Opinion
No. SCAP–10–0000131.
02-27-2015
Gordon ITO, Insurance Commissioner of the State of Hawai‘i, Petitioner–Appellee, v. INVESTORS EQUITY LIFE HOLDING COMPANY, a Delaware Corporation, Appellant, and Hawaii Life and Disability Insurance Guaranty Association, Appellee, and Investors Equity Life Insurance Company of Hawaii, Ltd., a Hawai‘i Corporation, Respondent.
James J. Bickerton and Nadine Y. Ando, Honolulu, for appellant. William C. McCorriston and John Y. Yamano, Honolulu, for appellee Gordon Ito, Insurance Commissioner of the State of Hawai‘i. David J. Reber, and Lindalee K. Farm, Honolulu, and Franklin D. O'Loughlin, pro have vice and Cindy C. Oliver, pro hac vice, for appellee Hawaii Life and Disability Insurance Guaranty Association.
James J. Bickerton and Nadine Y. Ando, Honolulu, for appellant.
William C. McCorriston and John Y. Yamano, Honolulu, for appellee Gordon Ito, Insurance Commissioner of the State of Hawai‘i.
David J. Reber, and Lindalee K. Farm, Honolulu, and Franklin D. O'Loughlin, pro have vice and Cindy C. Oliver, pro hac vice, for appellee Hawaii Life and Disability Insurance Guaranty Association.
NAKAYAMA, Acting C.J., Circuit Judge NACINO, in place of RECKTENWALD, C.J., recused, Circuit Judge TRADER, in place of McKENNA, J., Recused, and Circuit Judge LEE in place of WILSON, J., recused, with POLLACK, J. dissenting.
Opinion of the Court by NAKAYAMA, J.
I. INTRODUCTION
[135 Hawai'i 52]
Investors Equity Life Holding Company (IELHC) is the former parent company and sole shareholder of Investors Equity Life Insurance Company of Hawaii, Ltd. (IEL). In 1994 IEL was liquidated, thus creating the IEL estate. The State of Hawai‘i Insurance Commissioner (Commissioner) was appointed as IEL's liquidator (Liquidator). This case concerns the Liquidator's denial of IELHC's purported claim to all remaining assets of the IEL estate.
In 1996, IELHC surrendered all of its shares in IEL to the Commissioner as part of a settlement agreement to resolve claims relating to IEL's insolvency. The Liquidator canceled IELHC's shares in IEL and issued new shares in IEL to the Hawaii Life and Disability Insurance Guaranty Association (HLDIGA). As consideration for these new shares in IEL, HLDIGA cancelled $249,975 of its claims against IEL's estate arising out of its subrogation of covered IEL policyholders' claims.
The Hawai‘i legislature created HLDIGA pursuant to Hawai‘i Revised Statutes (HRS) § 431:16–201 (2005), to protect policyholders of insolvent life and disability insurance companies by providing them with continued coverage.
The Liquidator proceeded to administer IEL's estate—marshaling assets, distributing funds, and filing interim reports. More than eleven years elapsed before, in 2008, IELHC wrote the Liquidator two letters claiming that IELHC presently held legal or equitable title to all of IEL's stock and demanding that the Liquidator deliver to IELHC all shares and assets remaining in IEL's estate.
After failing to resolve the dispute through mediation, IELHC filed a lawsuit in the Superior Court of California against current and former Insurance Commissioners, as well as other individuals involved in the liquidation
[135 Hawai'i 53] of IEL (the California Lawsuit). The action was stayed on the grounds of forum non conveniens .
Black's Law Dictionary 770 (10th ed. 2014) defines forum non conveniens as "[t]he doctrine that an appropriate forum—even though competent under the law—may divest itself of jurisdiction if, for the convenience of the litigants and the witnesses, it appears that the action should proceed in another forum in which the action might also have been properly brought in the first place."
In 2009, the Liquidator determined that IELHC's letters and its California Lawsuit constituted a claim against IEL's estate. The Liquidator denied the claim, and his determination was upheld by order of the Circuit Court of the First Circuit (circuit court).
IELHC appealed to the Intermediate Court of Appeals (ICA) and applied for mandatory and discretionary transfer to this court. We accepted IELHC's application for discretionary transfer on the grounds that the appeal presents a question of first impression of whether IELHC's letters to the Liquidator and the California Lawsuit constituted a claim against IEL's estate under Hawai‘i Revised Statutes (HRS) § 431:15–329 (2005).
In its opening brief, IELHC raises five points of error:(1) "The circuit court below had no subject matter jurisdiction to confirm an ‘IELHC claim’ which [Commissioner] Schmidt himself contrived, but which appellant has not brought"; (2) "The circuit court had no personal jurisdiction over appellant"; (3) "Because the California lawsuit is a prior pending action, the ‘IELHC claim’ which [Commissioner] Schmidt invented must be abated"; (4) "The summary procedures utilized by the circuit court denied appellant's rights to due process"; and (5) "Even if appellant had brought the ‘IELHC claim,’ which appellant had not, [Commissioner] Schmidt is judicially estopped from asserting that appellant's claim is too late." We hold that the circuit court did not err in concluding that IELHC asserted a claim against IEL's estate and that this claim was time barred. Furthermore, the circuit court had personal jurisdiction over IELHC and subject matter jurisdiction over IELHC's claim, there were no grounds for abating the adjudication of IELHC's claim, and the circuit court's procedures met constitutional due process requirements.
The section of IELHC's opening brief entitled "Statement of the Points of Error on Appeal" contains fifteen unnumbered paragraphs citing various Findings of Fact and Conclusions of Law from the circuit court's order that the brief purports to challenge. However, IELHC does not set out specific arguments regarding these points in the arguments section of its brief. Instead, the argument section is divided into five subsections which are characterized as the points of error.
II. BACKGROUND
A. The liquidation of Investors Equity Life Insurance Company of Hawaii
IEL was an insurer whose business consisted of deferred annuities and traditional and interest-sensitive life insurance policies. On August 5, 1994, then State of Hawai‘i Insurance Commissioner Lawrence Reifurth commenced an insurance insolvency proceeding by filing a petition for the liquidation of IEL in the circuit court, pursuant to the Insurers Supervision, Rehabilitation and Liquidation Act (ISRLA), HRS §§ 431:15–306
The purpose of ISRLA then, as it is now, was:
[T]he protection of the interests of insureds, claimants, creditors, and the public generally, with minimum interference with the normal prerogatives of the owners and managers of insurers, through:
(1) Early detection of any potentially dangerous condition in an insurer, and prompt application of appropriate corrective measures;
(2) Improved methods for rehabilitating insurers, involving the cooperation and management expertise of the insurance industry;
(3) Enhanced efficiency and economy of liquidation, through clarification of the law, to minimize legal uncertainty and litigation;
(4) Equitable apportionment of any unavoidable loss;
(5) Lessening the problems of interstate rehabilitation and liquidation by facilitating cooperation between states in the liquidation process, and by extending the scope of personal jurisdiction over debtors of the insurer outside this State; and
(6) Regulation of the insurance business by the impact of the law relating to delinquency procedures and substantive rules on the entire insurance business.
HRS § 431:15–101(d) (1993).
[135 Hawai'i 54] (1993) and 431:15–301 (1993). IEL had a net deficit in excess of $90,000,000, and the Commissioner had seized its assets on June 22, 1994.
The Commissioner cited HRS § 431:15–306 as the statutory authority for the liquidation order. The statute provided then, as it does now:
The commissioner may petition the circuit court of the first judicial circuit for an order directing the commissioner to liquidate a domestic insurer or an alien insurer domiciled in this State on any ground on which the commissioner may apply for an order of rehabilitation under section 431:15–301, whenever the commissioner believes that attempts to rehabilitate the insurer would substantially increase the risk of loss to its creditors, its policyholders or the public, or would be futile, or that rehabilitation would serve no useful purpose, whether or not there has been a prior order directing the rehabilitation of the insurer.
HRS § 431:15–306.
The petition for liquidation sought liquidation on the grounds that IEL was insolvent and that attempts to rehabilitate IEL would substantially increase the risk of loss to policyholders, would be futile, and would serve no useful purpose.
The Commissioner cited HRS § 431:15–301 as providing the following grounds for the basis of the petition for liquidation:
(1) The insurer is insolvent;
(2) The insurer is in such condition that the further transaction of business would be hazardous, financially, to its policyholders, creditors or the public;
....
(12) The insurer has failed to file its annual report or other financial report required by statute within the time allowed by law and, after written demand by the commissioner, has failed to give an adequate explanation immediately ...
Appellant IELHC—IEL's parent company and sole shareholder—intervened in the proceeding by stipulation of the parties. IELHC opposed the petition for liquidation and petitioned for approval of a rehabilitation plan wherein IELHC would contribute assets to IEL that would generate a potential cash flow of more than $87,000,000.
The circuit court concluded that IELHC's rehabilitation plan was "not reasonable or feasible." The court further concluded that, pursuant to HRS § 431:15–104(c) (1993), only the Commissioner could seek approval of a rehabilitation plan and, pursuant to HRS § 431:15–305 (1993), only directors of an insurer could object to a petition for liquidation. The court granted the petition for liquidation, ordered the liquidation of IEL under the Commissioner's supervision, appointed the Commissioner as liquidator of IEL, and directed the Liquidator to take possession of IEL's assets and administer them under the general supervision of the court. Judgment on the petition for liquidation was entered in favor of the Commissioner and against IEL and IELHC on January 27, 1995.
The Honorable Patrick K.S.L. Yim presided.
IELHC appealed the judgment. The appeal was dismissed by a January 11, 1996 opinion of this court, holding that IELHC did not have standing to oppose the petition to liquidate IEL because HRS § 431:15 did not recognize the interests of shareholders—such as IELHC—of an insolvent insurer. See Metcalf v. Investors Equity Life Ins. Co., 80 Hawai‘i 339, 340, 910 P.2d 110, 111 (1996) (hereinafter Metcalf v. IEL ).
Wayne Metcalf succeeded Lawrence Reifurth as Insurance Commissioner in 1995.
During the pendency of the appeal, the circuit court, by order on August 23, 1995, approved the Liquidator's liquidation plan for the disbursement of IEL's assets. The order established a claims bar date of December 1, 1995 for the submission of creditor claims to IEL assets. The order also approved a service agreement between the Liquidator and HLDIGA and approved disbursements to HLDIGA. Under the agreement, HLDIGA assumed policy coverage for the vast majority of policyholders—all but about 100 of approximately 13,000—and the policyholders covered by HLDIGA were deemed to have assigned and subrogated all of their claims against IEL's estate to HLDIGA. As of November 30, 1995, HLDIGA had $143,000,000 in claims against IEL's estate due to HLDIGA's assumption of IEL's policyholder liabilities.[135 Hawai'i 55]
The Honorable Virginia L. Crandall presided during the hearing. The Honorable Wendell K. Huddy issued the order.
As part of the liquidation plan, on March 22, 1995, the Liquidator, HLDIGA, and Hartford Life Insurance Company (Hartford), the assuming insurer, entered into an Assumption Reinsurance Agreement, which was approved by the circuit court on June 21, 1995. Under the agreement, Hartford reinsured all of IEL's policyholders previously assumed by HLDIGA. HLDIGA retained continuing obligations to contribute to the funding of the policies Hartford assumed.
The Liquidator and HLDIGA chose Hartford after an extensive bidding process in which several healthy insurance companies submitted offers to assume IEL's policies in exchange for funds from IEL's estate and HLDIGA. Hartford was selected because its bid offered the greatest benefit to IEL policyholders and creditors.
The Honorable Virginia L. Crandall presided.
B. The Commissioner's lawsuit against Investors Equity Life Holding Company
Contemporaneously with the liquidation of IEL, then-Commissioner Lawrence Reifurth brought suit against IELHC and Gary Vose (the sole shareholder, director, and President of IELHC), among others, for alleged tortious misconduct in causing the failure of IEL. The Commissioner's complaint, filed November 17, 1994, alleged that IELHC diverted IEL's assets into risky investments and reckless real estate transactions, primarily for the benefit of non-IEL entities. IELHC settled the lawsuit with the Commissioner by executing a settlement agreement on July 16, 1996. As a condition of settlement, the agreement provided that IELHC surrender to IEL all of its shares in IEL for cancellation and forfeiture. On October 9, 1996, Gary Vose, on behalf of IELHC, surrendered 208,693 shares of IEL to Commissioner Metcalf, for "cancellation and forfeiture pursuant to HRS § 431:5–101." To evidence the surrender, Gary Vose executed a document entitled "Stock Surrender and Forfeiture," to which he attached the original stock certificate.
The circuit court, in the liquidation proceeding, held a hearing on the Motion to Approve Settlement Agreement on October 28, 1996 and approved the agreement on November 8, 1996. Counsel for IELHC appeared at the hearing. On November 27, 1996, IELHC, through its president Gary Vose, executed a Waiver of Right of Appeal of Order Granting Liquidator's Motion to Approve Settlement Agreement, in which it "waive[d] and release(d) any and all rights [it had], or may in the future have, to appeal from, or otherwise seek judicial review or reconsideration of, the Order Granting Motion to Approve Settlement Agreement, including any and all written orders, findings of fact, conclusions of law, decisions and/or judgments relating to the Order Granting Motion to Approve Settlement Agreement."
The Honorable Elwin Ahu presided.
On November 12, 1996, the Liquidator executed a stock subscription agreement between IEL and HLDIGA. Through this agreement, the Commissioner issued 49,500 new shares of IEL stock to HLDIGA. In exchange, HLDIGA canceled $249,975 of its $143,000,000 in claims against the IEL estate resulting from its assumption of IEL's policyholder liabilities and its continuing obligations to Hartford. HLDIGA established the Hawaii Association Grantor Trust, overseen by Buck & Associates with Fred Buck as trustee, to hold the shares. The agreement stated that IEL had 208,693 outstanding shares of capital stock held by IELHC, owned by Gary Vose, and that IELHC had agreed to surrender the issued stock for cancellation and forfeiture under its settlement agreement with the Liquidator. The stock subscription agreement pledged that, simultaneously with the surrender and cancellation of all shares of IEL common stock held by IELHC, IEL would issue 49,500 shares of common stock to the Hawaii Association Grantor Trust for the benefit of HLDIGA.
The Liquidator filed a motion to approve the amendments to settlement agreement and to approve the stock subscription agreement on December 12, 1996 and served IELHC with the motion and notice of hearing. The amendments to the agreement were attached to the motion as Exhibit A,
[135 Hawai'i 56] and the stock subscription agreement was attached as Exhibit 1 to Exhibit B. On December 27, 1996, at the hearing on the motion, counsel for IELHC, Kimble Cook and Lyle Hosoda, appeared and stated that IELHC had no objections. The circuit court, in the liquidation proceeding, approved the agreement on December 30, 1996.
Though the exhibits to the motion are not included in the record, Judge Nakatani referenced the exhibits in her order, as did counsel for IELHC during his appearance on December 27, 1996.
IELHC's counsel Mr. Cook stated:
"We have no objections to Exhibit A, which is the first amendment to the settlement agreement. Exhibit B and Exhibit 1 that they've also attached is a separate subscription agreement. I just want to make it clear that that's not part of the settlement agreement. And we have no—basically no position on that."
The Honorable Gail C. Nakatani presided.
C. IELHC's claims to the ownership and property of IEL
The Liquidator proceeded to administer IEL's assets, make partial distributions of funds to HLDIGA, and file interim reports with the circuit court. The Liquidator's February 27, 2008 report showed a deficit of approximately $13,000,000 in IEL's estate as of December 31, 2008.
The first such report appearing in the record was filed December 22, 1995. This report shows that, as of November 30, 1995, IEL had a net deficit of $101,724,000 and outstanding liabilities to HLDIGA of $143,000,000.
HLDIGA remains a significant creditor of IEL's estate. In 2002, it submitted an updated Proof of Claim asserting a claim against IEL for $174,961,455 as a Class 2 and Class 4 creditor and for the residual amount of the estate as a Class 9 creditor, as the sole shareholder of IEL. At that time, the claim had been partially satisfied, leaving a claim amount of $38,580,355 plus HLDIGA's shareholder claim for any residual assets in IEL's estate. Since then, the Liquidator has distributed $3,336,943 to HLDIGA for administrative expenses incurred. As of 2009, the Liquidator's records showed an outstanding creditor claim of $35,243,412 to HLDIGA, not including any additional amount that may be due for administrative expenses incurred and interest accrued since the date of its claim.
At the time of HLDIGA's filing of a proof of claim, HRS § 431:15–332 (1993) stated: "[t]he priority of distribution of claims from the insurer's estate shall be in accordance with the order in which each class of claims is herein set forth. Every claim in each class shall be paid in full or adequate funds retained for the payment before the members of the next class receive any payment." Class 2 claims included, "[t]he reasonable expenses of a guaranty fund or association, or foreign guaranty association in handling claims." HRS § 431:15–332(b).
