NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

NO. CAAP-18-0000708

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

LOY K.S. WATANABE, GERALD CARRELL, STERLING J.K. ALLEN, 

JOSEPH W. LEPINE, ANTHONY AGUIAR, MICHAEL ALMEIDA, 

STEPHEN ARRUDA, ALIKA BAJO, RON D. BODE, BRENDAN K. BUCHWACH, 

DOUGLAS BURKE, BLAKE CONANT, as Personal Representative of the 

ESTATE OF CHRISTOPHER CONANT, SHANNON HART, PHILLIP L. HOOTON, 

HAROLD K. KAULA, as Personal Representative of the ESTATE OF 

EDWARD K. KAULA, EMMETT LEE LOY, HILARY LEE LOY, LAMBERT LEE 

LOY, MALIA MARQUEZ, as Personal Representative of the ESTATE OF 

ANTHONY T. LUM, JOHN D.K. MORRIS, TODD I. RAGSDALE, CARL J. 

ROSSETTI, JOSEPH T. SOWA, KEALA WAIAU, JOHN DOE 1, JOHN DOE 2, 

DAVID W.K. AULD, WILLIAM BREWER, SCOTT HORIUCHI, JOSEPH L.K. 

JAMES, R. RONALD JAMES, fka RONALD ROI WEIR, JOHN DOE 3, 

Plaintiffs-Appellees,

v.

TRUSTEES OF THE ESTATE OF BERNICE PAUAHI BISHOP DBA KAMEHAMEHA 

SCHOOLS, ELLIOT K. MILLS, in his capacity as Trustee of the 

Estate of Bernice Pauahi Bishop, CRYSTAL K. ROSE, in her 

capacity as Trustee of the Estate of Bernice Pauahi Bishop, 

JENNIFER N. GOODYEAR-KA‘ŌPUA, in her capacity as Trustee of the 

Estate of Bernice Pauahi Bishop, MICHELLE KA‘UHANE, in her 

capacity as Trustee of the Estate of Bernice Pauahi Bishop, 

ROBERT K.W.H. NOBRIGA, in his capacity as Trustee of the Estate 

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000708

18-JUN-2024

07:58 AM

Dkt. 111 MO
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2

of Bernice Pauahi Bishop,1 Defendants/Cross-claimants/Cross-claim 

Defendants-Appellees,

and

RICHARD D. GRONNA, as Personal Representative of the ESTATE OF 

ROBERT MCCORMICK BROWNE, Defendant-Appellee,

and

ST. FRANCIS MEDICAL CENTER, f/k/a ST. FRANCIS HOSPITAL, INC., 

Defendant/Cross-claim Defendant/Cross-claimant-Appellant, and 

JOHN DOES 1-10, DOE CORPORATIONS 1-10, DOE PARTNERSHIPS 1-10, 

and DOE NON-PROFIT ENTITIES 1-10, Cross-claim Defendants,

and

KUAKINI HEALTH SYSTEM, formerly or also known as 

KUAKINI MEDICAL CENTER, Defendant-Appellee,

and

JOHN DOES 1-10, JANE DOES 1-10, DOE CORPORATIONS 1-10, 

DOE PARTNERSHIPS 1-10, DOE UNINCORPORATED 

ORGANIZATIONS 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CASE NO. 1CC161000086)

_______________________________

DAVID W.K. AULD, WILLIAM BREWER, SCOTT HORIUCHI, JOSEPH L.K. 

JAMES, R. RONALD JAMES, fka RONALD ROI WEIR, JOHN DOE 3, 

Plaintiffs-Appellees,

v.

