First Insurance Co. of Hawaii v. a & B Properties, Inc.

***FOR PUBLICATION IN WEST’S HAWAI’I REPORTS AND PACIFIC REPORTER***

Electronically Filed
Supreme Court
SCAP-10-0000213
14-MAR-2012
10:21 AM

IN THE SUPREME COURT OF THE STATE OF HAWAIi

---000---

FIRST INSURANCE COMPANY OF HAWAII, LTD., Plaintiff/Appellee,

and

JOSEPH G. TORO, Plaintiff-Intervenor/Appellant,

vs.

A&B PROPERTIES, INC., Defendant/Appellee.

NO. SCAP-10-0000213

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. 08-1-0225(1))

MARCH 14, 2012

RE}CKTENWALD, C.J., NAICAYAMA, ACOBA, DUFFY, AND MCKENNA, JJ.

OPINION OF THE COURT BY RECKTENWALD, C.J.

Joseph 0. Toro, an employee of Diversified Machinery,

Inc., was allegedly involved in a work related accident on

property owned by A&B Properties, Inc. First Insurance Company

of Hawaii was Diversified’s insurance carrier. While paying
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Toro’s workers’ Compensation benefits, First Insurance timely

filed suit in the Circuit Court of the Second Circuit within the

two year limitations period set forth in Hawai’i Revised Statutes

(HRS) § 657-7, asserting its right of subrogation under Hawaii’s

workers’ Compensation law. Toro did not file his own lawsuit

against A&B. First Insurance and A&B reached an agreement to

settle, but Toro refused to consent. After the two-year

limitations period had elapsed, Toro then sought to intervene in

First Insurance’s suit, and the circuit Court granted Toro’s

request. A&B subsequently moved for summary judgment, on the

ground that HRS § 386-8 (1993), which governs the right of an

employee to intervene in an employer’s third party liability

lawsuit under the workers’ Compensation law,1 did not allow an

employee to intervene after the statute of limitations had

expired. The circuit Court granted A&B’s motion for summary

judgment and entered judgment against Toro.2 Toro appealed

pursuant to a Hawai’i Rules of Civil Procedure (HRCP) Rule 54

certification. We granted a discretionary transfer of the case.

This case requires us to interpret HRS § 386-8, which

provides in relevant part: “Ee]xcept as limited by chapter 657,

the employee may at any time commence an action or join in any

HRS § 386-1 states that “[t]he insurer of an employer is subject
to the employer’s liabilities and [is] entitled to rights and remedies
under this chapter as far as applicable.” Because First Insurance paid Toro’s
expenses on behalf of Diversified, First Insurance stands in the place of
Diversified Machinery, Inc. as the “employer.”

2 The Honorable Joel E. August presided.

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action commenced by the employer against such third person.”

Thus, the central issue is whether an employee can intervene in

his or her employer’s timely filed lawsuit after the two year

limitations period established by HRS § 657-7 has passed.

Toro argues that the statute is ambiguous and its

legislative history supports a determination that the statute of

limitations was not intended to bar intervention, but rather to

limit the time in which an injured employee could initiate his or

her own action. A&B contends that the statute is unambiguous,

and that it does not allow an injured employee to intervene in an

employer’s timely suit after the statute of limitations has

expired.

We hold that Toro may intervene in First Insurance’s

action against A&B because HRS § 386-8 does not limit Toro’s

right to intervene in First Insurance’s timely filed lawsuit.

Accordingly, we hold that the circuit court erred in granting

A&B’s motion for summary judgment. Therefore, we vacate the

circuit court’s final judgment and remand to the circuit court

for further proceedings.

I. Background

A. Proceedings in the Circuit Court

On May 1, 2008, First Insurance filed a Complaint

against A&B alleging, inter alia, that Toro sustained injuries

because of A&B’s negligence (hereinafter the subrogation

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action) 2

According to the complaint, on July 13, 2006, Toro was

working as an equipment operator for Diversified Machinery, Inc.

at a property owned by A&B in Makawao, Hawai’i. Toro was

seriously injured when the excavator he was operating fell into a

10-foot deep cesspool. On the date of the accident, Diversified

had a workers’ compensation insurance policy with First

Insurance. At the time the complaint was filed, First Insurance

continued to pay workers’ compensation benefits to and/or on

behalf of Toro pursuant to that policy.

In its complaint, First Insurance alleged that pursuant

to HRS § 386-8, quoted infra, it was entitled to recover from

A&B: (1) the reasonable value of the medical services rendered to

and/or on behalf of Toro as a result of the injuries he sustained

in the July 13, 2006 accident; (2) all workers’ compensation

benefits that were incurred in relation to the July 13, 2006

accident; and (3) special and general damages incurred as a

result of A&E’s negligence.

First Insurance and A&B subsequently agreed to settle

the subrogation action. The settlement involved dismissal of the

subrogation action with each party bearing its own fees and

Subrogation is defined as “[t]he substitution of one party for
another whose debt the party pays, entitling the paying party to rights,
remedies, or securities that would otherwise belong to the debtor.” Black’s
Law Dictionary 1563-64 (9th ed. 2009) . In Shimabuku v. Montgomery Elevator
Co., 79 Hawai’i 352, 358, 903 P.2d 48, 54 (1995) , when subrogation occurs,
“the substitute is put in all respects in the place of the party to whose
rights he is subrogated.” (citation omitted)

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costs, i.e., the parties agreed to “walk away[.]” Pursuant to

HRS § 386-8, which provides, in pertinent part, that “[nb

release or settlement of any claim or action under this section

is valid without the written consent of both employer and

employee{,]” and Shimabuku, 79 Hawai’i at 357-58, 903 P.2d at 53

(holding that HRS § 386-8 “requir[es] the written consent of both

employer and employee before any release or settlement is

valid”) , Toro’s written consent to the settlement was requested.

Toro, however, did not consent to the settlement.

On November 14, 2008, A&B filed a motion to dismiss the

subrogation action, arguing, inter alia, that Toro’s consent to

the settlement was not necessary. A&B argued that Toro was not a

party to the subrogation action and that he had provided no valid

legalbasis for withholding his consent. Additionally, A&B

asserted that Toro did not file a third-party liability or

personal injury lawsuit relating to the accident within the two

year statute of limitations period provided in HRS § 657-7, and

that any claims by Toro were accordingly time barred.4 A&B also

argued that the settlement agreement had no adverse effect on

Toro because the settlement “wfould] not deprive Toro of any

money because there [wals no money to be paid by A&B” and thus,

there was no issue of how to apportion any recovery between First

HRS § 657-7 (1993) states:

Actions for the recovery of compensation for damage or
injury to persons or property shall be instituted
within two years after the cause of action accrued,
and not after, except as provided in section 657-13.