At the time of HLDIGA's claim, Class 4 claims included, "[a]ll claims under policies for losses incurred, including ... all claims of a guaranty fund or association or foreign guaranty association." HRS § 431:15–332(d).
At the time of HLDIGA's claim, Class 9 claims included, "[t]he claims of shareholders or other owners." HRS § 431:15–332(i).
On April 23, 2008, IELHC wrote then Liquidator J.P. Schmidt a letter (first letter), claiming that the February 27, 2008 report "materially misstated and misrepresented" the financial condition of IEL's estate and that the estate had a surplus of more than $21,000,000, not a deficit. IELHC also claimed that the Commissioner's 1996 "taking," or "attempt at such taking," of IEL's stock was "not in accordance" with Hawai‘i law and that the disposition of the stock to HLDIGA was a "further taking without just compensation and ultra vires acts beyond the statutory authority of the Insurance Commissioner." Consequently, IELHC claimed that it presently had "equitable title, legal title, or both to IEL's stock" and demanded that the Commissioner deliver "all authorized, issued, and outstanding shares of stock of IEL" and distribute "the remaining surplus of the estate."[135 Hawai'i 57]
IELHC reached this conclusion from observing that the February 27, 2008 report showed a net liability of $35,243,412 to HLDIGA and a net deficit (negative net worth) of $13,728,856. IELHC asserts that any liability to HLDIGA is false and therefore must be removed from the balance sheet. Subtracting negative $35,243,412 from a negative net worth of $13,728,856, results in a net surplus (positive net worth) of $21,514,556 ((-13,728,856) - (-35,243,412)= + 21,514,556).
IELHC reasserted title to IEL's stock in a July 2, 2008 letter to the Liquidator (second letter). The second letter stated that the Liquidator's and HLDIGA's claims to ownership of IEL's stock were "far from free and clear, and are subject to doubt and dispute." IELHC posited that its surrender of IEL shares made the shares "forfeitable," but not necessarily " forfeited." Citing the statute governing the "Impairment of Capital," HRS § 431:5–101 (2005), IELHC asserted that "[u]nless and until [the shares were] actually forfeited, they necessarily remain[ed] IEHLC's [sic] shares even though the insurance Commissioner [sic] may have physical possession of them." IELHC suggested that the parties employ a professional mediator and seek "a mutually agreeable resolution."
HRS § 431:5–101 provided then, as it does now, in pertinent part:
(a)(1) A domestic stock insurer's capital stock shall be deemed to be impaired if its qualified assets at any time are less than its liabilities, including its capital stock as a liability.
(2) If a domestic insurer's capital stock is deemed to be impaired, the commissioner shall at once determine the amount of the deficiency and serve notice upon the insurer to cure the deficiency within ninety days after service of such notice.
....
(c) Shares as to which such an assessment, made pursuant to this section, is not paid within sixty days after demand, shall be forfeitable and may be canceled by vote of the directors and new shares issued to make up the deficiency.
(Emphasis added).
The Commissioner and IELHC participated in voluntary formal mediation through the end of 2008, but they were unable to negotiate a resolution of IELHC's claims.
On May 4, 2009, IELHC filed a complaint in the California Superior Court against: then-Commissioner Schmidt; former-Commissioner Reifurth; HLDIGA; Hawaii Association Grantor Trust; Buck & Associates and Fred Buck as trustees of the Hawaii Association Grantor Trust; Kerry Komatsubara in his individual and official capacity as Special Deputy Liquidator of IEL; Timothy Bogan in his capacity as the Former Chief Examiner of the Hawai‘i Division of Insurance; and McCorriston Miho Miller Mukai LLP, and William McCorriston and John Yamano individually, as Commissioner Schmidt's former attorneys. The complaint reasserted IELHC's claims of a surplus in IEL's estate and of an unconstitutional taking of its IEL stock, as well as claims for denial of due process and equal protection, unreasonable seizure, unconstitutional taxation, fraud, negligent misrepresentation, breach of fiduciary duty, conversion, unfair competition, civil conspiracy, and aiding and abetting.
In the complaint, IELHC specifically asserted that it had demanded all outstanding shares of IEL stock and made a claim to distributions from IEL's estate:
56. Promptly upon discovery of the relevant facts and circumstances giving rise to this action, by letter sent on April 23, 2008 Plaintiff served a demand upon Schmidt, through their respective attorneys, for Schmidt to deliver to Plaintiff all of the authorized, issued, and outstanding shares of stock of IEL, and any certificates representing said shares; and claim to distribution of the monies and assets remaining in the estate of IEL.
57. Schmidt has failed and refused to deliver to Plaintiff all of the authorized, issued, and outstanding shares of stock of IEL, and any certificates representing said shares; and claim to distribution of the monies and assets remaining in the estate of IEL.
The complaint sought compensatory damages of $60,000,000, punitive damages, an accounting, an injunction, a constructive trust over all assets in IEL's estate, restitution, declaratory relief, and attorneys' fees. The complaint specifically sought a declaration that IELHC "has legal and equitable right, title and interest in the monies and assets remaining in the estate of and in IEL's stock, and shares, certificates, and value of such stock."
By order dated October 6, 2009, the Superior Court of the State of California stayed the action, on motion by the Commissioner, on grounds of forum non conveniens . The California Court of Appeal affirmed the order by opinion dated May 31, 2011.
[135 Hawai'i 58] Investors Equity Life Holding Co. v. Schmidt, 195 Cal.App.4th 1519, 126 Cal.Rptr.3d 135, 139 (2011) (hereinafter IELHC v. Schmidt ). The court reasoned that the only significant question on appeal was whether Hawai‘i constituted a suitable alternative forum in light of the possible expiration of the statute of limitations. Id. at 142–43. It stated:
Defendants have agreed to toll the statute of limitations from February 25, 2009, the date plaintiff filed its California action, to the date plaintiff files suit in Hawaii. Their second stipulation makes clear that, if this action is refiled in Hawaii, one issue will be the timeliness of any claims time barred in that state as of February 25, 2009.... In addition, they argue Hawaii, like California, recognizes the delayed accrual of a claim where the plaintiff is reasonably ignorant of it, plus the tolling of a statute of limitations where a defendant conceals the existence of a cause of action.
Id. at 144. Because IELHC would face the same burden of establishing the timeliness of its claim in California or Hawai‘i, the California Court of Appeal concluded that the trial court's stay was proper. Id. at 146.
D. Adjudication of IELHC's claims against IEL's estate
On November 20, 2009, the Liquidator issued a Notice of Determination of Claim Submitted by [IELHC] pursuant to HRS § 431:15–329(a). In the Notice of Determination, the Liquidator stated that IELHC's first and second letters, and IELHC's May 4, 2009 California Lawsuit, constituted a claim to assets of IEL's estate made by IELHC. The Liquidator denied the claim and concluded that "the entire IELHC Claim fails because IELHC has not established that it is either the shareholder of [IEL], or that it was wrongfully deprived of its ownership of shares of [IEL]." The Liquidator reasoned that IELHC's claim to all shares of IEL stock was without merit because IELHC voluntarily surrendered and forfeited its shares of IEL stock as a condition of the 1996 settlement agreement. Furthermore, IEL's purported Class 9 shareholder claim was subordinate to all higher priority claims, there were insufficient assets available for distribution to Class 9 shareholders, and IELHC's claim was untimely inasmuch as the August 23, 1995 order approving the Commissioner's liquidation plan established December 1, 1995 as the claims bar date.
HRS § 431:15–329(a) provided then, as it does now:
(a) When a claim is denied in whole or in part by the liquidator, written notice of the determination shall be given to the claimant or the claimant's attorney by first class mail at the address shown in the proof of claim. Within sixty days from the mailing of the notice, the claimant may file any objections with the liquidator. If no such filing is made, the claimant may not further object to the determination.
On January 15, 2010, IELHC timely filed objections to the Liquidator's determination. IELHC argued that the Liquidator had no personal jurisdiction over IELHC, the Liquidator had no subject matter jurisdiction "over what the Liquidator purports to be a ‘claim’ asserted by [IELHC]," and the Liquidator was barred from making the purported determination. Specifically, IELHC argued that: (1) the Liquidator was disqualified from making the determination because the Liquidator—as a defendant in IELHC's California Lawsuit—had a personal interest in the matter that prevented him from providing disinterested, objective advice; (2) IELHC did not submit a claim or proof of claim to the Liquidator; (3) the California Lawsuit's assertion of claims against the Liquidator was not an assertion of claims against the estate of IEL; (4) IELHC's "claim," as defined by the Liquidator, is not the type of claim considered by HRS § 431:15–329 ; and (5) the Liquidator had "no jurisdiction, right, or authority unilaterally to assume jurisdiction over the California Action or any of the claims or causes of action alleged therein." IELHC demanded that the Liquidator immediately withdraw the November 20, 2009 determination."
The Liquidator rejected IELHC's arguments and declined to withdraw the November 20, 2009 determination. Pursuant to HRS § 431:15–329(b), on May 11, 2010, the
HRS § 431:15–329(b) provided then, as it does now:
(b) Whenever objections are filed with the liquidator and the liquidator does not alter the denial of the claim as a result of the objections, the liquidator shall ask the court for a hearing as soon as practicable and give notice of the hearing by first class mail to the claimant or the claimant's attorney and to any other persons directly affected, not less than ten nor more than thirty days before the date of the hearing. The matter may be heard by the court or by a court appointed referee who shall submit findings of fact along with such referee's recommendations.
[135 Hawai'i 59] Liquidator filed a Motion for an Order Confirming the Liquidator's Determination of a Disputed Claim in the circuit court liquidation case. He argued that the denial of IELHC's claim should be confirmed for the reasons cited in the November 20, 2009 determination and that the "undisputed record" of the liquidation proceedings supported a denial of IELHC's claim.
HLDIGA filed a Joinder in Liquidator's Motion for an Order Confirming the Liquidator's Determination of a Disputed Claim on May 21, 2010.
IELHC opposed the Liquidator's motion and moved to dismiss it. IELHC argued that: (1) IELHC never filed a claim with the Liquidator and therefore the circuit court lacked subject matter jurisdiction over the Liquidator's motion; (2) IELHC had a constitutional right to a jury trial to determine the disputed ownership of the IEL stock; (3) the Liquidator had no right or authority to determine the ownership of IEL's stock because it was not a part of IEL's estate; (4) the Liquidator had a conflict of interest in "fabricating" and adjudicating IELHC's "claim" while being a defendant accused of misconduct in IELHC's California Lawsuit; (5) the Liquidator's procedures did not afford IELHC administrative or procedural due process; (6) the circuit court lacked personal jurisdiction over IELHC; (7) because the California Lawsuit involved many of the same issues between the same parties, abatement of the Liquidator's motion was necessary; and (8) the Liquidator's determinations regarding the ownership of IEL's stock constituted an attempt to enforce a settlement agreement, which would necessitate filing a separate action. IELHC also opposed HLDIGA's joinder, stating that HLDIGA has no standing under HRS § 431:15–329.
In its Reply Brief to HLDIGA's Answering Brief, IELHC again claims that HLDIGA does not have standing and should not have been granted intervenor status. However, this argument was waived on appeal because IELHC did not raise it in its opening brief. See Hawai‘i Rules of Appellate Procedure (HRAP) Rule 28(b)(7) (2010) ("Points not argued may be deemed waived.").
The circuit court granted the Liquidator's motion and denied IELHC's motion to dismiss by Findings of Fact, Conclusions of Law and Order entered on October 6, 2010. The circuit court concluded, in relevant part:
The Honorable R. Mark Browning presided.
Conclusions of Law
....
3. In its letters to the Liquidator dated April 23, 2008 and July 2, 2008 and its First Amended Complaint filed in the California Lawsuit, IELHC asserts that it is entitled to all IEL stock and all residual assets in IEL's estate.... These assertions constitute claims against the IEL estate within the meaning if [sic] ISRLA.
4. A party cannot avoid the substantive requirements of a law by failing to follow the procedural requirements of the law. A demand to a liquidator for payment of money or transfer of property out of the insolvent insurer's estate, by one claiming a right to such funds or property, is a "claim" within the meaning of ISRLA, regardless of the form in which it is asserted.
5. Resolution of who owns and has rights to IEL's stock determines a potential right to distribution from the estate of IEL....
6. The Court concludes that IELHC has asserted a claim against the estate of IEL under ISRLA, which claim the Liquidator has denied.
7. ISRLA requires the Court to determine disputed claims ... [pursuant to] H.R.S. § 431:15–329.
8. To permit parties to assert claims against the IEL estate in various forms (including as lawsuits elsewhere) and not recognize those claims as claims against the IEL estate under ISRLA would undermine
[135 Hawai'i 60]
the purpose of ISRLA to protect "the interests of insureds, claimants, creditors, and the public generally ... through ... [e]nhanced efficiency and economy of liquidation [ ] to minimize legal uncertainty and litigation; [and] [e]quitable apportionment of any unavoidable loss." H.R.S. § 431:15–101(d)....
9. This Court has the duty to resolve IELHC's claim pursuant to H.R.S. § 431:15–329(b), and has subject matter jurisdiction over the Liquidator's Motion for an Order Confirming the Liquidator's Determination of a Disputed Claim Pursuant to H.R.S. Section 431:15–329(b).
....
13. IELHC has been and remains a party to this proceeding by virtue of its intervention and extensive participation in the proceedings over many years. Further, this Court concludes that it has personal jurisdiction over IELHC and that service of process on IELHC was sufficient.
....
18. IELHC is not the legal or equitable shareholder of IEL. IELHC has presented no evidence to demonstrate an entitlement to the IEL stock or to demonstrate that it was wrongfully deprived of its IEL shares.... The [1996] Stock Subscription Agreement was lawful, proper and approved by this Court nearly 14 years ago after a hearing at which IELHC's counsel appeared.
19. IELHC voluntarily relinquished its shares as part of the Settlement Agreement approved by this Court. The record affirmatively demonstrates that IELHC has no current interest in IEL's estate and is not entitled to a distribution from the IEL estate as a shareholder of IEL. IELHC does not have any current legal or equitable interest in IEL's stock and IELHC was not wrongfully deprived of its shares.
....
30. Insurance liquidations are considered equitable proceedings.... Accordingly, ISRLA does not provide for jury trials of creditor claims. The absence of provisions for jury trials in such proceedings does not offend the Constitution.
....
36. This Court concludes that the Liquidator does not have a conflict of interest and that there is no basis which would disqualify the Liquidator from making a determination on the IELHC claim or moving for confirmation of the denial of the IELHC claim....
37. ... [T]his Court has exclusive jurisdiction over claims against IEL's estate and is obligated to resolve them. As a result this Court may not properly abate the Liquidator's Motion.
The circuit court also concluded that IELHC's claim was time barred:
IELHC's contention that it was not aware of its claim until March of 2008 is contrary to the record.... [T]he record shows that IELHC knew long ago it no longer was a shareholder in IEL, that HLDIGA was the beneficiary of the IEL stock, and that HLDIGA was receiving distributions from the IEL estate. In addition, IELHC has not established that any statutory authority permits the late filing of its claim.
On November 4, 2010, IELHC timely appealed the circuit court's order to the ICA.
The October 6, 2010 order was entered in the post-judgment proceeding in S.P. No. 94–0337 to determine IELHC's disputed claim to assets of the IEL estate. The order ended the circuit court proceeding to determine the disputed claim and is a final order of the circuit court appealable under HRS § 641–1(a) (Supp.2012). See HRS § 641–1(a) ( "Appeals shall be allowed in civil matters from all final judgments, orders, or decrees of circuit and district courts and the land court to the intermediate appellate court ...."); see also Familian Nw. Inc. v. Cent. Pac. Boiler & Piping, Ltd., 68 Haw. 368, 370, 714 P.2d 936, 937 (1986) (holding an order entered in a post-judgment proceeding to be an appealable final order if it ends the post-judgment proceeding).
After the briefs were filed, on November 16, 2011, IELHC filed an application for transfer to this court. The Liquidator and HLDIGA filed oppositions to the application on November 22, 2011. The application for transfer was granted on December 16, 2011.[135 Hawai'i 61]
III. STANDARDS OF REVIEW
A. Conclusions of Law
"We review the [circuit] court's conclusions of law de novo under the right/wrong standard." Metcalf v. Voluntary Emps.' Benefit Ass'n of Haw., 99 Hawai‘i 53, 57, 52 P.3d 823, 827 (2002).
B. Jurisdiction
The existence of jurisdiction is a question of law, reviewed de novo. Dupree v. Hiraga, 121 Hawai‘i 297, 312, 219 P.3d 1084, 1099 (2009).
C. Statutory Interpretation
Statutory interpretation is reviewable de novo. Haw. State Teachers Ass'n v. Abercrombie, 126 Hawai‘i 318, 320, 271 P.3d 613, 615 (2012). We observe the following principles when interpreting statutes:
"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. And fifth, in construing an ambiguous statute, 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."
