Shim & Chang has achieved numerous high dollar settlements and verdicts on behalf of accident and injury victims in Honolulu and throughout Hawaii, including the first $1 million jury verdict in our State.
Some attorneys advertise assistance with Honolulu personal injury settlements with the goal of simply settling a matter at the soonest opportunity and moving on to the next case. At Shim & Chang, we prepare every case as if it may go to trial, always with the goal of obtaining maximum compensation for every client.
Our firm has succeeded in many landmark decisions and achieved important victories for our clients. A landmark case is one that sets a precedent that substantially changes the current interpretation of the law or one that establishes new case law on a particular issue. In handling landmark personal injury cases, Shim & Chang has helped reshape Hawaii law to improve the legal system for injury victims. We are proud to share these examples of landmark cases:
THE ESTATE OF MARK TOKUYAMA V. CITY AND COUNTY OF HONOLULU
On January 29, 1981, Mark Tokuyama went swimming at Makapu’u Beach with several friends. He was unaware of a severe rip current at the beach that day. No warning signs or flags were posted. While swimming near the shore area in front of the lifeguard stand, he was suddenly picked up by the undertow and taken out to sea. He struggled against the current for some 20 minutes before succumbing to fatigue, inhaling water, and losing consciousness.
While Mark was struggling for his life, the two lifeguards on duty were inattentive to their duties. One lifeguard went on break and the other lifeguard had his back turned to the water talking to a girl. Only after other beachgoers notified the lifeguard was a rescue attempt made. By then, it was too late. Mark died on the way to the hospital.
The City and County of Honolulu claimed the tragedy was Mark’s fault for going swimming and denied that the lifeguard was inattentive. The City declined to make any settlement offer, and this case was taken to trial, leaving the ultimate decision to the jury.
The jury awarded total damages of $953,114.57, which at the time was the highest award ever for a drowning case in the State of Hawaii.
MINOR S.P. V. HAWAII NEWSPAPER AGENCY
Fourteen-year-old Shawn Potter was working as a newspaper dealer for Hawaii Newspaper Agency (HNA) in Honolulu when he was struck by an automobile that ran a stop sign. As a result of the accident, Shawn suffered severe head injuries, a ruptured spleen, and a fractured femur. Upon his discharge from the Rehabilitation Hospital of the Pacific in May 1993, he was confined to a wheelchair and required assistance with activities of daily living. Shawn’s family has claimed that his medical expenses exceeded $307,000.00.
At the time of the accident, Sean was riding a moped that belonged to one of HNA’s district managers. When Shawn was loaned the moped to make deliveries, he was also permitted to take it home and use it at other times as well. However, Shawn was not old enough to operate the moped legally, and he possessed no license to drive it.
In order to become a dealer for HNA, Shawn and his parents executed a “Statement of Intention,” which recited that Shawn would “operate [his] own retail distribution and delivery business as an independent contractor.” As “independent contractors,” HNA’s newspaper dealers did not receive any employee benefits. The dealers did not receive an hourly wage, but rather purchased newspapers at wholesale from HNA, which they resold to their customers at a profit. HNA did not take responsibility for withholding income tax or Social Security payments on the dealers’ behalf.
It is apparent from the record that the “Newspaper Dealers’ Agreement” was offered to prospective newspaper carriers on a take-it-or-leave-it basis. The disparity of bargaining power was made more acute by the paucity of employment opportunities available to young people. Moreover, pursuant to the terms of the agreement, HNA sought to avoid liability for employee benefits, state and federal payroll taxes, and vicarious liability for any damages that might result from the news carriers’ delivery of its newspapers. The agreement offered no reciprocal benefits to the carriers.
Despite the express terms of its own agreement, HNA claimed that Shawn was an employee of HNA, not an independent contractor, and only entitled to workers’ compensation benefits. Eligibility for workers’ compensation benefits would prohibit a tort suit against HNA, and for Shawn’s family, the difference in benefits was huge.
When the Hawaii Supreme Court decided Shawn’s case, it was a landmark decision in workers’ compensation law and tort law. Prior to the decision, it was unclear whether an injured independent contractor could choose between receiving workers’ compensation benefits or sue his employer under tort law. The Court held in our favor and decided that Shawn could either sue HNA under tort law or accept workers’ compensation benefits. The choice was his and not HNA’s. Following this decision, Shawn’s tort suit was settled by HNA for an undisclosed amount.
The Hawaii Supreme Court explained in its holding, “We are not providing a mechanism whereby any worker, who has consistently been labeled and treated by his employer as an ’employee’ and afforded the full panoply of protections and benefits that customarily accompany that status, may ‘opt out’ of the workers’ compensation statutes. Rather, we are merely restricting the prerogative of employers to ‘have their cake and eat it too.’ When an employer expressly contracts with a worker as an ‘independent contractor,’ the employer will be bound by his election. If such a worker is injured on the job, the individual may choose to (1) seek relief in tort or (2) attempt to show that the independent contractor agreement was a sham and that the worker is, therefore, entitled to workers’ compensation benefits.” Potter v. Hawaii Newspaper Agency, 89 Hawaii 411 (1999).