§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 (1990).

Sexual Harassment in the Workplace: Remedies Available to Victims in Hawai`i. 15 UH L. Rev. 453 (1993).

Hawai`i's Workers' Compensation Scheme: An Employer's License to Kill? 29 UH L. Rev. 211 (2006).

Case Notes

Statute provides exclusive remedy against fellow employees for work-related injuries. 818 F.2d 210 (1987).

Emotional distress claim was barred. 899 F.2d 845 (1990).

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 (1979).

Injured seaman, section does not oust admiralty court of its jurisdiction. 557 F. Supp. 1024 (1983).

No indemnity from United States available to asbestos manufacturers sued for asbestos-related diseases. 603 F. Supp. 599 (1984).

Remedy exclusive. 611 F. Supp. 1285 (1985).

Exclusive remedy for emotional distress claims. 720 F. Supp. 829 (1989).

Claim of negligent or intentional infliction of emotional distress preempted by workers' compensation law. 763 F. Supp. 1544 (1990); 768 F. Supp. 734 (1991).

Section, as amended, could not be applied retroactively. 910 F. Supp. 479 (1995).

Barred emotional distress claims where no sexual harassment or sexual assault alleged. 938 F. Supp. 1503 (1996).

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 (2000).

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 (2003).

Barred plaintiff's claim for negligent infliction of emotional distress, where plaintiff did not claim sexual harassment or assault. 284 F. Supp. 2d 1261 (2003).

Plaintiff's negligent infliction of emotional distress claim was barred by this section because the claim did not arise out of sexual harassment or sexual assault; "dual persona exception" did not apply to the facts as alleged. 721 F. Supp. 2d 968 (2010).

Where defendant claimed that defendant was entitled to summary judgment based upon worker's compensation exclusivity, as set forth in this section, defendant failed to establish that defendant was plaintiff's employer, as opposed to plaintiff's supervisor, for purposes of this section. 937 F. Supp. 2d 1237 (2013).

Plaintiff's intentional infliction of emotional distress claim relating to plaintiff's claim for disability discrimination under §378-2 was barred by this section. Even if that were not so, nothing in the record indicated that defendant's conduct was sufficiently outrageous to justify damages for an independent intentional infliction of emotional distress claim. At most, plaintiff asserted a disability discrimination claim under §378-2 based on defendant's alleged failure to engage in an interactive process that might have led to a reasonable accommodation allowing plaintiff to return to work. 124 F. Supp. 3d 1045 (2015).

Exclusive remedy. 24 H. 97 (1917); 28 H. 383 (1925).

History; purpose of Workmen's Compensation Act; exclusiveness of remedy. 41 H. 442 (1956).

Exclusiveness of remedy, bars wrongful death action. 42 H. 518 (1958).

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 (1968).

Exclusiveness of remedy. 52 H. 595, 483 P.2d 187 (1971).

Employer may be liable for indemnity based on breach of indemnity agreement. 54 H. 153, 504 P.2d 861 (1972).

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 (1972); 56 H. 598, 546 P.2d 527 (1976); 67 H. 357, 688 P.2d 1139 (1984); 68 H. 22, 702 P.2d 772 (1985).

Third party general contractors are not immune to common law negligence actions by employees of their subcontractors. 54 H. 578, 513 P.2d 156 (1973).

Section precludes third party tortfeasor from bringing action against employer for contribution. 55 H. 375, 520 P.2d 62 (1974).

Section does not preclude per se, third party's indemnity claim against employer. 65 H. 232, 649 P.2d 1149 (1982); 68 H. 171, 707 P.2d 365 (1985).

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 (1983).

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 (1989).

Court did not adopt dual capacity doctrine; found exclusivity of the workers' compensation law constitutional. 71 H. 358, 791 P.2d 1257 (1990).

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 (1996).

This chapter does not bar relief on claims filed with the civil rights commission. 85 H. 7, 936 P.2d 643 (1997).

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 (1998).

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 (1999).

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 (1999).

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 (1999).

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 (2001).

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 (2008).

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 (2008).

Bars third party's indemnity claim against employer where latter owed no duty to third party. 6 H. App. 525, 735 P.2d 939 (1987).

Exclusive remedy for claims of negligent and intentional infliction of emotional distress. 9 H. App. 21, 821 P.2d 937 (1991).

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 (1998).

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 (1999).

Where record revealed that the parties disputed at least two material facts--whose work was being done by plaintiff when plaintiff was injured and who controlled plaintiff's work at the job site--defendant failed to produce evidence that defendant was a "statutory employer" for workers' compensation purposes; thus, circuit court erred in granting summary judgment to defendant because defendant had not demonstrated that it was immune from suit and was therefore entitled to judgment as a matter of law. 124 H. 230 (App.), 239 P.3d 1280 (2010).

This section 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, §386-8 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).

Where the plaintiffs alleged damages resulting from exposure to a chemical pesticide allegedly manufactured or utilized by the employers, the workers' compensation law was the exclusive remedy for claims against the employers for the alleged injuries. Also, more than one employing entity can claim the liability protection of the exclusivity provision in this section. 132 H. 478 (App.), 323 P.3d 122 (2014).

Where the plaintiffs proposed an amended complaint that no longer alleged that the defendants were the plaintiffs' employers, taking the amended allegations as true, the workers' compensation law would not bar the claims against the defendants. 132 H. 478 (App.), 323 P.3d 122 (2014).

Cited: 23 H. 291, 294 (1916); 56 H. 544, 545 P.2d 687 (1976).