SCPW NO. Electronically Filed Supreme Court SCPW-18-0000652 16-AUG-2018 09:38 PM IN THE SUPREME COURT OF THE STATE OF THEA EKINSLCOWARD and AMY EKINS- COWARD, Petitioners-Plaintiffs, VS. HONORABLE BERT I. AYABE, JUDGE OF THE FIRST CIRCUIT COURT OF THE STATE OF Respondent, and UNIVERSITY OF Respondent-Defendant. Civil Case No. 17-1?0036-01 BIA PETITION FOR WRIT OF DIRECTED TO THE HONORABLE BERT I. AYABE OF THE FIRST CIRCUIT COURT OF THE STATE OF PETITION FOR WRIT OF MANDAMUS DIRECTED TO THE HONORABLE BERT I. AYABE, JUDGE OF THE FIRST CIRCUIT COURT OF THE STATE OF STATEMENT OF FACTS, STATEMENT OF ISSUES AND RELIEF SOUGHT, AND STATEMENT OF REASONS FOR ISSUING THE WRIT DECLARATION OF CLAIRE Y. CHOO EXHIBITS CERTIFICATE OF SERVICE LAW OFFICE OF HARRISON L. KIEHM HARRISON L. KIEHM #6171 8 South King Street, Suite Honolulu, Hawai?i 968 1 3 E?mail: hkiehm82@gmail.com Telephone: (808) 53 8-1700 Fax: (808) 545-2628 DANKO MEREDITH MICHAEL S. DANKO [Pro Hac Vice] CLAIRE Y. CHOO [Pro Hac Vice] 333 Twin Dolphin Drive, Suite 145 Redwood Shores, California 94065 E?mail: mdanko@dankolaw.oom E?mail: kmeredith@dankolaw.corn E-mail: cchoo@dankolaw.com Telephone: (650) 453?3600 Fax: (650) 394?8672 Attorneys for Petitioners THEA and AMY EKINS- COWARD SCPW NO. IN THE SUPREME COURT OF THE STATE OF THEA EKINS-COWARD and AMY EKINS- Civil Case No. 17-1-0036-01 BIA COWARD, PETITION FOR WRIT OF MANDAMUS Petitioners-Plaintiffs, DIRECTED TO THE HONORABLE BERT I. AYABE OF THE FIRST CIRCUIT COURT vs. OF THE STATE OF HONORABLE BERT I. AYABE, JUDGE OF THE FIRST CIRCUIT COURT OF THE STATE OF Respondent, and UNIVERSITY OF Respondent-Defendant. PETITION FOR WRIT OF MANDAMUS DIRECTED TO THE HONORABLE BERT I. AYABE, JUDGE OF THE FIRST CIRCUIT COURT OF THE STATE OF COMES NOW Petitioners Thea Ekins?Coward and Amy Ekins?Coward and respectfully petition this Honorable Court for a writ of mandamus directed to the Honorable Bert I. Ayabe of the First Circuit Court of the State of Hawai?i, ordering him to vacate the two April 9, 2018 orders which: (1) ruled that the Circuit Court did not have jurisdiction over this tort action, (2) ruled that the Director of Labor and Industrial Relations (?Director?) has original jurisdiction to the decide the issue of an af?rmative defense in this tort action, and (3) stayed the action pending that decision by the Director. This extraordinary writ is necessary and compelled by law because the Circuit Court refused to exercise its proper jurisdiction on an af?rmative defense asserted in this tort action? namely, the University?s affirmative defense that this tort action was barred by the Hawai?i Workers? Compensation Law on the grounds that workers? compensation was the exclusive 1 remedy for Dr Ekins-Coward?s injuries. Instead, the Circuit Court passed the responsibility of deciding the af?rmative defense to the Director and stayed the tort action. However, only the Circuit Court has jurisdiction over this tort action. Indeed, the Director lacks any jurisdiction to act where, as here, there has been no lawful claim for workers? compensation bene?ts. Potter v. Hawaii Newspaper Agency, 89 Hawai?i 411, 414, 974 P.2d 51, 54 (1999). Even if the Director had jurisdiction to award or deny bene?ts to Dr. Ekins-Coward on a claim she has not made, it would certainly exceed the Director?s jurisdiction to make a determination on an af?rmative defense in a tort action. Potter, supra, 89 Hawai?i at 423, 974 P.2d at 64 determination that Potter would have been entitled to workers? compensation bene?ts had he chosen to ?le a claim is a far cry from a determination by the Director that the HNA may bene?t from the HRS 386-5 tort defense in an unrelated civil action?) To put it simply, merely asserting the workers? compensation exclusive remedy defense does not ?divest? the Circuit Court of jurisdiction over a tort action. Thus, it was improper for the Circuit Court to punt the decision to the Director. Additionally, in this case, the University has disclaimed any employment relationship with Dr. Ekins-Coward. Under the circumstances, unless and until she seeks and is awarded workers? compensation bene?ts, the University is estopped from seeking the protection of the exclusive remedy tort defense. Potter, supra, 89 Hawai?i at 424, 974 P.2d at 64?65. In short, having disclaimed that Dr. Ekins-Coward is an employee and having denied Dr. Ekins-Coward any employment bene?ts, the University is bound by that election. As the Potter court stated, such a worker is injured on the job, the individual may then choose to (1) seek relief in tort or (2) attempt to show that the [characterization of the individual as a nonemployee] was a sham and that the worker is, therefore, entitled to workers? compensation bene?ts.? Potter, supra, 89 Hawai?i at 425, 974 P.2d at 565?66 (emphasis added). In this case, the University?s initial characterization of Dr. Ekins-Coward as a non- employee was not a sham. Rather, it was consistent with the de?nition of employment under Hawai?i Revised Statutes section 386-1. The sham is the University now claiming that Dr. Ekins- Coward should be precluded from petitioning for redress of her grievances before the Circuit Court based on the workers? compensation exclusive remedy provision. Dr. Ekins?Coward was not an employee. She properly sought relief in tort. The Court has jurisdiction over her action. Thus, this tort action was properly before the Circuit Court. By this writ, petitioners respectfully request that this Honorable Court direct the Circuit Court to exercise its proper 2 jurisdiction. This petition for writ of mandamus is brought pursuant to Hawai?i Revised Statutes sections 602?4 and 602-5, the Hawai?i Workers? Compensation Law (Chapter 386 et seq.), and Rule 21(a) of the Hawai?i Rules of Appellate Procedure. This petition is based on the Petition for Writ of Mandamus, the Statement of Facts, the Statement of Issues and Relief Sought, and Statement of Reasons for Issuing of the Writ, and the Declaration of Claire Y. Choo with Exhibits DATED: Redwood Shores, California, August 10, 2018. Respectfully submitted, ?nal/4W HARRISON L. HM MICHAEL S. DANKO KRISTINE K. MEREDITH CLAIRE Y. CHOO Attorneys for Plaintiffs SCPW NO. IN THE SUPREME COURT OF THE STATE OF THEA EKINS-COWARD and AMY EKINS- COWARD, Petitioners-Plaintiffs, VS. HONORABLE BERT I. AYABE, JUDGE OF . THE FIRST CIRCUIT COURT OF THE STATE OF Respondent, and UNIVERSITY OF Respondent-Defendant. Civil Case No. 17?1?0036-01 BIA PETITION FOR WRIT OF MANDAMUS DIRECTED TO THE HONORABLE BERT I. AYABE OF THE FIRST CIRCUIT COURT OF THE STATE OF STATEMENT OF STATEMENT OF ISSUES AND RELIEF AND STATEMENT OF REASONS FOR ISSUING THE WRIT TABLE OF CONTENTS TABLE OF CONTENTS 2 TABLE OF AUTHORITIES 3 INTRODUCTION 6 STATEMENT OF FACTS 7 STATEMENT OF ISSUES AND RELIEF SOUGHT 12 STATEMENT OF REASONS OR ISSUIN THE WRIT 12 I. Mandamus is Appropriate When the Circuit Court has Refused to Exercise Its Proper Jurisdiction. 12 II. The Circuit Court Had Proper Jurisdiction Over This Matter. 14 Without a Lawful Claim for Workers? Compensation Bene?ts, the Director Does Not Have Jurisdiction, Whether Original Jurisdiction or Primary Jurisdiction, Over This Matter 16 A. The Director Has No Jurisdiction If No Lawful Claim For Bene?ts Has Been Made. 16 B. The Director Does Not Have Primary Jurisdiction 20 IV. The University is Estopped from Seeking the Protections of the Exclusive Remedy Tort Defense. 