Report of the 2016 Civil Law Forum

• Jurisdiction: Hawaii,United States
• Citation: Vol. 21 No. 06
• Publication year: 2017

Report of the 2016 Civil Law Forum

As described in the Board Policy Manual of the Hawaii State Bar Association ("HSBA"), the Committee on Judicial Administration ("JAC")¹

Maintains a close relationship with the judiciary on matters of mutual concern to the bench and bar, monitors and formulates recommendations to the Board concerning legislation affecting the judiciary, studies and reports on subjects of judicial conduct and discipline, and coordinates activities of the HSBA relating to improvement of the judiciary and administration of justice.

Following a successful Bench-Bar Conference in 2013, the JAC decided to develop a Forum concept to focus on certain issues in the civil² and criminal areas³separately. These Forums take place every other year, alternating with the Bench-Bar Conferences. The Civil Law Forum occurred on September 20, 2016.

WELCOME

Steven J.T. Chow, co-chair of the JAC, welcomed attendees and thanked them for their participation in this important event. He also thanked Chief Justice Mark E. Recktenwald, panelists, JAC members, and Judiciary staff for their hard work and assistance. The Forum serves as a venue to address topics of interest in civil practice. Attendees were encouraged to ask questions and provide input in order that the discourse would engender improvements to the practice of law in the areas discussed.

OPENING REMARKS

Hawaii Supreme Court Chief Justice Mark E. Recktenwald extended thanks to the Forum's organizers, presenters, and attendees. He observed that the alternating Forums and Conferences play important roles in identifying challenges and opportunities with respect to the relationship between the bench and bar. Restarting in 2013, the Bench-Bar Conference has helped to shape a variety of rules concerning, inter alia, pro hac vice appearances, telephonic appearances, discovery, and personal electronic device usage. Chief Justice Recktenwald confidently stated that the Bench-Bar Conference and Forum process helps to shape the course of the Judiciary and produces tangible initiatives. Chief Justice Recktenwald also noted that the Judiciary's commitment to the Civil Law Forum was reflected in the attendance of many circuit court judges, district court judges, and court administrators from across the state. Supreme Court Justices Richard W. Pollack and Sabrina S. McKenna were also in attendance. The Civil Law Forum builds on the Bench Bar Conferences by allowing the Judiciary and bar to discuss issues in greater depth.

Reflecting on his experiences with the Conference of Chief Justices, Chief Justice Recktenwald noted the national shift towards civil justice reform. The conference, through its Civil Justice Improvement Committee, has spent several years analyzing data sets related to civil justice reform across the country. The findings indicate that high value tort and commercial litigation constitute only a small proportion of the civil justice workload while minor value contract cases constitute a majority of the civil calendar. These trends highlight the need for improved judicial case management through a triage process wherein new cases are categorized as either (1) streamline, (2) complex, or (3) requiring a high degree of judicial management. Chief Justice Recktenwald invited input from the bar about this concept of judicial case management and its applicability to Hawaii courts and cases.

Chief Justice Recktenwald noted that Hawaii's judiciary has already undertaken efforts aimed at streamlining the judicial process through the application of multi-tiered and specialized courts. Nevertheless, he pointed out that the Judiciary is cognizant of the constant need to assess the effectiveness of its programs and processes in light of the needs of court users.

Chief Justice Recktenwald concluded by recognizing First Circuit State Court Judge Derrick H. M. Chan as the chair of the special committee to implement and administer the Judicial Performance Program under Hawaii Supreme Court Rule 19. He encouraged attorney involvement in that process as an integral aspect of improving our civil justice system.

I. LEGISLATIVE UPDATE

(Robert S. Toyofuku and Bert S. Sakuda)

Bert S. Sakuda and Robert S. Toyofuku

Robert Toyofuku explained how bills are documented, e.g., "HD1" means that a bill has been amended in the House; "SD1" means that a bill has been amended in the Senate, and that "CD1" referenced conference drafts. He also noted that in recent years, the number of bills introduced to legislation has dramatically reduced. Historically, the number of bills introduced used to be in the thousands.