Id. (quoting Haw. Gov't Emps. Ass'n v. Lingle, 124 Hawai‘i 197, 202, 239 P.3d 1, 6 (2010) ).
IV. ANALYSIS
A. Standard of Review for Liquidation Proceedings
Before reaching the issues raised on appeal, we must first determine what standard of review to afford the decisions of a circuit court during liquidation proceedings (the liquidation court). This is a question of first impression in Hawai‘i.
IELHC argues that the liquidation court's "summary adjudication procedure" was akin to the procedure involved in an order granting or denying summary judgment. Therefore, it reasons, we should review the circuit court's decision de novo.
The Liquidator argues that the liquidation court's review is similar to the circuit court's review of an equitable receivership. The circuit court's decisions regarding an equitable receivership are reviewed under the abuse of discretion standard. Therefore, it reasons, we should review the liquidation court's decision for abuse of discretion. It emphasizes that the liquidation court was not reviewing a summary judgment motion but was instead reviewing a liquidator's motion pursuant to HRS § 431:15–329.
There is precedent from other states recommending treating a liquidation court as a court of equity, even though the court's authority derives from statute rather than equitable principles. Oklahoma courts consider insurance liquidation proceedings to be of "equitable cognizance." State ex rel. Crawford v. Indemnity Underwriters Ins. Co., 943 P.2d 1102, 1103 (Okla.Civ.App.1997). Similarly, the Nebraska Supreme Court held that liquidation proceedings are equitable proceedings. See State ex rel. Wagner v. Amwest Sur. Ins. Co., 274 Neb. 121, 738 N.W.2d 813, 816–17 (2007). That court stated that whether an action is in equity is determined by "the essential character of [the action] and the remedy or relief it seeks." Id. It reasoned that the Nebraska liquidation act's "stated purpose is the protection of the interests of the insureds, claimants, creditors, and the public through various means, including ‘equitable apportionment of any unavoidable loss' " and " ‘equitable allocation of disbursements' " Id. at 817 (alterations omitted) (quoting Neb.Rev.Stat. §§ 44–4801(4) and 44–4834(c) (Reissue 1998)). Because of the central role of equity in liquidation determinations, the Nebraska Supreme Court concluded
[135 Hawai'i 62] that liquidation proceedings were equitable. Id. at 816–17.
In Nebraska, although liquidation proceedings are treated as equitable proceedings, the decisions of the liquidation court are reviewed de novo because that is the standard of review Nebraska's appellate courts apply to courts of equity. Wagner, 738 N.W.2d. at 817. However, in Oklahoma, the liquidation court's judgment will not be disturbed " ‘unless against the clear weight of the evidence or contrary to law or established principles of equity.’ " Crawford, 943 P.2d at 1103 (quoting Wetsel v. Johnson, 468 P.2d 479, 481 (Okla.1970) ).
Several other states review the decisions of a liquidation court under the abuse of discretion standard, or a similarly deferential standard. See In re Exec. Life Ins. Co. v. Aurora Nat'l Life Assurance Co., 32 Cal.App.4th 344, 38 Cal.Rptr.2d 453, 460 (1995) ("We ... test the action of the trial court [in liquidation proceedings] by the abuse of discretion standard."); In re Frontier Ins. Co., 36 Misc.3d 529, 945 N.Y.S.2d 866, 876 (N.Y.Sup.Ct.2012) ( "[T]he Court recognizes the deferential standard of review applicable to the Rehabilitator's actions."); State v. Interstate Cas. Ins. Co., 120 N.C.App. 743, 464 S.E.2d 73, 77 (1995) ("Because of the discretionary nature of [North Carolina liquidation law], we believe the trial court's decision should not be disturbed absent an abuse of discretion."). In California, it is well established that the decisions of liquidation courts are afforded discretionary review:
"Because the insurer is in liquidation, the scope of our review of determinations of both the superior court and the liquidation trustees in the resolution of claims by insureds against an insolvent carrier is circumscribed.... Our high court has long since observed that such conservation proceedings arise under the broad police powers of the state to insure the reorganization or orderly liquidation of insolvent insurers and the protection of their policyholders and the public."
Garamendi v. Golden Eagle Ins. Co., 116 Cal.App.4th 694, 10 Cal.Rptr.3d 724, 733 (2004) (quoting Low v. Golden Eagle Ins. Co., 104 Cal.App.4th 306, 128 Cal.Rptr.2d 423, 430 (2002) ).
Based on our precedent, and that of other states, we will review the decisions of a liquidation court under the same standard as that of equitable receiverships—abuse of discretion. In a receivership, a trustee-receiver is appointed to protect property during foreclosure or litigation. Haw. Ventures, 114 Hawai‘i at 457–58, 164 P.3d at 715–16. A circuit court's decisions regarding equitable receiverships are reviewed under the abuse of discretion standard because of the court's broad discretionary power to appoint receivers and craft remedies to preserve equity. Id. at 456, 164 P.3d at 714.
Although liquidation courts derive their authority from statute, they have similarly equitable goals and the discretion to craft equitable remedies. HRS § 431:15–101 provides that the purpose of Hawai‘i's insurance liquidation law is "the protection of the interests of the insureds, claimants, creditors, and the public generally" through, in part, "equitable apportionment of any unavoidable loss." The Liquidator has the authority to "compound, compromise, or in any other manner negotiate the amount for which claims will be recommended to the court, except where the liquidator is required by law to accept claims." HRS § 431:15–333 (2005). Furthermore, the Liquidator's distributions must "assure the proper recognition of priorities and a reasonable balance between the expeditious completion of the liquidation and the protection of unliquidated and undetermined claims." HRS § 431:15–334 (2005). These statutes demonstrate the broad discretionary powers of the Liquidator and the liquidation court to effect the equitable distribution of assets and apportionment of losses. Therefore, as with equitable receiverships, liquidation courts should be reviewed under the abuse of discretion standard. However, a liquidation court's decisions regarding questions of law must be reviewed de novo. See Voluntary Emps.’ Benefit Ass'n of Haw., 99 Hawai‘i at 57, 52 P.3d at 827.
B. IELHC's Claim under HRS § 431:15–326
As an initial question, we must resolve whether the circuit court abused its
[135 Hawai'i 63] discretion in concluding that IELHC submitted a proof of claim to the Liquidator. Hawai‘i courts have not previously interpreted this proof of claim statute. Furthermore, this case is particularly unusual because IELHC attests that its communications did not constitute a claim. Courts in other states have occasionally considered whether a purported claim met the state's statutory proof of claim requirements, but in all of those cases, the purported claimants argued that their communications did constitute a claim.
1. IELHC's, the Liquidator's, and HLDIGA's arguments
IELHC argues that its two letters to the Liquidator and the California Lawsuit do not constitute a claim. It defines a claim as something "(1) filed by a creditor or other claimant (2) with the liquidator under the Hawai‘i insolvency statutes (3) against the estate of the insolvent insurer." IELHC characterizes its first letter as "a pre-litigation demand letter": a demand for stock—which is not an asset in IEL's estate—and notice that IELHC would seek damages for fraud and other torts from the Liquidator and others. IELHC states that its second letter "was sent in the context of a mediation to resolve disputes which include ownership of IEL's stock." Finally, IELHC emphasizes that its First Amended Complaint in the California Lawsuit was not filed "against the IEL estate." Therefore, IELHC concludes that its communications cannot be characterized as a claim because it never purported to be a creditor and it never sought assets from IEL's estate.
The Liquidator argues that IELHC's letters and the California Lawsuit constitute a claim, filed with the Liquidator, against IEL's estate. The Liquidator quotes language from IELHC's first letter that it characterizes as the claim:
"[T]he claims of the policyholders, claimants, creditors, and others senior to [IELHC] in the statutory priority of distribution under section 431:15–332 of the Hawai‘i Revised Statutes have apparently been fully paid, liquidated or otherwise protected. As a matter of equity and public policy, [IELHC] as a shareholder, or legal or equitable owner, of the stock of IEL should receive distribution of the remaining surplus of the estate. ...
....
[I]t is respectfully demanded that the Honorable J.P. Schmidt, Insurance Commissioner of the State of Hawai‘i, deliver to [IELHC] all authorized, issued, and outstanding shares of stock of IEL, and any certificates representing said shares."
The Liquidator characterizes this as a claim to IEL's stock and "to all residual assets in IEL's estate" made pursuant to HRS § 431:15–332, specifying the order of distribution of claims.
The Liquidator argues that IELHC's second letter and the California Lawsuit provided additional information regarding IELHC's claim. In the second letter, IELHC referred to "IELHC's claims." In the First Amended Complaint in the California Lawsuit, IELHC specifically referred to its first letter as a "claim to distribution of the monies and assets remaining in the estate of IEL." The Liquidator argues that this statement is a judicial admission that bars IELHC from now denying that the first letter constituted a claim.
Finally, the Liquidator cites Checker Motors Corp. v. Executive Life Insurance Co., 1992 WL 29806 (Del.Ch. Feb.13, 1992), aff'd as modified by, 615 A.2d 530 (Del.1992), for the principle that a lawsuit can constitute a claim. In Checker Motors, the court held that a claim for declaratory judgment regarding the respective rights of the claimant and the insolvent insurer, brought outside the liquidation proceedings and in a state where no ancillary receiver had been appointed, was a "claim" under the ordinary definition of the word and under the Uniform Insurers Liquidation Act. Id. at *4. The court reasoned that to hold otherwise would contravene the Act's policy "of avoiding the dissipation of an insurer's assets by reason of its having to defend disparate litigations throughout the country." Id.
HLDIGA supports the Liquidator's interpretation of IELHC's California Lawsuit as a claim. Specifically, it argues that it would
[135 Hawai'i 64] undermine the purpose of the ISRLA to permit parties to bring claims against IEL's estate in lawsuits in other states and not recognize those lawsuits as claims against the estate under ISRLA.
2. Statutory interpretation
Hawai‘i's proof of claim statute, codified at HRS § 431:15–326 establishes the elements of a proof of claim. It provides, in part:
(a) Proof of claim shall consist of a statement signed by the claimant that includes all of the following that are applicable:
(1) The particulars of the claim including the consideration given for it;
(2) The identity and amount of the security on the claim;
(3) The payments made on the debt, if any;
(4) That the sum claimed is justly owing and that there is no setoff, counterclaim, or defense to the claim;
(5) Any right of priority of payment or other specific right asserted by the claimant;
(6) A copy of the written instrument which is the foundation of the claim; and
(7) The name and address of the claimant and the attorney who represents the claimant, if any.
(b) No claim need by considered or allowed if it does not contain all the information in subsection (a) which may be applicable. The liquidator may require that a prescribed form be used, and may require that other information and documents be included.
(c) At any time the liquidator may request the claimant to present information or evidence supplementary to that required under subsection (a) and may take testimony under oath, require production of affidavits or depositions, or otherwise obtain additional information or evidence.
HRS § 431:15–326(a) – (c).
Hawaii's insurance code is based upon the National Association of Insurance Commissioners ("NAC") Model Act. See 2 Hawai‘i Insurance Commissioner, Revised and Consolidated Insurance Laws of the State of Hawai‘i (1986). HRS § 431:15–326 was adopted from NAC Insurance Code, section 36, and Utah Code Ann. § 31A–27–329. Id. The Hawai‘i legislature adopted this section without any modifications to the model code aside from changing the word "claimants" from plural to singular in HRS § 431:15–326(a)(5).
In construing this statute we must "give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself." Gray v. Admin. Dir. of the Court, State of Haw., 84 Hawai‘i 138, 148, 931 P.2d 580, 590 (1997) (quoting State v. Toyomura, 80 Hawai‘i 8, 18, 904 P.2d 893, 903 (1995) ). Statutory language must be read " ‘in the context of the entire statute’ " and construed " ‘in a manner consistent with its purpose.’ " Id. (quoting Toyomura, 80 Hawai‘i at 18–19, 904 P.2d at 903–04 ).
As discussed above, the purpose of ISRLA is to protect "the interests of insureds, claimants, creditors, and the public generally." HRS § 431:15–101. Under ISRLA, the liquidator of an insolvent insurer has broad powers, including the power to: "[e]mploy employees and agents, legal counsel, actuaries, accountants, appraisers, consultants and such other personnel as the liquidator deems necessary"; "[p]ay reasonable compensation to persons appointed"; "[h]old hearings"; "[c]ollect all debts and moneys due and claims belonging to the insurer wherever located"; "[c]onduct public and private sales of the property of the insurer"; "[b]orrow money on the security of the insurer's assets"; "[p]rosecute any action that may exist on behalf of the creditors, members, policyholders, or shareholders of the insurer"; "[e]xercise and enforce all the rights, remedies, and powers of any creditor shareholder, policyholder, or member"; and "to do such other acts not herein specifically enumerated, or otherwise provided for, as may be necessary or appropriate for the accomplishment of or in aid of the purpose of liquidation." HRS § 431:15–310 (2005).
The liquidator's powers in accepting and adjudicating claims are similarly broad. Although ISRLA states that "[p]roof of all
[135 Hawai'i 65] claims shall be filed with the liquidator in the form required by section 431:15–326 on or before the last day for filing," it also provides that "the liquidator may consider any claim filed late." HRS § 431:15–325. The liquidator has the authority to "compound, compromise, or in any other manner negotiate the amount for which claims will be recommended to the court." HRS § 431:15–333. And, the liquidator's distributions should " assure the proper recognition of priorities and a reasonable balance between the expeditious completion of the liquidation and the protection of unliquidated and undetermined claims." HRS § 431:15–334.
We have previously interpreted ISRLA to give the Commissioner discretionary power when acting as Liquidator. We reasoned that "[b]ased upon the statutory scheme and the underlying purposes of the ISRLA, the legislature intended to grant the Commissioner the broad powers to facilitate an orderly liquidation of an insolvent insurance company and to ensure an equitable apportionment between creditors of any losses that may result." Four Star Ins. Agency, Inc. v. Hawaiian Elec. Indus., Inc., 89 Hawai‘i 427, 433, 974 P.2d 1017, 1023 (1999).
Reading the language of HRS § 431:15–326 as a whole and in the context of other provisions of ISRLA, it seems that the liquidator has discretionary power to accept proof of claims that do not contain all of the elements enumerated in HRS § 431:15–326(a). HRS § 431:15–326(a) states the elements that the proof of claim "shall" contain. We have expressed our doubt and uncertainty as to the meaning of "shall." See Gray, 84 Hawai‘i at 150, 931 P.2d at 592. We have called "shall" a " ‘CHAMELEON–HUED WORD,’ " and commented that " ‘courts in virtually every English-speaking jurisdiction have held—by necessity—that shall means may in some texts, and vice versa.’ " Gray, 84 Hawai‘i at 150, 931 P.2d at 592 (quoting B. Garner, A Dictionary of Modern Legal Usage 939–40 (2d ed. 1995)). "Shall" is also commonly construed to mean "should." See B. Garner, The Redbook: A Manual on Legal Style 454 (2d ed. 2002) ("Although every drafter seems to have heard that shall is a mandatory word ... courts have often held that it means ‘should.’ ").
The meaning of "shall" in HRS § 431:15–326(a) is clarified by reading the statute in context with HRS § 431:15–326(b). HRS § 431:15–326(b) provides that the liquidator does not "need" to consider a claim which does not contain all the information in subsection (a). This suggests that the liquidator may consider a claim that does not contain all of the information in subsection (a).
This interpretation of the liquidator's broad discretionary powers accords with the interpretations of other courts. We have previously stated that ISRLA, patterned after NAC's Uniform Insurers Liquidation Act (UILA), and specifically ISRLA's liquidation provisions, is similar to the liquidation provisions in New York's insurance laws. Four Star Ins. Agency, Inc., 89 Hawai‘i at 433, 974 P.2d at 1023. We concluded that "because Hawai‘i appellate courts have not yet addressed the scope of the insurance commissioner's power in rehabilitating/liquidating an insolvent insurer, New York's interpretation of their insurance law's provisions governing liquidation is useful in construing HRS ch. 431:15." Id.
In In re the Liquidation of Union Indemnity Insurance Company of New York, 219 A.D.2d 468, 631 N.Y.S.2d 39 (1995), the New York appellate court affirmed the liquidation court's holding that a verified complaint "constitutes substantial compliance with the requirements of [New York's proof of claim statute] and that the claim should be deemed timely filed." 631 N.Y.S.2d at 39. The court reasoned that although the verified complaint was not a proof of claim under the statute, because it was the "substantial equivalent of a proof of claim," the liquidator must adjudicate the claim. Id. at 39–40.
Hawaii's and New York's proof of claim statutes are very similar. New York's proof of claim statute provides:
(1) A proof of claim shall consist of a written statement subscribed and affirmed by the claimant as true under the penalties of perjury, setting forth the claim, the consideration therefor, any securities held therefor, any payments made thereon, and that
[135 Hawai'i 66]
the sum claimed is justly owing from the insurer to the claimant.
