§386-5  Exclusiveness of right to
compensation; exception.  The rights and remedies herein granted to an
employee or the employee's dependents on account of a work injury suffered by
the employee shall exclude all other liability of the employer to the employee,
the employee's legal representative, spouse, dependents, next of kin, or anyone
else entitled to recover damages from the employer, at common law or otherwise,
on account of the injury, except for sexual harassment or sexual assault and
infliction of emotional distress or invasion of privacy related thereto, in
which case a civil action may also be brought. [L 1963, c 116, pt of §1; Supp,
§97-5; HRS §386-5; gen ch 1985; am L 1992, c 275, §2]



 



Law Journals and Reviews



 



  Makaneole v. Gampon:  Site Owners Vicariously Liable for
Negligence of Contractors and Their Employees.  12 UH L. Rev. 481.



  Sexual Harassment in the Workplace:  Remedies Available to
Victims in Hawai‘i.  15 UH L. Rev. 453.



  Hawai‘i's Workers' Compensation Scheme:  An Employer's License
to Kill?  29 UH L. Rev. 211.



 



Case Notes



 



  Statute provides exclusive remedy against fellow employees
for work-related injuries.  818 F.2d 210.



  Emotional distress claim was barred.  899 F.2d 845.



  Since Hawaii law bars action for contribution by a third
party tortfeasor against the plaintiff's employer, it would preclude employee
of government contractor from recovering from the United States the full amount
of employee's damages where a portion of those damages were attributable to
negligence of the employer.  473 F. Supp. 1077.



  Injured seaman, section does not oust admiralty court of its
jurisdiction.  557 F. Supp. 1024.



  No indemnity from United States available to asbestos
manufacturers sued for asbestos-related diseases.  603 F. Supp. 599.



  Remedy exclusive.  611 F. Supp. 1285.



  Exclusive remedy for emotional distress claims.  720 F. Supp.
829.



  Claim of negligent or intentional infliction of emotional
distress preempted by workers' compensation law.  763 F. Supp. 1544; 768 F.
Supp. 734.



  Section, as amended, could not be applied retroactively.  910
F. Supp. 479.



  Barred emotional distress claims where no sexual harassment
or sexual assault alleged.  938 F. Supp. 1503.



  Defendant's motion for partial dismissal denied, where
defendant sought dismissal of all negligence-based claims in the action and the
gravamen of the motion was that exclusivity provision of Hawaii's workers'
compensation statute barred all work-related actions sounding in negligence. 
112 F. Supp. 2d 1041.



  Exclusivity provision barred plaintiff's negligence-based
counts against defendants, where the counts arose "on account" of a
work injury suffered by plaintiff; exception provided in exclusivity provision
did not afford plaintiff a cause of action, where plaintiff did not allege
sexual harassment or sexual assault.  266 F. Supp. 2d 1233.



  Barred plaintiff's claim for negligent infliction of
emotional distress, where plaintiff did not claim sexual harassment or
assault.  284 F. Supp. 2d 1261.



  Exclusive remedy.  24 H. 97; 28 H. 383.  History; purpose of
Workmen's Compensation Act; exclusiveness of remedy.  41 H. 442.  Exclusiveness
of remedy, bars wrongful death action.  42 H. 518.  Exclusiveness of remedy. 
52 H. 595, 483 P.2d 187.



  Right of employee of subcontractor to workers' compensation
from the subcontractor did not exclude remedy against general contractor.  50
H. 293, 439 P.2d 669.



  Employer may be liable for indemnity based on breach of
indemnity agreement.  54 H. 153, 504 P.2d 861.



  Section precludes defendant in tort action from obtaining
contribution from employer on theory that the employer was a joint tortfeasor. 
54 H. 153, 504 P.2d 861; 56 H. 598, 546 P.2d 527; 67 H. 357, 688 P.2d 1139; 68
H. 22, 702 P.2d 722.



  Section precludes third party tortfeasor from bringing action
against employer for contribution.  55 H. 375, 520 P.2d 62.