22 CONCLUSION 23 TABLE OF AUTHORITIES CASES Adams v. Dole Food Co., Inc, 132 Hawai?i 478, 323 P.3d 122 (App. 2014) 16, 21 Brende v. Hara, 113 Hawai?i 424, 153 P.3d 1109 (2007) 13, 14 Evanson v. University of Hawaii, 52 Haw. 595, 483 P.2d 187 (1971) 15, 21, 22 Frank v. Hawaii Planing Mill Foundation, 88 Hawai?i 140, 963 P.2d 349 (1998) 13 Frank v. Hawaii Planing Mill Foundation, 88 Hawai?i 465, 967 P.2d 662 (App. 1998) 13, 19 GECC Fin. Corp. v. Ja?arian, 79 Hawai?i 516, 904 P.2d 530 (App. 1995) 20 Hawaii National Bank v. Okino, 51 Haw. 367, 461 P.2d 135 (1969) 14 In Interest of Doe, . 67 Haw. 466, 691 P. 2d 1163 (1984) 14 Kema v. Gaddis, 91 Hawai?i 200, 982 P.2d 334 (1999) 13 Kona Old Hawaiian Trails Grp. v. Lyman, 69 Haw. 81, 734 P.2d 151, (1987) 20 Leinaala g. Kekauoha v. Sears, Roebuck and Company, Case No. AB (7-89-06232) 17 Nelson v. University of Hawai 97 Hawai?i 376, 38 P.2d 95 (2001) 16, 21 Paci?c Lightnet, Inc. v. Time Warner elecom, Inc., 131 Hawai?i 257, 318 P.3d 97 (2013) 20, 21 Pelekaiv. White, 75 Haw. 357, 861 P.2d 1205 (1993) 13 Potter 12. Hawaii Newspaper Agency, 89 Hawai?i 411, 974 P.2d 51 (1999) passim Rafol v. Mateo, 130 Hawai?i 347, 310 P.3d 1048 (App. 2012) 16, 21 Robinson v. Superior Court in and for Los Angeles County, 35 Ca1.2d 379, 218 P.2d 10 (1950) 13 State ex rel. Kaneshiro v. Huddy, 82 Hawai?i 188, 921 P.2d 108 (1996) 14 State ex rel. Marslana1 v. Ames, 71 Haw. 304, 788 P.2d 1281 (1990) 12, 13 State v. L0, 116 Hawai?i 23, 169 P.3d 975 (2007) 13, 14 State v. Phelps, 67 Ariz. 215, 193 P.2d 921 (1948) 13 US. v. McDonnell Douglas Corp, 751 F.2d 220 (8th Cir. 1984) 21 STATUTES 26 U.S.C. 1441(b) 9 Haw. Rev. Stat. 26-11 15 Haw. Rev. Stat. 386?1 6, 22 Haw. Rev. Stat. 386?3 6, 22 Haw. Rev. Stat. 386-5 passim Haw. Rev. Stat. 386-71 18 Haw. Rev. Stat. 386?82 18 Haw. Rev. Stat. 386-86 17 Haw. Rev. Stat. 602?4 12 Haw. Rev. Stat. 12 Haw. Rev. Stat. 661-1 14,15,16 Haw. Rev. Stat. Chapter 386 7, 11, 15, 19 Haw. Rev. Stat. Chapter 632 20 OTHER AUTHORITIES IRS. Publication No. 515, Withholding of Tax on Nonresident Aliens and Foreign Entities (rev. 2-16), 9 RULES 19 INTRODUCTION Dr. Ekins?Coward was a postdoctoral fellow for the University of Hawai?i. As a postdoc fellow, she was a visitor to the University, where she was to learn and receive training to advance her career. The University told her that she was not an employee and that the University would provide her no employment bene?ts. The University told her that if she was injured while performing research at the University, she would have to resort to her own insurance to pay for medical treatment. She provided no service to the University??rather, the University and her supervisor were there to give her support, mentoring, training, and equipment as she conducted her research. Dr. Ekins-Coward lost her right arm in an explosion in the University?s laboratory. Dr. Ekins?Coward contends the explosion was the University?s fault. The Hawai?i Workers? Compensation Law applies only to those individuals injured by an accident arising out of and in the course of employment. Hawai?i Revised Statutes 386-3. ?Employment means any service performed by an individual for another person under any contract of hire . . . HRS 386?1. Dr. Ekins-Coward did not provide any service to the University. Thus, she was not an employee. Accordingly, Dr. Ekins?Coward ?led a tort action against the University. After the accident, the University referenced a special ?policy?~not previously disclosed to Dr. Ekins-Coward?that pertained to non?employee postdoctoral felloWs. According to the University, once an accident happened, the University would deem the fellow either student nor employee, except for workers? compensation bene?ts. Treated as employee only for workers? compensation bene?ts.? As noted, only after her injury did Dr. Ekins?Coward ?nd out, for the ?rst time, that the University would prefer to treat her as an employee only for workers? compensation bene?ts. She had, up to that time, received no other bene?ts of employment. The University answered Dr. Ekins?Coward?s allegations and (I) admitted that the Circuit Court had proper jurisdiction over the tort action and, pursuant to its ?special policy,? (2) alleged as an af?rmative defense that workers? compensation was the exclusive remedy available to Dr. Ekins-Coward under the Workers? Compensation Law; speci?cally, HRS section 386-5 which states that ?[t]he rights and remedies herein granted to an employee or the employee?s dependents on account of a work injury 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 . . . This question?whether the exclusive remedy provision was applicable to the petitioners? tort action?was brought before the Circuit Court by cross-motions for summary judgment. The University also asserted?somewhat inconsistently?that the Circuit Court did not have jurisdiction and the Director had original or primary jurisdiction over the applicability of the exclusive remedy tort defense. The Circuit Court ruled that the Director of Labor and Industrial Relations had original jurisdiction over all controversies and disputes arising under HRS Chapter 386, that the threshold decision regarding Dr. Ekins-Coward?s status as an employee must be decided by an administrative proceeding with the Director and that the Circuit Court lacked jurisdiction over petitioners? claims. lt stayed the tort action pending a decision from the Director. Because the Circuit Court had proper jurisdiction over this matter and because the Director does not have jurisdiction over this matter, this mandamus is warranted. STATEMENT OF FACTS On February 9, 2015, by letter invitation, the University offered Dr. Ekins-Coward a post-doctoral fellowship with the Hawai?i Natural Energy Institute one of the University?s research institutes. Ex. A at A034, A025, 1] 3. The purpose of the fellowship was to provide Dr. Ekins-Coward with training. Speci?cally, Dr. Ekins?Coward was to be trained in two respects: 1) Design and set?up novel bioreactor systems for high biomass and bio-oil production from syngas and renewable carbon source. 2) Investigate a new processing of biomass to produce liquid fuels and reuse of biomass residues. EX. A at A036. Dr. ian Yu was the task investigator who was to supervise Dr. Ekins?Coward to help her solve problems and make sure the research progressed. Id. at A051, lines 5?16. The University stated that ?Dr. Ekins?Coward designed her research projects, and could herself determine she wanted or needed a particular piece of equipment or material for her research.? Ex. at B009 (italics added). The University alleged that Ekins-Coward] researched and selected her own material or equipment . . . EX. at B009-B010. The letter stated that ?this invitation does not provide for employment bene?ts such as sick and/or vacation leave, cost?shared medical insurance, etc.? EX. A at A034. The invitation further provided that Dr. Ekins-Coward could accept the invitation with one of the conditions that: 2) The recipient of the fellowship is not an employee of the University of Hawai therefore, shall not be entitled to the rights, privileges, and bene?ts of University employees including, but not limited to medical, dental, and life insurance bene?ts). You will however, be responsible to independently secure appropriate medical coverage for the duration of this fellowship. The University of Hawai ?i accepts no responsibility, nor liability to obtain medical coverage of any expenses or costs in the event of injury in the course of your work or travel. Id at A035 (emphasis added). Dr. Ekins?Coward, upon receiving the invitation, asked for clari?cation on the lack of employment bene?ts and con?rmed her understanding that, as a fellow, she