TRUSTEES OF THE ESTATE OF BERNICE PAUAHI BISHOP DBA 

KAMEHAMEHA SCHOOLS, ELLIOT K. MILLS, in his capacity as Trustee 

of the Estate of Bernice Pauahi Bishop, CRYSTAL K. ROSE, in her 

capacity as Trustee of the Estate of Bernice Pauahi Bishop, 

JENNIFER N. GOODYEAR-KA‘ŌPUA, in her capacity as Trustee of the 

Estate of Bernice Pauahi Bishop, MICHELLE KA‘UHANE, in her 

capacity as Trustee of the Estate of Bernice Pauahi Bishop, 

ROBERT K.W.H. NOBRIGA, in his capacity as Trustee of the Estate 

of Bernice Pauahi Bishop, RICHARD D. GRONNA, as Personal 

Representative of the ESTATE OF ROBERT MCCORMICK BROWNE, and 

KUAKINI HEALTH SYSTEM, aka KUAKINI MEDICAL CENTER, 

Defendants-Appellees,

and

ST. FRANCIS MEDICAL CENTER, Defendant-Appellant,

and

1 Pursuant to Hawaii Rules of Evidence Rule 201 and Hawai‘i Rules of 

Appellate Procedure Rule 43(c)(1), we take judicial notice that Crystal K. 

Rose, Jennifer N. Goodyear-Ka‘ōpua, and Michelle Ka‘uhane are current Trustees 

of the Estate of Bernice Pauahi Bishop and are automatically substituted as 

Defendants/Cross-claimants/Cross-claim Defendants-Appellees in place of 

Corbett A.K. Kalama, Micah A. Kane, and Lance Keawe Wilhelm. 
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3

JOHN DOES 1-10, JANE DOES 1-10, DOE CORPORATIONS 1-10, DOE 

PARTNERSHIPS 1-10, DOE UNINCORPORATED ORGANIZATIONS 1-10, 

Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CASE NO. 1CC161000786)

MEMORANDUM OPINION

(By: Hiraoka, Presiding Judge, McCullen and Guidry, JJ.)

This appeal arises out of an $80 million settlement 

between Defendants/Cross-claimants/Cross-claim Defendants/

Appellees Trustees of the Estate of Bernice Pauahi Bishop, dba 

Kamehameha Schools, and 32 Plaintiffs/Appellees (Plaintiffs). 

Defendant/Cross-claim Defendant/Cross-claimant/Appellant St. 

Francis Medical Center appeals from the Findings, Conclusions 

and Order Granting Plaintiffs' Motion For Approval of Good Faith 

Settlement Pursuant to [Hawaii Revised Statutes (HRS)] § 663-

15.5, Filed on June 20, 2018, entered on August 27, 2018 (Good 

Faith Settlement Order), by the Circuit Court of the First 

Circuit (circuit court).2 St. Francis challenges the circuit 

court's ruling that the settlement between Kamehameha Schools 

and Plaintiffs was entered into in good faith pursuant to HRS

§ 663-15.5 (2016). 

At the outset, we acknowledge that public policy 

favors resolution of disputes through settlement agreements and, 

here in particular, we acknowledge Plaintiffs' concerted effort 

2 The Honorable Dean E. Ochiai presided.
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in reaching a settlement agreement. But as explained below, we 

must vacate the circuit court's Good Faith Settlement Order and 

remand this case for further proceedings.

I. Background

Plaintiffs identified Dr. Robert McCormick Browne

(Dr. Browne), formerly employed as Chief of Psychiatry at St. 

Francis, as having sexually abused them as children. Of the 32 

Plaintiffs, 28 stated they were referred to Dr. Browne by 

Kamehameha Schools, for psychiatric treatment, while they were 

students at Kamehameha Schools. Regarding the remaining four 

Plaintiffs, three did not attend Kamehameha Schools and one was 

referred to Dr. Browne by Holy Family School. 

On June 21, 2016, in Case No. 1CC61000086, Plaintiffs 

filed their first amended complaint (complaint). The complaint 

named as defendants Kamehameha Schools; St. Francis; Richard D. 

Gronna, as Personal Representative of the Estate of Robert 

McCormick Browne (Gronna); and Kuakini Health System.3 The 

complaint set forth seven counts: (1) sexual assault and 

battery; (2) breach of fiduciary duty; (3) gross negligence; 

