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Recovery of Hawaii Attorneys Fees (Part 1)

Friday, February 24th, 2012

This is an updated version of a blog first published on September 19, 2006

Under Hawaii law, in certain commercial cases, the prevailing party may recover some or all of its attorneys fees from the losing party. HRS § 607-14, states as follows:

§ 607-14 Attorneys’ fees in actions in the nature of assumpsit, etc. In all the courts, in all actions in the nature of assumpsit . . . there shall be taxed as attorneys’ fees, to be paid by the losing party and to be included in the sum for which execution may issue, a fee that the court determines to be reasonable . . . . The court shall then tax attorneys’ fees, which the court determines to be reasonable, to be paid by the losing party; provided that this amount shall not exceed twenty-five per cent of the judgment.

* * * *

The above fees provided for by this section shall be assessed on the amount of the judgment exclusive of costs and all attorneys’ fees obtained by the plaintiff, and upon the amount sued for if the defendant obtains judgment.

Haw. Rev. Stat. § 607-14 (emphasis added).

There are certain key points regarding this statute about which each client should be made aware, including the following:

1. Plaintiff’s recovery of attorneys fees is capped at twenty five percent (25%) of the judgment awarded. Thus, for example, if the plaintiff is awarded a judgment of $100,000, the plaintiff’s recovery is capped at 25% of $100,000 or $25,000.

2. The defendant’s recovery is capped at 25% of the damages unsuccessfully sought by plaintiff. Thus, for example, if the plaintiff seeks $100,000, the defendant’s potential award is capped at $25,000.

3. If the plaintiff doesn’t specify the amount that he is seeking and it is impossible for the Court to determine the damages sought by the plaintiff, the prevailing defendant may be awarded all of its reasonable attorneys fees. Thus, the plaintiff is highly encouraged to specify early in the case the damages that plaintiff is seeking to ensure that if the plaintiff is unsuccessful, the attorneys fees award is capped.

4. The Hawaii Supreme Court has held that the attorneys fees award under HRS § 607-14 is not discretionary. The Court must award attorneys fees to the prevailing party.

5. The statute only applies to cases concerning “assumpsit” damages. The Hawaii Supreme court has defined an “assumpsit” case as a claim “for the recovery of damages for the non performance of a contract . . . as well as quasi contractual obligations.” Schulz v. Honsador, Inc. 67 Haw. 433 (1984). Although this law only applies to matters of “assumpsit,” it has been applied to various types of litigation including breach of contract, breach of fiduciary duty, and legal malpractice so long as they concern (i) an attempt to recover damages and (ii) a contractual arrangement.

Unfortunately, Hawaii does not have a similar attorneys fee provision in personal injury cases. Moreover, although HRS § 607-14 is not the only Hawaii law that allows for the recovery of attorneys fees. Therefore, when analyzing a case, a Hawaii attorney should also explore other theories that may allow the recovery of attorneys fees. Those theories will be discussed in subsequent entries of this blog.

In part two of this blog, we will discuss recent decisions by the Hawaii Intermediate Court of Appeals and the Hawaii Supreme Court which have clarified when HRS § 607-14 applies to quasi contractual obligations.

Part three of this blog will address the case of Kona Village Realty, Inc. v. Sunstone Realty Partners, XIV, LLC, 121 Hawai’i 110, 214 P.3d 1100 (Hawai‘i App. 2009), in which the Intermediate Court of Appeals clarified the collections of attorneys fees in arbitrations, which was affirmed by the Hawaii Supreme Court.

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Hawaii Personal Injury Attorneys Must Get Court Approval Of Settlements For Minors

Thursday, February 2nd, 2012

A Hawaii personal injury attorney must be mindful of special procedures he or she must follow when litigating a personal injury action on behalf of a minor or an incapacitated person.  Because a minor or incapacitated person cannot make an informed decision regarding his or her case, Hawaii law requires that any settlement or judgment received in a minor’s court case be approved by a judge presiding in probate and that a conservator is appointed on behalf of the minor or incapacitated person.  Rule 101 of the Hawaii Probate Rules makes it the Plaintiff’s Attorney’s responsibility to initiate a conservatorship action for the eventual settlement or judgment in favor of the minor or incapacitated plaintiff.  Rule 101 of the Hawaii Probate Rules states as follows:


When a minor or incapacitated person receives a settlement or judgment from any claim or action, a conservatorship action must be initiated by the plaintiff’s attorney and any settlement approved by the court insofar as it affects the protected person or respondent. The judge presiding in probate shall appoint a conservator for the minor or incapacitated individual and determine whether any settlement is reasonable. A flag sheet shall be presented pursuant to Rule 103 for any hearing on a petition that seeks compromise of a tort claim on behalf of a minor or incapacitated person.

Hawaii Rules of Probate Court R. 101.

The personal injury attorney’s responsibility to initiate conservatorship proceedings and obtain judicial approval of settlement or judgment extends to matters in Federal Court.  Indeed, Rule 17.1 of the Local Rules of the District Court of Hawaii requires that Federal Court litigants abide by state laws (i.e., HRP 101) as to court approval of settlements involving minors.  Rule 17.1 provides as follows:

Except as otherwise permitted by statute or federal rule, no action by or on behalf of a minor or incompetent shall be dismissed, discontinued, or terminated without the approval of the court.  When required by state law, court approval shall also be obtained from the appropriate state court having jurisdiction over such matters for any settlement or other disposition of litigation involving a minor or incompetent.

LR 17.1 (emphasis added).

Additionally, even Hawaii personal injury attorneys obtaining settlements or awards in arbitration in favor of a minor or incapacitated person must initiate a conservatorship proceeding and have that settlement or award approved by a judge sitting in probate.  H.R.S. § 658A-22 states that a party receiving an arbitration award may ask the court to confirm the award.  H.R.S. § 658A-22 provides as follows:

After a party to an arbitration proceeding receives notice of an award, the party may make a motion to the court for an order confirming the award at which time the court shall issue a confirming order unless the award is modified or corrected pursuant to section 658A-20 or 658A-25 or is vacated pursuant to section 658A-23.

HRS § 658A-22.

The confirmation of an arbitration award converts the award into an enforceable judgment, thus triggering Hawaii Probate Rule 101.  Mikelson v. United Services Auto. Ass’n, 122 Hawai’i 393, 396 (Hawai‘i App. 2010) (“Confirmation of an arbitration award is an ‘expeditious procedure for reducing or converting the arbitration award to a judgment which can be enforced by judicial writ.’”).  The Hawaii personal injury attorney who receives a favorable outcome for his or her minor or incapacitated client is cautioned not to forget these important special requirements in representing a minor or incapacitated client.

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