the Class Settlement Fund.” Per Section 4.1.2(k) of the

settlement agreement, the class settlement plan (to be crafted

after preliminary approval for the court’s final approval) must

“address the resolution of claims of Subrogat[ing] Insurers for

payments made to policyholders who are Class Plaintiffs but are

not Class Claimants, which shall include a process for such

insurers to submit claims on behalf of their insureds when such

insureds do not submit a claim.” Put differently, when a class

member does not file a claim against the settlement fund,

§ 4.1.2(k) allows insurers to seek reimbursement via the

settlement plan’s claims process.

C. Subrogating Insurers’ Motion to Intervene

On April 8, 2025, Subrogating Insurers moved to intervene.

They argued that they met all four HRCP Rule 24(a) intervention

by right factors. These factors are: “a) whether the

application was timely; b) whether the [applicants] claimed an

interest relating to the property or transaction which was the

subject of the action; c) whether the disposition of the action

would, as a practical matter, impair or impede the [applicants’]

ability to protect that interest; and d) whether the

[applicants’] interest was inadequately represented[.]” Ing, 76

Hawaiʻi at 271, 874 P.2d at 1096 (brackets in original omitted).

First, Subrogating Insurers maintained that their motion

was timely. Before this court’s March 17, 2025 Maui Fires

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opinion, they “did not know and could not know their subrogation

rights with respect to the Class Action litigation and the

proposed settlement agreement.” The parties would suffer no

prejudice, Subrogating Insurers insisted, because intervention

would allow Class Plaintiffs to renegotiate the settlement terms

and avoid footing the cost of the notice process.

Second, Subrogating Insurers argued that they possess a

protectable interest in equitable subrogation rights that would

be impaired by the settlement’s release of their claims against

Defendants. Third, Subrogating Insurers asserted that the

settling parties cannot adequately represent them because those

parties aspire to release their subrogation claims without

compensation.

Class Plaintiffs and Defendants both opposed the motion to

intervene. Class Plaintiffs responded that Subrogating Insurers

lack a protectable interest that could be impaired by this

action because HRS § 663-10’s lien-claim process provides their

exclusive remedy. Defendants agreed that Subrogating Insurers

possess no protectable interest in equitable subrogation. They

also argued the motion to intervene was untimely, and that Class

Plaintiffs adequately represent Subrogating Insurers’ interests.

In their reply, Subrogating Insurers raised for the first

time a non-lien theory of recovery. Subrogating Insurers assert

that the settlement designates them as Class Claimants who may

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recover directly from the settlement when insured class members

do not submit settlement claims. They say this procedural

difference – direct recovery rather than recovery through liens

on class members’ settlement payments - “demonstrates why [Maui

Fires] does not extend to the class action settlement.”

On June 24, 2025, the circuit court denied Subrogating

Insurers’ motion to intervene. The court ruled that Subrogating

Insurers “failed to establish a legally protectable interest

that would be impaired by the disposition of this action.” It

reasoned that the settlement confines Subrogating Insurers to a

lien remedy under HRS § 663-10. Subrogating Insurers lack

subrogation rights, the court found, reciting a line from Maui

Fires: “A right that does not exist cannot be prejudiced.” 155

Hawaiʻi at 438, 565 P.3d at 783.

The circuit court rejected Subrogating Insurers’ claim that

this court, in answering the reserved questions, “was not aware

of how the application of HRS § 663-10 would affect class action

settlements.” The court reasoned that our decision considered

the global settlement, which included the class action

settlement. It also noted that the Class Plaintiffs filed an

amicus brief and participated in the reserved questions’ oral

argument. Further, the circuit court concluded that because HRS

§ 663-10 applies to “any civil action in tort,” and this class

action is “indisputably” a civil action in tort, Maui Fires

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applies equally to class action settlements. Thus, Maui Fires’

holding that limits insurers’ equitable subrogation upon a tort

settlement applies to class actions.

In a footnote, the circuit court noted that “[i]f an

insured does not opt out of the class and declines to submit a

claim, § 4.1.2(k) of the Class Settlement Agreement allows the

insurer to submit a claim on the insured’s behalf.” The court

found that the settlement provision allowing insurers to submit

claims on behalf of non-claiming class members bears “no nexus”

to Subrogating Insurers’ grounds for intervention. Whether

insurers will submit such claims remains uncertain, the court

explained, and will be determined “after the settlement is

approved and the claims process is underway.” In other words,

an insurer’s ability to submit claims for non-claiming insureds

only arises after settlement approval. The court reasoned that

this settlement provision “gratuitously protects the value of

liens for insurers” in this scenario, but “cannot have the

unintended effect of creating an intervention right for non-

party insurers that does not already exist[.]”

The circuit court also rejected Subrogating Insurers’ due

process challenge to releasing their subrogation rights without

party status. The court applied Maui Fires’ holding that

policyholders may settle and extinguish subrogation rights

without insurer consent. This raised no constitutional

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concerns, the court found. Because they never had subrogation

rights to begin with, Subrogating Insurers suffered no

prejudice.

The court concluded that Subrogating Insurers lacked due

process rights. Nonetheless, Subrogating Insurers “received

sufficient process,” it reasoned. They filed proposed

objections to the settlement, and argued during a May 28, 2025

motion to intervene hearing. Later, after there is an

allocation to challenge, the court explained, Subrogating

Insurers “will also be allowed the opportunity to argue[] . . .

that the settlement allocates money between general and special

damages in bad faith, to the degree the Hawaii Supreme Court’s

decision affords them such a right.” But this future

“opportunity” comes after approval and allocation, and thus

“cannot be used to object to the settlement itself.” Thus, the

court found, Subrogating Insurers “received ample process in

this matter.”