(4) intentional infliction of emotional distress; (5) grossly 

negligent infliction of emotional distress; (6) grossly 

3 Gronna and Kuakini Health System are nominal appellees to this 

appeal. Gronna remains a non-settling defendant; in July 2018, Gronna filed 

a Statement of No Position to Plaintiffs' Motion for Approval of Good Faith 

Settlement. Kuakini Health System was dismissed without prejudice by the 

circuit court in June 2016 in 1CC161000086.
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negligent or reckless referral selection, training, retention, 

and/or supervision of Dr. Browne; and (7) grossly negligent or 

reckless credentialing and/or granting privileges to Dr. Browne.4 

Kamehameha Schools reached an agreement with all 32 

Plaintiffs to settle their claims against Kamehameha Schools, as 

memorialized in the Settlement and Release Agreement (Settlement 

Agreement). Plaintiffs moved for the circuit court's approval 

of a good faith settlement, pursuant to HRS § 663-15.5, such 

that all joint tortfeasors and/or joint obligors would be barred 

from asserting any claims against Kamehameha Schools for 

"contribution, indemnity based on comparative fault, common law 

indemnity, implied indemnity and/or joint obligation and/or 

subrogation" arising out of Plaintiffs' claims. 

Plaintiffs represented to the circuit court in their 

motion that, 

Significantly, all 32 of the Plaintiffs contractually 

agreed amongst themselves, early in the case, that they 

would only negotiate as a group, and not separately. 

Accordingly, all offers and demands were made to and from 

Plaintiffs as a group, rather than individually. This 

motion seeks a good faith determination with respect to the 

ultimate aggregate group settlement, whereby Kamehameha 

Schools has agreed to pay a total of $80 million to settle 

the claims of all 32 Plaintiffs. This represents about 25% 

of the Plaintiffs' original demands.

Plaintiffs further represented to the circuit court 

that they would determine how the settlement moneys would be 

allocated. Pursuant to the Settlement Agreement, 

4 Counts 1-3, 5, and 7 were brought, in part, against St. Francis. 
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Plaintiffs have provided [Kamehameha Schools] with a 

spreadsheet indicating the portion of the Initial Payment 

and Deferred Payment allocated to each Plaintiff. 

Plaintiffs shall immediately notify [Kamehameha Schools] if 

there are any changes to the allocation depicted on the 

spreadsheet. The Settling Parties acknowledge and agree 

that (a) the allocation is the product of discussion among 

the Plaintiffs and their counsel without any participation 

or input from [Kamehameha Schools], (b) the allocation was 

created for the sole purpose of facilitating the 

distribution of the settlement payments hereunder among the 

Plaintiffs and for no other reason, and (c) said allocation 

shall not be binding on [Kamehameha Schools] or any other 

party other than the Plaintiffs. 

(Emphasis added.) The referenced spreadsheet that "indicat[es] 

the portion of the Initial Payment and Deferred Payment 

allocated to each Plaintiff" was not made part of the record on 

appeal. 

The Settlement Agreement's "Cooperation by Plaintiffs" 

clause provides,

Each Plaintiff agrees to fully cooperate with 

[Kamehameha Schools] in its prosecution of the Plaintiffs' 

claims and [Kamehameha Schools'] claims against St. Francis 

and St. Francis's insurers in the manner determined by 

[Kamehameha Schools] in its sole discretion. Cooperation 

shall include, but not be limited to, responding to phone 

inquiries, attending meetings and interviews, attending 

depositions, participating in independent medical exams, 

and preparing for and testifying at trial. In the event 

that a Plaintiff does not fully comply with the Plaintiff's 

obligations under this paragraph, [Kamehameha Schools]

shall notify the Plaintiff, through the Plaintiff's 

attorney, of the breach and provide a reasonable 

opportunity for the Plaintiff to cure the default. If, in 

[Kamehameha Schools'] opinion, the breach is not cured 

after reasonable opportunity, [Kamehameha Schools] shall 

notify the Plaintiff's counsel in writing and may deduct 

the entire amount of Plaintiff's allocation of the Deferred 

Payment (inclusive of that Plaintiffs' attorneys' fees and 

costs) as compensation to [Kamehameha Schools] for damages 

arising out of the breach. If the matter is disputed, the 

matter shall be submitted to binding arbitration 

administered by Dispute, Prevention and Resolution in 

Honolulu, Hawaiʻi, with one (1) neutral arbitrator. The 

decision of the arbitrator shall be final and binding on 

the parties. For purposes of this paragraph, "reasonable 

opportunity" means 48 hours, or some other reasonable time 

period based on the circumstances but in no event to exceed 
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seven (7) calendar days, for Plaintiff to cure the alleged 

default.

