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A Hawaii Attorney’s Guide to Bifurcation of Trials

Saturday, November 2nd, 2013

Hawaii trial courts, in certain circumstances, will allow a litigant to divide his trial into two parts.  This is called “bifurcating” the trial.  Hawaii Rules of Civil Procedure (HRCP) Rule 42(b) governs bifurcation and provides as follows:

(b) Separate trials.  The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as given by the Constitution or a statute of the State or the United States.

HRCP Rule 42(b).

There are a number of scenarios in which a litigant would want a bifurcated trial.  One such scenario is where a plaintiff sues two or more defendants and each defendant disputes its liability to the plaintiff.  In a bifurcated trial, the first trial will proceed on the defendants’ liability to plaintiff and the plaintiff’s damages.  If at the first trial, the defendants are found not liable to the plaintiff, there is no second trial.  However, if at the first trial, the defendants are found liable, a second trial will occur only on the issue of apportionment of fault between the remaining defendants.  Furthermore, the second trial will occur without the involvement of the plaintiff.  Under such circumstances, the Court may permit bifurcation so that the issue of the apportionment of fault between the defendants will not delay the plaintiff’s ability to recover for his or her damages.

Although Rule 42(b) provides the means for a trial to be bifurcated, the trial court is the sole decision maker of whether the trial is bifurcated.  “[T]he decision to separate is within the sound discretion of the trial court and is properly granted where the court concludes that such act will prevent undue delay and otherwise promote the interests of justice.”  Sanders v. Point After, Inc., 2 Haw. App. 65, 70, (1981).  “[T]he moving party has the “burden of proving that the bifurcation will promote judicial economy and avoid inconvenience or prejudice to the parties.”  Clark v. IRS, 772 F. Supp. 2d 1265, 1269 (D. Haw. 2009) (quoting Spectra-Physics Lasers, Inc. v. Uniphase Corp., 144 F.R.D. 99, 101 (N.D. Cal. 1992)).

An example of bifurcation is Kaina v. Gellman, 119 Haw. 324, 326 (Haw. App. 2008), where the Court bifurcated a plaintiff’s trial against two defendants.  There, the plaintiff brought an action against a doctor for medical malpractice, and against the employer hospital for negligently hiring the doctor.  Id.  While the parties were ready for trial on the claims against the doctor, the parties were not ready for trial on the claims against the hospital employer.  The Court bifurcated the trial, reasoning that if the plaintiff lost her case against the doctor, “the likelihood of a second trial is nil since she would still – or the plaintiff would still have to prove the medical negligence and causation, and I think that will then at least permit this woman who has lost her son to have her day in court on the essential issue without a prolonged delay. . . .”  Id.

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Hawaii Independent Medical Examinations Are Controlled By HRCP Rule 35

Thursday, October 10th, 2013

In Hawaii personal injury cases, an issue that is often in dispute is the existence and severity of the plaintiff’s physical injuries.  Often, the best source of evidence of the plaintiff’s injuries is the plaintiff’s own medical records.  In certain cases, a party will want to have an independent medical professional examine the plaintiff.  These examinations are called Independent Medical Examinations, or IMEs.  Rule 35 of the Hawaii Rules of Civil Procedure govern IMEs.  HRCP Rule 35 provides as follows:

Rule 35. PHYSICAL AND MENTAL EXAMINATION OF PERSONS.

(a) Order for Examination. When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party’s custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

HRCP Rule 35(a).

In order for a defendant to obtain an order compelling a plaintiff to submit to an IME, the defendant must demonstrate (1) that the plaintiff’s mental or physical condition is “in controversy” and (2) that there is “good cause” for the Court to order the IME.  Schlagenhauf v. Holder, 379 US 14, 118 (1964).  Even where the party seeking the order compelling the IME has demonstrated (1) that plaintiff’s medical or physical condition is “in controversy” and (2) that there is “good cause,” “an order for the physical or mental examination of a party is not granted as of right and when the matter is contested, it is addressed to the sound discretion of the trial court.” Great West Life Assurance Co. v. Levithan, 153 F.R.D. 74, 76 (E.D. Pa. 1994).

