§663-15.5  Release; joint tortfeasors;
co-obligors; good faith settlement.  (a)  A release, dismissal with or
without prejudice, or a covenant not to sue or not to enforce a judgment that
is given in good faith under subsection (b) to one or more joint tortfeasors,
or to one or more co-obligors who are mutually subject to contribution rights,
shall:



(1)  Not discharge any other joint tortfeasor or
co-obligor not released from liability unless its terms so provide;



(2)  Reduce the claims against the other joint
tortfeasor or co-obligor not released in the amount stipulated by the release,
dismissal, or covenant, or in the amount of the consideration paid for it,
whichever is greater; and



(3)  Discharge the party to whom it is given from all
liability for any contribution to any other joint tortfeasor or co-obligor.



This subsection shall not apply to co-obligors who
have expressly agreed in writing to an apportionment of liability for losses or
claims among themselves.



(b)  For purposes of subsection (a), any party
shall petition the court for a hearing on the issue of good faith of a
settlement entered into by the plaintiff or other claimant and one or more
alleged tortfeasors or co-obligors, serving notice to all other known joint
tortfeasors or co-obligors.  Upon a showing of good cause, the court may
shorten the time for giving the required notice to permit the determination of
the issue before the commencement of the trial of the action, or before the
verdict or judgment if settlement is made after the trial has commenced.



The petition shall indicate the settling
parties and, except for a settlement that includes a confidentiality agreement
regarding the case or the terms of the settlement, the basis, terms, and
settlement amount.



The notice, petition, and proposed order shall
be served as provided by rules of court or by certified mail, return receipt
requested.  Proof of service shall be filed with the court.  Within twenty-five
days of the mailing of the notice, petition, and proposed order, a nonsettling
alleged joint tortfeasor or co-obligor may file an objection to contest the
good faith of the settlement.  If none of the nonsettling alleged joint
tortfeasors or co-obligors files an objection within the twenty-five days, the
court may approve the settlement without a hearing.  An objection by a
nonsettling alleged joint tortfeasor or co-obligor shall be served upon all
parties.  A nonsettling alleged joint tortfeasor or co-obligor asserting a lack
of good faith shall have the burden of proof on that issue.



Where a confidentiality agreement has been
entered into regarding the claim or settlement terms, the court shall hear the
matter in a manner consistent with preventing public disclosure of the
agreement while providing other joint tortfeasors and co-obligors sufficient
information to object to a proposed settlement.



(c)  The court may determine the issue of good
faith for purposes of subsection (a) on the basis of affidavits or declarations
served with the petition under subsection (a), and any affidavits or
declarations filed in response.  In the alternative, the court, in its
discretion, may receive other evidence at a hearing.



(d)  A determination by the court that a
settlement was made in good faith shall:



(1)  Bar any other joint tortfeasor or co-obligor from
any further claims against the settling tortfeasor or co-obligor, except those
based on a written indemnity agreement; and



(2)  Result in a dismissal of all cross-claims filed
against the settling joint tortfeasor or co-obligor, 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.  The appeal shall be
filed within twenty days after service of written notice of the determination,
or within any additional time not exceeding twenty days as the court may allow.



(f)  The running of any statute of limitations
or other time limitations shall be tolled during the period of consideration by
the court on the issue of good faith.



(g)  The procedures, rights, and obligations of
this section shall apply to a release, dismissal, or covenant given before, as
well as after, a lawsuit has been filed and does not require the existence of a
lawsuit.



(h)  This section shall not apply to a release,
dismissal with or without prejudice, or a covenant not to sue or not to enforce
judgment given to a co-obligor on an alleged contract debt where the contract
was made prior to January 1, 2002. [L 2001, c 300, §1; am L 2003, c 146, §1]



 



Law Journals and Reviews



 



  Keeping the (Good) Faith:  Hawai`i's Good Faith Settlement
After HRS Section 15.5 and Troyer v. Adams.  26 UH L. Rev. 275.



 



Case Notes



 



  Magistrate judge properly determined that defendant did not
meet its burden of disproving good faith regarding settlement between plaintiff
and other defendants.  293 F. Supp. 2d 1144.



  Discussed, where the court held that the proportionate share
rule of federal admiralty law governed the settlement between plaintiff and the
settling defendant.  526 F. Supp. 2d 1135.



  This section adequately protects a non-settling joint
tortfeasor's right to procedural due process; subsections (b) and (c) afford a
non-settling joint tortfeasor notice and an opportunity to be heard regarding
the determination whether a settlement has been given in good faith and,
consequently, bars cross-claims for contribution against the settling joint
tortfeasor.  102 H. 399, 77 P.3d 83.



  Whether a settlement was given in "good faith" for
purposes of this section is a matter left to the discretion of the trial court
in light of all the relevant circumstances extant at the time of settlement. 
102 H. 399, 77 P.3d 83.



  Legislature intended only parties, not merely non-settling
alleged joint tortfeasors, to have the right to appeal a court determination on
the issue of good faith; where, for purposes of appeal, appellant was required
to intervene as a party, pursuant to HRCP rule 24 and failed to do so, and was
thus not made a party to the case, appellant lacked standing to appeal.  112 H.
176, 145 P.3d 719.



  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.  113 H. 406, 153 P.3d 1091.