The Settlement Agreement further provides that, after 

Plaintiffs determined how the moneys would be allocated,

[Kamehameha Schools] will, in its sole discretion have the 

right to characterize both the Initial Payment and the 

Deferred Payments with respect to each and all claims 

asserted in the First Amended Complaint ("FAC"), as:

1. Payment, subject to court approval under H.R.S. § 663-

15.5 ("Act 300") with respect to each Plaintiff, in full 

satisfaction of each Plaintiff's claims against both 

[Kamehameha Schools] and [St. Francis], as joint 

tortfeasors, with respect [sic] the claims asserted in 

the FAC, which claims form the basis for [Kamehameha 

Schools] claims for contribution, unjust enrichment, 

and/or equitable indemnity against [St. Francis]

(because, as to that Plaintiff, [St. Francis'] liability 

as a joint tortfeasor will be extinguished).

2. Payment to Plaintiff pursuant to a stipulated judgment 

under [Hawaiʻi Rules of Civil Procedure (HRCP)] Rule 68 

with respect to each Plaintiff, which judgment will form 

the basis on which [Kamehameha Schools] will seek 

indemnity, contribution, damages for subrogation and/or 

unjust enrichment, and/or any other available remedy 

against [St. Francis] for the benefit of [Kamehameha 

Schools] and each Plaintiff who benefits from this 

Settlement Agreement.

3. Payment, as contractual subrogor under this Settlement 

Agreement and Alamida v. Wilson, 53 Haw. 398, 403-04 

[495 P.2d 585, 589-90] (1972) and Kapena v.

Kaleleonalani, 6 Haw. 579 [(Haw. Kingdom 1885)] with 

respect to each Plaintiff's claims against [St. Francis]

and/or its insurers, which [Kamehameha Schools] may 

hereafter pursue (at its sole expense and with counsel 

of its choosing) alone or in concert with that Plaintiff 

for [Kamehameha Schools'] sole economic benefit up to 

the amount paid to that Plaintiff, with any recovery in 

excess of that amount (net of [Kamehameha Schools']

actual fees and costs and 10% per annum simple interest 

on all amounts paid by [Kamehameha Schools]) being paid 

to that Plaintiff. Or

4. An advance payment on account of each Plaintiff's claims 

against [St. Francis], which said Plaintiffs will 

hereafter pursue, at [Kamehameha Schools'] sole expense. 

Any recovery on these claims in excess of (a) the 

payment made to that Plaintiff under this Settlement 

Agreement, and (b) the fees and costs incurred on that 
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Plaintiff's behalf by [Kamehameha Schools] (plus 10% per 

annum simple interest on all amounts paid by [Kamehameha 

Schools]), will belong to that Plaintiff. 

We refer to these four groupings as the Plaintiff 

Classifications. 

In explaining these terms to the circuit court, 

Kamehameha Schools characterized the settlement as subdividing 

Plaintiffs into three groups: (1) the 24 "full release" 

Plaintiffs, i.e., the Plaintiffs who fully released both 

Kamehameha Schools and St. Francis from all claims; (2) the four 

"subrogation" Plaintiffs, i.e., the Plaintiffs who were not 

Kamehameha Schools students and/or were not referred to Dr. 

Browne by Kamehameha Schools, with respect to whom Kamehameha 

Schools reserves the right to pursue equitable subrogation 

claims based on implied indemnity; and (3) the four "direct 

action" Plaintiffs, i.e., the Plaintiffs who settled their 

claims with Kamehameha Schools for $750,000 each and an 

additional nonrecourse advance payment in the nature of 

litigation funding, but retained their claims against St. 

Francis.5 This "24/4/4 allocation" is not set forth in the 

5 At the hearing on Plaintiffs' motion for certification of a good 

faith settlement, Kamehameha Schools' counsel explained the subdivision of 

Plaintiffs into three groups as follows, 

[Counsel]: . . . The 80 million dollars represents 

the full value of the 32 cases. As to 28 of those, there is 

a legitimate argument that Kamehameha Schools was a joint 

tortfeasor and --

(continued . . . )
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5(continued . . .)

THE COURT: Kamehameha School students, right, those 

28?

[Counsel]: Yes. 

THE COURT: Okay. 

