NO. 26308



IN THE SUPREME COURT OF THE STATE OF HAWAI‘I




KITTY K. KAMAKA, Plaintiff-Appellant/Cross-Appellee,

vs.


GOODSILL ANDERSON QUINN & STIFEL, a Law Corporation,
Defendant-Appellee/Cross-Appellant.




APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 97-4007)







ORDER GRANTING DEFENDANT-APPELLEE/CROSS-APPELLANT
GOODSILL ANDERSON QUINN & STIFEL'S "MOTION FOR CLARIFICATION"
AND AMENDING THE JANUARY 24, 2008 OPINION OF THE COURT
(By: Moon, C.J., Levinson, Nakayama, and Duffy, JJ.;
Circuit Judge Wong, in place of Acoba, J., recused)

Upon consideration of defendant-appellee/cross-appellant Goodsill Anderson Quinn & Stifel's "Motion for Clarification," brought pursuant to Hawai‘i Rules of Appellate Procedure Rule 40 (2007), which we deem as a motion for reconsideration, the papers in support thereof, and the record herein,

IT IS HEREBY ORDERED that the motion is granted and the opinion of the court in the above-captioned matter, filed January 24, 2008, starting at page 29, is amended as follows (deleted text is stricken; new language is double-underscored):

However, Goodsill, in moving to dismiss, argued that "an employee is barred by the exclusivity provision of [Hawaii's workers' compensation law, HRS §] 386-5 [(1993),] from asserting claims for negligence against his or her employer." HRS § 386-5, entitled "Exclusiveness or right to compensation; exception[,]" (bold emphasis omitted), provides in pertinent part:

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 injuryfn18 suffered by the employee shall exclude all other liability of the employer to the employee . . . 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.

(Bold emphasis in original.) (Underscored e Emphases added.) Based on a plain reading, HRS § 386-5 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. Inasmuch as Kamaka has alleged a claim for emotional distress that does not arise out of sexual harassment or sexual assault, such claim is, pursuant to HRS § 386-5, not barred. Goodsill, however, further asserts that it "did not owe [Kamaka] a duty to investigate, much less investigate carefully, her fraudulent timekeeping prior to terminating her employment." See Bhakta v. County of Maui, 109 Hawaii 198, 212, 124 P.3d 943, 956 (2005) (stating that "[d]uty is the first of the four well-established elements of a claim for relief founded on negligence").

Nevertheless, On appeal, Kamaka also contends on appeal that (1) Goodsill was not acting in its capacity as her employer when it investigated; therefore, the workers' compensation exclusivity rules did not apply and, (2) once an investigation is commenced, the at-will doctrine is inapplicable and an investigating employer owes a duty of care in the conduct of that investigation.

The Clerk of the Court is directed to incorporate the foregoing changes in the original opinion by removing pages 29 through 34 and replacing them with the pages attached hereto and take all necessary steps to notify the publishing agencies of these changes.

DATED: Honolulu, Hawai‘i, February 14, 2008.


Lindalee K. (Cissy) Farm
and Edmund K. Saffery (of
Goodsill Anderson Quinn
& Stifel), for defendant-
appellee/cross-appellant,
on the motion