Summaries on the following bills were presented:

HB254 Relating To Medicines is a bill that deals with generic medicines including biologies (medication manufactured in living cells) and biosimilars (substituted versions of medication similar to generic medication). The legislature believed that regulation was needed in response to heavy lobbying and high consumer demand. The bill was included in this presentation because of its liability aspect, which states that pharmacists assume no greater liability when they dispense biosimilars over biologies. This adds a notice requirement for situations in which pharmacists substitute biosimilars that are not identical to brand name drugs.

HB260 Relating To Insurance establishes provisions relating to transportation networking companies ("TNCs"). Toyofuku noted that TNCs, like Uber and Lyft, want to be regulated and take a proactive stance regarding legislation because they want to make sure that their business models are sanctioned by the state. Previous legislation that was proposed in 2015 sought regulation from the PUC, but did not pass. Legislation proposed in 2016 was much narrower, focused primarily on insurance concerns, and delegated the responsibility of regulating TNCs to the counties. Such legislation aimed to address insurance concerns that personal insurance policies were inadequate for the commercial work in which TNC drivers were engaged. It also addressed concerns that were brought up by taxi companies who argued that TNCs were acting unfairly and operating with virtually no government regulation. It was noted that Uber principals, for example, operate within two defined time frames including "Period 1" and "Period 2." Period 1 starts when the phone application is turned on. The driver is logged on but has not engaged any passengers. At this point, the driver will have coverage of $50,000 per person, $100,000 per occurrence, and $ 25,000 property, plus their personal policy as secondary coverage. "Period 2" begins when the driver engages/accepts the passenger's request for a ride and goes to pick him/her up. Minimum coverage goes up to $1 million, personal and property, in aggregate, with no applicable personal insurance. Passengers keep their own personal policies.

Audience members were asked to raise their hands if they had an Uber, Lyft, or other similar TNC application on their cell phones. Many raised their hands. When asked how many agreed to all the terms and conditions of the application, including the liability waiver and indemnification agreement, almost all hands were lowered. However, it was noted that, if you have an Uber app, you (knowingly or not) have agreed to its liability waiver and indemnity provisions. In response, new bill provisions were proposed to make those terms and conditions void and unenforceable.

It was also noted that the Honolulu city council passed regulations for this bill on August 3, 2016 and is now in process of amending certain provisions, which, as written, are not enforceable. Thus, the effective date will likely be extended to sometime in the future, possibly around January 2017.

HB1101 Relating To The Traffic Code was proposed to prohibit the use of certain types of motor vehicle wheels that are considered dangerous, in particular, fixtures to the wheels that extend or protrude at least four inches beyond the rim. Attorneys should keep this in mind for personal injury cases.

HB1046 Relating To Wrongful Imprisonment establishes the redress for wrongful conviction and imprisonment to insure that wrongfully convicted individuals may file petitions for monetary relief. In order to recover, petitioners must be convicted and sentenced, have served prison time, found actually innocent, or, if pardoned, found actually innocent. The statute of limitations is two years, and compensation damages are capped at $50,000 per year, plus an additional $100,000 for egregious cases. It was noted that this bill does not address traditional methods of redress through tort law and that attorneys' fees may not to exceed $10,000 or more than 25% of whatever the circuit court awards to the petitioner. These clauses are problematic because of the high cost of litigation and the fact that it might easily cost over $10,000 to prosecute the claim. Considering the fact that the average amount of time a wrongfully imprisoned person serves in jail is fourteen years, the group was asked to think about whether a cap on damages is fair for this cause of action and if it would adequately compensate the petitioner.

HB1705 Relating To Motor Vehicle Insurance allows drivers to carry electronic versions of proof of insurance.

HB1753 Relating To Mopeds strengthens regulations regarding mopeds. Among other things, this measure: (1) requires the issuance of a moped number plate and tag or emblem upon payment of fees; (2) prohibits a person from operating a moped that is not in good working order on any highway; (3) extends to mopeds certain police powers regarding the inspection of vehicles believed to be unsafe or without required equipment; and (4) subjects mopeds to annual certificate of inspection requirements. This bill arose mainly because of noise complaints. The problem with this bill is that safety checks often do not include an inspection of engine noise levels.

HB2017 Relating To Workers' Compensation...