[Counsel]: 28 students. I'm sorry. As to those 28 

students, there is a legitimate argument that Kamehameha 

Schools was a joint tortfeasor. As to 24 of those, we're 

settling, getting releases for the benefit of St. Francis 

and will limit the claims that we pursue to contribution --

not limit them. We'll pursue a contribution claim. We also 

have indemnity claims --

THE COURT: Yes. 

[Counsel]: -- and so forth, and we intend to pursue 

all those claims, but principally a contribution claim. 

With respect to four of the 28, we are settling, getting a 

release for ourselves, leaving those plaintiffs free to 

pursue or leaving those plaintiffs with the ability to 

pursue St. Francis for further damages including punitive 

damages, and we've agreed to advance funds in the nature of 

litigation funding as we've described in our papers. 

THE COURT: Okay. And in return, those four are 

releasing any possible claims against Kamehameha Schools? 

[Counsel]: That's correct, Your Honor. 

THE COURT: I understand. 

[Counsel]: That's correct. 

THE COURT: Okay.

[Counsel]: And with respect to their future 

recovery, we're not saying we're going to benefit from the 

punitive damages. You know, our benefit is limited to what 

we've advanced in the settlement. 

THE COURT: Okay. 

[Counsel]: With respect to the four others, as I 

said, they were strangers to Kamehameha [Schools] insofar 

as Dr. Browne was concerned. And those, we're pursuing, 

principally, subrogation claims based on implied indemnity 

as Alameda [sic] versus Wilson allows. 

(continued . . . )
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Settlement Agreement or any supporting attachment or 

supplemental papers within the record. 

The circuit court certified the settlement, pursuant 

to HRS § 663-15.5, as follows,

The Court finds that the Settlement Agreement reached 

between the 32 Plaintiffs and Kamehameha Schools as 

described in the Plaintiffs' motion, and as more fully 

described in the joinder and the Reply Memorandum filed by 

Kamehameha Schools is one that has been done at arm's 

length and in good faith with the purpose of resolving this 

case and allowing Plaintiffs to move forward with their 

lives with certainty. The Court accepts the factual 

representations set forth in Plaintiffs' moving papers as 

well as the joinder, reply and other supporting 

documentation submitted by Kamehameha Schools, as further 

clarified during oral argument on the Motion. The Court 

also finds and concludes that the legal authority cited by 

Plaintiffs and Kamehameha Schools with regard to a good 

faith settlement is persuasive and on point, and the Court 

therefore also adopts that authority in this ruling.

Accordingly, based on these findings and conclusions, 

the Court hereby GRANTS Plaintiffs' Motion for Approval of 

Good Faith Settlement Pursuant to HRS § 663-15.5 because 

the Settlement Agreement entered into between Plaintiffs 

and Kamehameha Schools was negotiated and made at arm's 

length and in good faith, and hereby ORDERS:

1. In the above-captioned matters: Kamehameha 

Schools is discharged pursuant to H.R.S. § 663-

15.5(a)(3) from all liability for contribution to any 

other joint tortfeasor or co-obligor; all other joint 

tortfeasors or co-obligors are barred, pursuant to 

H.R.S. § 663-15.5(d)(1) from any further claims 

against Kamehameha Schools, except those based on a 

written indemnity agreement; and all cross-claims now 

pending against Kamehameha Schools (none of which is 

based upon a written indemnity agreement) are 

dismissed with prejudice pursuant to Haw. Rev. Stat. 

§ 663-15.5(d)(2).

5(continued . . .)

THE COURT: Okay.

[Counsel]: So, you know, we're -- at the end of the day 

that there's an 80-million dollar cap on our potential recovery 

based on contribution and subrogation, but we have our own 

claims. . . . 

(Emphasis added.) 
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2. There is no just reason for delay pursuant 

to HRCP Rule 54(b) and the Court hereby directs the

entry of judgment dismissing the cross-claims of St. 

Francis against Kamehameha Schools in the abovecaptioned matters. The Clerk of Court is directed to 

enter judgment forthwith.

3. Except as stated herein, this ORDER is not 

intended to limit any claims against any party other 

than Kamehameha Schools or affect any claims, 

defenses and/or rights of the parties to the 

remaining claims in the above-captioned matters.

In August 2018, the circuit court entered the Good 

Faith Settlement Order. 