 

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Hawaii Personal Injury Attorneys Must Get Court Approval Of Settlements For Minors

Thursday, February 2nd, 2012

A Hawaii personal injury attorney must be mindful of special procedures he or she must follow when litigating a personal injury action on behalf of a minor or an incapacitated person.  Because a minor or incapacitated person cannot make an informed decision regarding his or her case, Hawaii law requires that any settlement or judgment received in a minor’s court case be approved by a judge presiding in probate and that a conservator is appointed on behalf of the minor or incapacitated person.  Rule 101 of the Hawaii Probate Rules makes it the Plaintiff’s Attorney’s responsibility to initiate a conservatorship action for the eventual settlement or judgment in favor of the minor or incapacitated plaintiff.  Rule 101 of the Hawaii Probate Rules states as follows:

Rule 101. PERSONAL INJURY RECOVERIES.

When a minor or incapacitated person receives a settlement or judgment from any claim or action, a conservatorship action must be initiated by the plaintiff’s attorney and any settlement approved by the court insofar as it affects the protected person or respondent. The judge presiding in probate shall appoint a conservator for the minor or incapacitated individual and determine whether any settlement is reasonable. A flag sheet shall be presented pursuant to Rule 103 for any hearing on a petition that seeks compromise of a tort claim on behalf of a minor or incapacitated person.

Hawaii Rules of Probate Court R. 101.

The personal injury attorney’s responsibility to initiate conservatorship proceedings and obtain judicial approval of settlement or judgment extends to matters in Federal Court.  Indeed, Rule 17.1 of the Local Rules of the District Court of Hawaii requires that Federal Court litigants abide by state laws (i.e., HRP 101) as to court approval of settlements involving minors.  Rule 17.1 provides as follows:

Except as otherwise permitted by statute or federal rule, no action by or on behalf of a minor or incompetent shall be dismissed, discontinued, or terminated without the approval of the court.  When required by state law, court approval shall also be obtained from the appropriate state court having jurisdiction over such matters for any settlement or other disposition of litigation involving a minor or incompetent.

LR 17.1 (emphasis added).

Additionally, even Hawaii personal injury attorneys obtaining settlements or awards in arbitration in favor of a minor or incapacitated person must initiate a conservatorship proceeding and have that settlement or award approved by a judge sitting in probate.  H.R.S. § 658A-22 states that a party receiving an arbitration award may ask the court to confirm the award.  H.R.S. § 658A-22 provides as follows:

After a party to an arbitration proceeding receives notice of an award, the party may make a motion to the court for an order confirming the award at which time the court shall issue a confirming order unless the award is modified or corrected pursuant to section 658A-20 or 658A-25 or is vacated pursuant to section 658A-23.

HRS § 658A-22.

The confirmation of an arbitration award converts the award into an enforceable judgment, thus triggering Hawaii Probate Rule 101.  Mikelson v. United Services Auto. Ass’n, 122 Hawai’i 393, 396 (Hawai‘i App. 2010) (“Confirmation of an arbitration award is an ‘expeditious procedure for reducing or converting the arbitration award to a judgment which can be enforced by judicial writ.’”).  The Hawaii personal injury attorney who receives a favorable outcome for his or her minor or incapacitated client is cautioned not to forget these important special requirements in representing a minor or incapacitated client.

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An Employer May be Held Liable for an Employee in Hawaii

Friday, August 5th, 2011

There are several theories under which an employer may be held liable for the acts of an employee.  The most straightforward is called respondeat superior liability.  The elements of respondeat superior liability are (1) employee negligence (2) within the scope of the employee’s employment.  Id. (citations omitted). In defining the scope of an employee’s employment, the Hawaii Supreme Court reiterated its approval of Restatement (Second) of Agency §228 (1958) which states as follows:

(1) Conduct of a servant is within the scope of employment if, but only if:

        (a) it is of the kind he is employed to perform;

        (b) it occurs substantially within the authorized time and space limits;

        (c) it is actuated, at least in part, by a purpose to serve the master, and

        (d) if force is intentionally used by the servant against another, the use of  force is not unexpectable by the master.

Restatement (Second) of Agency §228 (1958) 

“An employer may be liable for the intentional torts of its employees as the law now imposes liability whether the employee’s purpose, however misguided, is wholly or in part to further the master’s business.”  State v Hoshijo ex rel. White, 102 Hawaii 307, 318, FN 27 (Hawaii, 2003).  In Wong-Leong v Hawaiian Independent Refinery, Inc., 76 Hawaii 433, 438 (1994).