The court further found that the action’s disposition does

not impair Subrogating Insurers’ HRS § 663-10 lien rights. The

court referenced Section 4.1.2(k) of the class settlement

agreement. It “expressly preserves the full extent of the

[Subrogating] Insurers’ lien rights under HRS § 663-10.”

Subrogating Insurers claimed that the settlement fund

inadequately satisfied their liens. But the court ruled that

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“[a]n economic stake in the outcome of the litigation” cannot

justify intervention. See Greene v. United States, 996 F.2d

973, 976 (9th Cir. 1993).

Next, the circuit court rejected Subrogating Insurers’

objections to the settlement amount and class settlement

allocation. Maui Fires created a check for “bad faith” on the

allocation between general and special damages. But our

opinion, the court reasoned, did not require that insurers

receive full reimbursement, or allow insurers to object to the

insureds’ settlement amounts. Because the damages allocation

remains unknown until settlement approval and the claims process

begins, the circuit court concluded that intervention before

then “would do nothing to protect the [i]nsurers’ lien rights as

the [s]upreme [c]ourt defined them.”

The court also deemed the motion untimely. Subrogating

Insurers should have intervened when they had “reason to know

that negotiations might produce a settlement . . . to their

detriment.” See California Dep’t of Toxic Substances Control v.

Com. Realty Projects, Inc., 309 F.3d 1113, 1120 (9th Cir. 2002).

The court found “[t]hat occurred in November 2024, when the

class settlement was made public and after the [Subrogating]

Insurers had been involved in the negotiations.” And

intervention would be highly prejudicial, the court found,

because it would “threaten to unwind the complex and delicately

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balanced global settlement agreement.” See Ing, 76 Hawaiʻi at

272, 874 P.2d at 1097 (losing a settlement would be highly

prejudicial).

The circuit court further stated that even if the other

HRCP Rule 24(a)(2) factors were met, it would deny the motion

because Class Plaintiffs adequately represent Subrogating

Insurers’ interests. When the intervention applicant has the

same “ultimate objective” as an existing party, “a presumption

of adequacy of representation arises.” See Arakaki v. Cayetano,

324 F.3d 1078, 1086 (9th Cir. 2003). Here, the court noted,

Subrogating Insurers share Class Plaintiffs’ goal to maximize

recovery from Defendants.

Last, the circuit court denied permissive intervention

under HRCP Rule 24(b)(2). Because Subrogating Insurers have no

protectable interest in the lawsuit, allowing Subrogating

Insurers to intervene would not “assist in the just and

equitable adjudication of any issues between the parties.” See

Baehr, 80 Hawaiʻi at 345, 910 P.2d at 116.

Subrogating Insurers appealed to the Intermediate Court of

Appeals. On October 1, 2025, Class Plaintiffs applied for

transfer. We granted the transfer application on October 22,

2025. Briefing concluded on January 14, 2026. We held oral

argument on January 27, 2026.

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III.

A. Subrogating Insurers are not entitled to intervention by right

We hold that because Subrogating Insurers lack a

protectable interest in this class action, they are not entitled

to intervention by right under HRCP Rule 24(a)(2). By

extension, without a protectable interest, no impairment arises

from disposition of this action. These conclusions alone

preclude intervention. But there’s more. The motion to

intervene is untimely.

We agree with Subrogating Insurers in one respect. Class

Plaintiffs inadequately represent their interests. Subrogating

Insurers need to run the table, though. “Failure to meet even

one [factor] prevents intervention ‘by right’ under HRCP Rule

24(a)(2).” Baehr, 80 Hawaiʻi at 345, 910 P.2d at 116. The

absence of a protectable interest and untimeliness preclude

intervention.

We begin with the second HRCP Rule 24(a)(2) factor – a

protectable interest in the subject of the action.

1. Subrogating Insurers do not have a protectable interest

a. Maui Fires applies to class actions

Maui Fires held that once an insured settles with a

tortfeasor, a subrogating insurer’s “exclusive remedy” is a lien

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on the settlement recovery under HRS § 663-10. 155 Hawaiʻi at

425, 565 P.3d at 770.

A judgment or settlement in “any civil action in tort”

activates HRS § 663-10’s lien process. Subrogating Insurers say

that Maui Fires does not apply to class actions. But a class

action premised on a tort claim is a civil action in tort. So

when class action parties settle, subrogating insurers are

restricted to statutory liens on plaintiffs’ recovery. See id.

We did not limit Maui Fires to individual settlements. The

statutory term “settlement” encompasses class settlements, not

just individual ones.

Class settlements receive the same treatment as individual

settlements under HRS § 663-10. “Any civil action” is a plain,

all-inclusive legislative pronouncement that covers every civil

suit. HRS § 663-10 (emphasis added). “Any” tort suit includes

individual and class actions. The statute contains no

restriction to individually negotiated agreements; it envisions

“‘a comprehensive structure for addressing liens and subrogation

rights’ whenever an insured party pursues a judgment or

settlement from a third-party tortfeasor.” Maui Fires, 155

Hawaiʻi at 426, 565 P.3d at 771 (emphasis added) (quoting

Yukumoto v. Tawarahara, 140 Hawaiʻi 285, 294-95, 400 P.3d 486,

495-96 (2017)). “[T]he plain language of the statute[] . . .

evinces a broad application[.]” Id.

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HRS § 663-10’s reference to “the judgment or settlement”

does not limit the lien process to individual settlements. Nor

does HRS § 663-10 exclude HRCP Rule 23’s class action framework

and settlement procedure.

Rule 23 itself does not require class members to engage in

settlement negotiations and affirmatively consent to settlement.