II. Discussion

HRS § 663-15.5, entitled "Release; joint tortfeasors; 

co-obligors; good faith settlement" provides, in pertinent part, 

(b) For purposes of subsection (a), [setting forth 

the rights of non-settling joint tortfeasors and coobligors with regard to settlement agreements] any party 

shall petition the court for a hearing on the issue of good 

faith of a settlement entered into by the plaintiff . . . 

and one or more alleged tortfeasors. . . . 

. . . .

(d) A determination by the court that a settlement 

was made in good faith shall:

(1) Bar any other joint tortfeasor . . . from any

further claims against the settling tortfeasor 

. . . except those based on a written indemnity 

agreement; and

(2) Result in a dismissal of all cross-claims filed 

against the settling joint tortfeasor . . . 

except those based on a written indemnity 

agreement.

(e) A party aggrieved by a court determination on the 

issue of good faith may appeal the determination. 

"[T]he determination of whether a settlement is in 

good faith [is left] to the sound discretion of the trial court 

in light of the totality of the circumstances surrounding the 
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settlement." Troyer v. Adams, 102 Hawaiʻi 399, 427, 77 P.3d 83, 

111 (2003). 

In assessing the totality of the circumstances, 

the trial court may consider the following factors to the 

extent that they are known at the time of settlement: 

(1) the type of case and difficulty of proof at trial 

. . .; (2) the realistic approximation of total damages 

that the plaintiff seeks; (3) the strength of the 

plaintiff's claim and the realistic likelihood of his or 

her success at trial; (4) the predicted expense of 

litigation; (5) the relative degree of fault of the 

settling tortfeasors; (6) the amount of consideration paid 

to settle the claims; (7) the insurance policy limits and 

solvency of the joint tortfeasors; (8) the relationship 

among the parties and whether it is conducive to collusion 

or wrongful conduct; and (9) any other evidence that the 

settlement is aimed at injuring the interests of a nonsettling tortfeasor or motivated by other wrongful purpose. 

Brooks v. Dana Nance & Co., 113 Hawaiʻi 406, 413, 153 P.3d 1091, 

1098 (2007) (emphasis added) (citing Troyer, 102 Hawaiʻi at 427, 

77 P.3d at 111). "The foregoing list is not exclusive, and the 

court may consider any other factor that is relevant to whether 

a settlement has been given in good faith." Id.

St. Francis contends, among other things, that the 

Settlement Agreement "violates public policy, denies [St. 

Francis] due process of law, and is aimed at injuring the 

interests of non-settling alleged joint tortfeasor [St. 

Francis]." Kamehameha Schools contends the settlement agreement 

was entered into in good faith, and the $80 million settlement 

amount will be divided among 24 Plaintiffs who agree to fully 

settle their claims against both Kamehameha Schools and St. 

Francis, four "subrogation" Plaintiffs on whose behalf 
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Kamehameha Schools may pursue equitable subrogation claims, and 

four "direct action" Plaintiffs who agree to release their 

claims against Kamehameha Schools but who retain their claims 

against St. Francis. 

The Settlement Agreement, however, is silent as to 

this specific 24/4/4 allocation, and does not disclose the 

amount allocated to any individual Plaintiff. Which Plaintiff 

is actually included in each of the Plaintiff Classifications, 

and the amount of the settlement payment to that Plaintiff, is 

material to the circuit court's HRS § 663-15.5 review because it 

relates to Kamehameha Schools' and the four "direct action" 

Plaintiffs' potential claims against St. Francis. Without this 

information, the written terms of the Settlement Agreement are 

not sufficiently certain and definite such that the agreement 

could be clearly enforced in the manner that Kamehameha Schools 

verbally described to the circuit court. Provident Funding 

Assocs., L.P. v. Gardner, 149 Hawaiʻi 288, 297, 488 P.3d 1267, 

1276(2021) (explaining "to be enforceable, a contract must be 

certain and definite as to its essential terms") (cleaned up). 