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Insurance and Toro. First Insurance, pursuant to HRCP Rule 7,

joined A&B’s motion to dismiss.

On December 16, 2008, the circuit court heard argument

on A&B’s motion to dismiss. Toro appeared at the hearing pro se

and indicated that he would like additional time to file

“something” that “would protect his interest in this matter.”

The circuit court continued A&B’s motion and gave Toro 60 days,

or until February 16, 2009, “to file whatever papers you’re going

to file with the [clourt.”

On February 17, 2009, Toro, now represented by counsel,

filed a memorandum in opposition to A&B’s motion to dismiss and

argued, inter alia, that the motion should be denied because Toro

has a “continuing interest in the legal claims” of First

Insurance and because of the “derivative nature of those claims.”

In addition, Toro argued the lawsuit involved his general and

special damages, and thus, First Insurance “needs Toro to prove

the reasonableness and necessity of the expenses, and for all

factors of the general damages claim.” Toro also filed a motion

to intervene in the subrogation action pursuant to HRS § 386-8~

fiRS § 386-8 provides:

When a work injury for which compensation is payable
under this chapter has been sustained under
circumstances creating in some person other than the
employer or another employee of the employer acting in
the course of his employment a legal liability to pay
damages on account thereof, the injured employee or
his dependents (hereinafter referred to collectively
as the employee) may claim compensation under this
chapter and recover damages from such third person.

If the employee commences an action against such third
person he shall without delay give the employer

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written notice of the action and the name and location
of the court in which the action is brought by
personal service or registered mail. The employer may,
at any time before trial on the facts, join as party
plaintiff.

If within nine months after the date of the personal
injury the employee has not commenced an action
against such third person, the employer, having paid
or being liable for compensation under this chapter,
shall be subrogated to the rights of the injured
employee. Except as limited by chapter 657, the
employee may at any time commence an action or loin in
any action commenced by the employer against such
third person.

No release or settlement of any claim or action under
this section is valid without the written consent of
both employer and employee. The entire amount of the
settlement after deductions for attorney’s fees and
costs as hereinafter provided, is subject to the
employer’s right of reimbursement for his compensation
payments under this chapter and his expenses and costs
of action.

If the action is prosecuted by the employer alone, the
employer shall he entitled to be paid from the
proceeds received as a result of any judgment for
damages, or settlement in case the action is
compromised before judgment, the reasonable litigation
expenses incurred in preparation and prosecution of
such action, together with a reasonable attorney’s fee
which shall be based solely upon the services rendered
by the employer’s attorney in effecting recovery both
for the benefit of the employer and the employee.
After the payment of such expenses and attorney’s fee,
the employer shall apply out of the amount of the
judgment or settlement proceeds an amount sufficient
to reimburse the employer for the amount of his
expenditure for compensation and shall pay any excess
to the injured employee or other person entitled
thereto.

If the action is prosecuted by the employee alone, the
employee shall be entitled to apply out of the amount
of the judgment for damages, or settlement in case the
action is compromised before judgment, the reasonable
litigation expenses incurred in preparation and
prosecution of such action, together with a reasonable
attorney’s fee which shall be based solely upon the
services rendered by the employee’s attorney in
effecting recovery both for the benefit of the
employee and the employer. After the payment of such
expenses and attorney’s fee there shall be applied out
of the amount of the judgment or settlement proceeds,
the amount of the employer’s expenditure for
compensation, less his share of such expenses and
attorney’s fee. On application of the employer, the
court shall allow as a first lien against the amount

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and HRCP Rule 24, which governs intervention. On March 17, 2009,

the court heard argument on the pending motions. During the

hearing, A&B’s counsel stated, “with respect to [Toro’s] motion

of the judgment for damages or settlement proceeds,
the amount of the employer’s expenditure for
compensation, less his share of such expenses and
attorney’s fee.

If the action is prosecuted both by the employee and
the employer, in a single action or in consolidated
actions, and they are represented by the same agreed
attorney or by separate attorneys, there shall first
be paid from any judgment for damages recovered, or
settlement proceeds in case the action or actions be
settled before judgment, the reasonable litigation
expenses incurred in preparation and prosecution of
such action or actions, together with reasonable
attorney’s fees based solely on the services rendered
for the benefit of both parties where they are
represented by the same attorney, and where they are
represented by separate attorneys, based solely upon
the service rendered in each instance by the attorney
in effecting recovery for the benefit of the party
represented. After the payment of such expenses and
attorneys’ fees there shall be applied out of the
amount of the judgment for damages, or settlement
proceeds an amount sufficient to reimburse the
employer for the amount of his expenditure for
compensation and any excess shall be paid to the
injured employee or other person entitled thereto.

In the event that the parties are unable to agree upon
the amount of reasonable litigation expenses and the
amount of attorneys’ fees under this section then the
same shall be fixed by the court.

After reimbursement for his compensation payments the
employer shall be relieved from the obligation to make
further compensation payments to the employee under
this chapter up to the entire amount of the balance of
the settlement or the judgment, if satisfied, as the
case may be, after deducting the cost and expenses,
including attorneys’ fees.

Another employee of the same employer shall not be
relieved of his liability as a third party, if the
personal injury is caused by his wilful and wanton
misconduct.

(Emphasis added)

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to intervene, on a legal basis, I recognize the statute and

take no position on the motion.” The court denied A&B’s motion

to dismiss and granted Toro’s motion to intervene.

Toro’s Complaint in Intervention, filed on March 25,

2009, alleged that his injuries were sustained because of A&B’s

negligence. Toro sought general damages, special damages,

attorney’s fees and costs, and pre- and post-judgment interest.

On May 29,2009, A&B filed an Answer to Toro’s Complaint in

Intervention, which asserted, inter alia, a statute of

limitations defense.

Trial was initially set for August 17, 2009, but was

continued to May 24, 2010, by stipulation of the parties, to

allow sufficient time to participate in the Court Annexed

Arbitration Program.

On May 10, 2010, Toro sought leave to amend his

complaint by certifying three Doe Defendants, Robert Chin

(Diversified civil engineer) , Wilson Padilla (Diversified project

engineer) , and Matthew Emmanuel (Diversified job site foreman)

On May 20, 2010, A&B filed a motion for summary

judgment. A&B argued that Toro’s complaint in intervention was

untimely pursuant to the “clear and unambiguous” language of HRS

§ 386-8, which, A&B argued, limits an employee’s right to

intervene to the applicable statute of limitations under HRS

In the intervening period, it appears that the parties
participated in extensive discovery.