was not a University employee. EX. A at A041 also note that I would not be an employee of the university, and so not entitled to the privileges of university staff?) and A025 1i 6. Dr. Ekins-Coward accepted all the conditions as outlined in the invitation letter, including the condition that she was not an employee of the University. Id at A038, A025, 5?6. Dr. Ekins?Coward was told that at the University, ?a post-doctoral fellow is a trainee, not an employee, and therefore does not have bene?ts (medical insurance, pension, etc)? Id. at A040. Dr. Ekins-Coward was not to provide the University any service in connection with her fellowship. For example, she was not required to teach classes or serve as a teaching assistant. EX. A at A053, line 10 to A054, line 4. Instead, she was supposed to be trained by the University, speci?cally by Dr. Yu. Id. at A052, lines 16?21. Dr. Ekins-Coward was charged with putting in the time equivalent to ?full-time? on her learning what Dr. Yu could teach her. Id. at A053, line 18 to A054, line 7. Dr. Ekins?Coward?s schedule was ?exible?she was to arrange her own time, no one kept track of ?overtime? hours, and she did not get paid vacations. Id. at A040. The University was the sponsor for Dr. Ekins-Coward?s -l visa to enter the United States. It sponsored her as a ?Research Scholar,? not as an employee. Ex. A at A025, 1i 7, A065. The University paid Dr. Ekins?Coward a stipend of $5,000, funded by grant money from the Of?ce of Naval Research, not the University. Id at A049, lines 10-13, A050, lines l?4; EX. at D010, D0169. From the $5,000 stipend, the University withheld 14% for federal tax purposes, pursuant to a ?Foreign Person?s U.S. Source Income Subject to Withholding? tax form, consistent with a fellowship grant and not payment for services provided.1 Ex. at D010, D177. On March 16, 2016, there was an explosion in the HNEI laboratory. Ex. A at A025, ll 8. As a result of the explosion, Dr. Ekins-Coward suffered abrasions to her cornea, burns to her face, nerve damage to her ears, and the loss of her right arm. Id. On March 18, 2016, Brian Taylor, the Dean of the University?s School of Ocean and Earth Science and Technology, informed Amy Ekins?Coward that Dr. Ekins?Coward?s injuries were not covered by the University?s workers? compensation insurance because 1 IRS. Publication No. 515, called ?Withholding of Tax on Nonresident Aliens and Foreign Entities? provides guidance on Form and states: A scholarship or fellowship grant is an amount given to an individual for study, training, or research and which does not constitute compensation for personal services. Nondegree candidate. If the person receiving the scholarship or fellowship grant is not a candidate for a degree, and is present in the United States in or nonimmigrant status, you must withhold tax at 14% on the total amount of the grant that is from US. sources if the following requirements are met: 1. The grant must be for study, training, or research in the United States 2. The grant must be made by: c. A federal, state, or local government agency, . . . . IRS. Publication No. 515 at 32, Withholding of Tax on Nonresident Aliens and Foreign Entities (rev. 2-16), see also 26 U.S.C. 1441(b). The publication differentiates the fellowship grant from pay for services rendered: Grants given to students, trainees, or researchers which require the performance of personal services as a necessary condition for disbursing the grant do not qualify as scholarship or fellowship grants. Instead, they are compensation for personal services considered to be wages. It does not matter what term is used to describe the grant (for example, stipend, scholarship, fellowship, etc) Id. at 33. On the other hand, under the heading, ?Pay for Personal Services Performed,? Publication No. 515 explains: ?You generally must withhold tax at the 30% rate on compensation you pay to a nonresident alien individual for labor or personal services performed in the United States, unless that pay is speci?cally exempted from withholding or subject to graduated withholding.? Id. Dr. Ekins-Coward was not an employee of the University. Ex. A at A027, 1] 3. Thereafter, the University reversed course and stated that workers compensation would be provided to Dr. Ekins?Coward. Id. at 4; A063. The University was still careful to not characterize itself as her employer. Id at A063 (?Queens has had dif?culty contacting [Dr. Ekins?Coward?s] ?employer? HNEI, SOEST, UHM (my speculation likely because POST building was closed yesterday).? The University produced to petitioners, for the ?rst time, a one-page internal University document which stated: POST-DOCTORAL FELLOWS Neither student nor employee, except for workers? compensation bene?ts. Treated as employee only for workers? compensation bene?ts. Characterized as mentoring experience. Ex. at On or about March 19, 2017, the University ?led a Employer?s Report of Industrial Injury with the Hawai?i Department of Labor. Ex. at B011. Plaintiffs ?led this action in tort against the University. Ex. I. There is no mention of workers? compensation in the complaint. Id. On April 21, 2017, the University ?led a Motion to Dismiss. Ex. I. The University asserted in the motion: This statement [that plaintiff may state negligence-based claims against the University] is without waiver of the University?s assertion that these claims are barred by Hawai?i?s Workers Compensation statute, in particular Haw. Rev. Stat. 386?5: 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 injury suffered by the employee shall exclude all other liability of the employer to the employee, the employee?s legal representative, spouse, dependents, next of kin, or anyone else entitled to recover damages from the employer, at common law or otherwise, on account of the injury, except for sexual harassment or sexual assault and in?iction of emotional distress or invasion of privacy related thereto, in which case a civil action may also be brought. Id. at 2, n.1 (bold in original). In the Answer and Af?rmative Defenses of the University of Hawai?i to the First Amended Complaint ?led June 28, 2017, the University ?admits that the [Circuit] Court has jurisdiction over the claims asserted in the First Amended Complaint and that venue is proper in the First Circuit Court of the State of Hawaii.? Ex. at 1. The University asserted in its Second Af?rmative Defense that ?Plaintiffs? claims are barred or preempted [by] Hawai?i?s State Workers? Compensation law.? Id at 7. 