On the record before this court, it appears that the 

settlement award will not be uniformly divided among the 

Plaintiffs as some Plaintiffs will retain their claims against 

St. Francis, and Kamehameha Schools purports to be able to 

pursue certain claims against St. Francis. It also appears, 
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based on Kamehameha Schools' representation, it retains the 

right to recoup the moneys awarded to at least eight of the 

Plaintiffs through claims brought by or on behalf of these 

Plaintiffs. Kamehameha Schools' retention of these claims could 

potentially violate HRS § 663-15.5(a)(2), given that "a 

settlement, wherein a party seeks to accomplish indirectly that 

which it is expressly barred by applicable law from 

accomplishing directly, is not in good faith." Brooks, 113 

Hawaiʻi at 417, 153 P.3d at 1102. 

St. Francis also contends that the Settlement 

Agreement improperly assigns the claims of "subrogation" 

Plaintiffs and "direct action" Plaintiffs to Kamehameha Schools. 

St. Francis is correct that personal tort claims are generally 

non-assignable. Sprague v. California Pac. Bankers & Ins. Ltd., 

102 Hawaiʻi 189, 198, 74 P.3d 12, 21 (2003). Moreover, "[a] 

joint tortfeasor who enters into a settlement with the injured 

person is not entitled to recover contribution from another 

joint tortfeasor whose liability to the injured person is not 

extinguished by the settlement." HRS § 663-12(c) (2016). As 

mentioned earlier, the 24/4/4 allocation that Kamehameha Schools 

verbally referenced to the circuit court was not set forth in 

the written Settlement Agreement or any supporting 

documentation. Given the lack of sufficiently certain and 

definite terms in the Settlement Agreement, we cannot determine 
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whether the Settlement Agreement manifests an improper 

assignment of any Plaintiff's claims to Kamehameha Schools.6

Kamehameha Schools asserts that Alamida v. Wilson, 53 

Haw. 398, 495 P.2d 585 (1972), is instructive with regard to its 

equitable subrogation claim vis-à-vis the four "subrogation" 

Plaintiffs. Alamida holds that,

Where property of one person is used in discharging an 

obligation owed by another or a lien upon the property of 

another, under such circumstances that the other would be 

unjustly enriched by the retention of the benefit thus 

conferred, the former is entitled to be subrogated to the 

position of the obligee or lienholder.

Id. at 404, 495 P.2d at 590. 

We decline, on the record of this case, to conclude 

that Alamida's holding authorizes Kamehameha Schools to retain 

the right to step into the "subrogation" Plaintiffs' shoes to 

recoup the settlement moneys allocated to them. The issue of 

whether St. Francis and Kamehameha Schools are joint tortfeasors 

with respect to the "subrogation" Plaintiffs has not been 

resolved. It is thus unclear whether the law permits Kamehameha 

6 Assuming Plaintiffs and Kamehameha Schools agreed upon the 24/4/4 

allocation described by Kamehameha Schools, it would be necessary for the 

parties to disclose the actual amounts allocated to each "subrogation" and 

"direct action" Plaintiff. This is important because, for example, a 

disproportionately large share of the total settlement award to these 

Plaintiffs could evidence collusion. Information regarding the allocation of 

moneys to the remaining Plaintiffs would also need to be disclosed, given 

that "[a] joint tortfeasor [e.g., Kamehameha Schools] is not entitled to a 

money judgment for contribution until the joint tortfeasor has by payment 

discharged the common liability or has paid more than the joint tortfeasor's 

pro rata share thereof." HRS § 663-12(b). 
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Schools to pursue equitable subrogation claims on behalf of the 

four "subrogation" Plaintiffs. 

III. Conclusion

Given the lack of sufficiently certain and definite 

terms in the Settlement Agreement, the circuit court abused its 

discretion in approving the good faith settlement. Moreover, 

with no access to the complete, certain, and final settlement 

terms, St. Francis was deprived of due process. We therefore 

vacate the circuit court's August 27, 2018 Good Faith Settlement 

Order, and remand this case for further proceedings consistent 

with this memorandum opinion.

DATED: Honolulu, Hawaiʻi, June 18, 2024.

On the briefs:

Peter Van Name Esser

Defendant/Cross-claim 

Defendant/Cross-claimantAppellant

Nickolas A. Kacprowski

for Defendants/Crossclaimants/Cross-claim 

Defendants-Appellees

/s/ Keith K. Hiraoka

Presiding Judge

/s/ Sonja M.P. McCullen

Associate Judge 

/s/ Kimberly T. Guidry

Associate Judge