See HRCP Rule 23(a). Rather, the rule permits class

representatives to pursue claims on behalf of passive class

members, promoting judicial and litigation efficiency, and

decreasing economic burdens on class members. See id.; Life of

the Land v. Land Use Comm’n of State of Haw., 63 Haw. 166, 179,

623 P.2d 431, 442 (1981) (“[HRCP Rule 23’s] pragmatic objectives

include economies of time, effort, and expense, as well as

uniformity of decision for persons similarly situated.”).

HRS § 663-10’s lien procedures apply to all settlements and

must be read harmoniously with HRCP Rule 23. Both frameworks

advance aligned objectives: avoiding duplicative litigation,

enhancing efficiency, and promoting orderly distribution. See

Life of the Land, 63 Haw. at 179, 623 P.2d at 442; Maui Fires,

155 Hawaiʻi at 429, 565 P.3d at 774 (quoting H. Stand. Comm. Rep.

No. 4-86, in 1986 House Journal, at 42-43).

Read alongside HRCP Rule 23, neither HRS § 663-10’s text

nor legislative intent suggests that it applies only to

individual settlements. To hold otherwise allows insurers to

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“interfere with the ability of the injured Plaintiffs and the

Defendants to settle their dispute” in the class context, a

disfavored outcome we rejected in Maui Fires. 155 Hawaiʻi at

435, 565 P.3d at 780 (“[A]llowing the Subrogating Insurers to

pursue reimbursement through direct subrogation actions against

the Defendants, rather than the HRS § 663-10 lien-claim process,

would interfere with the ability of the injured Plaintiffs and

the Defendants to settle their dispute.”).

When it comes to HRS § 663-10, formalistic distinctions

between individual and class settlements make no sense. Our

holding promotes uniformity in serving HRS § 663-10’s design.

Maui Fires’ central holding applies to class actions.

b. Equitable subrogation is unavailable when class members settle but do not file settlement claims

We turn next to Subrogating Insurers’ argument that they

have a protectable interest in subrogation because some class

members may not submit settlement claims. We hold that class

members’ decision to forego filing claims does not create a

protectable interest in subrogation.

Settlement displaces subrogation. “Where the insured

recovers by settlement or judgment against the tortfeasor, HRS

§§ 431:13-103(a)(10)(A) and 663-10 apply and equitable

subrogation has no place.” Maui Fires, 155 Hawaiʻi at 433, 565

P.3d at 778. Maui Fires preserved insurers’ subrogation rights

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only where there is no recovery from the tortfeasor. Id. It

does not follow that Subrogating Insurers are entitled to

equitable subrogation when class members fail to file claims

against the settlement. See id. at 425, 565 P.3d at 770 (“HRS

§ 663-10 does not apply in the absence of a settlement or

judgment.”).

Subrogating Insurers’ intervention interest, as they define

it, relies on a narrow subset of class members who choose not to

file claims against the settlement. Because some class members

will inevitably decline to participate in the claims process,

treating non-claimants as having never “settled” would grant

insurers equitable subrogation rights - and with them,

intervention-worthy interests - in every mass tort class action.

This would scuttle class action settlements unless defendants

obtain releases of insurers’ claims. Permitting a subrogation-

based intervention “workaround” discourages comprehensive

settlement. Defendants’ settlement goal is always to obtain

releases of all potential claims, especially in the class action

context. See Kris J. Kostolansky & Diane R. Hazel, Class Action

Settlements: Res Judicata, Release, and the Identical Factual

Predicate Doctrine, 55 Idaho L. Rev. 263, 266 (2019).

The economics are straightforward. Defendants settle to

limit their liability. Subrogating insurers seek to maximize

reimbursement. Allowing subrogation for non-claiming class

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members in a tort suit undermines the very releases that make

class settlements possible. Intervention for a limited subclass

of non-claiming class members would frustrate Rule 23’s core

purposes: efficiency and access to justice through collective

recovery. See Life of the Land, 63 Haw. at 179, 623 P.2d at

442; Gregory M. Wirt, Missed Opportunity: Stephenson v. Dow

Chemical Co. and the Finality of Class Action Settlements, 109

Penn St. L. Rev. 1297, 1298-99 (2005). Our class action

framework does not allow this approach.

For equitable subrogation purposes, class members’

recovery from the tortfeasor. Upon class settlement, insurers

are limited to an exclusive statutory remedy. Liens. See HRS

§ 663-10; Maui Fires, 155 Hawaiʻi at 432, 565 P.3d at 777.

Subrogating Insurers’ position that “uninterested” (non-

participating) class members do not actually “pursue” recovery

misreads basic class action procedural principles. HRCP Rule 23

allows representative class members to protect the class’

interests without requiring active class member participation in

settlement or judgment. HRCP Rule 23(a). Class members are

bound by the final judgment. Unless they opt out, they’re in.

HRCP Rule 23(c)(2) (“the judgment, whether favorable or not,

will include all members who do not request exclusion”); HRCP

Rule 23(e) (“A class action shall not be dismissed or

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compromised without the approval of the court, and notice of the

proposed dismissal or compromise shall be given to all members

of the class in such manner as the court directs.”).

To hold otherwise undercuts finality principles in class

actions. An “absent” class member who does not opt out pursues

the civil action resolving their claims. See HRCP Rule

23(c)(2); Maui Fires, 155 Hawaiʻi at 433, 565 P.3d at 778; Akau

v. Olohana Corp., 65 Haw. 383, 388, 652 P.2d 1130, 1134 (1982)

(“A judgment in a class action consisting of the people actually

injured will bind the members who are all those allowed to

sue.”). Thus, insurers are limited to the statutory lien

process. See Maui Fires, 155 Hawaiʻi at 433, 565 P.3d at 778.

