§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.


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.

  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.


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