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chapter 657. Additionally, A&B pointed out that during Toro’s

February 9, 2010 deposition, Toro stated that he knew there was a

two year statute of limitations on his claim, and he admitted to

having a workers’ compensation attorney since January 2007.

In its memorandum in opposition, First Insurance

contended, inter alia, that employers and employees share the

same cause of action arising from the employee’s injuries.

Accordingly, if either commences an action within the statute of

limitations, the other’s intervention will not prejudice the

defendant’s ability to defend. First Insurance further argued

that failing to allow an employee to intervene before trial is

inconsistent with the provision in HRS § 386-8 that gives both

employers and employees the power of consent before any action

can be settled or dismissed.

In his memorandum in opposition, Toro argued, inter

alia, that HRS § 386-8 does not provide a third party such as A&B

with an affirmative statute of limitations defense because: (1)

the statute is liberally construed to preserve, not limit, an

employer’s and employee’s right of action; and (2) the statute of

limitations does not apply if an employee intervenes in an

employer’s timely filed action. Toro also argued that A&E’s

motion should be denied on procedural grounds because, in failing

to object to Toro’s motion to intervene, A&B waived the issue and

the issue was res judicata.

On July 27, 2010, the circuit court heard A&E’s motion

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for summary judgment, along with Toro’s May 10, 2010 motion to

certify and identify the three Doe defendants.7 Noting that

“[cjhapter 386 is to be given a liberal instruction [sic] to

accomplish the obviously beneficent purposes that are contained

therein[,]” the court nonetheless concluded that “[lIPS §] 386-8

does appear to be clear and unambiguous, even though to a certain

extent the way it is worded does not . . . maximize the

beneficent purposes relative to the rights of an injured

employee.” The court concluded that the language of HRS § 386-B

plainly and unambiguously required an employee to intervene

within the statute of limitations, though the court expressed

uncertainty as to why.

The court further concluded that whichever party brings

suit must “maximize the amount of the judgment or settlement for

damages to protect the interests of the other party who may not

be represented.” Additionally, the court stated that before it

would grant A&B’s motion, it would require briefing on: (1)

whether Toro could be joined as a nominal party or HRCP Rule 19

“interested” party;° and (2) whether First Insurance should bring

The circuit court mooted Toro’s May 10, 2010 motion to amend his
complaint by declaring its intention to grant A&B’s May 20, 2010 motion to
dismiss Toro’s complaint in intervention.

HRCP Rule 19 governs the joinder of persons needed for just
adjudication. According to HRCP Rule 19(a):
A person who is subject to service of process
shall be joined as a party in the action if (1) in the
person’s absence complete relief cannot be accorded
among those already parties, or (2) the person claims
an interest relating to the subject of the action and
is so situated that the disposition of the action in
the person’s absence may (A) as a practical matter

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an Iddings V. Mee-Lee claim9 on Toro’s behalf.

In its supplemental memorandum regarding the “nominal

party” issue, A&B argued that Toro’s role in the proCeeding would

be to offer testimony at trial as a percipient witness to the

accident and his medical treatment. First Insurance and Toro,

however, argued that Toro should be joined as a party under HRCP

Rule 19 because he is a real party in interest, and that First

Insurance could not bring an Iddings v. Mee-Lee claim against

Diversified’s employees.

At an August 31, 2010 hearing, the circuit court held

that Toro could participate as an HRCP Rule 19 interested party

in First Insurance’s action, but that First Insurance could not

bring an Iddings v. Mee-Lee claim against its own employees, thus

preventing First Insurance from suing Chin, Padilla, and Emmanuel

impair or impede the person’s ability to protect that
interest or (B) leave any of the persons already
parties subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent
obligations by reason of the claimed interest. If the
person has not been so joined, the court shall order
that the person be made a party. If the person should
join as a plaintiff but refuses to do so, the person
may be made a defendant, or, in a proper case, an
involuntary plaintiff.

This request was made in response to Toro’s May 10, 2010 motion to
amend his complaint to certify the three Doe defendants. In Iddings v. Mee
Lee, 82 Mawai’i 1, 6, 919 P.2d 263, 268 (1996) , this court set out the test
for when an injured employee can file suit against his or her co-employees.
This court noted that, under MRS § 386-8, an injured employee is prohibited
from filing suit against “another employee of the employer acting in the
course of his employment[,]” except when the personal injury was caused by the
co-employee’s “wilful and wanton misconduct.” i4~ (internal quotations and
emphasis omitted) (brackets in original) . This court held that “the wilful
and wanton misconduct” exception is limited to “conduct that is either: Cl)
motivated by an actual intent to cause injury; or (2) committed in
circumstances indicating that the injuring employee (a) has knowledge of the
peril to be apprehended, (b) has knowledge that the injury is a probable, as
opposed to a possible, result of the •danger, and Cc) consciously fails to
avoid the peril.” Id. at 12, 919 P.2d at 274.

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on Toro’s behalf.

On September 21, 2010, the court issued its order

granting A&B’s motion for summary judgment “because an employee

may not intervene in a third party liability suit under HRS

§ 386-S after the statute of limitations under HRS § 657-7 has

expired [.]“

On September 30, 2010, Toro filed: (1) a motion for

relief on form of order granting motion for summary judgment,

which First Insurance joined; and (2) a motion for HRCP Rule

54(b) certification’° on the order granting summary judgment, and

direction to enter judgment. In a November 1, 2010 hearing, the

court orally granted Toro’s motion for HRCP Rule 54(b)

certification.

On October 28, 2010, the circuit court filed its

amended order granting A&B’s motion for summary judgment. The

order granted A&B’s motion on the ground that “an employee may

I{RCP Rule 54(b) provides:
Judgment upon multiple claims or involving
multiple parties. When more than one claim for relief
is presented in an action, whether as a claim,
counterclaim, cross-claim, or third-party claim, or
when multiple parties are involved, the court may
direct the entry of a final judgment as to one or more
but fewer than all of the claims or parties only upon
an express determination that there is no just reason
for delay and upon an express direction for the entry
of judgment. In the absence of such determination and
direction, any order or other form of decision,
however designated, which adjudicates fewer than all
the claims or the rights and liabilities of fewer than
all the parties shall not terminate the action as to
any of the claims or parties, and the order or other
form of decision is subject to revision at any time
before the entry of judgment adjudicating all the
claims and the rights and liabilities of all the
parties.