We pause to discuss core principles supporting equitable

subrogation. An insurer’s rights are derivative. Subrogation

rights derive from and are coextensive with an insured’s claims.

See State Farm Fire & Cas. Co. v. Pac. Rent-All, Inc., 90 Hawaiʻi

315, 329, 978 P.2d 753, 767 (1999). Insurers have no greater

rights than their insureds. See id. “[S]ubrogation involves

‘stepping into’ the shoes of another, when an insurer brings an

action against a tortfeasor based upon its subrogation rights,

the insurer’s rights flow from the insured’s rights.” Id.

(quoting 4 R. Long, The Law of Liability Insurance § 23.03, at

23–13 to 23-14 (1998)).

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Where the insureds’ claims are resolved via settlement, so

too are the insurers’ derivative actions. Insurers cannot

subrogate when their insureds have settled. See id.

Class members are bound by the settlement, despite whether

they file their own claims to recover from the settlement fund.

It follows that even if those non-claiming class members do not

recover direct payments from the settlement fund, the

subrogating insurers are still limited to reimbursement from the

settlement. See id. Insurers cannot subrogate settled claims.

See id.

Maui Fires recognized that equitable subrogation prevents a

tortfeasor’s unjust enrichment. 155 Hawaiʻi at 433, 565 P.3d at

778. Class settlements eliminate this concern. Defendants agree

to compensate claimants without a liability finding. Even when

class members do not submit settlement claims, defendants remain

committed to pay a certain amount. That payout remains constant

even when class members don’t file claims. At the same time,

there is no plaintiff windfall concern because plaintiffs who

forego filing claims will not recover twice. See id. at 416,

565 P.3d at 761 (“Subrogation prevents a double recovery by

limiting the insured from collecting damages for the same injury

from both the insurer and the tortfeasor.”).

Next, we address Subrogating Insurers’ position that absent

“competition” with their insureds, they may subrogate.

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Subrogating Insurers misread Maui Fires. They say HRS § 663-10

only kicks in “when there is some form of practical competition

between an insurer and their insured for settlement funds.”

Not so. HRS § 663-10 does not hinge on competition between

insurer and insured for settlement funds. Maui Fires held that

absent settlement or judgment, no competition exists between

insured and insurer for tortfeasor funds. 155 Hawaiʻi at 433,

565 P.3d at 778. Thus the insurer’s third-party claim poses no

risk to the insured’s recovery. Id. In those circumstances (no

settlement or judgment), equitable subrogation prevents

tortfeasor unjust enrichment. Id. (citing State Farm, 90 Hawaiʻi

at 331, 978 P.2d at 769).

Subrogating Insurers maintain that “competition” between

the insurer and the insured must exist before their equitable

subrogation rights may be precluded. Subrogating Insurers

insist that where the insured plaintiff “stands ‘to recover

nothing on [their] own, there [is] no risk of [their] recovery

being diminished.’” See id. at 435, 565 P.3d at 780. Thus,

they say, HRS § 663-10 does not apply absent competition.

Again, Subrogating Insurers misread Maui Fires. This

court’s discussion of plaintiffs’ non-recovery did not create a

“competition” precondition. Subrogating Insurers selectively

cite our opinion’s analysis of Park v. City & Cnty. of Honolulu,

a workers’ compensation case they previously relied on in Maui

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Fires. There we explained that citing Park was “misplaced”

because employee Park’s claim had been dismissed. Id. at 435,

565 P.3d at 780 (citing Park v. City & Cnty. of Honolulu, 154

Hawaiʻi 1, 3, 543 P.3d 433, 435 (2024)). “Because the plaintiff

stood to recover nothing on her own, there was no risk of her

recovery being diminished by the insurer’s subrogation action,”

this court reasoned. Id. The passage Subrogating Insurers

invoke merely distinguishes Park. It does not graft a general

competition requirement. See id.

As we flagged, Park involved “no recovery by judgment or

settlement of a third-party claim against which the insurer

would have been able to assert a lien under HRS § 663-10.” Id.

We contrasted Park with the Maui Fires case, “where the

Plaintiffs have reached the terms of a settlement agreement with

the Defendants, and where allowing the Subrogating Insurers to

pursue their own, separate subrogation actions risks diminishing

or destroying entirely the Plaintiffs’ recovery under the

proposed settlement.” Id.

The “competition” concept in Maui Fires protects insureds

from prejudice when insurers pursue equitable subrogation. See

id. at 425, 565 P.3d at 770. But competition generally does not

limit when HRS § 663-10 applies. Equitable subrogation applies

only when no settlement or judgment exists, and thus there’s no

competition between the insured and the insurer for the same

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funds from the same defendants. Id. Therefore, equitable

subrogation is only available when (1) a judgment or settlement

has not been reached, and (2) the insurer can recover only

through a separate action. See id.

Here, the insureds and the defendant-tortfeasors have

settled. Defendants committed to compensate class members

through the settlement agreement and fund. A “judgment or

settlement against which the insurer may assert a lien” now

exists. See id. at 433, 565 P.3d at 778. So the “competition”

Subrogating Insurers invoke neither exists nor is required.

Class action settlement eliminates a primary justification

for equitable subrogation: preventing a tortfeasor’s unjust

enrichment. See id. Settlement avoids potential unjust

enrichment regardless whether insurers are fully compensated.

Here, unused class settlement funds will be “redistributed

to Class Claimants in an amount proportional to their pro rata

share of the recovery.” No funds revert to Defendants.

Therefore, individual class member claim filings do not affect

competition for settlement funds. The settlement amount paid by

Defendants remains fixed, no matter the degree of class member

participation.

