LIHU‘E — The County of Kaua‘i has agreed to pay $7.5 million for its portion of the $25.4 million global settlement of various wrongful death and property damage lawsuits stemming from the March 2006 failure of the Ka Loko Reservoir
LIHU‘E — The County of Kaua‘i has agreed to pay $7.5 million for its portion of the $25.4 million global settlement of various wrongful death and property damage lawsuits stemming from the March 2006 failure of the Ka Loko Reservoir Dam near Kilauea, a Thursday afternoon county press release states.
Of that amount, the county will be responsible for $250,000, with the balance to be covered by insurance proceeds. The information was released after requests from The Garden Island and other media outlets led to a successful motion in 5th Circuit Court.
“While the county believed it had viable defenses, joint and several liability applied in this case,” County Attorney Alfred Castillo said in the release. “Had the county lost at trial with the other defendants, we could have ended up having to pay almost everything, not just the percentage the jury assigned to us.”
While “several” liability limits the amount any one defendant may be forced to pay to a portion of the total jury award proportional to their relative culpability for the injury, “joint and several” liability essentially makes each defendant potentially responsible for the entire award amount and allows plaintiffs to recover the damages from any named defendant based on, among other factors, how much each defendant can afford to pay, according to various law dictionaries.
“Since this case had potentially huge damages, well in excess of our insurance limits, the county and its insurance carriers believed that settling was in the best interest of the county,” Castillo said, noting in the release that the difference between the state’s portion of the settlement and the county’s “had little to do with culpability,” and instead reflected “financial realities” and state law regarding immunity.
The state’s share of the settlement, released in late December, is $1.5 million. The state Legislature will be asked to provide funding for the state’s share during the legislative session while simultaneously looking for ways to solve a projected $1.2 billion budget shortfall.
Ronald Michioka, an O‘ahu attorney and special counsel for the county, said last week a private insurance company will pay a large amount of the county’s share while the self-insured state must pay its entire share from taxpayer money.
A global settlement was reached in 2009 and announced at the end of October. Terms of the settlement at that time were sealed, but the state filed a motion to unseal its share of the settlement and the county this year filed a motion to do the same.
Fifth Circuit Judge Kathleen Watanabe granted the county’s motion last week after there were no objections from either releasees (plaintiffs), including Bruce Fehring and Cynthia Fehring, other representatives of the victims’ families, Bette Midler and others, or releasors (defendants), including James Pflueger, the Mary Lucas Estate and C. Brewer.
Pflueger, 83, retired Honolulu car dealer and part-owner of Ka Loko Reservoir, which is mauka of Kuhio Highway near Kilauea, is scheduled for a jury trial in April on charges of seven counts of manslaughter for the deaths of seven Kauaians early in the morning of March 14, 2006, when the earthen reservoir failed after 40 straight days of rain, sending hundreds of millions of gallons of water rushing makai across Kuhio Highway into Wailapa Stream, then Kilauea Stream and eventually into the ocean, taking with it trees, property and the seven people asleep in their homes.
Some of the bodies were never found.
Those who died in the incident include Alan Gareth Dingwall, Daniel Jay Arroyo, Rowan Grey Makana Fehring-Dingwall, Aurora Solveig Fehring, Christina Michelle McNees (and her unborn baby, known in court documents as Baby Doe McNees), Timothy Wendell Noonan Jr. and Carl Wayne Rotstein.
State Attorney General Mark Bennett has argued before 5th Circuit Chief Judge Randal Valenciano in the criminal cases that Pflueger’s filling in of the Ka Loko spillway, a safety feature, led to the reservoir’s failure and the resulting release of the deadly water.
William McCorriston, attorney for Pflueger, said earlier that Pflueger will “fight the criminal case vigorously,” and still feels he has been “unfairly scapegoated” in what still might be proven in court to have been an act of nature and not a negligent human action.
• Michael Levine, assistant news editor, can be reached at 245-3681 (ext. 252) or mlevine@kauaipubco.com.