10 On January 30, 2018, petitioners moved for partial summary judgment on the sole issue of whether or not the University?s af?rmative defense that the exclusive remedy provision of the Hawai?i Workers? Compensation Law barred Dr. Ekins?Coward from pursuing a tort action. EX. A. On February 12, 2018, the University ?led a cross-motion for summary judgment on the same issue and brought up a new issue?that the Circuit Court did not have jurisdiction over the action. EX. D. The University stated that: If Plaintiffs wish to proceed in court, they must ?rst go to the Director and get a ruling that the workers? compensation chapter is inapplicable here. Absent that, this Court simply lacks jurisdiction. It is simply not the University?s job (or this Court to do Plaintiffs? counsel?s work for them. EX. at D017 (italics in original). The University offered no authority for this reversal of the usual burdens of proof associated with af?rmative defenses in tort actions. EX. D. On April 9, 2018, the Circuit Court denied plaintiffs? motion for partial summary judgment, granted in part the University?s motion for summary judgment, ordered the action stayed, and ruled that the Director had original jurisdiction over all controversies and disputes arising under HRS section 386. Exs. and H. On May 22, 2018, the University ?led a ?Complaint to Director of Labor and Industrial Relations Requesting Declaratory Relief which requests that the Director ?nd and declare that Thea Ekins-Coward was an employee of the University for purposes of workers? compensation under Hawai?i Revised Statutes Chapter 386, the Hawai?i Workers? Compensation Law.2 EX. M. On July 27, 2018, petitioners received a Notice of Hearing from the Department of Labor and Industrial Relations Disability Compensation Division, setting a hearing for September 14, 2018, to determine, among other things, ?whether [the] claim is compensable.? EX. N. Petitioners have requested a stay of the hearing pending resolution of this writ petition. Choo Decl. 1] 20. The University refused to agree to a stay of the hearing and the DCD likewise refused to stay the hearing. Id. at 1] 21. Petitioners have ?led a request for postponement of the hearing with the Disability Compensation Division concurrently with the ?ling of this petition. Id. at 11 22. 2 The Complaint to the Director is also directed at Amy Ekins-Coward but does not state any grounds for the Director?s jurisdiction over Amy Ekins-Coward. 11 STATEMENT OF ISSUES AND RELIEF SOUGHT ISSUES: 1. Does the Circuit Court have jurisdiction over the University?s af?rmative defense asserting that the exclusive remedy provision (HRS 386-5) of the Hawai?i Workers? Compensation Law bars this tort action? 2. When no lawful claim for workers? compensation bene?ts has been made, does the Director of the Department of Labor and Industrial Relations have the jurisdiction to decide whether the af?rmative defense of the exclusive remedy provision (HRS 386-5) of the Hawai?i Workers? Compensation Law bars a tort action? 3. May the Circuit Court properly refuse to exercise its jurisdiction in a tort action by staying the matter and ruling that the Director of the Department of Labor and Industrial Relations had the original jurisdiction to determine whether the exclusive remedy tort defense is applicable in a tort action? RELIEF SOUGHT Petitioners respectfully request that this Honorable Court hold that the Director does not have jurisdiction to determine the applicability of the exclusive remedy tort defense in a tort action when no lawful claim for workers? compensation bene?ts has been made. Petitioners also request this Court hold that the Circuit Court had proper jurisdiction and direct Judge Bert I. Ayabe to lift the stay in this action and exercise jurisdiction over this matter. STATEMENT OF REASONS FOR ISSUING THE WRIT I. Mandamus is Appropriate When the Circuit Court has Refused to Exercise Its Proper Jurisdiction. HRS section 602?4 vests this Court with ?the general superintendence of all courts of inferior jurisdiction to prevent and correct errors and abuses therein where no other remedy is expressly provided by law.? Pursuant to HRS Section this Court has ?original jurisdiction in all questions arising under writs directed to courts of inferior jurisdiction and returnable before the supreme court.? ?The extraordinary writ of mandamus is appropriate to con?ne an inferior tribunal to the lawful exercise of its proper jurisdiction.? State ex rel. Marsland v. Ames, 71 Haw. 304, 306, 788 P.2d 1281, 1283 (1990) (internal quotation marks and citations omitted). ?[W]here the trial judge has discretion to act, mandamus clearly will not lie to interfere with or control the exercise of that discretion, even where the judge has acted erroneously, unless the judge has exceeded his jurisdiction, has committed a ?agrant and manifest abuse of discretion, or has refused to act on a 12 subject properly before the court where it has a legal duty to act.? State v. L0, 116 Hawai?i 23, 26, 169 P.3d 975 (2007), quoting State ex rel. Marslana?, supra, 71 Haw. at 306, 788 P.2d at 1283 (emphasis added); see also Brende v. Hara, 113 Hawai?i 424, 429, 153 P.3d 1109 (2007) (same); Kema v. Gaddis, 91 Hawai?i 200, 204, 982 P.2d 334 (1999) (same); see also State v. Phelps, 67 Ariz. 215, 218, 193 P.2d 921, 923 (1948) (?Mandamus is available where a court refuses to exercise jurisdiction rightfully possessed?); see also Robinson v. Superior Court in and for Los Angeles County, 35 Cal.2d 379, 383, 218 P.2d 10, 13 (1950) (?The law is well settled that a trial court is under a duty to hear and determine the merits of all matters properly before it which are within its jurisdiction and that mandate may be used to compel the performance of this duty. This is so even where the trial court?s refusal to pass on the merits is based on the considered but erroneous belief that it has no jurisdiction as a matter of law to grant the relief requested?). ?Mandamus is an appropriate remedy where, as in this matter, a court acts in contravention of statute and the petitioner has no appropriate remedy by way of appeal.? Pelekai v. White, 75 Haw. 357, 362, 861 P.2d 1205 (1993). This tort action was properly before the Circuit Court. The Circuit Court thus had a legal duty to act on the issue that was before it?whether the University?s af?rmative defense that workers? compensation was the exclusive remedy was applicable to plaintiffs. However, the Circuit Court has stayed the action on the grounds that it does not have jurisdiction and deferred the ruling on the af?rmative defense to the Director. But the law is clear?the Director does not have the authority or jurisdiction to decide the applicability of the exclusive remedy tort defense in a tort action properly before a Circuit Court. Potter 12. Hawaii Newspaper Agency, 89 Hawai?i 411, 414, 974 P.2d 51, 54 (1999). What the Directordoes have is the authority and jurisdiction, when a lawful claim for workers? compensation bene?ts is made, to determine whether or not the claimant is entitled to workers? compensation bene?ts. Potter, supra, 89 Hawai?i at 423, 974 P.2d at 63. The mention of an af?rmative defense that workers? compensation may be the exclusive remedy does not divest the Circuit Court of its proper jurisdiction. Frank v. Hawaii Planing Mill Foundation, 88 Hawai?i 465, 470?471, 967 P.2d 662, 667?668 (App. 1998), certiorari granted, reversed on other grounds, 88 Hawai?i 140, 963 P.2d 349 (1998). It was the legal duty of the Circuit Court which already had jurisdiction over this tort action to make the determination of whether an af?rmative defense?such as the exclusive remedy tort defense under the Workers? Compensation Law?was applicable in this case. 13 Because the stay is not a ?nal or appealable order, petitioner has no right of appeal or adequate remedy at law. Brende, supra, 113 Hawai?i at 429 (?mandamus is the appropriate remedy where . . . the order is not immediately appealable?); State ex rel. Kaneshz?ro v. Haddy, 82 Hawai?i 188, 195, 921 P.2d 108 (1996) (?mandamus is appropriate in the instant case because there is no other means available to adequately redress the alleged The ?alternative? remedy of having petitioners obtain a determination first from the Director that the Director does not have jurisdiction is not really an alternative remedy because that is the very error from which petitioners seek relief. Petitioners contend that the Director does not have jurisdiction to determine whether the exclusive remedy tort defense under the Workers? Compensation Law is applicable to petitioners. Moreover, such an ?alternative? remedy, even