Third Party Liability Claims in Hawaii

Third Party Liability Claims in Hawaii

Recovery Law Center handles Hawaii workers’ compensation claims that involve third party liability. If you’re hurt on the job, and a third party may be to blame, we invite you to contact us to talk about your rights.

Representing Injured Workers in Third Party Liability Claims

There are many ways that injuries occur on the job. Injured employees may claim workers’ compensation. Workers’ compensation is a no-fault system. It pays compensation whether or not the employer is to blame for the injury to the employee.

But what happens when someone else is at fault?

When someone other than the employer is at fault for an employee’s injury, it is called third-party liability.

Workers’ compensation doesn’t consider the fault of the employer. The reasons for the injury may be investigated for safety and compliance reasons, but it doesn’t change the injured person’s rights as it relates to their employer and workers’ compensation.

However, there may be a situation where a third party is responsible for the accident. They may have liability based on negligence, reckless or intentional harm. In addition, a coworker may be responsible for reckless or intentional acts towards the injured employee. In these situations, the employee may have a workers’ compensation claim and a third party liability claim.

Third Party Liability Claim – FAQs

Is there a law for workers’ compensation third party liability claims?

Third party liability claims involving workers’ compensation are governed by H.R.S. § 386-8.

If you file workers’ compensation, can you still bring a third party liability claim?

Yes. If someone other than your employer is responsible for your injury, you can still bring a third party tort claim. However, there are some ways that the two claims simultaneously impact each other. It’s important to know how the two claims work together to determine your best interests following a workplace injury.

Hawaii Revised Statutes § 386-8

Hawaii Revised Statutes § 386-8 applies in situations where a workplace injury is the fault of a third party. Here is what you should know:

  • An employee may claim both workers’ compensation and third party damages, depending on eligibility, though the employer may need to be reimbursed for any workers’ compensation benefits paid to the individual.
  • When determining whether the third party has legal fault, the same standards of liability apply that apply in general in personal injury claims. Traditional legal procedures apply to the third party claim.
  • An employee may choose to sue a third party in addition to claiming workers’ compensation. If they do, they must give the employer written notice. The notice must include the name and location of the court. It must be given by personal service or registered mail.
  • The employer may choose to join the lawsuit as a plaintiff.
  • If the employee doesn’t file a claim, but there is a third party with tort liability, an employer paying workers’ compensation benefits may start their own legal action. They can seek the compensation the victim could have claimed.
  • Fees are deducted from the proceeds of the legal claim. Both the employer and the injured party are reimbursed for their court costs and attorney fees. After that, the employer is reimbursed for what they have paid in workers’ compensation benefits.
  • If there are additional funds remaining, the injured employee receives them.

The employee may start a legal action, and the employer may join it. If the employee doesn’t start an action for nine months or more, then the employer can start one. How the proceeds are divided depends on who is a party to the litigation:

  • If the employee brings the case alone, they deduct their attorney fees and court costs. Then, they reimburse the employer for workers’ compensation expenses less their share of expenses and attorney fees. The employee keeps the rest.
  • If both the employer and employee are a part of the case, they both deduct their fees and costs. Then, the employer gets reimbursed for workers’ compensation expenses. The employee keeps the rest.
  • If the employer brings the action alone, they are reimbursed for costs and fees. Then, their workers’ compensation expenditures are reimbursed. Any remainder is paid to the injured employee.
  • Hawaii’s third party liability law does not create a new legal cause of action. Instead, the law preserves the victim’s common law right.

When both the employer and employee want to actively participate in the legal action, they may use the same attorney or separate attorneys. If the parties can’t agree on a fair amount of fees, they may petition the court to determine fees. (Disher v. Kaniho, 2 Haw. App. 344 (1981), finding no abuse of discretion where the court attributed half the legal expenses to the insurance company).

After reimbursement of workers’ compensation costs, the employer is no longer obligated to pay workers’ compensation benefits up to the total amount of the judgment. Costs and fees of litigation are deducted from the calculation.

Coworker liability for wilful and wanton misconduct

There may be a situation where a person is hurt at work because of the actions of a coworker. If the coworker is merely negligent, they are not liable to pay damage to the victim. If they are reckless, or if they hurt their coworker intentionally, they may be liable to pay damages.

The burden of proof for co-employee liability is clear and convincing evidence. Idings v. Mee-Lee, 82 Haw. 1 (1996). An employee may not claim against their own employer, even if a coworker commits wilful and wanton misconduct. Yang v. Abercrombie & Fitch Stores, 128 Haw. 173 (2012).

Claims involving subcontractors

A third party claim may be brought against a general contractor when the injured person is a subcontractor. Lawrence v. Yamauchi, 50 Haw. 293 (1968).

Legal Help for Third Party Workers’ Compensation Claims

It can be hard to know what to do when a workers’ compensation claim involves third party liability. It may be worth pursuing both types of claims, but there are important things to consider. If a third party claim is a possibility, it’s critical to involve an attorney on your side as early as possible in the process.

At Recovery Law Center, we understand that workers’ compensation claims can be complex. We can investigate your case, determine your options and discuss them with you. Then, we can protect your interests. Contact us today to talk about your situation.

Legally Reviewed By
Amy Chan

Amy M.H. Chan

At our law firm, Amy is committed to providing her clients with the highest quality legal representation.  Her extensive experience, coupled with her dedication for her work make her an invaluable asset to our team. Meet Amy

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