The legislature balanced the interests of the insured and

the insurer. In Maui Fires, we explained that to create “a

fair, uniform and comprehensive procedure governing the rights

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and obligations of insurance companies and consumers for the

reimbursement of insurance benefits from third-party sources of

recovery,” the legislature “‘limit[ed] reimbursement and

subrogation for all insurance companies’ to the comprehensive

procedure prescribed by HRS §§ 431:13-103(a)(10) and 663-10.”

155 Hawaiʻi at 431, 565 P.3d at 776 (quoting H. Stand. Comm. Rep.

No. 1330-00, in 2000 H. Journal, at 1515; Yukumoto, 140 Hawaiʻi

at 296, 400 P.3d at 497). The statutory framework prevents

insurers from blocking tort settlements because their lien

interests are affected. See id. Yet, Subrogating Insurers

aspire to relitigate HRS § 663-10’s operation.

Subrogating Insurers believe the settlement’s process

(allowing them to file claims on behalf of insureds) conflicts

with HRS § 663-10 because liens attach only after class members

receive awards. The statute requires no such thing. See HRS

§ 663-10.

Subrogating Insurers complain that when class members do

not file claims and obtain awards, no recovery exists for lien

attachment. They say that the settlement plan does not actually

“include provisions that address the resolution of claims of

Subrogation Insurers for payments made to policyholders who are

Class Plaintiffs but are not Class Claimants” and does

not “include a process for such insurers to submit claims on

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behalf of their insureds when such insureds do not submit a

claim.”

The putative absence of an insurers’ claims procedure in

the settlement plan does not affect our intervention analysis.

Subrogating Insurers have not alleged an actual violation of

their lien rights or an inability to assert claims on behalf of

their insureds (to the contrary they have asserted settlement

claims for their insureds). They merely insist that subrogation

should be available when class members do not submit claims with

the settlement fund.

In any event, intervention in the class settlement

proceedings is not a condition to later challenge lien

reimbursement rights under HRS § 663-10. To repeat, settlement

precludes subrogation. So the settlement provision does not

confer subrogation rights, and the settlement plan’s purported

procedural gap does not affect our subrogation analysis.

In Maui Fires we preserved insurers’ subrogation rights

when there is no recovery from the tortfeasor. 155 Hawaiʻi at

425, 565 P.3d at 770 (“HRS § 663-10 does not apply in the

absence of a settlement or judgment.”). But that ruling does

not entitle insurers to equitable subrogation when class members

fail to file claims against the settlement. See id.

We rebuff Subrogating Insurers’ formalistic stance that

Section 4.1.2(k)’s insurer claims process does not constitute

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assertion of a lien under HRS § 663-10. Subrogating Insurers

contend that when insurers file claims on behalf of class

members, no “judgment or settlement” exists for lien attachment.

The argument about Section 4.1.2(k)’s procedure does not alter

its substance. This settlement agreement provision achieves the

same result as a traditional HRS § 663-10 lien. Subrogating

Insurers recover from their insureds’ settlement proceeds, just

as under statutory liens. The HRS § 663-10 lien process ensures

that insurers recover the appropriate portion (or all) of their

insured’s special damages obtained through settlement. See HRS

§ 663-10. When insurers recover special damages through the

claims process, HRS § 663-10’s objectives are met. In class

actions, an insured’s absence from the settlement claims process

does not manufacture subrogation rights.

c. Release of equitable subrogation rights without party status does not violate due process

Subrogating Insurers say their designation as “Class

Claimants” in the settlement agreement violates due process.

The “Class Claimant” designation, the insurers contend,

“unlawfully deprive[s] [them] of the due process rights afforded

to full class members.” Due process, they believe, requires

giving class members the opportunity to opt out of the class to

“prosecute their own claims.” Class Plaintiffs and Defendants

counter. Even though insurers may file claims on behalf of

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class members, they are not Class Claimants, a subclass of class

members who actually file claims against the settlement.

Class members have the right to opt out and be excluded

from the class (and thus, settlement). HRCP Rule 23(c)(2);

Patrickson v. Dole Food Co., Inc., 137 Hawaiʻi 217, 229, 368 P.3d

959, 971 (2015); Silber v. Mabon, 18 F.3d 1449, 1454 (9th Cir.

1994) (quoting Phillips Petroleum Co. v. Shutts, 472 U.S. 797,

812 (1985)) (“[D]ue process requires at a minimum that an absent

[class] plaintiff be provided with an opportunity to remove

[themself] from the class by executing and returning an ‘opt

out’ or ‘request for exclusion’ form to the court.”).

Though they themselves have no such rights, Subrogating

Insurers try to invoke class members’ due process rights. But

class members’ procedural opt-out protections do not extend to

insurers. Class members’ due process opt-out rights are

inaccessible to Subrogating Insurers.

As an initial matter, Subrogating Insurers object that the

settlement binds them, as though they were class members. The

settlement between the Class Plaintiffs and Defendants, though,

neither adjudicates insurers’ rights nor imposes obligations on

them. Rather, the settlement itself forecloses equitable

subrogation by activating HRS § 663-10’s lien-claims process -

the insurers’ exclusive remedy. See Maui Fires, 155 Hawaiʻi at

425, 565 P.3d at 770. The “opt out” right Subrogating Insurers

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covet as their primary procedural protection, therefore, is

unavailable.

First, we have already held that insurers suffer no

prejudice when policyholders settle and douse subrogation rights

without insurer consent. Id. at 437-38, 565 P.3d at 782-83. We

did not hold that limiting insurers to the statutory lien

process violates due process. Nor did Subrogating Insurers

argue this at the time. See id. Second, insurers submitting

claims with the settlement fund on behalf of non-claiming class

members does not confer class member status or the right to opt

out. See Alden v. Kona Palisades, Inc., 3 Haw. App. 47, 49, 641

P.2d 330, 332 (App. 1982) (“[J]udicially-approved settlement is

binding upon the members of the class who have not opted out.”);

4 William B. Rubenstein, Newberg and Rubenstein on Class Actions

§ 13:22 (6th ed.) (“Courts regularly find that nonclass members

have no standing to object to a proposed settlement.”).