if it results in the relief requested by petitioners, a determination that the Director does not have jurisdiction, would produce such a delay that it is harmful to the administration of ustice and public good because it would require petitioners to go through the entire workers? compensation process (the Director?s determination about jurisdiction, a possible appeal to the Intermediate Court of Appeals, then a possible appeal to this Honorable Court) before it may be remanded back to the trial court for resolution of the tort action. Hawaii National Bank v. Okino, 51 Haw. 367, 368, 461 P.2d 135 (1969) writ of mandamus will issue. . .where the slowness of ordinary legal forms is likely to produce such a delay that the public good and the administration of justice will suffer from it?) By staying the matter and ruling that the Director had original jurisdiction, the Circuit Court ?has refused to act on a subject properly before the court where it has a legal duty to act.? State v. L0, supra, 116 Hawai?i at 26. Thus, mandamus is appropriate here because the Circuit Court has refused to exercise its proper jurisdiction. In Interest ofDoe, 67 Haw. 466, 469, 691 P.2d 1163, 1165 (1984) (?mandamus is called for because the nature of the relief granted, infra, will be to require an inferior tribunal to act in accordance with its prescribed powers?). II. The Circuit Court Had Proper Jurisdiction Over This Matter. The Circuit Court had jurisdiction over this matter pursuant to HRS section 661-1 which states, in pertinent part, that: The several circuit courts of the State . . . have original jurisdiction to hear and determine the following matters, and unless otherwise provided law, shall determine all questions of fact involved without the intervention of a jury. 14 (1) All claims against the State founded upon any statute of the State; or upon any regulation of an executive department; or upon any contract, expressed or implied, with the State, and all claims which may be referred to any such court by the legislature. . . . HRS section 26-11 establishes the University of Hawai?i as an administrative agency of the State. The University?s Answer asserts the af?rmative defense of the exclusive remedy provision of the Workers? Compensation Law. Ex. at p. 7. The exclusive remedy provision states that: ?The rights and remedies herein granted to an employee or the employee?s dependents on account of a work injury 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 . . . HRS 386-5. Pursuant to HRS section 661-1, the Circuit Court had jurisdiction over this tort action. The University admitted that the Circuit Court had jurisdiction over this matter pursuant to HRS section 661-1. Ex. at 1. There is no law that prohibits the Circuit Court from exercising jurisdiction over an af?rmative defense alleged in the tort action, namely the applicability of the exclusive remedy provision of the Workers? Compensation Law. There is no provision under the Workers? Compensation Law that provides exclusive jurisdiction to the Director regarding the applicability of the exclusive remedy provision. See HRS Chap. 386. To the contrary, the Circuit Courts have, in numerous cases, exercised their jurisdiction to decide whether the exclusive remedy provision of the Workers? Compensation Law was applicable in the matter before them. In Evanson v. University of Hawaii, 52 Haw. 595, 483 P.2d 187 (1971), the University brought a motion for summary judgment based on its af?rmative defense that workers? compensation was the exclusive remedy. Id. at 597. The Circuit Court in Evanson denied the University?s motion for summary judgment on the grounds that workers? compensation was the exclusive remedy. Id. at 597. The Hawai?i Supreme Court reversed the Circuit Court and held that workers? compensation was plaintiffs? exclusive remedy. Id. at 597? 598. Evanson set forth no rule that plaintiffs were required to ?rst obtain a determination from the Director regarding the decedent?s status as an employee. Id. Rather, the Evanson court implied that courts do have the authority or jurisdiction to determine the applicability of the workers? compensation laws to the facts alleged. Id at 600, 483 P.2d at 191 should be emphasized that in construing coverage under workmen?s compensation laws courts ought to guard against narrow constructions which exclude an employee from the bene?ts conferred by 15 the act?). Similarly, in Adams v. Dole Food Co, Inc, 132 Hawai?i 478, 323 P.3d 122 (App. 2014), the Intermediate Court of Appeals af?rmed the Circuit Court?s order granting Dole Food Company?s motion to dismiss on the grounds that workers? compensation was the exclusive remedy under HRS section 386?5. And, in Rafa] v. Mateo, 130 Hawai?i 347, 310 P.3d 1048 (App. 2012), the Intermediate Court of Appeals reversed the Circuit Court?s ruling that the plaintiff?s claims were barred by the exclusive remedy provision. And, in Nelson v. University of Hawaz' 97 Hawai?i 376, 38 P.2d 95 (2001), the Hawai?i Supreme Court reversed the Circuit Court?s ruling that the exclusive remedy provision of the Workers? Compensation Law bars claims for negligent in?iction of emotional distress related to sexual harassment. None of those cases stated that the exclusive remedy tort defense was outside the jurisdiction of the Circuit Courts. Thus, by the authority under HRS section 661 -1 and by the admission of the University, the Circuit Court had jurisdiction to decide whether the affirmative defense of the exclusive remedy provision under the Workers? Compensation Law was applicable in this case. Without a Lawful Claim for Workers? Compensation Bene?ts, the Director Does Not Have Jurisdiction, Whether Original Jurisdiction or Primary Jurisdiction, Over This Matter. A. The Director Has No Jurisdiction If No Lawful Claim For Benefits Has Been Madg While the Circuit Court had proper jurisdiction over this action, the Director of the Department of Labor and Industrial Relations never had jurisdiction because there was no lawful claim for workers? compensation bene?ts. Potter, supra, 89 Hawai?i at 414, 974 P.2d at 54. In the Potter case, fourteen-year-old Shawn Potter was a ?newspaper dealer? for the Hawaii Newspaper Agency (HNA) under an independent contractor agreement. Id at 413, 974 P.2d at 53. Potter used a moped owned by an HNA district manager to deliver the newspapers as well as for personal transportation. Id Potter, while on the moped, was struck by an automobile and suffered serious injuries. Id. at 414, 974 P.2d at 54. Potter ?led a tort action against HNA. Id. at 416, 974 P.2d at 56. HNA filed a Employer?s Report of Industrial Injury? with the Director of the Department of Labor and Industrial Relations. Id. at 417, 974 P.2d at 57. HNA asserted that it was seeking a defense in the tort action under the exclusive remedy provision of 16 the Workers? Compensation Law. Id at 417, 420, 974 P.2d at 57, 60. Potter informed the Director that he was not pursuing a claim for worker?s compensation bene?ts and the Director denied the ?claim.? Id at 416, 974 P.2d at 56. HNA appealed the decision to the Labor and Industrial Relations Appeal Board Id The LIRAB concluded that Potter was an employee of HNA on the date of the collision. Id. at 420, 974 P.2d at 60. However, a dissenting member of the LIRAB opined: The Board, at this juncture, does not have jurisdiction to render an opinion or decision in this particular case. Jurisdiction in a workers? compensation case vests upon the director only when a claim for bene?ts is ?led by an employee. In the