First Lawsuit Filed (Incl. Inverse Condemnation) For Maui Wildfire: Is California-Style Inverse Condemnation Coming?
by Robert Thomas, InverseCondemnation, August 13, 2023
Well, that was quick. As reported here ("HECO Kept The Power Flowing In Lahaina Even As Poles Toppled"), we've already seen the first lawsuit filed seeking recovery for the Maui wildfire that destroyed Lahaina town -- a class action even before there's been any official word about what caused or contributed to the conflagration:
Meanwhile, a group of Honolulu- and California-based law firms filed a class action suit Saturday against HECO on behalf of victims and survivors of the Lahaina fire.
The suit alleges that HECO’s downed power lines caused the fire. Graham Lippsmith of the firm Lippsmith LLP said Saturday that the suit was also largely based on HECO’s decision not to de-energize the power Tuesday in West Maui.
A separate Honolulu attorney also said Saturday that his firm is weighing whether sue HECO on behalf of its clients, also largely based on the downed poles.
They were in such a rush, they filed on Saturday, in an Oahu court. The defendants are various electric utility companies (not the government), and claims include negligence, gross negligence, inverse condemnation under the Hawaii Constitution, and ultrahazardous activity. Relief sought included damages, just compensation, and an injunction requiring shutting off power during high winds and the burying of transmission lines.
We naturally focused on the inverse claim. Hawaii inverse condemnation law is very underdeveloped, and there isn't a whole lot there to latch onto. And Hawaii certainly has not adopted the California model of inverse condemnation liability for wildfires. So this will be a case of first impression.
To get a flavor of how that's worked out in California, we refer you to our post from a couple of years ago: "Lights Out In The Land Of No: The Practical Effects Of California's Wildfire Inverse Condemnation Doctrine." And this post: "New Cert Petition: Fifth Amendment Requires California To Spread The Cost Of Wildfire Inverse Condemnation To Ratepayers."
With this being a matter of first impression under Hawaii law, the two vacant and-now-being-filled seats on the five-Justice Hawaii Supreme Court sure do loom large.
Time to pay attention.
Oct, 2022: Next Hawaii Governor May Pick Three Supreme Court Justices
Feb, 2023: Request for Public Comments – Applicants for Hawaii Supreme Court