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not intervene in an employer’s third party liability suit under

HRS § 386-8 after the statute of limitations under HRS § 657-7

has expired[.]” The court also stated,

Joseph 0. Toro is an interested party who must be
joined under Rule 19 or his ability to protect his
interest will be impaired, and therefore remains an
interested party to the case under HRCP Rule 19 and
may participate herein; under HRS § 386-8 First
Insurance is obligated to seek maximum recovery for
Joseph 0. Toro that would include general and special
damages; and that First Insurance can not [sic] bring
an Iddings v. Mee-Lee[] claim as it would essentially
be suing itself.

On December 2, 2010, the circuit court filed its order

granting Toro’s motion for HRCP Rule 54(b) certification, and

also entered its final judgment pursuant to HRCP Rules 54(b) and

58 in favor of A&B as against Toro. Toro filed his notice of

appeal on December 13, 2010.

B. Appeal

We accepted Toro’s application for transfer on

April 20, 2011, and all appellate briefing was filed with this

court.

On appeal, Toro raises the following points of error:

A. The [circuit] court incorrectly held that FIRS
§ 386-8 limits an employee’s right to intervene in a
timely filed lawsuit of an employer, because the
statutory section was meant to promote an employee’s
remedies and right of action, and the repayment of
[workers’ compensation] benefits due to a responsible
third party’s tortious actions.

B. A statutory construction of the phrase in issue,
supported by legislative history, language context of
the whole statute, and the legal and equitable
principles of the statute, support an employee’s right
to intervene in the timely filed lawsuit of the
employer.

C. MRS § 386-8 and the relevant portion of the third
paragraph was not created to ‘limit’ a party’s
procedural right of intervention.

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ID. An employee can not [sic] remain a party to a
lawsuit, when his claims have been dismissed, giving
rise to problems of whether [First Insurance] can
prove non-economic damages.

E. Once the circuit court granted the motion to
intervene, [A&B] waived its arguments on claim
preclusion.

Toro’s first three points of error Concern his argument

that the “[circuit] court erred as a matter of law when it held

that an employee may not intervene in an employer’s IIRS § 386-8

lawsuit after the statute of limitations period [] has elapsed.”

Toro’s fourth point of error concerns First Insurance’s

ability to prove non-economic damages, absent Toro’s

intervention. In support of this point of error, Toro argues

that “an employee’s non-economic damages require that he be able

to intervene as [a] party[.]” (Formatting altered). Toro

contends that in limiting his right to intervene, the circuit

court is also limiting his claim because First Insurance is not

required to claim non-economic damages. Additionally, Toro

argues that “[a]n employer would not be able to prove [general]

damages without the real party in interest, the employee[,]”

being able to intervene. Thus, according to Toro, the circuit

court erred in ruling that he could be an HRCP Rule 19

“interested” party, but could not intervene.

In his fifth point of error, Toro argues that both res

judicata and waiver bar A&B’s statute of limitations defense.”

Because we conclude that the statute of limitations does not
preclude Toro’s intervention, we do not discuss Toro’s arguments based on
waiver and res judicata. In addition, because A&B did not appeal the circuit
court’s May 6, 2009 order granting Toro’s motion to intervene, we do not
consider that order further.

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According to Toro, A&B waived its defense when it failed to

oppose Toro’s motion to intervene at the March 17, 2009 hearing.

Toro further argues res judicata based upon the trial court’s

denial of A&B’s motion to dismiss because A&B had asserted in its

motion to dismiss that Toro’s claims were barred by the statute

of limitations, and the circuit court necessarily rejected those

arguments in denying A&B’s motion. Toro contends that “[w]here

[A&B] has raised a defense which the court has ruled upon, the

legal issue is res judicata.”

In its answering brief, A&B argues that the plain and

unambiguous language of HRS § 386-8 precludes an employee from

intervening in an employer’s third party liability lawsuit after

the statute of limitations has expired. A&B contends that the

statute allows liberal joinder for employers but not employees

because “[t]he employer’s intervention does not change the

potential damages faced by the third party.” However, A&B

argues, an “employee’s intervention would expand the damages

faced by the third party because now general common law damages

would be claimed.”2

12 A&B also presented a “counterstatement of points of error” and
argued that the circuit court erred in holding that Toro is an HRCP Rule 19
“interested party” who must be joined, and that First Insurance had an
obligation to seek maximum recovery for Toro. However, A&B did not file a
notice of appeal from the circuit court’s judgment. Absent a cross-appeal,
A&B cannot raise these points of error, and accordingly, they will not be
addressed further. HRAP Rule 4.1(b) (1) (“The cross-appellant shall file with
the clerk of the court appealed from a notice of cross-appeal . . . within 14
days after the notice of appeal is served on the cross-appellant, or within
the time presented for filing the notice of appeal, whichever is later.”);
I-~AP Rule 4.1(c) (noting that, with limited exception, “[t]he cross-appellant
shall comply with all rules governing appeals”); see Bacon v. Karlin, 68 Haw.
648, 650, 727 P.2d 1127, 1129 (1986) (“[A]n appellant’s failure to file a
timely notice of appeal is a jurisdictional defect that can neither be waived

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In his reply brief,’3 Toro argues that a subrogation

Claim is also the injured worker’s claim, that the purpose of HRS

§ 386-8 is to promote recovery of compensation expended plus the

recovery of surplusage, that the legislative history reflects an

intent to protect a worker’s right to third party recovery, and

that the statute at issue is ambiguous.

II. Standards of Review

A. Summary Judgment

“On appeal, the grant or denial of summary judgment is

reviewed de novo.” Nuuanu Valley Ass’n v. City & Cnty. of

Honolulu, 119 Hawai’i 90, 96, 194 P.3d 531, 537 (2008) (citation

omitted) Furthermore,

[s]ummary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. A fact is material if
proof of that fact would have the effect of
establishing or refuting one of the essential elements
of a cause of action or defense asserted by the
parties. The evidence must be viewed in the light
most favorable to the non-moving party. In other
words, we must view all of the evidence and inferences
drawn therefrom in the light most favorable to the
party opposing the motion.

Id. (citation omitted) (brackets in original)

B. Statutory Interpretation

“Statutory interpretation is a question of law

by the parties nor disregarded by the court in the exercise of judicial
discretion.”) (citation, brackets, and internal quotation marks omitted)

Toro’s Reply Brief was eleven pages long and accordingly did not
comport with HRAP Rule 28(a) (mandating, in pertinent part that, “a reply
brief shall not exceed 10 pages”) Toro filed a Motion for Permission to
.

