§386-5  Exclusiveness of right tocompensation; exception.  The rights and remedies herein granted to anemployee or the employee's dependents on account of a work injury suffered bythe employee shall exclude all other liability of the employer to the employee,the employee's legal representative, spouse, dependents, next of kin, or anyoneelse entitled to recover damages from the employer, at common law or otherwise,on account of the injury, except for sexual harassment or sexual assault andinfliction of emotional distress or invasion of privacy related thereto, inwhich 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 forNegligence of Contractors and Their Employees.  12 UH L. Rev. 481.

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

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

 

Case Notes

 

  Statute provides exclusive remedy against fellow employeesfor 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 thirdparty tortfeasor against the plaintiff's employer, it would preclude employeeof government contractor from recovering from the United States the full amountof employee's damages where a portion of those damages were attributable tonegligence of the employer.  473 F. Supp. 1077.

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

  No indemnity from United States available to asbestosmanufacturers 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 emotionaldistress preempted by workers' compensation law.  763 F. Supp. 1544; 768 F.Supp. 734.

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

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

  Defendant's motion for partial dismissal denied, wheredefendant sought dismissal of all negligence-based claims in the action and thegravamen 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-basedcounts against defendants, where the counts arose "on account" of awork injury suffered by plaintiff; exception provided in exclusivity provisiondid not afford plaintiff a cause of action, where plaintiff did not allegesexual harassment or sexual assault.  266 F. Supp. 2d 1233.

  Barred plaintiff's claim for negligent infliction ofemotional distress, where plaintiff did not claim sexual harassment orassault.  284 F. Supp. 2d 1261.

  Exclusive remedy.  24 H. 97; 28 H. 383.  History; purpose ofWorkmen's Compensation Act; exclusiveness of remedy.  41 H. 442.  Exclusivenessof 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' compensationfrom the subcontractor did not exclude remedy against general contractor.  50H. 293, 439 P.2d 669.

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

  Section precludes defendant in tort action from obtainingcontribution 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; 68H. 22, 702 P.2d 722.

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

  Third party general contractors are not immune to common lawnegligence actions by employees of their subcontractors.  55 H. 578, 513 P.2d156.

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

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

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

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

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

  Claimant not precluded by exclusivity provision of thissection from seeking common law tort remedies against employer's insurer whereinjuries allegedly caused by insurer's denial of medical benefits anddisability 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 thecivil rights commission.  85 H. 7, 936 P.2d 643.

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

  Where employer newspaper hired newspaper carrier as"independent contractor" under the express terms of employer’s ownagreement, employer was estopped from claiming tort protection under thissection unless and until injured carrier challenged the form-over-substancenature of the agreement and was awarded workers’ compensation benefits by thedirector 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 oftortious conduct on the part of workers' compensation insurer were not withinthe original jurisdiction of the labor director, trial court erred in grantingsummary judgment on that basis.  90 H. 407, 978 P.2d 845.

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

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

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

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

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

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

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

  Section does not bar a child from bringing a tort actionagainst 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.