Subrogating Insurers’ due process argument rests on class

member rights. Yet the settlement expressly excludes

Subrogating Insurers from the Settlement Class. The

settlement’s claims process for insurers does not change this.

We return to the well-worn metaphor of subrogation: the

insurer steps into the insured’s shoes and acquires no

independent rights. See Maui Fires, 155 Hawaiʻi at 418, 565 P.3d

at 763 (citing State Farm, 90 Hawaiʻi at 329, 978 P.2d at 767).

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To grant subrogating insurers their own separate opt-out rights

as extra class members, cobbles shoes that do not fit the

insured. Instead of stepping into their insureds’ shoes,

Subrogating Insurers try to shoehorn themselves into the

settlement as independent parties. This effort collides with

the core rationale for equitable subrogation. Thus, Subrogating

Insurers lack a due process right to opt out under HRCP Rule

23(b).

d. Economic interest in the settlement amount is not a protectable interest

We next address Subrogating Insurers’ claim that the class

settlement is underfunded.

Economic interest alone does not establish intervention

rights. “An economic stake in the outcome of the litigation,

even if significant, is not enough” to establish a protectable

interest. Greene, 996 F.2d at 976. Greenlighting intervention

based on supposed settlement fund shortfalls would give insurers

veto power over tort settlements. The settlement fund’s

purported inadequacy does not create a protectable interest.

Subrogating Insurers also challenge the settlement. They

quote Maui Fires: “settling parties may not, in bad faith,

structure their settlement in such a way as to nullify the

protections afforded to insurers[.]” See Maui Fires, 155 Hawaiʻi

at 439, 565 P.3d at 784. Subrogating Insurers, though, skip the

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part that limited insurer protections to those “under HRS § 663-

10.” Id.

Maui Fires addressed settlement structure in the context of

“protections afforded to insurers under HRS § 663-10.” Id. We

gave examples of settlement structures that nullify HRS § 663-

10’s protections: “settlement . . . that purports to waive a

property and casualty insurer’s right to assert an otherwise

valid lien,” and “a settlement improperly structured as for

general damages only, when the circumstances do not warrant such

a settlement.” Id. These scenarios constitute settlement in

bad faith. See id.

The good faith requirement prevents collusive settlements.

See id. But it does not confer insurers equitable subrogation

rights. See id. HRS § 663-10 protects insurers’ settlement

entitlement and special damages reimbursement – nothing more.

Id. at 438, 565 P.3d at 783.

Our opinion did not require full insurer reimbursement

through settlement liens. See id. at 439, 565 P.3d at 784.

Rather, as the circuit court observed, we “created a ‘bad faith’

check by providing the right to object that the allocation of

damages between general damages and special damages was not made

in good faith.” Id. This good faith check is not a blank check

for insurers to challenge the settlement amount here, through

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Subrogating Insurers do not allege improper conduct. They

do not assert under-allocation of special damages to evade HRS

§ 663-10. Defendants state that “[t]here currently is no

allocation between general and special damages for the insurers

to challenge.” As for the circuit court, it reasoned that

damage allocation will occur only after the court “approves the

settlement and the claims process proceeds.” Maui Fires

expressly preserved challenges to the settlement allocation for

insurers. Id. This bad-faith review does not support

intervention in the settlement itself. See id.

Thus the alleged settlement fund inadequacy fails to

establish a protectable interest justifying intervention.

2. Subrogating Insurers’ non-existent interest is not impeded or impaired

HRCP Rule 24(a)(2) directs courts to examine if “the

disposition of the action would, as a practical matter, impair

or impede the intervenor’s ability to protect that interest.”

Ing, 76 Hawaiʻi at 271, 874 P.2d at 1096 (cleaned up) (citation

omitted). Impairment flows from a protectable interest. Absent

a protectable interest, exclusion from the litigation does not

constitute impairment. Am. Nat. Bank & Tr. Co. of Chicago v.

City of Chicago, 865 F.2d 144, 147 (7th Cir. 1989) (“Because the

[applicant] has failed to assert a direct, legally protectable

interest, it follows that it has failed to assert an interest

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that could be impaired or impeded by the district court

proceedings.”).

Settlement approval impairs nothing. Absent a protectable

interest in equitable subrogation, a class action settlement

that covers all claims against all defendants causes no

impairment. “A right that does not exist cannot be prejudiced.”

Maui Fires, 155 Hawaiʻi at 438, 565 P.3d at 783. Similarly, a

nonexistent protectable interest cannot be impaired. See id.

Because Subrogating Insurers lack a protectable interest,

disposition of this action causes no impairment. See Ing, 76

Hawaiʻi at 271, 874 P.2d at 1096.

3. Subrogating Insurers’ motion to intervene was untimely

The motion to intervene was untimely. See HRCP Rule

24(a)(2).

Timeliness is “a matter left to the sound discretion of the

trial court.” Ing, 76 Hawaiʻi at 271, 874 P.2d at 1096.

Timeliness depends on the totality of the circumstances. Id.

Two factors matter most. “[E]specially relevant is: (1) the

lapse of time between when [the applicant] should have sought

intervention and when it actually did; and (2) the prejudice

caused to the [existing parties] by the lapse of time.” Id.

Subrogating Insurers insist intervention was timely because

their subrogation rights remained up in the air until Maui

Fires. We disagree.