(2) If a claim is founded upon an instrument in writing, such instrument, unless lost or destroyed, shall be filed with the proof of claim....
N.Y. Insurance Law § 7433(a) (McKinney's 2012). Both statutes use the vague term "shall" when listing the claim requirements. Compare HRS § 431:15–326 with N.Y. Insurance Law § 7433(a). New York and Hawai‘i also have the same proof of claim requirements except that Hawai‘i additionally requires the claimant to include: (1) any right of priority of payment and (2) the name and address of the claimant's attorney, if any. Id. And, New York's statute, like Hawai‘i's, does not specifically grant the liquidator power to adjudicate claims which do not comply with the enumerated proof of claim requirements. Id. The only significant difference between the statutes is that under Hawai‘i law, the liquidator is not required to consider claims which do not contain all of the statutory proof of claim requirements. Id. This difference should in no way limit the liquidator's discretionary power to consider claims which are the "substantial equivalent" of a proof of claim.
This section of New York's Insurance Law has not been amended since the In re the Liquidation of Union Indemnity Insurance Company of New York decision in 1995.
Two states have concluded that a claim is not entitled to adjudication when it does not fully comply with the state's statutory proof of claim requirements. However, these cases are easily distinguishable from the present case.
In State ex rel. Clark v. Blue Cross Blue Shield of West Virginia, Inc., 195 W.Va. 537, 466 S.E.2d 388 (1995), the Supreme Court of Appeals of West Virginia held that where the claimant notified the receiver of its claim by letter, instead of filing a proof of claim on the prescribed form, the claim was not "entitled to filing or allowance, and no action may be maintained with regard to the claim." 466 S.E.2d at 394. In reaching its holding, the West Virginia court relied upon provisions in West Virginia's insurance liquidation law that stated:
‘Unless such claim is filed in the manner and within the time provided in [the proof of claim statute], it shall not be entitled to filing or allowance, and no action may be maintained thereon.’ W. Va.Code § 33–24–36(f).... Further, ‘no claim by a policyholder or other creditor shall be permitted to circumvent the priority classes through the use of equitable remedies.’ W. Va.Code § 33–24–27.
Id. at 392 (emphasis and alterations omitted). The court also reasoned that it had previously followed a doctrine of strict compliance concerning the provisions of the insurance liquidation laws and that a substantial compliance standard was inapplicable. Id. at 393.
The California Court of Appeals has applied a similarly strict interpretation to its proof of claim statute. In Garamendi v. Mission Insurance Co., 2005 WL 1549326 (Cal.Ct.App. July 5, 2005), the court held that a letter from the claimant, notifying the Commissioner of an estimated $649,000,000 in claims, was not properly filed when it was not filed on the prescribed proof of claim form and when claimant demonstrated that it had access to the proof of claim form by later filing an unsigned and partially blank form for a portion of its claim. 2005 WL 1549326, at *1.
The California court rejected the claimant's arguments that the letter substantially complied with the claim-filing requirements. Id. at *5–6. The court reasoned that the commissioner is bound by the liquidation laws' statutory procedures. Id. at *6. California's liquidation law, at the relevant time, " ‘require[d] claimants to file their claims with the commissioner, together with proper proofs thereof, within six months after the date of first publication of ... notice.’ " Id. (emphasis omitted) (quoting Cal. Ins.Code § 1021(a) ). The law also provided that " ‘[a] claim must set forth, under oath, on the form prescribed by the commissioner’ " all of the data and supporting documents required by the commissioner. Id. (emphasis omitted) (quoting Cal. Ins.Code § 1023 ). And finally, the law provided that " ‘[u]nless such claim is filed in the manner and within the time provided
[135 Hawai'i 67] in section 1021, it shall not be entitled to filing or allowance, and no action may be maintained thereon.’ " Id. (quoting Cal. Ins.Code § 1024 ). The court concluded that, based on the unambiguous statutory language and the insurance insolvency legislation's purpose of providing clear and uniform procedures, the commissioner was not required to accept the claimant's letter as a claim. Id. at *6–7.
The West Virginia and California cases are distinguishable from the present case based on the relevant laws and facts. In West Virginia, the court favored a narrow interpretation of its insurance liquidation law, which stated that a claim was not entitled to filing or allowance if it was not filed in the manner prescribed by statute. See State ex rel. Clark, 466 S.E.2d at 394. Similarly, California's insurance liquidation law, on its face, was stricter than Hawai‘i's in stating that, to be entitled to filing or allowance, a proof of claim "must" contain certain elements. See Garamendi, 2005 WL 1549326, at *6. Most significantly, these cases differ from the present case because in neither case did the court conclude that the liquidator was barred from adjudicating the claim. Rather, both courts held only that the liquidator had not erred in refusing to accept the claimant's letter as a timely filed proof of claim.
Based on the purpose and language of ISRLA, as well as our past reliance New York's interpretations of its similar insurance law, we adopt a broad interpretation of Hawai‘i's proof of claim statute. In accordance with the liquidator's discretionary powers, the liquidator may accept a claim which is in substantial compliance with the proof of claim elements of HRS § 431:15–326.
This case does not raise, and therefore we need not consider, the issue of whether the liquidator is required to accept a claim that does not conform with HRS § 431:15–326.
3. Analysis of IELHC's letters and the California Lawsuit
Under this discretionary standard, IELHC's letters and its California Lawsuit sufficiently asserted a claim for the Liquidator to administer it as such. IELHC's first letter to the Liquidator substantially complied with HRS § 431:15–326(a). IELHC's second letter provided additional information but did not state a claim against the estate. Finally, the California Lawsuit reiterated IELHC's claim from its first letter and may have been sufficient to state a claim independently.
IELHC's first letter to the Liquidator satisfied the majority of the applicable proof of claim elements enumerated in HRS § 431:15–326. The letter provided the "particulars of the claim including the consideration given for it," HRS § 431:15–326, by stating that IELHC sought "distribution of the remaining surplus of the estate" due to its status as IEL's sole shareholder. The
The Dissent argues that we are giving meaning to the term "estate" that the first letter did not intend. Dissent at 82, 346 P.3d at 151. However, we agree with the Dissent that the term "estate" refers to "the total assets of the insurer" and that both the first letter and the ISRLA use the term in this way. See Dissent at 82, 346 P.3d at 151. Pursuant to HRS § 431:15–307, possession and title of the insurer's assets, or estate, are vested in the liquidator for the purpose of administration and settlement of claims. Therefore, a conclusion that IELHC's demand for what was remaining in the estate, which was in the possession of the Liquidator for the purpose of administering claims, was a claim is consistent with the purpose of ISRLA.
Thus, the Dissent's assertion that "the only demand that can be discerned from the First Letter is for the remaining IEL shares [,]" Dissent at 79, 346 P.3d at 148, is unavailing because the letter also clearly refers to assets within the estate. It is accepted that IEL stock was not part of IEL's estate because it was not an asset of IEL, and so the contention that IELHC asserted rights only to something outside of the estate is inconsistent with IELHC's argument in the letter that it "should receive distribution of the remaining surplus of the estate." IELHC also begins its letter by arguing that the Liquidator's financial statement filed on February 27, 2008, "materially misstates and misrepresents the financial condition of IEL's estate in liquidation." IELHC challenged the valuation of the estate, not the stock. Once again, this reference to the estate and the allegation of misrepresentation reveal a clear intent to assert rights to assets within the estate. Therefore, a reading of the letter such that it is understood to assert rights to both assets within the estate and to IEL stock appears most accurate and persuasive. As discussed infra, IELHC's California Lawsuit also supports such a reading.
[135 Hawai'i 68] letter also specified IELHC's priority of payment by specifying that IELHC's claim was based upon its status as a shareholder. Because there was no security on the claim and there were no payments on the debt, those proof of claim elements are inapplicable. See HRS § 431:15–326(a). The letter also provided the name and address of the attorney through which the claimant could be contacted. The letter did not comply with HRS § 431:15–326 in that it was not signed by the claimant, though it was signed by the claimant's attorney, and it did not state "that the sum claimed is justly owing and that there is no setoff, counterclaim, or defense to the claim." It also did not include a copy of any written instruments which were the foundation of the claim, and it did not provide the address of the claimant. Though these omissions are not insignificant, they are not of a nature to deprive the Liquidator of an understanding of the critical elements of the claim. The Liquidator was able to identify who submitted the claim, the amount of the claim, and the grounds of the claim. Therefore, the letter of April 23, 2008 sufficiently complied with the proof of claim requirements to permit the Liquidator to adjudicate IELHC's claim.
The Dissent asserts that these elements are inapplicable because there is a "fundamental difference between stock ownership and a debt." Dissent at 80, 346 P.3d at 149. The Dissent seems to imply that shareholders and owners, by definition, cannot assert claims against an estate under ISRLA. However, such an interpretation would run contrary to HRS § 431:15–332, which refers to "[t]he claims of shareholders or other owners" as Class 9 claims, thus, clearly envisioning the possibility of claims asserted by shareholders.
IELHC's second letter supplemented its first letter's arguments in support of IELHC's ownership of IEL's stock and requested mediation on that issue. IELHC's assertion of title in IEL's stock was not a claim against IEL's estate because IEL's stock was not a part of its estate. While the second letter provided additional grounds for IELHC's contention that its shares were never forfeited, it contained no specific claim to the assets of IEL's estate. Therefore, it was insufficient to assert a claim independently.
IELHC's California Lawsuit, and specifically its First Amended Complaint, demonstrated that IELHC intended for its first letter to assert a claim against IEL's estate. In its First Amended Complaint, IELHC states that its first letter constituted a claim which the Liquidator failed to adjudicate. In a section entitled "DEMAND FOR STOCK AND DISTRIBUTION," IELHC states:
Promptly upon discovery of the relevant facts and circumstances giving rise to this action, by letter sent on April 23, 2008 Plaintiff served a demand upon [Commissioner/Liquidator] Schmidt, through their respective attorneys, for Schmidt to deliver to Plaintiff all of the authorized, issued, and outstanding shares of stock of IEL ... and claim to distribution of the monies and assets remaining in the estate of IEL.
... [Commissioner/Liquidator] Schmidt has failed and refused to deliver to Plaintiff all of the authorized issued, and outstanding shares of stock of IEL ... and claim to distribution of the monies and assets remaining in the estate of IEL.
... Defendants have no legitimate or compelling state interest for taking or depriving Plaintiff of the its [sic] right, title, and interest in the stock, and shares, certificates, and value of such stock of IEL.
The First Amended Complaint in the California Lawsuit may also have been sufficient, independent of IELHC's letters, to assert a claim against IEL's estate. The complaint requested a declaratory judgment on IELHC's claim:
Plaintiff contends inter alia that it has legal and equitable right, title, and interest in the monies and assets remaining in the estate of and in IEL's stock, and shares, certificates, and value of such stock.
....
... Plaintiff requests this Court to make and enter a binding judicial declaration in accordance with Plaintiff's contentions.
The complaint also requested an injunction enjoining all of the defendants, including the Liquidator from, in part, "paying, transferring, assigning, encumbering, or otherwise disposing any and all assets, accounts, and monies of IEL; and ... from creating or
[135 Hawai'i 69] permitting anyone to create any further debt, liability, or other obligation from IEL to any person." These statements demonstrate that IELHC continued to assert a claim on all assets remaining in IEL's estate, sought to deprive the Liquidator of his power to adjudicate this or any claims against IEL's estate, and sought instead to vest the California Courts with the power to adjudicate IELHC's claim.
To allow a court other than the liquidation court sole jurisdiction to adjudicate a claim against the estate of an insolvent insurer is contrary to the purpose of ISRLA. ISRLA seeks to enhance the efficiency and equitability of insurance liquidation by providing the insurance commissioner of Hawai‘i and the Circuit Court for the First Circuit with jurisdiction over delinquency and liquidation proceedings within the state. See HRS §§ 431:15–101 and 431:15–104 (2005). Once a liquidator has been appointed, "ISRLA provides for an automatic stay of all proceedings against the insolvent insurance company and the liquidator." Four Star Ins. Agency, Inc., 89 Hawai‘i at 432, 974 P.2d at 1022 ; see also HRS § 431:15–313 (2005) ("[N]o action at law or equity shall be brought against the insurer or liquidator."). Furthermore "[n]o judgment or order against an insured or the insurer entered after the date of filing of a successful petition for liquidation, and no judgment or order against an insured or the insurer entered at any time by default or by collusion need be considered as evidence of liability or of quantum of damages." HRS § 431:15–326(d). "Based upon the statutory scheme and the underlying purposes of ISRLA, the legislature intended to grant the Commissioner the broad powers to facilitate an orderly liquidation of an insolvent insurance company and to ensure an equitable apportionment between creditors of any losses that may result." Four Star Ins. Agency, Inc., 89 Hawai‘i at 433, 974 P.2d at 1023.
Under a discretionary interpretation of the proof of claim statute, IELHC's First Amended Complaint in its California Lawsuit is similar to a proof of claim because it asserts a claim to all of the remaining assets in IEL's estate by right of IELHC's position as the sole shareholder of IEL. Furthermore, to promote ISRLA's goals of uniformity and equitability, the Liquidator should have the authority to recognize this lawsuit as a claim against IEL's estate and adjudicate it as such pursuant to the provisions of HRS § 431, article 15. However, it is unnecessary to determine whether the California Lawsuit was the substantial equivalent of a proof of claim, such that it would trigger the Liquidator's adjudication, because the first letter alone sufficiently satisfied the HRS § 431:15–326 proof of claim requirements.
Due to the discretionary nature of Hawai‘i's proof of claim statute, the liquidation court did not abuse its discretion in concluding that, taken together, IELHC's two letters and its California Lawsuit constituted a claim against IEL's estate.
C. Subject Matter Jurisdiction
We have defined subject matter jurisdiction as " ‘jurisdiction over the nature of the case and the type of relief sought’ " and " ‘the extent to which a court can rule on the conduct of persons or the state of things.’ " County of Hawai‘i v. C & J Coupe Family Ltd. P'ship, 119 Hawai‘i 352, 368, 198 P.3d 615, 631 (2008) (alterations omitted) (quoting Black's Law Dictionary 870 (8th ed. 2004)). Whether the liquidation court has subject matter jurisdiction over IELHC's claim is a question of law reviewable de novo.
IELHC argues that the Liquidator and the liquidation court have no subject matter jurisdiction over the purported claim because IELHC never submitted a claim pursuant to HRS § 431:15–326. IELHC maintains that the Liquidator created the claim and is now attempting to assert jurisdiction over this manufactured claim. IELHC also alleges that the "claim" that the Liquidator is purporting to adjudicate is the entire California Lawsuit. It argues that "[a]lthough [the Liquidator] swept the entire California Lawsuit within his broad definition of ‘IELHC Claim,’ the California Lawsuit is not a ‘delinquency proceeding,’ was not commenced by [the Liquidator], and is not brought against an insolvent insurer." IELHC concludes that because ISRLA does not grant the Liquidator or the liquidation court jurisdiction
[135 Hawai'i 70] over a claim that IELHC never asserted or over all of the causes of action in IELHC's California Lawsuit, the Liquidator lacked subject matter jurisdiction in this proceeding.
IELHC's argument that the liquidation court lacks jurisdiction fails because, as established above, IELHC did assert a claim against IEL's estate pursuant to ISRLA, and neither the Liquidator nor the liquidation court have purported to adjudicate the other claims raised in the California Lawsuit.
IELHC is correct that the Liquidator and the liquidation court's subject matter jurisdiction is limited by the terms of ISRLA. ISRLA gives the liquidation court jurisdiction over claims asserted against an insolvent insurer's estate. ISRLA states that "[t]he liquidator shall review all claims duly filed in the liquidation." HRS § 431:15–333(a). When the liquidator denies a claim, written notice is provided to the claimant and the claimant has sixty days to file any objection with the liquidator. HRS § 431:15–329(a). When the liquidator does not alter the denial following the filing of objections, "the liquidator shall ask the court for a hearing as soon as practicable." HRS § 431:15–329(b). ISRLA's statute regarding jurisdiction and venue states that all actions authorized under HRS § 431, article 15 "shall be brought in the circuit court of the first circuit"—the liquidation court. HRS § 431:15–104(g).
HRS § 431:15–333 provides, in part:
Liquidator's recommendations to the court. (a) The liquidator shall review all claims duly filed in the liquidation and shall make such further investigation as the liquidator shall deem necessary. The liquidator may compound, compromise, or in any other manner negotiate the amount for which claims will be recommended to the court, except where the liquidator is required by law to accept claims as settled by any person or organization, including any guaranty fund or association, or foreign guaranty fund or association....
(b) The court may approve, disapprove or modify the report on claims by the liquidator....