“In instances where an employer cannot be held vicariously liable for its employee’s torts, the employer can still be held liable under theories of negligent hiring, negligent retention, and negligent supervision.  However, a necessary element of such causes of action is that the employer knew or should have known of the employee’s propensity for the conduct which cause the injury.”  Kenneth R. v Roman catholic Diocese of Brooklyn, 229 A.D.2d 159, 161 (N.Y.A.D. 2 Dept, 1997)

Indeed, Hawaii recognizes an action for negligent supervision.  See Costa v Able Distributors, Inc., 3 Haw.App. 486, 490 (Hawaii App., 1982).  In Dairy Road Partners v Island Insurance, 92 Hawaii 398, 426-27 (Hawaii, 2000), the Hawaii Supreme Court looked to the Restatement (Second) of Torts § 317 for the standards for a claim of negligent supervision by an employer.  According to Restatement (Second) of Torts § 317, an employer may be liable for negligent supervision if its employee intentionally harms another when the employee (i) commits the harm on the employer’s property or with the use of the employer’s chattels, (ii) the employer knows or should have known that the employer has the ability to control its employee and (iii) the employer knows or should have known that the employee needed to be controlled. 

Under the theory of negligent supervision, “an employer’s duty to control the conduct of his employee may arise when the acts complained of are so connected in time and place with the employment as to give the employer a special opportunity to control the employee.”  Costa v Able Distributors, Inc., 3 Haw.App. at 490.  As previously mentioned, “in order for the plaintiff to recover, he must show that the employer knew or should have known of the necessity and opportunity for exercising control over the employee.”  Id.  For example in Costa, the Hawaii Court of Appeals stated that the employer’s duty would arise only if the employer knew or should have known that the employee had a “propensity for causing automobile collisions while driving under the influence of alcohol, and thus, [the employer] should have prevented [the employee] from consuming beer on its premises.” 

Unlike the theory of respondeat superior where the employer is vicariously liable for the acts of its employees “that occur within the scope of employment,” a claim for negligent supervision, requires that the employee acted “outside of his or her employment.”  See Dairy Road Partners v Island Insurance, 92 Hawaii 398, 426-27 (Hawaii, 2000).  Therefore, a complaint fails to state a claim for negligent supervision if the complaint fails to assert that the employee acted outside the scope of his employment.  Dairy Road Partners at 427.

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Hawaii’s 30th Traffic Fatality of 2011

Saturday, July 30th, 2011

Hawaii suffered its 30th traffic fatality of 2011  According to Hawaii News Now the fatality was a woman visiting from Oklahoma with her husband.  Her husband was “rushed to the Queen’s Medical Center in critical condition, but later improved to serious condition.”  The couple was driving a rented Harley when a truck collided with them on the Likelike Highway.  The 57-year-old man who was driving the truck was booked this morning for “negligent homicide and negligent injury.”  This fatal accident was the second accident in two days on the Likelike Highway, causing the highway to be shut down for several hours both yesterday and today.  Today’s accident is already “the 30th fatality on Oahu’s roads this year compared to 36 this time last year.” For more on this accident, which occurred this morning, please click the Hawaii News Now link below:

 http://www.hawaiinewsnow.com/story/15174054/l

Yesterday’s accident on the Likelike Highway involved a suspect who had “four drug and burglary felony convictions and six misdemeanor convictions” going as far back as 1997.  Although the driver caused yesterday’s accident by speeding the wrong way on the Highway that accident fortunately did not result in any fatalities.

 According to the Star Advertiser:

 Police are looking for a suspect as the possible driver of a stolen Lexus that was driven the wrong way on the Likelike Highway and crashed into a police car while trying to elude authorities. Police arrested 33-year-old Mililani man, possibly a passenger, at the scene of the crash near Wilson Street just past Kalihi Valley Homes. But the other suspect fled on foot after the crash.

The suspect in custody and the police officer from the Kalihi district were not injured. 

The incident began on the Windward side of the Wilson Tunnel. The black Lexus, heading in the Honolulu direction, crossed over to the Kaneohe-bound lanes of the Likelike Highway and hit the police car near the Wilson Street intersection.  The police car, which was going in the right direction on the highway, swerved to try to avoid the stolen car, officers said. 

Police closed the Kaneohe-bound lanes of the highway for three hours following the collision at about 2:30 a.m. Motorists traveling to the Windward side were diverted off the highway to surface streets at Kalihi Street. Police reopened the highway at 6:06 a.m. The 33-year-old suspect was taken to the Beretania street cellblock and held on a motor vehicle charges. Court records show the suspect has four drug and burglary felony convictions and six misdemeanor convictions, starting in 1997.

