Hawaiian Electric Co. hasn't responded in court to growing lawsuits filed against it over this month's deadly wildfires in Maui, but initial defenses could focus on striking inverse condemnation claims and whether its downed power lines actually caused the fire. On Aug. 17, 2023,  Joachim Cox and Randall Whattoff, both partners at Honolulu's Cox Fricke, appeared for Hawaii Electric in a class action filed in O'ahu's First Circuit Court. On Aug. 18, Hawaiian Electric told investors in a filing with the U.S. Securities and Exchange Commission that, despite initial news reports, it had no plans to restructure but would "be here for the long term." Hawaiian Electric, its subsidiaries and its parent corporation, Hawaiian Electric Industries, face at least six lawsuits over the wildfires that killed more than 100 people and destroyed 2,600 homes and businesses in Maui, most recently filed by prominent plaintiffs' firms Watts Guerra and Morgan & Morgan. But the utility hasn't been found of any wrongdoing. "Plaintiffs' attorneys are very opportunistic when it comes to these things, given the utilities are a target and have been a target historically in litigation in the Western part of the country," said Marisa Miller, a San Diego partner at Sheppard Mullin Richter & Hampton, who has worked on wildfire litigation. However, it's too early to tell what happened, she said. "There hasn't been an official causation finding, and that will certainly be a focus of any litigation."

'A thorough and complete investigation'

Many of the lawsuits mimic wildfire litigation in other states, particularly California and Oregon, where a Portland jury in June awarded $90 million in verdicts to 17 victims of four wildfires over Labor Day 2020. In the trial, PacifiCorp disputed that its failure to shut off power contributed to the fires, which were caused by high winds and lightning. The Maui lawsuits also allege Hawaiian Electric failed to shut off power. But, in its Friday filing to investors, Hawaiian Electric said such "public safety power shutoff" programs are not part of its high-wind management protocols and had to be coordinated with first responders, who, in Lahaina, need electricity to power the water pumps for firefighting. "A power shut-off can jeopardize the health and safety of the elderly, the disabled and those most in need," the company said. Witness reports of downed power lines, chronicled on Facebook and X and cited throughout the lawsuits, don't establish causation, Miller said. And a wildfire's proximity to a substation, she said, is "not enough to survive any legal scrutiny." "There needs to be a thorough and complete investigation conducted, rather than speculation based on the observations that power lines were down during a wind storm," she said. Hawaiian Electric also could challenge an inverse condemnation claim in many of the lawsuits that it was responsible for the loss of property. In its SEC filing, Hawaiian Electric told investors that, unlike California, there is no precedent in Hawaii for asserting inverse condemnation claims against private parties, only governments. In a law firm blog post following the Oregon verdict, Miller noted that the jury found PacifiCorp liable for negligence, trespass and nuisance, but the utility defeated an inverse condemnation claim. That wasn't the case for Pacific Gas & Electric or Southern California Edison, which settled wildfire litigation in California for billions of dollars. "Utilities have historically been a target in California because there are strict liability rules against them here," she told Law.com. In an email, Mikal Watts, of Watts Guerra, insisted both California and Hawaii have "identical constitutional language concerning the right to compensation when property is taken." Even under Hawaii's law, he wrote, "We will have no problem proving that the negligence of Hawaiian Electric caused these devastating fires, and will likely prove that they were grossly negligent in a way that allowed these otherwise inevitable conditions to lead to a utility equipment-caused spark and consequent fire." Related: 

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