HRS § 431:15–329 provides:
Disputed Claims. (a) When a claim is denied in whole or in part by the liquidator, written notice of the determination shall be given to the claimant or the claimant's attorney by first class mail at the address shown in the proof of claim. Within sixty days from the mailing of the notice, the claimant may file any objections with the liquidator. If no such filing is made, the claimant may not further object to the determination.
(b) Whenever objections are filed with the liquidator and the liquidator does not alter the denial of the claim as a result of the objections, the liquidator shall ask the court for a hearing as soon as practicable and give notice of the hearing by first class mail to the claimant or the claimant's attorney and to any other persons directly affected, not less than ten nor more than thirty days before the date of the hearing. The matter may be heard by the court or by a court appointed referee who shall submit findings of fact along with such referee's recommendations.
Here, the Liquidator reviewed IELHC's claim asserted in the first letter and in the First Amended Complaint in the California Lawsuit. The Liquidator denied IELHC's claim, and IELHC filed objections. After determining not to alter the denial of the claim following IELHC's objections, the Liquidator properly filed a Motion for an Order Confirming the Liquidator's Determination of a Disputed Claim. Pursuant to HRS § 431:15–104(g) and HRS § 431:15–329(b), the circuit court of the first circuit had subject matter jurisdiction over this motion.
It is irrelevant that the California Lawsuit also asserted various other causes of action against various other parties, including the Liquidator himself. These other causes of action do not insulate IELHC's claim against IEL's estate from the Liquidator and the liquidation court's jurisdiction. Conversely, the liquidator and the liquidation court do not have, nor have they ever sought, jurisdiction over these other causes of action.
D. Personal Jurisdiction
The liquidation court's ability to exercise personal jurisdiction over claimants is limited by the federal due process requirements of the fourteenth amendment. In Interest of Doe, 83 Hawai‘i 367, 373, 926 P.2d 1290, 1296 (1996). We have previously cited United States Supreme Court precedent regarding personal jurisdiction stating that:
" ‘[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’ " Burger King Corp.
[135 Hawai'i 71]
v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985).... The determining inquiry is whether " ‘the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.’ " Id. at 474, 105 S.Ct. at 2183....
Id. (some internal citations omitted) (quoting Shaw v. North Am. Title Co., 76 Hawai‘i 323, 329–30, 876 P.2d 1291, 1297–98 (1994) ). Whether the liquidation court properly exercised personal jurisdiction over IELHC is a question of law reviewable de novo. Id. at 326, 876 P.2d at 1294.
IELHC argues that the circuit court lacked the requisite personal jurisdiction to adjudicate its claim against IEL's estate. It reasons that, because this court held in Metcalf v. IEL that IELHC had no standing to oppose the liquidation of IEL, the liquidation court cannot now assert personal jurisdiction over IELHC. IELHC then argues that when the Liquidator filed the motion to initiate the proceedings in the liquidation court, this commenced a new action, requiring the Liquidator to issue a summons and provide proper service upon IELHC. Finally, IELHC states that the Liquidator's motion sought not only to adjudicate a claim, but also to enforce a settlement agreement and a stock subscription agreement. Therefore, IELHC argues, because the Liquidator did not bring an independent action to enforce the agreements, the liquidation court has no personal jurisdiction.
The Liquidator argues that the circuit court properly exercised personal jurisdiction over IELHC. He argues first that IELHC submitted to the liquidation court's jurisdiction when it was granted leave to intervene as a party-Respondent by the Stipulation to Allow Intervention of Investors Equity Life Holding Company and Order, filed in 1994. He emphasizes that, while this court held that IELHC lacked standing to oppose IEL's liquidation, "[t]he Court did not hold that IELHC was not a party." The Liquidator also argues that under ISRLA, the resolution of a claim against an estate does not require the commencement of a proceeding separate from the liquidation proceeding, and any discussion of IELHC's 1996 settlement agreement was raised defensively in response to IELHC's "affirmative" claim against IEL's estate. Finally, the liquidator notes that by filing a claim in the liquidation proceeding, IELHC has submitted to the jurisdiction of the liquidation court.
Where a party files a claim with the Liquidator of an insolvent insurer's estate, the party has "purposefully avail[ed] itself of the privilege of conducting activities within the forum State" such that "he should reasonably anticipate being haled into court there." In Interest of Doe, 83 Hawai‘i at 373, 926 P.2d at 1296 (quoting Shaw, 76 Hawai‘i at 329–30, 876 P.2d at 1297–98 ). The New York Supreme Court, Appellate Division, has stated that "it is well established that in filing a proof of claim in liquidation, a claimant submits itself to the jurisdiction of the liquidation court." Corcoran v. Hall & Co., Inc., 149 A.D.2d 165, 545 N.Y.S.2d 278, 282 (1989).
When IELHC filed a proof of claim with the Liquidator, it submitted itself to the liquidation court's jurisdiction. That this court previously held that IELHC lacked standing to intervene in the liquidation of IEL, in no way demonstrates that the liquidation court lacked jurisdiction over IELHC. Rather, IELHC's previous participation as a party in IEL's liquidation is further evidence of IELHC's submission to the liquidation court's jurisdiction.
The Liquidator correctly concludes that the Motion for an Order Confirming the Liquidator's Determination of a Disputed Claim did not initiate a new suit, but was instead a continuation of the liquidation proceeding. ISRLA provides procedures for the judicial review of disputed claims:
[T]he liquidator shall ask the court for a hearing as soon as practicable and give notice of the hearing by first class mail to the claimant or the claimant's attorney and to any other persons directly affected, not less than ten nor more than thirty days before the date of the hearing. The matter may be heard by the court or by a court appointed referee who shall submit findings of fact along with such referee's recommendations.
[135 Hawai'i 72]
HRS § 431:15–329(b). These provisions do not require the liquidator to initiate a separate action in circuit court pursuant to the Hawai‘'i Rules of Civil Procedure. ISRLA provides for the liquidation court's review of the disputed claim, as it provides for the court's review of all claims submitted to the liquidator. See HRS § 431:15–333(b) ("The court may approve, disapprove or modify the report on claims by the liquidator."). Here, the Liquidator's motion, submitted in response to IELHC's claim, was properly filed with the liquidation court as part of IEL's liquidation proceedings and it did not initiate any new actions.
E. Abatement
Abatement is " ‘the suspension or defeat of a pending action for a reason unrelated to the merits of the claim.’ " C & J Coupe Family Ltd. P'ship, 119 Hawai‘i at 368, 198 P.3d at 631 (alterations omitted). We have held that " ‘where the party is the same in a [prior] pending suit, and the cause is the same and the relief is the same, a good plea in abatement lies.’ " Id. at 371, 198 P.3d at 634 (quoting Shelton Eng'g Contractors, Ltd. v. Hawaiian Pac. Indus., Inc., 51 Haw. 242, 249, 456 P.2d 222, 226 (1969) ); see also Yee Hop v. Nakuina, 25 Haw. 205, 208–09 (1919) ("[I]f a suit is commenced while a prior suit is pending for the same cause between the same parties the pendency of the prior suit is a good plea in abatement....").
IELHC argues that this case should have been abated pending the outcome of the California Lawsuit. It reiterates its earlier argument that the Liquidator's "unilateral, self-generated Determination in 2009" initiated the current case, and that this case is not a continuation of the liquidation proceedings begun in 1994 against IEL. IELHC concludes that, although it does not agree that the California Lawsuit and this case are between the same parties, because the Liquidator has characterized the California Lawsuit as the claim, this case may not proceed until the California Lawsuit is resolved.
The Liquidator responds that IELHC's argument fails primarily because the liquidation court correctly concluded that it has exclusive jurisdiction over claims against IEL's estate. The Liquidator also argues that, because the relief sought in the California Lawsuit differs from the relief sought here, abatement is inapplicable. The relief sought in the California Lawsuit is "a declaration that it is entitled to delivery of IEL's stock and the residual assets of its estate, and an injunction as to any activity related to assets of the estate." Whereas, the relief sought here is a "confirmation of the Liquidator's determination that IELHC was not entitled to the IEL's stock or assets." Furthermore, the Liquidator argues, both the liquidation action and IELHC's claim, in the form of its first letter, commenced before the California Lawsuit.
This issue is most easily resolved by noting that, as discussed above, the liquidation court's review of disputed claims is conducted as part of the liquidation court's continuing and exclusive jurisdiction over the liquidation of an insolvent insurer. See HRS § 431:15–104(c) ("No court of this State has jurisdiction to entertain, hear or determine any complaint praying for the dissolution, liquidation, rehabilitation, sequestration, conservation, or receivership of any insurer, or praying for an injunction or restraining order or other relief preliminary to, incidental to, or relating to that type of proceedings other than in accordance with this article."); HRS § 431:15–105(a) (2005) ("Any receiver appointed in a proceeding under this article may, at any time apply for and the circuit court of the first circuit may grant, under the relevant provisions of the Hawaii Rules of Civil Procedure, any injunctions, any restraining orders, and other orders as may be deemed necessary and proper...."). The liquidation court's jurisdiction over the liquidation of IEL's estate began in 1994, preceding the commencement of the California Lawsuit by fifteen years. Therefore, this action cannot be abated by the subsequent California Lawsuit. Furthermore, that the California Lawsuit reiterates an earlier claim against IEL's estate does not abate the liquidation court's review of the claim where the California Lawsuit involved different parties, different causes of action, and sought different relief.[135 Hawai'i 73]
F. Due Process
The fourteenth amendment of the United States Constitution and article I, section 5 of the Hawai‘i Constitution provide that no person shall be deprived of "life, liberty, or property without due process of law." State v. Bani, 97 Hawai‘i 285, 293, 36 P.3d 1255, 1263 (2001). The due process clause seeks to protect individuals from arbitrary governmental deprivation of property and liberty rights. Id. Procedural due process requires "notice and an opportunity to be heard at a meaningful time and in a meaningful manner before governmental deprivation of property interest." In re ‘Îao Ground Water Mgmt. Area High–Level Source Water Use Permit Applications, 128 Hawai‘i 228, 267, 287 P.3d 129, 168 (2012) (quoting Troyer v. Adams, 102 Hawai‘i 399, 437, 77 P.3d 83, 121 (2003) ). " ‘[D]ue process is flexible and calls for such procedural protections as the particular situation demands.’ " Ko‘olau Agric. Co., Ltd. v. Comm'n on Water Res. Mgmt., 83 Hawai‘i 484, 496, 927 P.2d 1367, 1379 (1996) (quoting Sandy Beach Def. Fund v. City Council of City & Cnty. of Honolulu, 70 Haw. 361, 378, 773 P.2d 250, 261 (1989) ).
IELHC advances a variety of vague arguments in support of its contention that its due process rights have been violated. It contends that in classifying the California Lawsuit as a claim against IEL's estate, the Liquidator and the liquidation court have effectively adjudicated all of the causes of action raised in that suit. IELHC argues that because this alleged claim encompasses a common law cause of action for damages, it has a right to a jury trial that has been violated. IELHC also argues that it is a violation of due process for the Liquidator, a defendant accused of fraud in the California Lawsuit, to adjudicate IELHC's claim. IELHC accuses the Liquidator of serving "in both an adjudicative and advocative function," impermissibly "commingl[ing] prosecutorial and adjudicatory functions." IELHC's final argument is that the Liquidator and the liquidation court employed summary procedures, despite the fact that there existed a genuine issue of material fact.
The Liquidator begins by refuting IELHC's assertion that "the Liquidator ‘swept the entire California Lawsuit within his broad definition of [the] IELHC Claim.’ " He quotes language from the Notice of Determination establishing that the Liquidator's determination only addressed the issue of IELHC's purported ownership of shares in IEL and its resultant claim to distributions from IEL's estate. The Liquidator then cites precedent from other jurisdictions establishing that there is no right to a jury trial in insurance liquidation proceedings because these are equitable proceedings, analogous to the proceedings of a bankruptcy court. The Liquidator next contends that IELHC's arguments regarding the summary nature of the proceedings are without merit. The Liquidator notes that IELHC had the opportunity to present evidence to the liquidation court and that IELHC never requested an evidentiary hearing. Furthermore, the Liquidator stresses that the summary judgment motion standard, which precludes summary judgment where " ‘there is a genuine issue for trial,’ " is inapplicable here "because the ISRLA does not provide for a trial." Finally, the Liquidator argues that although IELHC objects to the process in which its claim was adjudicated pursuant to ISRLA, IELHC never specifically challenges the constitutionality of ISRLA's claims adjudication procedures.
As established above, IELHC's first claim asserted a claim to all remaining assets in IEL's estate based on its position as the sole shareholder of IEL. This letter initiated the claims adjudication process administered by the Liquidator and the liquidation court. Although the Liquidator referred to the additional information provided by the California Lawsuit, the Liquidator never purported to adjudicate claims aside from those asserted in the first letter. In the Notice of Determination, the Liquidator stated that "IELHC filed its initial claim with the Liquidator on April 23, 2008," and "IELHC filed additional information with respect to the IELHC Claim in the form of the California Lawsuit."
Because the remaining claims in IELHC's California Lawsuit were not adjudicated by the Liquidator or the liquidation court,
[135 Hawai'i 74] IELHC may not assert any due process violations with respect to these claims. The Liquidator has never attempted to adjudicate the fraud claims IELHC asserted against him in the California Lawsuit, and therefore there is no impermissible commingling of roles. Whether IELHC is entitled to a jury trial on the claims from the California Lawsuit is not an issue properly before this court.
In adjudicating IELHC's claim against IEL's estate, the Liquidator followed the claims adjudication process established in ISRLA. See HRS § 431:15–329. IELHC was given, and took advantage of, numerous opportunities to respond to the Liquidator's determination in the form of letters to the Liquidator and briefs to the liquidation court. The liquidation court then held a hearing on August 23, 2010, during which IELHC argued the merits of its case. IELHC requested no further hearings.
IELHC has not alleged that the Liquidator or the liquidation court did not follow ISRLA's procedures or specifically challenged the constitutionality of ISRLA. Rather, IELHC objects to the "summary" nature of the proceedings. Where an appellant makes general assertions of a due process violation, without further elaboration or citation to authority, the court cannot reach a reasoned conclusion, and the due process argument is deemed waived. C & J Coupe Family Ltd. P'ship, 119 Hawai‘i at 373, 198 P.3d at 636. Because the liquidation court followed ISRLA, and IELHC does not specify how the ISRLA proceedings do not meet constitutional due process requirements, IELHC's due process claim fails.
G. Time Bar/Estoppel
The doctrine of judicial estoppel serves to bar a party from taking a position in a subsequent lawsuit that is inconsistent with a position it took in a previous lawsuit. We have previously stated that " ‘a party will not be permitted to maintain inconsistent positions or to take a position in regard to a matter which is directly contrary to, or inconsistent with, one previously assumed by him, at least where he had, or was chargeable with, full knowledge of the facts, and another will be prejudiced by his action.’ " Lee v. Puamana Cmty. Ass'n, 109 Hawai‘i 561, 576, 128 P.3d 874, 889 (2006) (alterations omitted) (quoting Roxas v. Marcos, 89 Hawai‘i 91, 124, 969 P.2d 1209, 1242 (1998) ).
IELHC argues that the Liquidator is estopped from arguing that IELHC's claim is time barred because during the California Lawsuit the Liquidator asserted that the Hawai‘i statute of limitations had not expired. IELHC did not raise this argument to the circuit court, but it now asserts that it may invoke the doctrine for the first time before the appellate court.
Although the Liquidator agreed to toll the statute of limitations from the date the California Lawsuit was filed, he did not stipulate to waiving any applicable time bars. In its opinion, the California Court of Appeal's specified that the issue of the timeliness of IELHC's claim would remain an issue were the claim litigated in the Hawai‘i courts. IELHC v. Schmidt, 126 Cal.Rptr.3d at 144. The court stated:
Defendants have agreed to toll the statute of limitations from February 25, 2009, the date plaintiff filed its California action, to the date plaintiff files suit in Hawai‘i. Their second stipulation makes clear that, if this action is refiled in Hawaii, one issue will be the timeliness of any claims time barred in that state as of February 25, 2009.
Id. Because the Liquidator did not agree to waive the time bar, he was not estopped from recommending that the liquidation court hold IELHC's claim to be untimely.
The underlying policy for establishing a claim bar date, as with a statute of limitations, is "the prompt assertion of claims." Blair v. Ing, 95 Hawai‘i 247, 266, 21 P.3d 452, 471 (2001). ISRLA allows a late filing claimant to share in distributions, "to the extent that such payment will not prejudice the orderly administration of the liquidation," if "[t]he existence of the claim was not known to the claimant and ... the claimant filed such claim as promptly as reasonably possible after learning of it." HRS § 431:15–325(b). The Liquidator may consider other late claims not meeting this criteria, and may "permit it to receive distributions which are
[135 Hawai'i 75] subsequently declared on any claims of the same or lower priority if the payment does not prejudice the orderly administration of the liquidation." HRS § 431:15–325(d). The language of HRS § 431:15–325 establishes that this exception to the claim bar date is purely discretionary.
