Haw. Rev. Stat. § 386-8
[L 1963, c 116, pt of §1; Supp, §97-8; am L 1967, c 53, §1; HRS §386-8; am L 1969, c 13, §1; am L 1970, c 58, §1; am L 1973, c 144, §1; am L 2016, c 55, §11]
Mailing of notice, see §1-28.
Consolidation of actions, see HRCP rule 42.
Intervention, see HRCP rule 24.
Makaneole v. Gampon: Site Owners Vicariously Liable for Negligence of Contractors and Their Employees. 12 UH L. Rev. 481 (1990).
Employer or insurance carrier may be required to pay share of attorney's fees proportionate to total amount of compensation benefits it would have had to pay but for settlement of third party action. 625 F.2d 314 (1980).
Did not allow claim against defendant individually for negligent infliction of emotional distress; section may allow claim for intentional infliction of emotional distress. 938 F. Supp. 1503 (1996).
To the extent that plaintiff, a former employee of a state agency, alleged claims of intentional or reckless conduct by individual-capacity state defendants, those claims qualified as wilful and wanton conduct under this section. 430 F. Supp. 3d 655 (2020).
Damages awarded against third party. 23 H. 524 (1916).
Section not applicable when person for whose compensation the carrier is liable is the widow of the decedent whose death was caused by the wrongful act or neglect of a third person. 32 H. 153 (1931).
Election, employer or third party. 32 H. 446 (1932).
Suit by next friend appointed solely for that purpose, not an election. 32 H. 928 (1933).
Negligence suit may be filed by an employee of a subcontractor against the general contractor and general contractor's employees. 50 H. 293, 439 P.2d 669 (1968).
Employer entitled to attorney's fees out of judgment recovered from third party tortfeasor but not out of settlement claim. 51 H. 437, 462 P.2d 196 (1969).
Section preserves employee's right of action in common law or under a statute against a third party; it does not establish an independent claim. 63 H. 273, 626 P.2d 182 (1981).
Co-employee liable to injured employee or nonemployee third-party plaintiff for injury caused by co-employee's wilful and wanton misconduct. 68 H. 22, 702 P.2d 772 (1985).
Notwithstanding the language of this statute, disclosure of workers' compensation evidence, including the amount, may be appropriate where some relevant purpose for allowing its admission develops in trial. 79 H. 14, 897 P.2d 941 (1995).
Employer's reliance on the provisions of this section was reasonable; employer had no duty to intervene until it knew or reasonably should have known that plaintiff would dismiss plaintiff's claims against defendant without consent. 79 H. 352, 903 P.2d 48 (1995).
Where plaintiff stipulated to dismiss plaintiff's claims against defendant without the written consent of plaintiff's employer, the stipulation dismissing all claims with prejudice was invalid. 79 H. 352, 903 P.2d 48 (1995).
Co-employee liability claims based on "wilful and wanton misconduct" must be proven by clear and convincing evidence. 82 H. 1, 919 P.2d 263 (1996).
"Wilful and wanton misconduct" exception to co-employee immunity under this section includes reckless conduct, where specific intent by co-employee to cause injury is not required. 82 H. 1, 919 P.2d 263. (1996)
Under §386-73, this section, and Hawaii administrative rule §12-10-31, a settlement or compromise of future workers' compensation benefits cannot be valid or binding without the consent or approval of the director of labor and industrial relations. 90 H. 152, 977 P.2d 160 (1999).
Under this section, the employer must bear a proportionate share of the employee's attorney's fees and costs incurred while pursuing recovery from a third party tortfeasor; the employer, and/or its workers' compensation insurance carrier, must bear its share of the employee's attorney's fees and costs in proportion to the present and future benefits derived from a third party settlement or judgment. 92 H. 515, 993 P.2d 549 (2000).
Assuming defendants' claims for "unreasonable failure to consent" and "negligent claims handling" fell within the interference with contract rights exception of §662-15(4), it could not be said that the State improperly interfered with the alleged settlement agreement because, pursuant to this section, the State was a necessary party to such agreement. 114 H. 202, 159 P.3d 814 (2007).
There is nothing in the case law or in the legislative history of this section to support the imposition of a duty on employers in favor of tortfeasors regarding consent to a third-party settlement; thus, trial court did not err in ruling that the State did not owe defendants an actionable duty and thus, did not err in dismissing defendants' cross-claim against the State. 114 H. 202, 159 P.3d 814 (2007).
Trial court did not abuse its discretion in setting aside the stipulation to dismiss the case with prejudice where, pursuant to this section, neither the settlement nor the stipulation was valid without the State's written consent; this section's plain and unambiguous language required the State to consent in writing to validate the settlement between the parties, and the State's letter did not constitute written consent to the settlement as required, but had instead proposed an alternative settlement. 114 H. 202, 159 P.3d 814 (2007).
The statutory scheme and legislative history of this section indicated that the phrase "except as limited by chapter 657" was not intended to restrict an employee's right to intervene in a lawsuit that was timely filed by his or her employer; thus, employee was not barred by the statute of limitations under §657-7 to intervene in plaintiff insurer's timely filed suit, and the circuit court erred in granting defendant's motion for summary judgment. 126 H. 406, 271 P.3d 1165 (2012).
No abuse of discretion in requiring insurance company to pay one-half of the employee's court expenses. 2 H. App. 344, 631 P.2d 1209 (1981).
Plaintiff permitted to amend pleading to allege cause of action for wilful and wanton misconduct against defendant employees of same employer. 9 H. App. 21, 821 P.2d 937 (1991).
Where an employee pursues a third-party action "alone", this section requires that an employer is only entitled to a first lien in the amount of its workers' compensation expended, less the employer's "share" of attorneys' fees and expenses. 92 H. 524 (App.), 993 P.2d 558 (1998).
Where employer intervened before any trial on the facts, trial court did not abuse discretion by allowing employer to intervene. 92 H. 524 (App.), 993 P.2d 558 (1998).
Section 386-5 and the workers' compensation law as a whole mandated the conclusion that the workers' compensation remedies granted to employee excluded all other liabilities of employer to employee on account of personal injuries employee allegedly suffered arising out of and in the course of employee's employment; also, §386-5 and this section did not allow employee to pursue suit against the employer for the alleged wilful and wanton misconduct of employee's fellow employees acting in the course and scope of their employment. 128 H. 173 (App.), 284 P.3d 946 (2012).
Cited: 721 F. Supp. 2d 947 (2010).