absence of such a claim, the director may not, motu proprio, initiate an investigation and render a decision. If the director does not have jurisdiction to render a ruling or decision, neither does the Board. As Section 386-86, Hawaii Revised Statutes, provides inter alia: If a claim for compensation is made, the director shall make such further investigation as deemed necessary and render a decision within sixty days after the conclusion of the hearing awarding or denying compensation, stating the ?ndings of fact and conclusions of law (Emphasis Obviously, the ?ling of a claim is a condition precedent before the director can initiate the necessary investigation and render a decision in a compensation case. Here, no such claim for compensation has ever been ?led. See also Leinaala g. Kekauoha v. Sears, Roebuck and Company, Case No. AB (7-89- 06232) I note that Claimant-Appellee has elected to ?le a tort action in the Circuit Court. As such, the Employer?Appellant?s recourse should have been exercised in, and determined by, that court. I do not believe that Employer-Appellant should be allowed to shield itself from the pending tort action by utilizing the mechanism of the workers? compensation law regardless of the nature of the case. Id. at 420, 974 P.2d at 60 (italics in original). This Court agreed with the dissenting Board member and held that because no lawful claim for bene?ts was made, the Director lacked the statutory authority to act in the matter and that the LIRAB had no jurisdiction to hear the appeal. Id. at 422? 426, 974 P.2d at 62?66. This Court held that the Employer?s Report of 17 Industrial Injury ?led by an employer does not constitute a lawful claim, because a lawful claim for bene?ts has to be made by the injured employee, the employee?s dependents or some other person on the employee?s behalf pursuant to HRS section 386?82. Id. at 422, 974 P.2d at 62. The Court also stated that although the Director has jurisdiction to issue declaratory rulings about whether a claimant would be entitled to workers? compensation upon the bringing of a lawful claim, the Director certainly did not have the jurisdiction to determine whether HNA may bene?t from the exclusive remedy tort defense pursuant to HRS section 386?5 in an unrelated civil action. Id. at 423, 974 P.2d at 63. Thus, even if there was a lawful claim for workers? compensation, the jurisdiction of the Director does not extend to making determinations regarding the exclusive remedy tort defense in a tort action. As in Potter, the petitioners here neither ?led a claim for nor sought workers? compensation bene?ts.3 Instead, petitioners ?led a tort action against the University. In response, the University asserted the exclusive remedy tort defense under HRS section 386?5. The applicability of the exclusive remedy tort defense was the very issue before the Circuit Court. As Potter makes clear, the Director does not have jurisdiction over this matter as no lawful claim for workers? compensation has been ?led and certainly the Director does not have jurisdiction over the issue of the exclusive remedy tort defense. The Director is in charge of administering and the operation of workers? compensation law. HRS 386-71. Thus, issues of compensation and compensability under the Hawai?i Workers? Compensation Law are within the Director?s jurisdiction. However, there is no issue about the amount of compensation or whether the injury is compensable under workers? compensation because the University was not seeking a determination from the Circuit Court about the amount of compensation or a determination about whether the University should compensate Dr. Ekins?Coward pursuant to the Workers? Compensation Law. The issue is an af?rmative defense that the tort action is barred by the Workers? Compensation Law?an issue that is properly before the Circuit Court. In fact, the petitioners have not alleged or mentioned workers? compensation in their complaint, and they have not sought workers? compensation bene?ts through the tort action or through the Director. The only mention of the Workers? 3 The University ?led a Employer?s Report of Industrial Injury (ex. at B011) but that does not constitute a valid claim for workers? bene?ts because petitioner did not make the claim. Potter, supra, 89 Hawai?i at 422, 974 P.2d at 62?63. 18 Compensation Law in the tort action was the assertion of the exclusive remedy defense by the University. As Potter makes clear, the Director?s power and authority does not extend to deciding issues, like affirmative defenses, which were properly before a Circuit Court. By the University?s logic, if any defendant asserts the exclusive remedy tort defense, then the Director has jurisdiction over the issue and the Circuit Court does not. Thus, like in this case, if the University decides to have a internal, undisclosed policy that all visitors to the University should be considered an employee for workers? compensation only and asserts the exclusive remedy tort defense, then that injured individual, just a visitor to the University, must first seek a determination by the Director that they are not an employee before they can seek the proper remedy in the Circuit Court. The mere assertion of the exclusive remedy tort defense does not divest the Circuit Court of jurisdiction. Frank v. Hawaii Planing Mill Foundationsupra, 88 Hawai?i at 470-471, 967 P.2d at 667-668 (?The fact that HPM Defendants asserted a defense under chapter 386 did not divest the circuit court of subject matter jurisdiction. Frank?s claim was a third?party common-law tort claim, a claim over which the labor director lacks jurisdiction to hear. Thus, the proper, and only, forum for this case was in the circuit court?) As a practical matter, this makes sense. The Hawai?i Administrative Rules, Chapter 10, Title 12, 12-10?30 regarding documentation of claims, provides guidance on the following situations: (1) if an employer denies compensability of a claim and the employee disagrees, (2) if an employer fails to ?le a report of the employee?s injury and the employee wishes to pursue a claim, and (3) if a dependent of a deceased employee wishes to pursue a claim. In those situations, the Administrative Rules direct the employee or employee?s dependent to file a WC-S form. Id. The form is called ?Employee?s Claim for Workers? Compensation Benefits.?4 The form assumes that the employee is seeking workers? compensation. There is no checkbox or area on the form for an individual to assert that the Workers? Compensation Law does not apply to her. There is no guidance in the Hawai?i Administrative Rules on how an individual can obtain an initial determination from the Director that the Workers? Compensation Law does not apply to her and a determination that the Director does not have jurisdiction. However, the University claims that: 4 The WC-S form can be found on the Disability Compensation Division website at A copy of the WC-S form is attached to this Petition as Exhibit 0. l9 If Plaintiffs wish to proceed in court, they must ?rst go to the Director and get a ruling that the workers9 compensation chapter is inapplicable here. Absent that, this Court simply lacks jurisdiction. It is simply not the University?s job (or this Court to do Plaintiffs? counsel?s work for them. Ex. at D017 (italics in original). But as this is an af?rmative defense, the University has the burden of proof and it is actually the University ?s job to show that Dr. Ekins-Coward is an employee. GECC Fin. Corp. v. Ja?arian, 79 Hawai?i 516, 526 n. 3, 904 P.2d 530, 540 n. 3 (App. 