IELHC's claim against IEL's estate was first asserted on April 23, 2008, more than twelve years after the claim bar date of December 1, 1995. IELHC's claim is based upon its assertion that the Liquidator did not validly forfeit IELHC's shares after they were surrendered in 1996 and that IELHC therefore remains the sole shareholder of IEL. IELHC's attorneys were present at the circuit court hearing approving IELHC's settlement agreement and the stock subscription agreement. Therefore, if these agreements were in someway defective, and if IELHC had remained the sole shareholder of IEL as it now attests, IELHC should have been aware of its status and its resultant shareholder claim against IEL's estate in 1996. Instead, IELHC waited another eleven years before asserting its claim. The liquidation court did not abuse its discretion in concluding that IELHC's claim was time barred because IELHC waited more than eleven years before notifying the Liquidator of its claim against IEL's estate.
IELHC maintains that its claim accrued in 2008, after the filing of the Liquidator's February 27, 2008 report on the status of IEL's estate. IELHC states that this report showed a surplus in IEL's estate, assuming that IEL's debts to HLDIGA are invalid. However, IELHC does not establish how this report differs from any of the earlier reports showing large debts owing to HLDIGA. Furthermore, even if IELHC's assertions regarding HLDIGA were correct, there is no authority establishing that a claim accrues only when the debtor becomes solvent.
H. Shareholder Status
Although the liquidation court noted that IELHC's claims were untimely, it ultimately decided the case on the merits of IELHC's argument. The court concluded that IELHC was not a shareholder of IEL, and thus it had no ground for asserting claims against IEL's estate. It stated:
IELHC is not the legal or equitable shareholder of IEL.
... IELHC voluntarily relinquished its shares as part of the Settlement Agreement approved by this Court. The record affirmatively demonstrates that IELHC has no current interest in IEL's estate and is not entitled to a distribution from the IEL estate as a shareholder of IEL. IELHC does not have any current legal or equitable interest in IEL's stock and IELHC was not wrongfully deprived of its shares.
In the section of its brief entitled "Statement of the Points on Appeal," IELHC states that these conclusions of law are in error because "they incorrectly decided the ownership and disposition of Appellant's shares of stock of IEL." However, in the argument section of its brief, IELHC presents no arguments to refute the liquidation court's conclusion that IELHC is no longer a shareholder of IEL. Under the Hawai‘i Rules of Appellate Procedure, if an appellant does not argue a point of error, the court may consider it waived. HRAP Rule 28(b)(7) (2010) ("Points not argued may be deemed waived."). Because IELHC does not argue that the liquidation court erred in concluding that it was not a shareholder of IEL, we may consider this issue waived. Furthermore, because IELHC's claim was untimely, there was not a need for the liquidation court to reach the question of IELHC's shareholder status. We may therefore affirm the liquidation court's order denying IELHC's claim, without reviewing the liquidation court's determination that IELHC no longer holds shares in IEL. See Del Monte Fresh Produce
In the section of IELHC's opening brief concerning due process violations, IELHC includes a list of material facts in dispute as evidence of why summary adjudication procedures were inappropriate. IELHC lists the ownership of IEL's stock as one of these facts in dispute. IELHC states that its claim to IEL's stock is based upon its interpretation of HRS § 431:5–101, which it claims the Liquidator did not comply with in cancelling IELHC's shares and issuing new shares to be held in trust for HLDIGA. See also supra note 21 (quoting HRS § 431:5–101 ). This short discussion of the ownership of IEL's stock is not an argument in support of IELHC's ownership of the shares, but rather a summary of a fact in dispute.
[135 Hawai'i 76]
(Haw.), Inc. v. Int'l Longshore & Warehouse Union, Local 142, 128 Hawai‘i 289, 304, 287 P.3d 190, 205 (2012) ("[T]his court can affirm the decision of a lower tribunal on any ground appearing in the record.").
V. CONCLUSION
For the reasons stated above, we affirm the circuit court's order granting the Liquidator's motion for an order confirming the Liquidator's determination of a disputed claim.
I. Introduction
Of fundamental importance in this case is the distinction between ownership of an insurer, represented by title to company stock, and ownership of the insurer's assets, i.e. the insurer's estate. Stock that represents ownership of an insurer is not part of the insurer's estate. The two letters central to this case, from Appellant Investors Equity Life Holding Company's (IELHC) to the Hawai‘i Insurance Commissioner, appointed by the circuit court as liquidator (Liquidator), present only an assertion of title in Investors Equity Life Insurance Company of Hawaii, Ltd.'s (IEL) stock and suggest that a consequence of such title would be an entitlement to any remaining surplus following distribution to all claimants and creditors, i.e. the residual surplus of IEL's estate.
The majority correctly determines that IEL's stock is not part of IEL's estate, and thus IELHC's assertion of title in IEL's stock did not constitute an independent claim against IEL's estate. Majority at 68, 346 P.3d at 137. Further, I assume for the purpose of discussion that the majority correctly determines that the Liquidator has authority to accept and determine a claim in "substantial" compliance with proof of claim requirements of Hawaii's Insurers Supervision, Rehabilitation and Liquidation Act (ISRLA). However, I respectfully disagree with the majority's holding that IELHC's two letters to the Liquidator and a California lawsuit substantially conformed to the proof of claim requirements, and thus I also disagree with the majority's conclusion that the circuit court, sitting in liquidation proceedings under the ISRLA as the Liquidation Court, did not abuse its discretion in affirming that the two letters and the lawsuit constituted a claim against the estate of IELHC. Majority at 69, 346 P.3d at 138.
I additionally conclude that the Liquidation Court's jurisdiction to make distributions of the estate of an insolvent insurer does not extend to the determination of ownership of assets outside the insolvent insurer's estate. I therefore disagree with the majority's conclusion that the Liquidation Court had subject matter jurisdiction over IELHC's challenge asserting ownership in IEL's stock.
Finally, I disagree with the majority's holding that the Liquidation Court did not abuse its discretion in determining that IELHC's purported "claim" is time barred. Majority at 75, 346 P.3d at 144. The Liquidator's broad discretion to accept late filing of claims depends upon the prejudicial effect of the claim upon "the orderly administration of the liquidation." Hawai‘i Revised Statutes (HRS) §§ 431:15–325(b)(1), (d) (2005). As a stockholder and "claimant" with the lowest possible priority, IELHC's purported "claim" cannot affect the orderly administration of the liquidation process in any conceivable way; therefore, as a matter of law, IELHC should not be time barred from pursuing a claim to the residual estate if it successfully asserts title in IEL's stock.
For these reasons, I would vacate the Liquidation Court's Findings of Fact, Conclusions of Law and Orders entered on October 6, 2010, and remand the case for dismissal.
II. Discussion
A. The Liquidation Court's incorrect determination that IELHC had filed a claim
The majority concludes that under the ISRLA's proof of claim provision, "the liquidator may accept a claim which is in substantial compliance with the proof of claim elements of HRS § 431:15–326."
ISRLA is Article 15, HRS §§ 431:15–101 to 431:15–411 of the Insurance Code. HRS § 431:15–101(a) (2005). The Proof of Claim section of the ISRLA provides as follows:
(a) Proof of claim shall consist of a statement signed by the claimant that includes all of the following that are applicable:
(1) The particulars of the claim including the consideration given for it;
(2) The identity and amount of the security on the claim;
(3) The payments made on the debt, if any;
(4) That the sum claimed is justly owing and that there is no setoff, counterclaim, or defense to the claim;
(5) Any right of priority of payment or other specific right asserted by the claimant;
(6) A copy of the written instrument which is the foundation of the claim; and
(7) The name and address of the claimant and the attorney who represents the claimant, if any.
(b) No claim need be considered or allowed if it does not contain all the information in subsection (a) which may be applicable. The liquidator may require that a prescribed form be used, and may require that other information and documents be included.
HRS § 431:15–326 (2005). Thus, counting the requirement of the signature of the claimant included in (a) and noting that (a)(7) calls for the name and address of both the claimant and the attorney, subsection (a) has nine potentially applicable elements needed to prove a claim.
[135 Hawai'i 77] Majority at 67, 346 P.3d at 136. Under the majority's analysis, the first step in the Liquidator's adjudication of a claim is to determine whether the claim is in compliance with HRS § 431:15–326(a) (2005). If it is, the Liquidator can either accept the claim, or follow the disputed claim provision to deny the claim. See HRS § 431:15–329 (2005). If the claim is not in compliance, but manifests an intention to file a claim against the estate, the Liquidator must determine whether the communication substantially complies with the proof of claim provision. Majority at 67, 346 P.3d at 136. The majority's analysis, however, would appear to allow the Liquidator to label nearly any communication regarding title to stock in an insolvent insurer as an asserted claim. This implication is an unwarranted expansion of the Liquidator's statutory authority.
1. Transformation of communications into claims
Despite the large number of states (at least twenty-six) that have adopted insurance insolvency provisions that are substantially similar to the ISRLA, this case "is particularly unusual because IELHC attests that its communications did not constitute a claim." Majority at 62, 346 P.3d at 131. The majority acknowledges, "Courts in other states have occasionally considered whether a purported claim met the state's statutory proof of claim requirements, but in all of those cases the purported claimant argued that their communications did constitute a claim." Majority at 63, 346 P.3d at 132. Thus, in light of IELHC's disavowal, there is no precedent for the majority's holding that the letters from IELHC constitute a claim on the estate of IEL.
See Colo.Rev.Stat. Ann. § 10–3–504(2) ; Conn. Gen.Stat. Ann. § 38a–906(b) ; D.C.Code Ann. § 31–1303(b) ; Ga.Code Ann. § 33–37–4(b) ; Idaho Code § 41–3304(2) ; Ind.Code Ann. § 27–9–1–3(b)(2) ; Iowa Code Ann. § 507C.4.2; Kan. Stat. Ann. § 40–3608(b) ; Ky.Rev.Stat. Ann. § 304.33–040(3)(a) ; Me.Rev.Stat. tit. 24–A, § 4354.4; Mich. Comp. Laws Ann. § 500.8104(2) ; Minn.Stat. Ann. § 60B.04 (Subdivision 3 ); Miss.Code Ann. § 83–24–9(2) ; Mo. Ann. Stat. § 375.1154.2 ; Mont.Code Ann. § 33–2–1305(2) ; Neb.Rev.Stat. § 44–4804(2) ; N.J. Stat. Ann. § 17B:32–34(b) ; Nev.Rev.Stat. Ann. 696B.190.4; N.H.Rev.Stat. Ann. § 402–C:4.III; N.C. Gen.Stat. § 58–30–15(b) ; N.D. Cent.Code Ann. § 26.1–06.1–04(b); Ohio Rev.Code Ann. § 3903.04(B) ; R.I. Gen. Laws § 27–14.3–4(b) ; S.C.Code Ann. § 38–27–60(3)(b) ; Tenn.Code Ann. § 56–9–104(b) ; Vt. Stat. Ann. tit. 8, § 7032(b) ; Wash. Rev.Code Ann. § 48.31.111 ; Wis. Stat. Ann. § 645.04(3).
A party has every right not to file a claim. When it is the claim itself that gives the Liquidator jurisdiction, the Liquidator should not assume jurisdiction by transforming assertions of ownership of the insurer into claims. Thus, the Liquidator does not have authority to transform a communication that does not substantially comply with the requirements of HRS § 431:15–326 into a "claim" and to then deny the "claim."
2. IELHC's letters failure to substantially conform to HRS § 431:15–326
Even if the Liquidator had authority to determine that a communication that did not manifest intent to assert a claim could in fact constitute a claim, the letters from IELHC did not substantially conform to the proof of claim requirements. On April 23, 2008,
[135 Hawai'i 78] IELHC wrote a letter to the Liquidator (First Letter).
The First Letter states, in full:
Please be advised that my firm and I have been retained to represent Investors Equity Life Holding Company (hereinafter, "Holding Company") in connection with the recovery of stock of Investors Equity Life Insurance Company of Hawaii, Ltd. (hereinafter, "IEL").
Recently in 2008, it has come to the attention of the Holding Company that the financial statement filed on February 27, 2008 as the "Liquidator's Interim Report on the Status of Assets" of IEL materially misstates and misrepresents the financial condition of IEL's estate in liquidation. Rather than the deficit of $13,728,856 shown on the balance sheet in that report, IEL's estate in fact has a surplus of at least $21,514,556. (The financial statement is subject to an accounting.)
Any taking by the Insurance Commissioner of the State of Hawaii of the stock, or attempt at such taking, in 1994 was not in accordance with the statute authorizing forfeiture of an insurer's stock in the event its shareholder does not cure a capital impairment, as set forth in section 431:5–101 of Hawai‘i Revised Statutes. Moreover, any disposition of the stock or the issuance of the new stock to the Hawai‘i Life and Disability Insurance guaranty Association, to a trust for the guaranty association's benefit, or to any person other than the Holding Company as an equitable or legal owner of such stock would be a further taking without just compensation and ultra vires acts beyond the statutory authority of the Insurance Commissioner, whether in the capacity of statutory liquidator or regulator, and beyond the authority of the guaranty association as well.
Such takings constitute inter alia takings without just compensation and denial of due process in violation of the Constitutions of the United States, the State of Hawai‘i, and the State of California. As a result, the Holding Company has at present equitable title, legal title, or both to IEL's stock or to new stock, if any, issued by IEL's estate after the insolvency proceedings were commenced.
Furthermore, the claims of policy holders, claimants, creditors, and other senior to the Holding Company in the statutory priority of distribution under section 431:15–332 of the Hawai‘i Revised Statutes have apparently been fully paid, liquidated, or otherwise protected. As a matter of equity and public policy, the Holding Company as shareholder, or legal or equitable owner, of the stock of IEL should receive distribution of the remaining surplus of the estate. Any escheat of such remaining surplus to the State of Hawai‘i, and agency thereof, or the general fund would constitute a further constitutional taking, and an illegal tax as well. See, Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005) ; Hawaii Insurers Council v. Lingle, 117 Hawai‘i 454, 184 P.3d 769 (Haw.App.2008).
Therefore, it is respectfully demanded that the Honorable J.P. Schmidt, Insurance Commissioner of the State of Hawai‘i deliver the Holding Company all authorized, issued, and outstanding shares of stock of IEL, and any certificates representing said shares.
Please contact me to discuss this matter further, and to arrange a meeting with you and the Commissioner Schmidt at a convenient time and place.
(Emphases added).
The First Letter begins by declaring an intent to "recover[ ]" IEL stock and gives the reason a shareholder would want the stock of a liquidated company: IELHC believed that the estate of IEL contained significant value. The next two paragraphs present arguments that the Liquidator's seizure of IEL stock was contrary to law. In the fifth paragraph, the First Letter states an assumption that Classes 1–8 claimants have been fully paid or protected. The First Letter then announces a statement of legal and public policy:
The question of whether the seizure was contrary to law is not before this court.
As a matter of equity and public policy, the Holding Company as shareholder, or legal or equitable owner, of the stock of IEL should receive distribution of the remaining surplus of the estate. Any escheat of such remaining surplus to the State of Hawai‘i, and agency thereof, or the general fund would constitute a further constitutional taking, and an illegal tax as well.
(Emphasis added). Thus, the First Letter articulates a general policy, allegedly in accordance with the United States and the Hawai‘i Constitutions, that shareholders or equitable owners "should" receive any residual surplus after all creditors have been satisfied.
The majority takes this statement from the First Letter out of context, describing the statement as "IELHC's argument in the letter that it ‘should receive distribution of the remaining surplus of the estate." ’ Majority at 67 n. 32, 346 P.3d at 136 n. 32. The majority does not discuss the prefatory clause that introduces this statement as a characterization of public policy.
IELHC's characterization of the public policy in regard to a residual surplus of an insolvent insurer's estate is in accord with the ISRLA. The Act provides for distribution
[135 Hawai'i 79] of claims according to class. HRS § 431:15–332(9) (2005). The lowest priority class, Class 9, is "the claims of shareholders or other owners." Id. Every other class of claimant must be paid in full or adequate funds retained for the payment before Class 9 claims receive any payment. Id. The ISRLA also states the following:
HRS § 431:15–332 provides in relevant part:
The priority of distribution of claims from the insurer's estate shall be in accordance with the order in which each class of claims is herein set forth. Every claim in each class shall be paid in full or adequate funds retained for the payment before the members of the next class receive any payment. No subclasses shall be established within any class. The order of distribution of claims shall be:
(1) Class 1. The costs and expenses of administration....
(2) Class 2. All claims under policies for losses incurred, including third party claims....
(3) Class 3. Claims of the federal government.
(4) Class 4. Debts due to employees for services performed....
(5) Class 5. Claims of general creditors.
(6) Class 6. Claims of any state or local government....
(7) Class 7. Claims filed late or any other claims other than claims under paragraphs (8) and (9).