Police are investigating the incident as possible case of attempted murder. 

The Lexus sustained extensive damage to its front end. Most of the damage to the police car was on the right rear side of the vehicle.

http://www.staradvertiser.com/news/breaking/126323623.html

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Hawaii’s 50th Traffic Fatality

Wednesday, November 3rd, 2010

We are saddened to report that according to today’s edition of the Star Advertiser, a 45 year old woman was struck by a vehicle yesterday morning at about 10:50 am near Waianae High School.  According to the article, she was crossing Farrington Highway near Alawa Place and died at Waianae Coast Comprehensive Health Center as a result of the accident.  The article also stated that she was Oahu’s 50th traffic fatality this year, up from 46 traffic fatalities this time last year.

You can find the article at: http://www.staradvertiser.com/news/breaking/106604978.html#

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Negligent Infliction of Emotional Distress in Hawaii

Thursday, October 7th, 2010

Negligent infliction of emotional distress (NIED) is an independent tort claim which arises when a tortfeasor causes emotional distress to another person resulting in a manifestation of physical injury.

Historically, a Plaintiff alleging a NIED claim was required to demonstrate that he suffered emotional distress which resulted in a physical injury.  In 1970, the Supreme Court of Hawaii held, in the landmark case Rodrigues v. State, that a claimant could bring a NIED claim based solely out of damage done to his home – the first state to abandon the physical injury requirement.  Rodrigues v. State, 52 Haw. 156, 172-74 (1970).  However, in 1986, the Hawaii State legislature abolished this cause of action, stating that “no party shall be liable” for NIED that “arises solely out of damage to property or material objects.”  H.R.S. § 663-8.9. 

In essence, a Plaintiff alleging damages for Negligent Infliction of Emotional Distress must demonstrate that there was a physical manifestation of the emotional harm.  Soone v. Kyo-ya Co., Ltd. 353 F.Supp.2d 1107, 1118 (D.Hawaii 2005).  There are, however, at least three exceptions to this rule, which have been specifically created by Hawaii courts.  These exceptions include where the plaintiff was exposed to HIV positive blood (John & Jane Roes, 1-100 v. FHP, Inc., 91 Hawai’i 470, 475-76 (1999)); where the defendant mishandled the corpse of the plaintiff’s loved one (Guth v. Freeland, 96 Hawai’i 147, 153-54 (2001)); and where parents’ child was molested by a teacher previously accused of child molestation (Doe Parents No. 1 v. State, Dept. of Educ. 100 Hawai’i 34, 69-71 (2002)).

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The Hawaii Dam Safety Act

Saturday, October 2nd, 2010

We successfully represented property owners damaged by the Ka Loko Dam breach that occurred on Kauai on March 14, 2006.  See our previous blogs dated  November 3, 2009 (http://legalblog.hawaii-attorney.net/2009/11/) and September 26, 2007 (http://legalblog.hawaii-attorney.net/2007/09/26/the-kaloko-dam-case/).  The Ka Loko Dam breach killed seven people.  The Dam Safety Act (HRS § 179D-1, et. al.) was revised in 2007 as a result of the Ka Loko Dam breach.  According to an article by KHON2, the State of Hawaii is planning to hold statewide hearings about proposed new dam regulation.  Ideally, these proposals will provide more effective regulations and oversight for existing dams and for the construction of new dams in Hawaii.  Please find below a link to this KHON2 article for more details. 

 http://www.khon2.com/content/news/developingstories/story/State-holding-hearings-on-new-dam-reservoir-rules/n9GsIVQhZkmlGMEJMz1Tug.cspx?rss=2433

These hearings are long overdo. 

The Dam Safety Act provides that “the Legislature finds and declares that the inspection and regulation of all dams or reservoirs are properly a matter of regulation under the police powers of the State.”  HRS § 179D-2 (as amended in 2007).

The Legislative History of the Dam Safety Act succinctly states as follows:

This Bill provides for the inspection and regulation of construction, operation and removal of certain dams in order to protect the health, safety and welfare of the citizens of the State by reducing the risk of failure of such dams.

S.C. Rep. 325 Haw. House. Stand. Comm. Rpt. 365, Reg. Sess. (1987).

To fulfill this purpose, the Hawaii Legislature created certain procedures and duties to the board to affirmatively regulate dams in this State which are contained in HRS § 179D-6 (amended in 2007). 

Hopefully, the hearing will produce dam regulations and oversight far superior than those that existed prior to March 14, 2006 and those amended in 2007.