1995) defendant has the burden of proof on all af?rmative defenses, which includes the burden of proving facts which are essential to the asserted defense?). There is no legal requirement in the Hawai?i Workers? Compensation Law that requires petitioners to take steps to obtain a determination that they are not employees before they are permitted to petition the courts for redress of their grievances. The University is actually creating, without legal basis or support, an administrative requirement and an extra burden on individuals. In fact, the Potter court noted that, despite the holding that employers may be estopped from claiming the protection of the exclusive remedy provision, nothing precluded employers from seeking declaratory relief in the Circuit Courts pursuant to HRS chapter 632 for a determination regarding an individual?s status as an employee. Potter, supra, 89 Hawai?i at 424 n. 3, 974 P.2d at 65 n. 3. This note puts the onus on the ?employer? to obtain that determination. B. The Director Does Not Have Primary Jurisdiction. Moreover, to the extent that there is a question about whether the Director has primary jurisdiction, if there is no jurisdiction because no lawful claim for bene?ts has been made, then there is no jurisdiction, much less primary jurisdiction.5 But, assuming for the sake of argument that there is jurisdiction without a lawful claim for bene?ts, the Circuit Court should have still exercised its jurisdiction. ?The doctrine of primary jurisdiction is generally applicable to all areas where administrative agencies exercise expertise.? Paci?c Lightnet, Inc. 12. Time Warner elecom, Inc, 131 Hawai?i 257, 268, 318 P.3d 97, 108 (2013). ?Primary jurisdiction . . . comes into play whenever enforcement of the claim requires the resolution of issues which, under the regulatory scheme have been placed within the special competence of an administrative body.? Kona Old Hawaiian Trails Grp. v. Lyman, 69 Haw. 81, 93 734 P.2d 151, 168 (1987) (italics added). There are two rationales behind the primary jurisdiction doctrine. Pacific Lightnet, Inc, 5 The issue of primary jurisdiction was ?rst brought up in the University?s Reply in Support of its Motion for Summary Judgment (March 12, 2018). EX. F. 20 supra, 131 Hawai?i at 269, 318 P.3d at 109. First, the doctrine addresses cases which raises facts not within the conventional experience of judges or cases requiring exercise of administrative discretion. Id Second, the doctrine is designed to promote uniformity and consistency in the regulatory process. Id. Neither of those two rationales are applicable in this case. The issue before the Circuit Court was an af?rmative defense in a tort action. The Director does not have special competence in the application of af?rmative defenses in a tort action. Even if the af?rmative defense is related to workers? compensation, as the Evanson, Adams, Rafa], and Nelson cases discussed above show, other Circuit Courts have, in the past and without criticism, adjudicated the issue of the exclusive remedy tort defense. The second rationale of promoting uniformity and consistency in the regulatory process does not apply in this action either because this action was not within the regulatory process. The action was ?led in the Circuit Court, not with the Department of Labor and Industrial Relations. Consistency can and would be maintained by the Circuit Court by the application of stare decisis. Moreover, the primary jurisdiction doctrine requires a balancing of bene?ts against the costs in complication and delay. Paci?c Lightnet, Ina, supra, 131 Hawai?i at 278, 318 P.3d at 118. The doctrine should not be applied if it ?results in added expense and delay to the litigants where the nature of the action deems the application of the doctrine inappropriate.? Id. (quoting US. v. McDonnell Douglas Corp, 751 F.2d 220, 224 (8th Cir. 1984). In this case, the application of primary jurisdiction is inappropriate because, as discussed above, an af?rmative defense in a tort action is not within the special competence of the Director. But applying the primary jurisdiction doctrine here will result in added expense and delay because it requires the petitioners to seek a determination from the Director on a matter that is not within his special competence, which may or likely will result in an appeal to the LIRAB. The determination from the LIRAB will likely result in an appeal to the Intermediate Court of Appeals and possibly even an appeal to the Hawai?i Supreme Court. A determination by this Court, if following the outcome of Potter, will result in the matter being remanded back to the Circuit Court to decide whether the exclusive remedy tort defense is applicable, years later, all the parties may end 21 up back at square one.6 IV. The University is Estopped from Seeking the Protections of the Exclusive Remedy Tort Defense. The Potter court also stated another reason why the Circuit Court would retain jurisdiction over a tort action. When an employer disavows its employment relationship with its alleged employee, it is estopped from claiming the protections of the exclusive remedy tort defense until the injured individual challenges the form-over-substance nature of the relationship and is awarded workers? compensation bene?ts. Potter, supra, 89 Hawai?i at 424, 974 P.2d at 64-65. [T]his result both protects the principle . . . that an employer-employee relationship must be entered into a deliberate manner with the informed consent of both parties and maintains the integrity of the social bargain that lies at the heart of the workers? compensation system, wherein a worker surrenders his ?right to recover common law damages from the employer in exchange for the certainty of a statutory award for all work? connected injuries.? Id. (quoting Evanson, supra, 52 Haw. at 598, 483 P.2d at 190). Thus, ?[w]hen an employee expressly contracts with a worker as an cindependent contractor,? the employer will be bound by his election. If such a worker is injured on the job, the individual may then 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 bene?ts.? Porter, supra, 89 Hawai?i at 425, 974 P.2d at 65 -66 (italics in original). The Potter court expressly stated that the individual may choose to seek relief in tort (in the Circuit Court) or seek workers? compensation (in the Department of Labor and Industrial Relations), not that the individual must ?rst seek a determination with the Director ?rst. The Hawai?i Workers? Compensation Law applies only to those individuals injured by accident arising out of and in the course of employment. HRS 386-3. ?Employment means any service performed by an individual for another person under any contract of hire . . . HRS 386?1. In Potter, there was no question that Shawn Potter, a carrier for the newspaper agency, 6 The Potter case took 7 years before it ?nally reached the Hawai'i Supreme Court for a resolution of this speci?c issue. Potter, supra, 89 Hawai?i 411, 974 P.2d 51. That is the anticipated delay in this action if petitioners are required to proceed ?rst through the Department of Labor and Industrial Relations. 