(8) Class 8. Surplus or contribution notes, or similar obligations, and premium refunds on assessable policies....
(9) Class 9. The claims of shareholders or other owners.
(Emphases added).
All unclaimed funds subject to distribution remaining in the liquidateor's hands when the liquidator is ready to apply to the court for discharge, including the amount distributable to any creditor, shareholder, member, or other person who is unknown or cannot be found, shall be deposited with the director of finance, and shall be paid without interest except in accordance with section 431:15–332 to the person entitled thereto or the person's legal representative upon proof satisfactory to the director of finance of the person's right thereto.
HRS § 431:15–335(a) (2005) (emphases added). Thus, taking HRS § 431:15–332's lowest priority class of claimants, consisting of shareholders or other owners, together with HRS § 431:15–335's express requirement to hold funds subject to discharge for shareholders, including shareholders or owners that are "unknown or cannot be found," there is an inherent mandate that the unclaimed funds, if any, of a liquidated insurance organization should be returned to the owners or shareholders of the liquidated company.
That subsection provides in full:
All unclaimed funds subject to distribution remaining in the liquidator's hands when the liquidator is ready to apply to the court for discharge, including the amount distributable to any creditor, shareholder, member, or other person who is unknown or cannot be found, shall be deposited with the director of finance, and shall be paid without interest except in accordance with section 431:15–332 to the person entitled thereto or the person's legal representative upon proof satisfactory to the director of finance of the person's right thereto. Any amount on deposit not claimed within six years from the discharge of the liquidator shall be deemed to have been abandoned and shall be escheated without formal escheat proceedings and be deposited with the general fund.
HRS § 431:15–335(a).
Returning to the First Letter, the operative paragraph demands all outstanding shares of IEL:
Therefore, it is respectfully demanded that the Honorable J.P. Schmidt, Insurance Commissioner of the State of Hawai‘i deliver [IELHC] all authorized, issued, and outstanding shares of stock of IEL and any certificates representing said shares.
As the express demand of the First Letter, this operative paragraph should be given controlling weight. Thus, the only demand that can be discerned from the First Letter is for the remaining IEL shares. However, company stock is not a part of the estate; thus, a demand for stock is not a claim against the estate of IEL.
That a demand for stock is not a claim against an estate of insurer is made clear by the majority in its discussion of a second letter from IELHC to the Liquidator on July 2, 2008 (the Second Letter). The majority observes that the Second Letter supplements the First Letter's arguments in support of IEHLC's ownership of IEL's stock and does not contain a specific claim against IEL's estate. Majority at 68, 346 P.3d at 137. The majority then makes it clear that a demand for stock is not a claim against the estate:
[135 Hawai'i 80] "IELHC's assertion of title in IEL Stock was not a claim against IEL's estate because IEL's stock was not part of the estate." Majority at 68–69, 346 P.3d at 137–38. Thus, neither the First Letter nor the Second Letter asserts a claim upon the estate of IEL by way of its assertion of title in IEL's stock.
Further, an assertion of ownership and a claim to all shares and the residual estate by a person claiming to be a shareholder or owner is fundamentally different than claims from all other classes of creditors, because it is inherent in such an assertion that all other creditors have been satisfied. See HRS § 431:15–332 ("Every claim in each class shall be paid in full or adequate funds retained for the payment before the members of the next class receive any payment."); see supra note 1. Protection is no longer needed for "insureds, claimants, and creditors," because, by definition, all distributions have been made to any insured, claimants, or creditors before any distribution is made to owners or shareholders. HRS § 431:15–101(d) (2005) (defining the purpose of the ISRLA to protect insured, claimants and creditors).
"The purpose of [the ISRLA] is the protection of the interests of insureds, claimants, creditors, and the public generally, with minimum interference with the normal prerogatives of the owners and managers of insurers...." HRS § 431:15–101(d). "Absent from the purposes of the [ISRLA] is the protection of the shareholders of the insolvent insurance company." Metcalf v. Investors Equity Life Ins. Co. of Hawai‘i, 80 Hawai‘i 339, 340, 910 P.2d 110, 111 (1996). However, nothing in Metcalf indicates that the rights of shareholders are extinguished by the seizure of an insolvent insurer by the Commissioner acting under the ISRLA.
Once only the residual estate remains, the sole remaining purpose of the ISRLA is "minimum interference with the normal prerogatives of the owners and managers of insurers." Id. Thus, when there are no further "insured, claimants, or creditors," it plainly contradicts the purpose of the ISRLA to interfere with the normal prerogatives of owners. It follows that any determination by the Liquidator that a communication does or does not amount to a claim must comport with the intent of the ISRLA to protect "the interests of insureds, claimants, creditors, and the public generally, with minimum interference with the normal prerogatives of the owners and managers of insurers." Id.
The majority's conclusion that IELHC asserted a claim rests on its analysis of the First Letter in conjunction with its interpretation of HRS § 431:15–326. In particular, the majority's conclusion rests on its determination that the First Letter satisfies just three of nine requirements under HRS § 431:15–326(a). See supra note 1.
The majority finds that the Second Letter "was insufficient to assert a claim independently." Majority at 68, 346 P.3d at 137. In regard to the California lawsuit, the majority finds that "it is unnecessary to determine whether the California lawsuit was the substantial equivalent of a proof of claim such that it would trigger the Liquidator's adjudication, because the first letter alone sufficiently satisfied the HRS § 431:15–326 proof of claim requirements." Majority at 69, 346 P.3d at 138 (emphasis added).
In regard to the unsatisfied elements, the majority acknowledges the First Letter was not signed by the "claimant," did not provide the address of the "claimant," did not provide a "copy of the written instrument which is the foundation of the claim," and did not state that the "sum claimed was justly owed." Majority at 68, 346 P.3d at 137; see HRS § 431:15–326(a), (a)(4), (a)(6), (a)(7). Thus, the majority concedes that four of the nine elements of HRS § 431:15–326 were not satisfied.
The majority also notes that the First Letter did not identify the security for the "claim" and did not state any "payments made on the debt." Majority at 67, 346 P.3d at 136. The majority reasons, "Because there was no security on the claim and there were no payments on the debt, those proof of claim elements are inapplicable." Majority at 68, 346 P.3d at 137; see HRS § 431:15–326(a)(2) and (a)(3). However, the majority appears to overlook the fact that there was no security on the "claim" and no payments on the "debt" because there was no indebtedness by IEL to IELHC on which IEL could have made "payments" or on which IELHC could have asserted a security interest; the majority seems to envision that a claimant could legitimately assert a claim against the
[135 Hawai'i 81] estate of a liquidated insurer without an antecedent debt. Simply concluding these elements are "inapplicable" discounts the fundamental difference between stock ownership and a debt. Equitable ownership of a company is fundamentally distinct from a secured claim: stock is not a debt and nothing is "owed" to the owner on account of an equitable stake. The fact that the elements indicated by HRS § 431:15–326(a)(2) and (a)(3) are missing from the First Letter signals that the assertion made by the First Letter is one of equitable ownership and not a claim against the estate. Thus, the majority does not dispute that six of the nine elements of HRS § 431:15–326 are not satisfied, although the majority would qualify that deficiency by contending that two elements are "inapplicable."
Of course, an equitable owner of a company may, under certain conditions, have claims against that company. See Majority at 68 n. 33, 346 P.3d at 137 n. 33 ("The Dissent seems to imply that shareholders and owners, by definition, cannot assert claims against an estate under ISRLA."). However, an assertion that "I own that" is legally distinct from an assertion that "I am owed that."
The majority asserts that the letter "was signed by the claimant's attorney," majority at 68, 346 P.3d at 137, in apparent partial satisfaction of the requirement that the proof of claim shall include "the name and address of the claimant and the attorney who represents the claimant, if any." HRS § 431:15–326(a)(7). The letter, of course, also included the address of IELHC's counsel. However, the name and address of counsel is fully unremarkable as they are expected features of any legal communication. Thus, the partial satisfaction of this element does not substantively indicate that a claim has been made on the estate.
Ultimately, the majority's conclusion rests on its determination that the First Letter provides the "particulars of the claim including the consideration given for it," and the First Letter states a "right of priority of payment or specific right asserted by the claimant." Majority at 67, 346 P.3d at 136; see HRS § 431:15–326(a)(1), (5).
In regard to the "particulars of the claim," the majority states that "IELHC sought ‘distribution of the remaining surplus of the estate.’ " Majority at 67, 346 P.3d at 136 (emphasis added) (quoting First Letter). This misapprehends the First Letter as seeking distribution of IEL's surplus based on its status as IEL's sole shareholder. The First Letter actually reads, "As a matter of equity and public policy, the Holding Company as shareholder, or legal or equitable owner, of the stock of IEL should receive distribution of the remaining surplus of the estate." (Emphasis added). Thus, when the quoted language of the majority is read in context with the verb "should" and not "sought," this statement is clearly indicative of a general policy statement and is not a claim.
Further, the "claim" by the First Letter is far from "particular"; rather, the letter refers to the "remaining surplus" and "all authorized, issued, and outstanding shares of IEL," but does not identify a sum certain owed to IELHC or specifically identify assets in which IELHC purportedly asserted its claim. Additionally, there is no discussion of consideration in the First Letter. Thus, the First Letter's identification of the "particulars of the claim" and "the consideration given for it" are insufficient to establish a claim.
The majority also states that "the [First Letter] specified IELHC's priority of payment by specifying that IELHC's claim was based on its status as a shareholder," in order to find that the letter satisfied HRS § 431:15–326(a)(5). Majority at 67, 346 P.3d at 136. However, establishing IELHC's status as shareholder is a necessary prerequisite for its demand for delivery of stock; stock that IELHC asserts it owns. A demand for shares to be delivered is not a claim on the estate, majority at 68–69, 346 P.3d at 137–38; therefore, an assertion of shareholder status cannot establish that a claim has been made. Further, an assertion of ownership rights in a residual estate or the shares of IEL is not a statement of "any right of priority of payment or specific right asserted by the claimant," HRS § 431:15–326(a)(5), because an owner or shareholder has, by definition, no priority whatsoever.
[135 Hawai'i 82] All other possible claimants have higher priority, and an assertion of ownership of an estate is not a claim against the estate. HRS § 431:15–332 ; see supra note 6.
Thus, out of nine elements of HRS § 431:15–326, only one has been partially satisfied. The majority does not dispute that six elements were not satisfied, and its analysis of two elements is flawed as the First Letter does not include "particulars of the claim" or "the consideration given for it"; further, the letter's statement of a "right of priority of payment" is at least as much in accordance with its status as shareholder as it is with IEL's alleged status as claimant. Taken together, the conclusion of the majority that "The Liquidator was able to identify who submitted the claim, the amount of the claim, and the grounds of the claim," majority at 68, 346 P.3d at 137, is unpersuasive.
The majority's determination that the First Letter constitutes a claim on the estate of IEL, majority at 66–68, 346 P.3d at 135–37, does not discuss or evaluate the express demand made in the operative paragraph of the First Letter. The majority's analysis does not indicate why it seemingly discounts this paragraph or why the implied intent supplied to the First Letter by the majority should prevail over its expressed intent.
The majority also points to references within the First Letter to "the estate" of IEL to conclude the following: "a reading of the letter such that it is understood to assert rights to both assets within the estate and IEL stock appears most accurate and persuasive." Majority at 67 n. 32, 346 P.3d at 136 n. 32. However, the majority gives a meaning to the First Letter's use of the term "estate" that the letter did not intend. For instance, the majority suggests that the First Letter's concern that the Liquidator misrepresented IEL's financial condition "reveal[s] a clear intent to assert rights to assets within the estate." Id. (emphasis added).
While HRS Chapter 431, Article 15 does not define "estate," see HRS § 431:15–103 (2005), it does use the term seventeen times. In each instance, the term "estate" refers, in general, to the total assets of the insurer; that is, "[t]he amount, degree, nature, and quality of a person's interest in land or other property." Black's Law Dictionary 664 (10th ed. 2014). Thus, the term "estate" as it is used in the ISRLA refers generally to a body of property defined by common ownership. The First Letter's use of "estate," particularly in respect to its concern that IEL was significantly undervalued by the Liquidator, was consistent with the ISRLA's use of the term. Therefore, the majority's reliance upon the term "estate" from the First Letter to infer the existence of a claim by the IELHC is inconsistent with the use and meaning of this term throughout the ISRLA.
For instance, see HRS § 431:15–332 ("The priority of distribution of claims from the insurer's estate ...."); see also HRS §§ 431:15–304(a) (2005), 431:15–305(a) (2005), 431:15–305(b), 431:15–307(b) (2005), 431:15–310(a)(8) (2005), 431:15–313(a) (2005), 431:15–313(b), 431:15–315(a) (2005), 431:15–317(a)(3) (2005), 431:15–317(f), 431:15–317(i), 431:15–317(j), 431:15–321 (2005), 431:15–330 (2005).
Further, in the context of this case, construing the use of "estate" in the First Letter to infer that a claim has been made is contrary to the purpose of the ISRLA to act with "minimum interference with the normal prerogatives of the owners and managers of insurers." HRS § 431:15–101(d). Thus, the majority's overly expansive definition of "estate," used to shoehorn an implied meaning into the First Letter, is contrary to the purposes of the ISRLA.
Thus, the decision of the Liquidation Court that the First and Second Letters and the California Lawsuit, taken together, constituted a claim against the estate of IEL was incorrect. [135 Hawai'i 83]
The majority holds that the Liquidation Court's equitable distribution of assets and apportionment of losses should be reviewed under the abuse of discretion standard, and that the court's decisions regarding questions of law must be reviewed de novo. Majority at 62, 346 P.3d at 131. As evidenced by the majority's statutory interpretation and analysis of case law, a determination of whether or not a communication amounts to a claim against an estate is a question of law. Thus, a de novo right/wrong standard is the appropriate standard to review a determination of whether a communication amounts to a claim.
B. Limited jurisdiction of the Liquidation Court
The jurisdiction of the Liquidation Court is defined in the negative:
No court of this State has jurisdiction to entertain, hear or determine any complaint praying for the dissolution, liquidation, rehabilitation, sequestration, conservation, or receivership of any insurer, or praying for an injunction or restraining order or other relief preliminary to, incidental to, or relating to that type of proceedings other than in accordance with this article.
HRS § 431:15–104(c) (2005)(emphasis added). Thus, no court has any jurisdiction to hear any matter related to the dissolution, liquidation, etc., of any insurer, except in accordance with the ISRLA. The Liquidation Court's jurisdiction is thus limited by the ISRLA.
While not precisely articulated, IEL raised the issue of its purported stock ownership and implied that a determination of ownership was beyond the power of the Liquidator and thus beyond the jurisdiction of the Liquidation Court.
Further, an appellate court has a duty to address this question because "the lack of jurisdiction over the subject matter cannot be waived by the parties. If the parties do not raise the issue, a court sua sponte will, for unless jurisdiction of the court over the subject matter exists, any judgment rendered is invalid." Chun v. Employees' Ret. Sys. of the State of Hawai‘i, 73 Haw. 9, 14, 828 P.2d 260, 263 (1992) (citation and internal quotation marks omitted).
As a court of limited jurisdiction, the Liquidation Court's subject matter jurisdiction involves two main functions. First, the Liquidation Court grants the order initiating proceedings for liquidation or rehabilitation of an insurer. HRS § 431:15–307(a) (2005). Second, once the order of liquidation is granted, the Liquidation Court retains "general supervision." Id. The purpose of the court's supervision is the "marshaling and preserving the assets [of the insolvent insurance company's estate] and then distributing them to the proper claimants. It is not for the purpose of depriving a claimant of any rights." In re Guardian Cas. Co., 161 Misc. 859, 293 N.Y.S. 142, 145 (N.Y.Sup.Ct.1937).
As part of its purpose of general supervision, the Liquidation Court also adjudicates disputed claims. The Liquidator may deny claims. HRS § 431:15–329(a). When the Liquidator denies a claim and the claimant objects to the Liquidator's denial, "the liquidator shall ask the court for a hearing as soon as practicable." Id. "The matter may be heard by the court or by a court-appointed referee who shall submit findings of fact along with such referee's recommendations." Id.
Thus, the legislature restricted the Liquidation Court's authority to make or adjudicate distributions (i) of claims against the insurer's estate and (ii) in the priority provided by that statute. HRS § 431:15–332 ("The priority of distribution of claims from the insurer's estate shall be in accordance with the order in which each class of claims is herein set forth.") (emphasis added). However, making distribution of claims from the estate, pursuant to HRS § 431:15–332, and determining ownership of the insurer's estate are independent, unrelated processes. There is no statutory conduit for an assertion of ownership to be heard by the Liquidation Court as there is for disputed claims.