  Third party general contractors are not immune to common law
negligence actions by employees of their subcontractors.  55 H. 578, 513 P.2d
156.



  Section does not preclude per se, third party's indemnity
claim against employer.  65 H. 232, 649 P.2d 1149.



  Where subcontractor fails to provide benefits to its injured
worker and the general contractor pays those benefits, the latter is immunized
from negligence action brought by injured worker.  66 H. 568, 670 P.2d 457.



  Section does not preclude per se, third party's indemnity
claim against employer.  68 H. 171, 707 P.2d 365.



  Owner of premises who hired an independent contractor to do
work on the premises was not considered an employer.  70 H. 501, 777 P.2d 1183.



  Court did not adopt dual capacity doctrine; found exclusivity
of the workers' compensation law constitutional.  71 H. 358, 791 P.2d 1257.



  Claimant not precluded by exclusivity provision of this
section from seeking common law tort remedies against employer's insurer where
injuries allegedly caused by insurer's denial of medical benefits and
disability payments not "work injuries" within scope of chapter 386. 
83 H. 457, 927 P.2d 858.



  This chapter does not bar relief on claims filed with the
civil rights commission.  85 H. 7, 936 P.2d 643.



  Where statutory employer secured workers’ compensation
coverage as required under this chapter by paying a fee for that purpose to the
lending employer, and employee received a statutory award for work-connected
injuries, statutory employer was entitled to tort immunity.  88 H. 140, 963
P.2d 349.



  Where employer newspaper hired newspaper carrier as
"independent contractor" under the express terms of employer’s own
agreement, employer was estopped from claiming tort protection under this
section unless and until injured carrier challenged the form-over-substance
nature of the agreement and was awarded workers’ compensation benefits by the
director or appeals board.  89 H. 411, 974 P.2d 51.



  Where plaintiff's claims did not arise under this chapter,
the exclusive remedy and original jurisdiction provisions in the workers'
compensation statute did not apply, and where plaintiff's claims for relief of
tortious conduct on the part of workers' compensation insurer were not within
the original jurisdiction of the labor director, trial court erred in granting
summary judgment on that basis.  90 H. 407, 978 P.2d 845.



  Section bars neither a minor's tort claims for the minor's in
utero injuries, nor any otherwise valid claims of any other party that
allegedly derive from minor's injuries.  91 H. 146, 981 P.2d 703.



  The exclusive remedy provision of the workers' compensation
law does not bar claims for negligent infliction of emotional distress related
to sexual harassment.  97 H. 376, 38 P.3d 95.



  Where law firm's actions as an employer and law firm were not
inconsistent and law firm's status as an employer and law firm involved a
single legal entity for purposes of the "dual persona" doctrine,
trial court did not err in granting law firm's motion to dismiss terminated
attorney's negligent investigation claim.  117 H. 92, 176 P.3d 91.



  Where this section unambiguously provides that claims for
infliction of emotional distress or invasion of privacy are not subject to the
exclusivity provision when such claims arise from claims for sexual harassment
or sexual assault, in which case a civil action may be brought, and plaintiff
alleged a claim for emotional distress (negligent investigation) that did not
arise out of sexual harassment or sexual assault, such claim was, pursuant to
this section, barred.  117 H. 92, 176 P.3d 91.



  Bars third party's indemnity claim against employer where
latter owed no duty to third party.  6 H. App. 525, 735 P.2d 939.



  Exclusive remedy for claims of negligent and intentional
infliction of emotional distress.  9 H. App. 21, 821 P.2d 937.



  An employee may bring action against employer for intentional
infliction of emotional distress caused by discrimination in violation of
§378-2, and this action is not barred by exclusivity provision of this
section.  87 H. 57 (App.), 951 P.2d 507.



  Section does not bar a child from bringing a tort action
against mother's employer for in utero injuries child personally sustained,
allegedly as a result of a work-related accident involving the mother.  91 H.
157 (App.), 981 P.2d 714.



  Cited:  23 H. 291, 294; 56 H. 544, 545 P.2d 687.