22 was providing a service for the agency. Rather, the question was whether the Independent Contractor Agreement was a contract of hire such that it created the requisite employment relationship. Here, Dr. Ekins-Coward did not provide a service to the University such that there was even an arguable employment relationship. But what is not arguable is that the University had expressly contracted with Dr. Ekins?Coward as a non?employee. At all times during her fellowship and before the explosion, the University told Dr. Ekins-Coward that she was not an employee of the University. She was paid a stipend and the University taxed the stipend in a fashion conforming to the withholding required by one paying a fellowship or scholarship grant, not in conformance to one paying compensation for services, withholding at fourteen percent rather than thirty percent. Dr. Ekins-Coward received no protections and benefits of employment from the University. The heart of the workers? compensation system is enforcement of a social bargain. Here, there was no such bargain because Dr. Ekins-Coward was not told she was entering into an employment relationship and did not receive any of the bene?ts of being an employee. As the University would have it, it would give Dr. Ekins-Coward none of the bene?ts of being an employee but would demand that she give up her right to petition the courts for redress of her grievances. As such, the University is estopped from claiming the protections of the exclusive remedy tort defense and is bound by its election to treat Dr. Ekins?Coward as a non-employee. Thus, Dr. Ekins-Coward may seek relief in tort. As the Potter court stated: 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.? Potter, supra, 89 Hawai?i at 425, 974 P.2d at 65. CONCLUSION The Circuit Court, by staying this action on the grounds that it did not have jurisdiction, failed to exercise its proper jurisdiction and its legal duty. The Circuit Court?s failure to exercise its proper jurisdiction is grounds for mandamus and for the reasons set forth above, petitioners respectfully request that this Court mandate that the Circuit Court lift the stay of the action and 23 exercise its proper jurisdiction. DATED: Redwood Shores, California, August 10, 2018. Respectfully submitted, HARRISON MICHAEL s. DANKO KRISTINE K. MEREDITH CLAIRE Y. CHOO Attorneys for Plaintiffs 24 SCPW NO. IN THE SUPREME COURT OF THE STATE OF THEA and AMY Civil Case No. 17-1-0036-01 BIA COWARD, PETITION FOR WRIT OF MANDAMUS Petitioners-Plaintiffs, DIRECTED TO THE HONORABLE BERT I. AYABE OF THE FIRST CIRCUIT COURT vs. OF THE STATE OF HONORABLE BERT I. AYABE, JUDGE OF THE FIRST CIRCUIT COURT OF THE STATE OF Respondent, and UNIVERSITY OF Respondent?Defendant. DECLARATION OF CLAIRE Y. CHOO I, CLAIRE Y. CHOO, declare under penalty of law that the following is true and correct: 1. I am an attorney duly licensed to practice law before all courts of the State of California, and before all of the United States District Courts in California. I am presently a member in good standing of the bars of said courts and eligible to practice before them. My law firm, Danko Meredith, is counsel for petitioners THEA EKINS-COWARD and AMY EKINS- COWARD. This declaration is submitted in support of this Petition for Writ of Mandamus. 2. I am admitted to practice pro hac vice in the courts of the State of Hawai?i as of June 13 2017. 3. The following facts are within my personal knowledge and, if called as a witness herein, I can and will competently testify thereto. 4. Attached hereto as Exhibit A is a true and correct copy of Plaintiffs? Motion for Partial Summary Judgment, which I have paginated as A001 to A074 for this Court?s convenience. 5. Attached hereto as Exhibit is a true and correct copy of Defendant University of Hawaii?s Opposition to Plaintiffs? Motion for Partial Summary Judgment, which I have paginated as B001 to B165 for this Court?s convenience. 6. Attached hereto as Exhibit is a true and correct copy of Plaintiffs? Reply Memorandum in support of Motion for Partial Summary Judgment. 7. Attached hereto as Exhibit is a true and correct copy of Defendant University of Hawai?i?s Motion for Summary Judgment, or in the Alternative, to Dismiss or Stay, which I have paginated as D001 to D182 for this Court?s convenience. 8. Attached hereto as Exhibit is a true and correct copy of Plaintiffs? Opposition to Defendant University of Hawai?i?s Motion for Summary Judgment, or in the Alternative, to Dismiss or Stay, which I have paginated as E001 to E057 for this Court?s convenience. 9. Attached hereto as Exhibit is a true and correct copy of Defendant University of Hawaii?s Reply in Support of Motion for Summary Judgment, or in the Alternative, to Dismiss or Stay, which I have paginated as F001 to F024 for this Court?s convenience. 10. Attached hereto as Exhibit is a true and correct copy of the April 9, 2018 Order Denying Plaintiffs? Motion for Partial Summary Judgment. 11. Attached hereto as Exhibit is a true and correct copy of the April 9, 2018 Order Granting in Part Defendant University of Hawai?i?s Motion for Summary Judgment, or, in the Alternative, to Dismiss or Stay Filed On February 12, 2018. 12. Attached hereto as Exhibit I is a true and correct copy of the Complaint ?led on January 9, 2017 in this tort action. There is no mention of the Hawai?i Workers? Compensation Law or any claim by Dr. Ekins-Coward for workers? compensation bene?ts. 13. Attached hereto as Exhibit is a true and correct copy of Defendant University of Hawai?i?s Motion to Dismiss Complaint ?led on April 21, 2017. 14. Attached hereto as Exhibit is a true and correct copy of the First Amended Complaint which was ?led on June 28, 2017. Like the original complaint, there is no mention of the Hawai?i Workers? Compensation Law or any claim by Dr. Ekins-Coward for workers? compensation bene?ts. 15. Attached hereto as Exhibit is a true and correct copy of the Answer and Af?rmative Defenses of the University of Hawai?i to the First Amended Complaint Filed June 29, 2017. 16. Attached hereto as Exhibit is a true and correct copy of the University of Hawai?i?s Complaint to Director of Labor and Industrial Relations Requesting Declaratory Relief, without the exhibits. I have omitted the exhibits to the declaratory relief complaint because they were copies of the cross?motions for summary judgment and the orders thereon, which are already attached to this Petition. l7. Attached hereto as Exhibit is a true and correct copy of the Department of Labor and Industrial Relations Disability Compensation Division?s Notice of Hearing, setting the hearing on the University?s declaratory relief complaint for September 14, 2018. 18. Attached hereto as Exhibit 0 is a true and correct copy of the Department of Labor and Industrial Relations Disability Compensation Division?s Form WC-S ?Employee?s Claim for Workers? Compensation Benefits? which I obtained from on August 8, 2018. 19. Attached hereto as Exhibit is a true and correct copy of Rafa! v. Mateo, 130 Hawai?i 347, 310 P.3d 1048 (App. 2012), which is an unpublished disposition filed after July 1, 2008, which may be cited and must be appended to this petition pursuant to Rule 35 of Hawai?i Rules of Appellate Procedure . 20. On August 8, 2018, I contacted by e-mail James K. ukumoto, the Hearings Branch Supervisor of the Department of Labor and Industrial Relations Disability Compensation Division, and Jim E. Davidson, the Hearing Of?cer, informing them that of the ?ling of this Petition and requesting a stay of the hearing scheduled for September 14, 2018. 21. The University refused to agree to a stay of the hearing and Mr. Fukumoto stated that the hearing would remain set for September 14, 2018. 22. Petitioners have filed a request for postponement of the hearing with the Disability Compensation Division concurrently with the filing of this petition. I declare under penalty of law that the foregoing is true and correct. DATED: Redwood Shores, California, August 10, 2018. CLAIRE mod?I