Exceed Reply Brief Page Limit, which we denied. Additionally, we ordered that
page 11 of Toro’s reply brief be stricken from the appellate record.

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reviewable de novo.” State v. Wheeler, 121 Hawai’i 383, 390, 219

P.3d 1170, 1177 (2009) (internal quotation marks omitted) Our

construction of statutes is guided by the following rules:

First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its
plain and obvious meaning. Third, implicit in the
task of statutory construction is our foremost
obligation to ascertain and give effect to the
intention of the legislature, which is to be obtained
primarily from the language contained in the statute
itself. Fourth, when there is doubt, doubleness of
meaning, or indistinctiveness or uncertainty of an
expression used in a statute, an ambiguity exists.

Id. (quoting Citizens Against Reckless Dev. v. Zoning Ed. of

Appeals of the City & Cnty. of Honolulu, 114 Hawai’i 184, 193,

159 P.3d 143, 152 (2007)-)

III. Discussion

A. The language of ERS § 386-8 is ambiguous as to whether the
statute of limitations precludes an employee from
intervening in a timely action brought by his or her
employer

HRS § 386-8 provides in relevant part:

If within nine months after the date of the personal
injury the employee has not commenced an action
against such third person, the employer, having paid
or being liable for compensation under this chapter,
shall be subrogated to the rights of the injured
employee. Except as limited by chapter 657, the
employee may at any time commence an action or loin in
any action commenced by the employer against such
third person.-

(Emphasis added).

HRS § 657-7 provides, “[a]ctions for the recovery of

compensation for damage or injury to persons or property shall be

instituted within two years after the cause of action accrued,

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and not after, except as provided in section 657_13.hh14

(Emphasis added).

In the present case, it is undisputed that First

Insurance’s action, filed on May 1, 2008, was commenced within

the two year limitations period, and that Toro’s complaint in

intervention was filed on March 25, 2009, after the two year

limitations period expired. The circuit bourt determined that

the language of HRS § 386-8 is unambiguous, stating, “an employee

may not intervene in an employer’s third party liability suit

under HRS § 386-8 after the statute of limitations under HRS §

657-7 has expired[.J” A&B, citing Shimabuku, similarly argues

that the clear and unambiguous language of HRS § 386-S precludes

an employee from intervening in an employer’s lawsuit against a

third-party after the statute of limitations has expired. Toro,

however, contends that an employee may join in any action

commenced by the employer without limitation so long as the

employer instituted its action within the statute of limitations

set forth in chapter 657.

HRS § 386-8 is ambiguous when it is read in conjunction

with HRS § 657-7, since the latter does not explicitly address an

employee’s right to intervene. HRS § 386-8 provides that, “the

employee may at any time commencE an action or join in any action

commenced by the employer against such third personE,]” “[e]xcept

14 Nothing in the record indicates that HRS § 657-13, which deals
with exceptions to the statute of limitations because of infancy, insanity, or
imprisonment, applies to the present case.

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as limited by chapter 657.” HRS § 386-8. MRS § 657-7, however,

applies solely to “institut[ingj” “[a]ctions for the recovery of

compensation[.]” Although “[i]nstitute” is not defined in MRS

§ 657-7, it is commonly defined as “[t]o begin or start;

commence.” Black’s Law Dictionary 868 (9th ed. 2009) . Thus, it

is unclear how these statutes apply in the present circumstances.

There are two reasonable ways that the language of MRS § 386-8

can be read: first, as A&B contends, that HRS § 386-8 precludes

both an employee’s ability to commence and to join in an action

after the statute of limitations has elapsed; and second, as Toro

contends, that the language, when read together with MRS § 657-7,

does not preclude an employee’s right to intervene in an

otherwise timely action.

A&B’s reliance on Shimabuku for the proposition that we

have found the language of MRS § 386-8 to be plain and

unambiguous is misplaced. In Shimabuku, we were specifically

referring to the fourth paragraph in MRS § 386-8, which requires

written consent of both the employer and the employee to any

settlement. 79 Mawai’i at 357, 903 P.2d at 53 (noting that

“under the clear language of MRS § 386—8, an injured employee,

who has previously received workers’ compensation benefits, may

not dismiss a claim against a third-party tortfeasor without

written consent of the employer”) . We did not interpret the

paragraph of MRS § 386-8 that is at issue in the instant case,

and thus Shimabuku does not establish that the language of MRS

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§ 386-8 is plain and unambiguous in this context.

Accordingly, HRS § 386-8 is ambiguous with regard to

whether an employee must intervene prior to the expiration of the

two year limitations period set forth in HRS § 657-7. when a

statute contains an ambiguity:

the meaning of the ambiguous words may be sought by
examining the context, with which the ambiguous words,
phrases, and sentences may be compared, in order to
ascertain their true meaning. Moreover, the courts
may resort to extrinsic aids in determining
legislative intent, suâh as legislative history, or
the reason and spirit of the law.

wheeler, 121 Hawai’i at 390, 219 P.3d at 1177 (internal quotation

marks omitted) (quoting Citizens Against Reckless 0ev., 114

Hawai’i at 194, 159 P.3d at 153)

Therefore, we may look to the statute as a whole and

its legislative, history for guidance in construing the language

in question.

B. HRS § 386-8 was not intended to restrict an employee’s right
to intervene in an otherwise timely action, but rather was
intended to restrict an employee’s right to institute or
commence an action

As discussed below, the statutory scheme and

legislative history of HRS § 386-8 indicate that the phrase,

“[e]xcept as limited by chapter 657,” was not intended to

restrict an employee’s right to intervene in a lawsuit that was

timely filed by his or her employer.

1. Legislative History

HRS § 386-8 can be traced to Hawaii’s first Workers’

Compensation Act, which was enacted in 1915. 1915 Raw. Sess.

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Laws Act 221, § 1 at 323. As of 1945, the workers’ compensation

law required an injured employee to elect to “either claim

compensation under this chapter or obtain damages from or proceed

at law against [a third party] to recover damages.” RLH § 4409

(1945) . In 1951, the Territorial Legislature amended RLH § 4409

to expand an employee’s workers’ compensation rights by

permitting the employee to both collect workers’ compensation and

bring suit against the third party that caused the injury. 1951

Haw. Sess. Laws Act 194, § 1 at 229-30; S. Stand. Comm. Rep. No.

195, in 1951 Senate Journal, at 589.

Additionally, in 1951, the Territorial Senate proposed

uniform language for employer and employee intervention. S.B.