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The Kaloko Dam Settlement

Tuesday, November 3rd, 2009

The Kaloko Dam flood was a terrible tragedy, about which I previously posted in September of 2007. I am happy to report that we have reached a successful settlement, which will allow our clients to restore their idyllic property.

Our clients’ property, on the island of Kauai, was severely damaged by the Ka Loko Dam flood. I represented one of the largest property owners damaged by the Ka Loko Dam flood. Admittedly, I was part of a team of plaintiffs attorneys. (A case this size had to be handled by a team of attorneys). The case allowed me to work with some of Hawaii’s best attorneys. It was also an honor to watch the manner in which this difficult case was handled by the Court. As an advocate, I was not always pleased with every ruling, however, the way the Court controlled the litigation was inspiring. I also participated in the mediation skillfully handled by Warren Price and Keith Hunter. It was conducted over several months and involved multiple parties and insurance carriers. This complex case involved every imaginable issue of law and procedure. The attorneys for the plaintiffs and the defendants handled this difficult case with the highest degree of courtesy and professionalism.

In my September 2007 Kaloko Dam blog, I wrote the following:

We are very proud to represent this family in their pursuit for justice. In a few years, we intend to write a follow up to this blog in which we will describe how we helped our clients restore their beautiful Kauai landscape.

This outcome will allow our clients to restore their home to the condition it was in before the flood. I also hope that this settlement allows the Kauai community to continue the process of healing from this tragedy.

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Employer Liability in Hawaii

Wednesday, December 10th, 2008

In general, an employer may be held liable for the conduct of an employee acting within the scope of his or her employment. US v Hilton Hotels Corp., 467 F.2d 1000, 1004-1007 (C.A.9, 1972) See also Lucas v Liggett & Meyers Tobacco Co., 50 Hawaii 506, 480 (Hawaii, 1968)(A principal who puts a servant or other agent is a position which enables the agent, while apparently acting within his authority, to commit a fraud upon third persons is subject to liability to such third persons for the fraud.) Indeed, in certain cases a corporation may even be held responsible even if the acts of its employee or agent were done contrary to the corporation’s policy or employer’s instruction so long as it was within the scope of his or her “apparent authority”. Id. It is not determinative if the employee or agent is acting in his or her own interest when committing the act, it will not relieve the employer of liability. See Lucas v Liggett & Meyers Tobacco Co., 50 Hawaii at 483.

In the alternative, if a Court deems that the employee’s actions were outside the scope of employment, an employee may still be liable if “the conduct violated a non-delegable duty of the [employer], or… the [employee] purported to act…on behalf of the employer and there was reliance upon apparent authority, or [the employee] was aided in accomplishing the tort by the existence of the agency relationships”. Hardwicke v Boychoir School, 902 A.2d 900, 919-920 (N.J., 2006) citing Restatement 2nd of Agency sec. 219(2)(c) to (d)(1958). Restatement 2nd of Agency sec. 219(2) specifically provides that:

(2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless:
(a) the master intended the conduct or the consequences, or
(b) the master was negligent or reckless, or
(c) the conduct violated a non-delegable duty of the master, or
(d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.

Restatement 2nd of Agency sec. 219(2) (Emphasis added).

In Hardwicke v American Boychoir School, the plaintiff, a former student of the American Boychoir School, was sexually abused by school employees and brought an action against the school. Hardwicke v Boychoir School, 902 A.2d at 902. Relying on these principals, the New Jersey Supreme Court held that the boarding school, as employer, could be held vicariously liable for common-law claims for the child abuse committed by its employees. Hardwicke v Boychoir School, 902 A.2d at 920. In particular, the court in interpreting Restatement 2nd of Agency sec. 219(2)(d), held that when an employer delegates authority to an employee to “control the work environment” and the employee abuses that delegated authority, than the employer may be held vicariously liable. Id.

Additionally, in certain circumstances the employer may even be held liable for failing to detect and stop an employee’s wrongdoing. US v Demauro, 581 F.2d 50, (2d Cir., 1978). See also Doe Parents v State, 100 Hawaii 34, 68 (Hawaii, 2002)(…if the State knew, or reasonably should have anticipated, that one of its employees would commit an intentional tort against a person to whom the State owed a duty of care, the State is liable for the negligence of those employees who were in a position to take reasonable precautions against the anticipated harm.). This claim of action is based on the negligence of the employer and/or employer’s supervisors. Id.

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