Further, there is no grant of jurisdiction to the court to (i) determine matters unrelated to the "dissolution, liquidation, rehabilitation, sequestration, conservation, or receivership of any insurer" or (ii) grant "an injunction or restraining order or other relief" that is not "preliminary to, incidental to, or relating to" such dissolution, liquidation, rehabilitation, sequestration, conservation, or receivership. See HRS §§ 431:15–104(c). Thus, the Liquidation Court does not have jurisdiction to resolve a claim of ownership of assets not in the estate of an insurer under the supervision of the court.
An analogous procedure to address the issue of a party alleging ownership in the insurer and asserting a resulting entitlement in the insurer's residual estate is the approach of the ISRLA's special claims and third party claim provision.
An ownership determination as to the residual surplus is in fact simpler than the third party claim exception for two reasons. First, it does not involve assessment of the residual estate's potential liability/exposure to the claim because it is, by definition, the final priority. HRS § 431:15–332(9) ; see supra note 6. Furthermore, an assertion of ownership to the insurer's stock or a Class 9 claim in the insurer's residual surplus, as opposed to third party claims, does not directly affect the purpose of the ISRLA to protect "the interests of insureds, other claimants, creditors, and the public," HRS § 431:15–101(d), because by definition all claims by such parties have been paid in full. Thus, the only remaining purpose of ISRLA is to provide "minimum interference with the normal prerogatives of the owners and managers of insurers." Id.
[135 Hawai'i 84] HRS §§ 431:15–327 (2005), 431:15–328 (2005). The ISRLA allows for claims that are contingent upon the adjudication of a claim outside the Liquidation Court: "The claim of a third party which is contingent only on first obtaining a judgment against the insured shall be considered and allowed as if there were no such contingency." HRS § 431:15–327(a). When a third party asserts such a claim, the Liquidator must assess the value of the potential claim against the estate, report it to the Liquidation Court, and withhold appropriate funds to cover a potential future judgment against the insured. HRS § 431:15–328(c). However, it is clear that the Liquidation Court lacks subject matter jurisdiction over third party claims against the insured because the statute also provides that "the liquidator shall withhold any dividends payable on the claim, pending the outcome of litigation." Id. (emphasis added).
Further, denying the alleged owner the right to pursue an assertion of ownership in a proper forum conflicts with the purpose of ISRLA. The purpose of the ISRLA, which "shall be liberally construed," is to protect "the interests of insureds, claimants, creditors, and the public generally, with minimum interference with the normal prerogatives of the owners and managers of insurers." HRS § 431:15–101(c) – (d) (emphasis added). Thus, although owners and shareholders of the insurer are absent from the list of protected interests in insolvency proceedings, the Liquidator must mitigate any adverse effect on owners when administering these proceedings. See supra note 8.
The term "owners" in HRS § 431:15–101(d) incorporates "shareholders." Class 9 claimants are defined as "shareholders or other owners." HRS § 431:15–332(9) (emphasis added). The legislative use of "or" instead of "and" is indicative of the legislative intent to place these claimants on equal footing under the ISRLA.
As noted, shareholders and owners are the lowest priority claimants, before whom all other claimants must be paid in full. HRS § 431:15–332(9). However, any surplus should be paid to a legitimate recipient. "All unclaimed funds subject to distribution remaining in the liquidator's hands when the liquidator is ready to apply to the court for discharge, including the amount distributable to any ... shareholder ... or other person who is unknown or cannot be found ... shall be paid ... to the person entitled ...." HRS § 431:15–335(a) (emphasis added). Thus, even when claims have not been submitted by the owner or shareholder, if there are remaining funds in the estate after the claims of Classes 1–8 have been satisfied or accounted for, the Class 9 claimants (allegedly such as IELHC) are "entitled" to the surplus funds. A determination of ownership in the insurer is therefore dispositive as to an entitlement to the residual surplus of the insurer's estate; a concomitant prerogative of ownership is minimal interference by the Liquidator, especially when the interests of insured, claimants, and creditors have been satisfied.
See supra note 7.
Further, the Liquidator may have a duty to attempt to locate potential Class 9 claimants before the insurer's residual estate can be escheated to the state.
The Liquidation Court's lack of jurisdiction to determine the validity of an assertion of ownership to stock of an insolvent insurer is supported by federal bankruptcy law.
1. Federal bankruptcy law "related to" tests
The ISRLA provides "related to" jurisdiction.
No court of this State has jurisdiction to entertain, hear or determine any complaint praying for the dissolution, liquidation, rehabilitation, sequestration, conservation, or receivership of any insurer, or praying for an injunction or restraining order or other
[135 Hawai'i 85]
relief preliminary to, incidental to, or relating to that type of proceedings other than in accordance with this article.
HRS § 431:15–104(c) (emphasis added). Based on federal bankruptcy law, which is analogous to insurance insolvency proceedings and can be used for guidance, a determination of ownership rights or status in the residual estate is not "related to" a claim against an insolvent insurance company subject to insolvency proceedings. See Garamendi v. Exec. Life Ins. Co., 17 Cal.App.4th 504, 21 Cal.Rptr.2d 578, 585 (1993) ("[I]nsolvency proceedings respecting [an insurer] are analogous to proceedings in bankruptcy. We thus look to federal bankruptcy law for guidance.").
Under federal bankruptcy law, district courts "have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11." 28 U.S.C.A. § 1334(b) (emphasis added). Federal bankruptcy courts have developed two different yet similar tests to determine the scope of "related to" insolvency proceedings: the Seventh Circuit test, and a test from Pacor Inc. v. Higgins, 743 F.2d 984 (3rd Cir.1984) that has been adopted by all other federal jurisdictions.
The Pacor test has been adopted by all circuits except the Seventh Circuit. See In re Cuyahoga Equip. Corp., 980 F.2d 110, 114 (2d Cir.1992) ("The test for determining whether litigation has a significant connection with a pending bankruptcy proceeding is whether its outcome might have any ‘conceivable effect’ on the bankrupt estate"); In re G.S.F. Corp., 938 F.2d 1467, 1475 (1st Cir.1991) ; In re Gardner, 913 F.2d 1515, 1518 (10th Cir.1990) ; In re Lemco Gypsum, Inc., 910 F.2d 784, 788, n. 19 (11th Cir.1990) ; Robinson v. Michigan Consol. Gas Co., 918 F.2d 579, 583–584 (6th Cir.1990) ; In re Wood, 825 F.2d 90, 93 (5th Cir.1987) ; A.H. Robins Co. v. Piccinin, 788 F.2d 994, 1002, n. 11 (4th Cir.1986) ; In re Dogpatch U.S.A. Inc., 810 F.2d 782, 786 (8th Cir.1987) ; In re Fietz, 852 F.2d 455, 457 (9th Cir.1988) ; In re Wood, 825 F.2d 90, 93 (5th Cir.1987).
The Supreme Court cited the Pacor and Seventh Circuit tests and explicitly agreed with the view in Pacor that "related to" jurisdiction "cannot be limitless." Celotex Corp. v. Edwards, 514 U.S. 300, 308, 115 S.Ct. 1493, 131 L.Ed.2d 403 (1995). The Court recognized the two approaches are only "slightly different," and without adopting or stating a preference to either test, observed that "whatever test is used, these cases make clear that bankruptcy courts have no jurisdiction over proceedings that have no effect on the estate of the debtor." Id. at 308 n. 6, 115 S.Ct. 1493 (emphasis added).
a. The Pacor test
Under Pacor, the "related to" bankruptcy proceedings test is "whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy." Pacor, 743 F.2d at 994. "[T]he proceeding need not necessarily be against the debtor or against the debtor's property." Id. An action is "related to" the bankruptcy proceeding "if the outcome could alter the debtor's rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impact the handling and administration of the bankruptcy estate." Id. (emphasis added). Although subject matter jurisdiction is broad under the "related to" formulation, "there must be some nexus between the ‘related’ civil proceeding" and the insolvency proceedings for subject matter jurisdiction to exist. Id. "An action that is merely a precursor to an indemnification claim against a debtor does not establish exclusive ‘related to’ jurisdiction in the bankruptcy court." St. John Med. Ctr. v. State ex rel. Dep't of Soc. & Health Servs., 110 Wash.App. 51, 38 P.3d 383, 389 (2002) (quoting Pacor, 743 F.2d at 995 ) (adopting the Pacor test for insurance insolvency proceedings) (emphasis in original).
St. John Med. Ctr. appears to be the only case that addressed the scope of the Liquidation Court's subject matter jurisdiction, despite the large number of jurisdictions with substantially similar provisions.
Applying the Pacor test to this case, and based on the statutory scheme in HRS §§ 431:15–332 and 431:15–335 discussed above, it is clear that any action that determines ownership in the insurer has no conceivable effect on the insurer's estate because the outcome of such an action has no effect on the insurer's rights, liabilities, options,
[135 Hawai'i 86] or freedom of action, and it does not impact in any way on the handling and administration of the insurer's estate. Thus, under the Pacor test, the Liquidation Court lacked subject matter jurisdiction to determine IELHC's assertion of title in IEL's stock as a matter "related to" a claim.
b. The Seventh Circuit test
The Seventh Circuit "related to" bankruptcy proceedings test is whether the dispute "affects the amount of property for distribution [i.e., the debtor's estate] or the allocation of property among creditors." Matter of Mem'l Estates, Inc., 950 F.2d 1364, 1368 (7th Cir.1991) (alteration in original) (emphases added) (quoting In re Xonics, Inc., 813 F.2d 127, 131 (7th Cir.1987) ).
The Seventh Circuit test is narrower than the Pacor test. Applying it to this case, it is clear that a determination of ownership in the insurer has no effect on the amount of property for distribution from the insurer's estate, nor does it affect the allocation of property among creditors. Thus, also under this test, the Liquidation Court lacked subject matter jurisdiction to determine IELHC's assertion of title in IEL's stock as a related matter to a claim.
Thus, applying the Pacor or the Seventh Circuit test supports a finding that the Liquidation Court did not have jurisdiction to determine the validity of an assertion of ownership in the insurer.
2. Lack of jurisdiction of the Liquidation Court over IELHC's assertion of title in IEL stock
In summary, the legislature did not grant the Liquidation Court original subject matter jurisdiction to determine ownership rights in assets outside an insurer's estate, nor has it expressly extended the court's jurisdiction outside any matters "related to" a claim against the insolvent estate. Based on the ISRLA's statutory scheme and analogous federal bankruptcy case law, to even be considered by the Liquidation Court as "related to," any action or remedy sought must have an actual or potential impact upon the insolvent insurer's estate. A determination of ownership in the insurer does not pass this threshold; thus, the Liquidation Court lacked subject matter jurisdiction to determine IELHC's assertion of title in IEL's stock.
The Liquidator's proper course of action should have been to notify the Liquidation Court of IELHC's assertion of title to IEL's stock and resultant entitlement to a residual estate, allow the proper forum to determine the question of IEL's stock ownership, and only if IELHC is found to be the lawful owner of IEL's stock, address any claim by IELHC to IEL's residual surplus in accordance with the priorities provided by HRS § 431:15–332.
This opinion does not express any view with regard to the California Lawsuit as to whether the proper forum is California courts, Hawai‘i courts, or some other forum.
C. No time bar to IELHC's "claim "
The standard of review of the Liquidation Court's decision as to whether a claim that is subject to HRS § 431:15–325's proof of claim provision is time barred is abuse of discretion, majority at 62, 346 P.3d at 139, which "occurs where the trial court has clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant." Ranger Ins. Co. v. Hinshaw, 103 Hawai‘i 26, 30, 79 P.3d 119, 123 (2003).
The ISRLA allows late filing of claims.
The liquidator may permit a claimant making a late filing to share in distributions, whether past or future, as if the claimant were not late, to the extent that any such payment will not prejudice the orderly administration of the liquidation ....
HRS § 431:15–325(b) (emphasis added). As is relevant in this case, the Liquidator is permitted discretion under circumstances in which the "existence of the claim was not known to the claimant and that the claimant filed such claim as promptly as reasonably possible after learning of it." HRS § 431:15–325(b)(1). However, even when the claimant knew of the existence of the claim, a late claim may be considered by the Liquidator.[135 Hawai'i 87]
The liquidator may consider any claim filed late which is not covered by subsection (b), and permit it to receive distributions which are subsequently declared on any claims of the same or lower priority if the payment does not prejudice the orderly administration of the liquidation.
HRS § 431:15–325(d). Thus, the Liquidator's discretion to permit late filing is only restricted to ensuring the "orderly administration of the liquidation." HRS § 431:15–326(b), (d).
The Liquidation Court clearly abused its discretion by determining IELHC's claim is time barred. First, the claims of shareholders or owners are only distributed by the Liquidator after all other claims to the estate are paid in full. There is no conceivable effect to the insolvent insurer's estate by claims of shareholders or owners to a residual surplus; consequently, IELHC's "claim" cannot affect the orderly administration of the liquidation proceedings pursuant to HRS § 431:15–325, subsections (b)(1) or (d).
Second, the majority acknowledges that IELHC's assertion of title in IEL's stock did not constitute a claim against IEL's estate, majority at 68–69, 346 P.3d at 149–50, yet it concludes that "IELHC should have been aware of its status and its resultant shareholder claim against IEL's estate in 1996. Instead, IELHC waited another eleven years before asserting its claim." Majority at 75, 346 P.3d at 144. This argument is flawed because even if IELHC had actual or constructive knowledge to raise the issue of title to IEL stock, a determination of ownership of an insolvent insurer is not a matter within the parameters of the ISRLA. Thus, an assertion of title to stock in IEL would not have been subject to the proof of claim provision under HRS § 431:15–326 nor to any time limit under § 431:15–311 or § 431:15–325(b)(1). Further, assuming IELHC had actual knowledge of its purported ownership of IEL stock and considered disputing the issue of stock ownership long before 2008, in the absence of a reasonable expectation to collect a residual surplus in the estate after Classes 1–8 had been satisfied, IELHC had little incentive to justify the cost of litigation to pursue a contingent, asserted right.
Third, by law, a legitimate owner of stock is entitled to that interest after all other claims are resolved and there is a residual surplus. HRS § 431:15–335(a) ("All unclaimed funds subject ... shall be paid ... to the person entitled thereto...."). The Liquidator arguably has a duty to act in the interests of persons who have an interest in the residual surplus, even absent a claim filed by such persons. Id.; see supra pp. 55–56, 346 P.3d at 124–25. Consequently, it is a violation of the Liquidator's statutory duty to fail to distribute a residual surplus to an entitled person when such distribution is possible; further, as it is a substantial detriment to the owners or shareholders to be denied their entitlement, it is thus an abuse of the court's discretion to affirm such denial.
Fourth, the general purpose of the ISRLA is to minimally interfere with the interests of owners or stockholders, once the interests of insureds, claimants, creditors and the public generally are protected. HRS § 431:15–101(d) ; see supra pp. 60–61, 346 P.3d at 129–30. Denial of a "claim" to title in stock of an insolvent insurer—when the interests of all of the insureds, claimants, and creditors have, by definition, been satisfied and extinguished—is a maximum, not a minimum, interference in the normal prerogatives of owners and thus contrary to the purpose of the ISRLA.
Fifth, although the Liquidation Court derives its authority from statute, it has "equitable goals and the discretion to craft equitable remedies." Majority at 61, 346 P.3d at 130. Under equitable principles, escheat of a known interest should be avoided whenever possible. Jenkins v. Wise, 58 Haw. 592, 597, 574 P.2d 1337, 1341 (1978) ("Equity ... abhors forfeitures....") When no other claimants have interests that the ISRLA mandates to be protected, to find that a shareholder or owner's claim is time barred is to enforce forfeiture when there is no opposing interest to be defended and is contrary to the equitable principles declared by this court.[135 Hawai'i 88]
III. Conclusion
The two letters to the Liquidator did not constitute a claim against IEL's estate. The letters did not assert that IELHC was making a claim against the estate and accordingly cannot be transformed by the Liquidator into a claim. Further, the letters did not substantially comply with the proof of claims provision.
Additionally, the Liquidation Court is a court of limited jurisdiction. Its jurisdiction cannot exceed what was expressly granted to it by the legislature. Because the two letters did not represent a claim, the Liquidation Court lacked subject matter jurisdiction to adjudicate IELHC's assertion of ownership in assets outside the estate, the dispositive issue in this case. Further, determination of a party's assertion to ownership in an insolvent insurer does not affect the protected interest of insureds, claimants, creditors, and the public in any conceivable way. Thus, for this additional reason, the Liquidation Court lacked subject matter jurisdiction to determine any of the matters asserted in the letters.
Finally, if an insolvent insurer's estate contains a residual surplus after Classes 1–8 claims have been fully satisfied or accounted for, then by law the lawful owner or stockholder is entitled to the residual surplus, and a Class 9 claim cannot be time barred if it is filed before the surplus has been lawfully escheated to the state.
Therefore, the appropriate disposition of this case is to vacate the Liquidation Court's Findings of Fact, Conclusions of Law and Orders entered on October 6, 2010, and remand the case for dismissal.