418, S.D. 1, 26th Territorial Leg., Req. Sess. (1951). The

proposal included the following language: “If the action is

brought by either the employer or the employee, the other may, at

any time before trial on the facts, join as a party plaintiff or

shall consolidate his action[.]” 3.11. 418, S.D. 1, 26th

Territorial Leg., Reg. Sess. (1951); S. Stand. Comm. Rep. No.

195, in 1951 Senate Journal, at 590. However, on the

recommendation of the Department of Labor and the insurance

industry, the Territorial House deleted this provision. 11.

Stand. Comm. Rep. No. 722, in 1951 House Journal, at 579. The

Senate agreed to the House amendments, 1951 House Journal, at 334

(Senate Communication No. 349 agreeing to House amendments) , and

the House version was then enacted. 1951 Haw. Sess. Laws Act

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194, § 1 at 229.

The language that was enacted gave the employer the

right to join an employee’s action at any time before trial.

1951 Maw. Sess. Laws Act 194, § 1 at 229 (“If the employee brings

an action against such third person . . . the employer may, at

any time before trial on the facts, join as party plaintiff.”)

Additionally, Act 194 stated that “[i]f within nine months after

the date of injury or death the employee has not instituted

action against such third person, the employer having paid

benefits under this chapter or having become liable therefor

shall be subrogated to the rights of the injured employee.” 1951

Maw. Sess. Laws Act 194, § 1 at 229. RLH § 4409 was recodified

as RLH § 97-10 (1955) . Thus, after Act 194, the statute provided

that if an injured employee failed to file suit within nine

months, then the employer would be subrogated to the rights of

the employee.

After Act 194 was enacted, confusion arose as to

whether employees lost the right to file suit after the nine

month period elapsed. ~g S. Stand. Comm. Rep. No. 888, in 1959

Senate Journal, at 930-31. Accordingly, in 1959 the legislature

added the phrase at issue in this case: “Except as limited by

Chapter [6571, the employee may at any time institute action or

join in any action instituted by the employer against such third

person.” 1959 Maw. Sess. Laws Act 185, § 1 at 116; RLH § 97-10

(Supp. 1960)

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In doing so, the Legislature intended to protect an

injured employee’s right to institute an action and not to limit

his or her right to intervene. The legislature amended RLH

§ 97-10, now HRS § 386-8,’~ pursuant to Act 185, entitled, “An

Act Amending Section 97-10 [] to Provide That Right of Injured
Employee to Bring Action Against Third Parties is Not Limited to

Nine Months[,]” to “make it clear that •[RLH § 97-10] does not

limit the right of an injured employee to institute action

against a third party to within nine months after the date of

injury or death[,]” but rather “gives the right to the employer

to institute such action after nine months if the injured

employee has not instituted action by that time.” 1959 Haw.

Sess. Laws Act 185, § 1 at 116; H. Stand Comm. Rep. No. 291, in

1959 House Journal, at 707. Thus, the 1959 amendment sought to

clarify the 1951 amendment, because it was unclear whether an

employee forfeited his or her rights to institute an action if

the employee did not do so within nine months after the injury,

since the nine month threshold would also trigger the employer’s

subrogation rights. H. Stand. Comm. Rep. No. 291, in 1959 House

Journal, at 707; S. Stand Comm. Rep. No. 888, in 1959 Senate

HRS § 386-8 was enacted in 1963 following a commission report
entitled, “Study of the Workmen’s compensation Law in Hawaii,” which
recommended that the 1963 workers’ compensation law not depart significantly
from its territorial predecessors. See Stefan A. Riesenfeld, Legislative
Reference Bureau, Report No. 1, Study of the Workmen’s compensation Law in
Hawaii iii, 102 (1963) , available at
http://lrbhawaii.info/lrbrpts/63/63workcomp.pdf. The report recommended that
the paragraph at issue in this case regarding third party liability be “left
unaltered except for minor changes in language.” Id. at 102. This
recommendation was subsequently adopted. compare RLH § 97-10 (1955) with 1963
Haw. Sess. Laws Act 116, § 1 at 106.

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Journal, at 930-31. The Senate Judiciary committee stated:

It is the purpose of this Bill to make certain that
the nine-month period which must expire before an
employee [sic] brings an action against a third party
to recover under the employer’s right of subrogation
for workmen’s compensation paid to an injured employee
does not prescribe a time limit within which the
employee must institute action against the third
party. The normal statute of limitations is the only
time limit imposed on the employee.

S. Stand. Comm. Rep. No. 888, in 1959 Senate Journal, at 930-31

(emphasis added).

The legislative history establishes that the

Legislature was trying to address a narrow issue, i.e.,

dispelling the belief that the statute established a nine month

statute of limitations on the injured employee’s right to

institute an action.’6 The legislative history does not suggest

that the Legislature was attempting to limit employees’ rights in

the distinct context of intervention in an already filed

action.’7

16 Although the Legislature subsequently amended MRS § 386-8 to
replace the word “institute” with the word “commence”, 1970 flaw. Sess. Laws
Act 58, § 1 at 106, this does not change the analysis since “institute” and
“commence” are synonymous in this context. Webster’s New International
Dictionary 537 (2d ed. 1960) (defining “commence” as, “to have or to make a
beginning; to originate; start; begin.”); Black’s Law Dictionary 868 (9th ed.
2009) (defining “institute” as, “[t]o begin or start; commence”).

similarly, nothing in the legislative history of MRS § 657-7
indicates that it was intended to restrict intervention. Neither the plain
language nor the legislative history of MRS chapter 657 or § 657-7 indicates
whether the statute limits intervention to within two years of the cause of
action arising. Section 657-7 reads in relevant part;

Actions for the recovery of compensation for damage or
injury to persons or property shall be instituted
within two years after the cause of action accrued,
and not after[.]

(Emphasis added) .
Hawaii’s statute of limitations for personal injury actions was
first codified as Hawai’i Civil Code chapter XIX (1859) . The section at issue
here, HRS § 657-7, originated in 1907 as a statute limiting the period to file

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Thus, the evolution of the statute reflects an intent

to expand an employee’s rights and protections rather than

contract them. This intent is consistent with the general

principle that the workers’ compensation law should be liberally

construed to protect employees’ rights. See. e.g., Hun v. Center

Prop., 63 Haw. 273, 277, 626 P.2d 182, 185 (1981) (“Worker’s

compensation laws should be lii~erally construed in order to

accomplish the intended beneficial purposes of the statute.”)