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Subrogating Insurers should have intervened when the class

settlement became public on November 4, 2024. At that point,

they knew or should have known the settlement would adversely

affect their interests. See Ing, 76 Hawaiʻi at 271, 874 P.2d at

1096; Com. Realty Projects, Inc., 309 F.3d at 1120. The class

settlement agreement conditioned settlement approval on a court

order barring insurers’ subrogation claims against Defendants.

That settlement agreement’s express terms belie Subrogating

Insurers’ argument. Further, knowledge of the settlement amount

(not available in November 2024) is immaterial to their

purported equitable subrogation rights.

The motion to intervene was untimely despite being filed

before preliminary approval. Treating any delay before

preliminary approval as timely would dilute the timeliness

requirement in class action settlements. Intervention

contemporaneous with the settlement’s agreement would have

averted a five-month delay. Given the complexity and scope of

this settlement and the many plaintiffs and defendants, this

delay prejudices the parties - irrespective of whether

preliminary approval preceded the motion to intervene.

Subrogating Insurers cannot wait until they are dissatisfied

with the litigation’s progress. See Ballard v. Garrett, 78

S.W.3d 73, 76 (Ark. 2002). They offer no passable justification

for their delay.

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The putatively stayed proceedings pending Maui Fires also

does not justify tabling intervention from November 2024 to

April 2025. (Subrogating Insurers argue that they couldn’t have

intervened during the stay, while Class Plaintiffs and

Defendants say a stay was not in place at the time.)

Subrogating Insurers concede they waited for our March 2025

decision on the reserved questions before moving to intervene.

Strategic choice, not the stay, caused the delay.

Next, we consider prejudice, the main component of

timeliness. See Hoopai v. Civil Service Comm’n, 106 Hawaiʻi 205,

216, 103 P.3d 365, 376 (2004). Prejudice outweighs mere delay.

“The most important consideration in deciding whether a motion

for intervention is untimely is whether the delay in moving for

intervention will prejudice the existing parties to the case.”

7C Mary Kay Kane & Allan Stein, Fed. Prac. & Proc. Civ. § 1916

(3d ed. Sep. 2025 update).

Intervention that “‘interject[s] numerous other issues into

the litigation’ . . . [leading] to ‘considerable delay’ in the

disposition of the case” prejudices the parties. Hoopai, 106

Hawaiʻi at 216, 103 P.3d at 376 (quoting Blackfield Hawaii Corp.

v. Travelodge Int’l, Inc., 3 Haw. App. 61, 63, 641 P.2d 981, 983

(App. 1982)). So too with intervention that slows relief. See

Alaniz v. Tillie Lewis Foods, 572 F.2d 657, 659 (9th Cir. 1978)

(because the consent decree was “already being fulfilled,”

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revocation of the decree “would create havoc and postpone the

needed relief,” thus prejudicing the parties); Orange Cnty. v.

Air Cal., 799 F.2d 535, 538 (9th Cir. 1986) (allowing

intervention after the City of Irvine learned the outcome “would

not be entirely to its liking,” and “undoing . . . five years of

protracted litigation” would prejudice the parties).

Maui Fires held that “Plaintiffs have reached the terms of

a settlement agreement with the Defendants, and . . . allowing

the Subrogating Insurers to pursue their own, separate

subrogation actions risks diminishing or destroying entirely the

Plaintiffs’ recovery under the proposed settlement.” 155 Hawaiʻi

at 435, 565 P.3d at 780. Intervention five months after

settlement would imperil the settlement and delay relief,

prejudicing the parties.

Given the urgent need for relief in the wake of the Maui

wildfires, unraveling the global settlement would deny

plaintiffs’ relief when they need it most. See id. Granting

intervention would unwind two years of court-ordered mediation

and settlement negotiations, substantially prejudicing the

parties. See id. Intervention at this stage would derail a

“complex and delicately balanced” settlement. See United States

v. State of Oregon, 913 F.2d 576, 588 (9th Cir. 1990) (“[In]

intervening at this stage to challenge the [Idaho salmon harvest

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allocation] plan would seriously prejudice all the parties to

the suit because the plan is complex and delicately balanced.”).

Prompt settlement is vital. Delay harms victims and erodes

overall settlement value for injured plaintiffs, especially

those with underinsured or uninsurable injuries. The settlement

agreement itself touts “the benefits of a settlement at this

time to Class Plaintiffs.” (Emphasis added.)

Undue delay prejudicially extends plaintiffs’ suffering and

diminishes relief. Plaintiffs may face increased pressure to

settle for less if the current settlement upends. And rising

class litigation costs will reduce class recovery. See John E.

Lopatka & D. Brooks Smith, Class Action Professional Objectors:

What to Do About Them?, 39 Fla. St. U. L. Rev. 865, 865-66

(2012) (delayed “implementation of a class settlement” creates

“[t]he prospect of financial loss”). Meanwhile, Defendants

likely settled to avoid higher-cost individual settlements,

potential liability findings, and prolonged litigation. See

Lopatka & Smith, supra, at 866 n.3 (“the interests of defendants

in expedition [of litigation termination via settlement] are

different from those of class counsel”).

The multi-faceted, carefully calibrated global settlement

resolves claims for thousands of individual and class

plaintiffs, allocates defendant contributions, and distributes

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billions in settlement funds through individual and class

agreements for a wide range of damages.

After unimaginable loss, Lahaina and its people approach

finality through the global settlement. Settlement will allow

this community to pivot from litigation to restoration.

The class settlement, alongside the individual settlement,

balances multiple interests and provides mutually-beneficial

resolution. Collapse due to Subrogating Insurers’ intervention

would severely prejudice the parties.

The court properly denied the untimely motion to intervene.