(citation omitted) ; see also Evanson v. Univ. of Hawai’i, 52 Haw.

595, 600, 483 P.2d 187, 191 (1971) (holding that workers’

compensation laws should be given a “liberal construction in

order to accomplish their beneficient purposes”) (citations

omitted)

Additionally, this court has allowed intervention after

a statute of limitations has expired in non-workers’ compensation

contexts. In Kepo’o v. Kane, 106 Hawai’i 270, 285-86, 103 P.3d

939, 954-55 (2005), this court allowed two parties to intervene

after the statute of limitations had expired on their claim. The

statute at issue, HRS § 343-7(b), provided that the judicial

actions for personal injury or property damage to one year. 1907 Haw. Sess.
Laws Act 113, § 1 at 195. In 1913, the statutory period to institute an
action was amended to two years. 1913 Haw. Sess. Laws Act 19, § 1 at 22. The
section was later codified as RLH § 2645 (1925) . Since then, the language has
remained nearly identical.
The Legislature amended this statute in 1955 and recodified it as
RLH § 241-7 (Supp. 1955), which read: “Actions for the recovery of
compensation for damages or injury to persons or property shall be instituted
within two years after the cause of action accrued, and not after.”
The similarity between §~ 241-7 and 657-7 is indicative of how
little change the statute has undergone throughout its existence. As a
result, there is very little legislative history on this section, and none
about whether institution of an “action” encompasses complaints in
intervention.

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proceeding “shall be initiated” within thirty days of the public

being informed of the agency’s decision that an environmental

impact statement is not required. .~ This court concluded that

because judicial proceedings were timely “initiated” by other

parties, the statute of limitations would not bar the

intervention. ~ In support of this rationale, this court

relied on Mississippi Food & Fuel Workers’ Compensation Trust v.

Tackett, 778 So.2d 136, 142 (Miss. Ct. App. 2000), which adopted

the “general xule that an insurance company’ s intervention in an

injured worker’s third-party tort claim to assert the company’s

right of subrogation is not subject to a statute of limitations

bar so long as the original action was commenced . . . within the

applicable limitation period.” Kepo’o, 106 Hawai’i at 285-86, 103

P.3d at 954-55.

The legislative history, therefore, supports Toro’s

argument that HRS § 386-8 was not intended to limit an employee’s

right of intervention in an otherwise timely action.

2. Statutory Scheme

Additionally, an analysis of the related provisions of

the workers’ compensation law supports the conclusion that the

phrase at issue does not restrict an employee’s right of

intervention as A&B suggests.

FIRS § 386-8 establishes a framework for the employee,

employer, and third party to attempt to resolve their dispute at

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one time and in a single proceeding.’° Under this framework, and

Consistent with the general notion of avoiding double recovery

for an employee, the employer recovers any money that it advanced

as compensation, with the excess going to the employee.’9 6

Lex IC. Larson, Larson’s Workers’ Compensation § 110.02 (Matthew

Bender, Rev. Ed.) (hereinafter “Larson’s Workers’ Compensation

Law”) (“The obvious disposition of the matter is to

reimburse [the employer] for its compensation outlay, and to give

the employee the excess. This is fair to everyone concerned: the

employer, who, in a fault sense, is neutral, comes out even; the

third person pays exactly the damages he or she would ordinarily

pay, which is correct, since to reduce the third party’s burden

because of the relation between the employer and the employee

would be a windfall that the third party has done nothing to

deserve; and the employee gets a fuller reimbursement for actual

The statute notes three possible variations of this single action:
“If the action is prosecuted, by the employer alone”; “If the action is
prosecuted by the employee alone”; and “If the action is prosecuted by both
the employee and the employer, in a single action or in consolidated actions.”
MRS § 386-8. The statute sets forth rules governing the apportionment of
costs and attorney’s fees under each scenario. See infra note 19.

According to MRS § 386-8:

If the action is prosecuted by the employer alone, the
employer shall be entitled to be paid from the
proceeds received . . . . an amount sufficient to
reimburse the employer for the amount of his
expenditure for compensation and shall pay any excess
to the injured employee or other person entitled
thereto.

If the employee brings suit, “[a]fter the payment of such expenses
and attorney’s fees there shall be applied out of the amount of the judgment
or settlement proceeds, the amount of the employer’s expenditure for
compensation, less his share of such expenses and attorney’s fee.” HRS § 386-
8. The employer also has a right of first lien against the amount of damages
awarded.

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damages sustained than is possible under the Compensation system

alone.”) (footnote omitted)

Under HRS § 386-8, the employee has the first

opportunity to bring suit, which promotes the efficient

resolution of his or her claims and recognizes that “[a]fter all,

it is the employee’s injury.”20 6 Larson’s Workers’ Compensation

Law, § 116.03. Moreover, JIRS § 386-8 provides that “[nb release

or settlement of any claim or action under this section is valid

without the written consent of both employer and employee.”

Thus, HRS § 386-8 allows both the employee and the employer to

object to any settlement or release of claims, thereby ensuring

that each party has an opportunity to protect their respective

interests. Allowing an injured employee to object to a proposed

settlement of the claim, but not intervene in an employer’s

timely filed suit to resolve that claim, would be contrary to the

statute’s purpose of facilitating a complete resolution of the

dispute. The likelihood of a fair and prompt resolution is

increased by allowing the employee to participate in the

litigation on the same terms as the employer, rather than

restricting the employee to blocking the other parties’ efforts

to resolve the dispute.

20 section 116.03 of Larson’s Workers’ compensation Law provides:

[Liogic would dictate that the employee should have
first priority. After all, it is the employee’s
injury and cause of action. The wheels of the
subrogation machinery need not be set in motion at all
if the employee exercises his or her normal common law
rights; in this way there is a minimum of dislocation
of regular procedures by the compensation act.

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Therefore, the structure of the workers’ compensation

statute, which encourages resolution of the dispute in a single

action, suggests an intent to allow intervention by both the

employer and the employee at any time prior to trial in the

other’s timely filed suit. See Hun, 63 Haw. at 277, 626 P.2d at

185 (“worker’s compensation laws should be liberally construed in

order to accomplish the intended beneficial purposes of the

statute.”)

Nevertheless, A&B argues that HRS § 386-8 gives an

employer but not the employee the right to intervene after the

statute of limitations has run because the “employer’s

intervention does not change the potential damages faced by the

third party[]” while “[am employee’s intervention would expand

the damages faced by the third party because now general common

law damages would be claimed.” A&B also insists that First

Insurance’s “prosecution of the action is for the recovery [1 of

an amount sufficient to reimburse the employer for the amount of

his expenditure for compensation. This case does not involve any

excess that could be paid to the injured employee or other person

entitled thereto.” (Internal quotation marks omitted) . A&B

cites to cases from other jurisdictions in support of this

limitation on an employee’s right to intervene. See Sankev

Eros., Inc. v. Guilliams, 504 N.E.2d 534, 539 (Ill. Ct. App.

1987); State Comp. Ins. Fund v. Selma Trailer & Mfg. Co., 258

Cal. Rptr. 545, 555 (Cal. Ct. App. 1989) ; Hartford Acc. & Indem.

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Co. V. Rigdon, 418 F. Supp. 540, 542 (S.D. Ala. 1976)). A&B’s

argument that it would be exposed to greater damages is

unpersuasive because, in this particular circumstance, First

Insurance sought general damages in its complaint.21 In

addition, the cases cited by A&B are distinguishable from the

present case and contrary to the holdings of a majority of

jurisdictions.

A&B cites Sankey for the proposition that an employee

has no absolute right to intervene in the employer’s action, and

must bring his claim within the statute of limitations. In that

case, the employee’s suit against a third-party was dismissed

because it was filed after the statute of limitations. 504

N.E.2d at 535-36. The employee subsequently sought to intervene

in the employer’s separate, timely filed action. The trial court

held that the employee’s intervention was barred in part by the

doctrine of res judicata, because the dismissal of his original

suit was based on his failure to comply with the statute of

limitations, which constituted a judgment on the merits. ~ at
538. The Illinois Appellate Court affirmed on the same grounds.

~ at 539. Accordingly, Sankey was resolved on the basis of res

judicata, and addressed intervention only in that specific

21 We need not address whether an intervening party can expand the
recovery sought by asserting additional claims against the defendant because,
here, First Insurance sought both “special and general damages” in its
complaint, which put A&B on notice of the claims it would have to defend
against. As First Insurance noted in its opposition to A&B’s motion for
summary judgment, “Toro’s claims [we]re the same general and special damages
claims that [First Insurance] brought in its Complaint.”

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context.

In State Camp., the California Court of Appeals

affirmed the dismissal of both the complaint and the complaint-

in-intervention for delay in prosecution on the ground that the

delay had substantially prejudiced the defendants. 258 Cal.

Rptr. at 548-49, 551. The complaint was filed one day short of

the statute of limitations, and was served nearly three years

later. Id. at 547, 549. The complaint-in-intervention was filed

just prior to the original complaint being served. .Z~ at 547.
Due to inactivity on the part of the plaintiffs and intervenors,

the complaints were dismissed under a state statute requiring

dismissal of a matter not brought to trial within five years of

being commenced. ~ at 548-49. As a result, the trial court

dismissed both the complaint and the complaint in intervention,

and the appellate court affirmed. Id. at 555. Accordingly,

State Comp. is distinguishable because the complaints were

dismissed due to the plaintiffs’ and intervenors’ inactivity.

Finally, Hartford is distinguishable because the

statute at issue there differs substantially from HRS § 386-8.

See 418 F. Supp. at 541. In Hartford, the Supreme Court of

Alabama noted that title 26, § 312 (1940) of the Code of Alabama

did not seem to contemplate any joinder by either the employer or

employee. The statute also seemed to divide the employee’s and

employer’s rights regarding third party defendants. .~. Under

the statute, the employee had the exclusive right to bring suit

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for the entire one year statute of limitations period, and the

employer had a right to bring suit for an additional six month

period if the employee did not file suit within the statutory

time limit. ~ Thus, unlike under HRS § 386-8, the employer’s

and employee’s causes of action under Alabama law were mutually

exclusive.

Contrary to A&B’s assertion that cases from other

jurisdictions support a limitation on an employee’s right of

intervention, the majority of other jurisdictions allow an

employee’s intervention after the statute of limitations has

elapsed:

It is almost uniformly held that intervention is
permissible even after the statute of limitations has
run, if the action intervened in was itself timely
brought, whether the intervention is by the insurer in
the employee’s suit, or by the employee in the
insurer’s suit. This is true even if the claim of the
party that made the timely filing ultimately fails
unless it fails on the ground that it was, as it
turned out, itself not timely, in which event the
intervention fails with it.

7 Larson’s Workers’ Compensation Law § 120.03[3] (citing Home

Ins. Co. v. S. Cal. Rapid Transit Dist., 241 Cal. Rptr. 858 (Cal.

Ct. App. 1987) (holding that an injured employee could intervene

despite failing to file his complaint within the statute of

limitations); Jordan v. Super. Ct., 172 Cal. Rptr. 30 (Cal. Ct.

App. 1981) (allowing an injured employee’s complaint in

intervention because it was not barred by the statute of

limitations); Geneva Const. Co. v. Martin Transfer & Storage

Co., 114 N.E.2d 906 (Ill. App. Ct. 1953), aff’d, 122 N.E.2d 540

(Ill. 1954) (determining that an injured employee could intervene

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in a timely suit brought by the employer despite lapse of statute

of limitations)); see Payne v. Dundee Mills, Inc., 510 S.E.2d 67,

68 (Ga. Ct. App. 1999) (holding that an injured employee could

intervene in an employer’s subrogation action after the statute

of limitations had expired because intervention was timely under

general rules concerning intervention) ; Franks v. Sematech, Inc.,

936 S.W.2d 959 (Tex. 1997) (finding that an injured employee’s

intervention related back to the insurer’s original filing and

thus, was not time-barred). Therefore, A&B’s arguments are

misplaced.

In sum, the legislative history and statutory framework

of HRS § 386-8 indicate that Toro’s intervention was not barred

by the statute of limitations, and that the circuit court erred

in granting A&B’s motion for summary judgment.

IV. Conclusion

For the foregoing reasons, we hold that HRS §~ 386-8

and 657-7 did not limit Toro’s intervention in First Insurance’s

timely filed suit. Accordingly, we vacate the trial court’s

December 2, 2010 judgment in favor of A&E, and remand for further

proceedings.

Matthew S. Kohm for /5/ Mark E. Recktenwald
plaintiff- intervenor/
appellant. /5/ Paula A. Nakayama

Keith K. Hiraoka (James R. /5/ Simeon R. Acoba, Jr.
Ferguson and Jodie 0. Roeca of
Roeca Luria Hiraoka LLP with /5/ James E. Duffy, Jr.
him on the briefs) for
defendant/appellee. Is! Sabrina S. McKenna

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