4. Class Plaintiffs do not adequately represent Subrogating Insurers’ interests

We turn to the last intervention requirement. Because

Subrogating Insurers lack a protectable interest that would be

impaired by disposition of this action, and the motion was

untimely, the motion to intervene by right fails. See Baehr, 80

Hawaiʻi at 345, 910 P.2d at 116 (failure to meet even one HRCP

Rule 24(a)(2) factor prevents intervention by right).

Nonetheless, because the circuit court cites the adequate

representation factor as a separate basis for denial, we

clarify. Class Plaintiffs do not adequately represent

Subrogating Insurers’ interests.

An applicant intervenor only needs to show that the party’s

representation of their interests “may have been inadequate.”

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Hoopai, 106 Hawaiʻi at 217, 103 P.3d at 377 (citing Sagebrush

Rebellion, Inc. v. Watt, 713 F.2d 525, 528 (9th Cir. 1983)).

Class Plaintiffs do not represent Subrogating Insurers’ interest

in equitable subrogation for non-claiming class members.

Throughout this litigation, Class Plaintiffs have consistently

opposed subrogation.

Class Plaintiffs quarrel with Subrogating Insurers as to

the “interest” they represent on behalf of the insurers. Class

Plaintiffs say that they share an interest in “maximizing

recovery” with Subrogating Insurers. But they oversimplify the

two parties’ positions and interests.

Subrogating Insurers’ interest in this action is not just

boosting reimbursement. They want to subrogate when class

members do not file settlement claims. While subrogation

enlarges insurer recovery, it conflicts with Class Plaintiffs’

core interests: timely settlement, maximum payment from

Defendants, and release of all subrogation claims as a

settlement condition. See id. at 217, 103 P.3d at 377.

Class Plaintiffs inadequately represented Subrogating

Insurers’ interests. See id.

Still, failure to meet all HRCP Rule 24(a)(2) factors

prevents intervention by right.

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B. The circuit court properly denied permissive intervention

HRCP Rule 24(b)(2) permits intervention when (1) the

application is timely, and (2) “an applicant’s claim or defense

and the main action have a question of law or fact in common.”

HRCP Rule 24(b)(2). When ruling on a motion to intervene, the

court must assess whether intervention would “unduly delay or

prejudice the adjudication of the rights of the original

parties.” Id.

We review denial of permissive intervention for abuse of

discretion, not whether the Rule 24(b)(2) factors are present.

Baehr, 80 Hawaiʻi at 345, 910 P.2d at 116 (“[W]hen we are asked

to review a denial of permissive intervention, our task is not

to determine whether the factors of Rule 24(b)(2) are present,

but it is rather to determine whether the trial court committed

an abuse of discretion in denying the motion.”).

The circuit court correctly exercised discretion in denying

permissive intervention. Untimeliness supports that ruling.

See HRCP Rule 24(b)(2).

Because Subrogating Insurers have no protectable interest

in the settlement terms, we also agree with the circuit court

that intervention does not “assist in the just and equitable

adjudication of any issues between the parties.” See Baehr, 80

Hawaiʻi at 345, 910 P.2d at 116.

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Here, Subrogating Insurers claim an equitable subrogation

right derivative of their insureds’ claims. This interest,

though, does not aid in resolving the lawsuit’s central issues:

Defendants’ liability and whether the settlement is fair,

reasonable, and adequate under HRCP Rule 23. See id.

Without a protectable interest, Subrogating Insurers cannot

establish a “common question of law or fact.” Id. (absent “an

interest relating to the property or transaction which is the

subject of the action” no common questions exist).

Subrogating Insurers assert that their claims share the

“same transactional nucleus of facts.” They distort the

24(b)(2) standard. The “transactional nucleus” test comes from

Wong v. Cayetano’s claim preclusion doctrine, not HRCP Rule

24(b)(2). 111 Hawaiʻi 462, 478, 143 P.3d 1, 17 (2006). We

decline Subrogating Insurers’ invitation to transplant a claim

preclusion standard into the permissive intervention analysis.

The permissive intervention standard requires commonality

between the applicant’s “alleged interest and the main action,”

not a common nucleus of facts. Baehr, 80 Hawaiʻi at 345, 910

P.2d at 116; see HRCP Rule 24(b)(2) (requiring that “an

applicant’s claim or defense and the main action have a question

of law or fact in common”).

Equitable subrogation presents no common questions of law

or fact with these tort claims and the class settlement of those

45 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

claims. Because Subrogating Insurers lack a protectable

interest (an “interest relating to the property or transaction

which is the subject of the action”) they cannot demonstrate

common questions with the main action. See Baehr, 80 Hawaiʻi at

345, 910 P.2d at 116; Maui Fires, 155 Hawaiʻi at 425, 565 P.3d at

770.

IV.

We affirm the Circuit Court of the Second Circuit’s June

24, 2025 order denying Subrogating Insurers’ motion to

intervene.

Adam M. Romney /s/ Sabrina S. McKenna (Vincent G. Raboteau, Michael F. O’Connor, Richard A. Ing, Mark /s/ Todd W. Eddins S. Anderson, Normand R. Lezy, Christine Forsline, David R. /s/ Lisa M. Ginoza Denton, on the briefs) for appellants /s/ Kevin T. Morikone

Terrance M. Revere /s/ Taryn R. Tomasa (Patrick Kyle Smith, Graham B. LippSmith, MaryBeth LippSmith, Celene Chan Andrews, Jaclyn L. Anderson on the briefs) for appellees Nova Burnes, et al.

Ginger D. Anders (Joachim P. Cox, Randall C. Whattoff, Nicholas D. Fram on the briefs) for appellees Hawaiian Electric Company, Inc. dba Hawaiian Electric, et al.