Sato v. Tawata

RAMIL, Justice,

dissenting.

Because the majority’s analysis ignores the clear and unambiguous language of Hawai'i Revised Statutes (HRS) § 386-8 (1985), which provides in relevant part that “the amount of compensation paid by the employer ... shall not be admissible in evidence in any action brought to recover damages,” I respectfully dissent. (Emphases added.) The majority holds that, “notwithstanding the language of HRS § 386-8, disclosure of workers’ compensation evidence, including the amount [of compensation paid by the employer], may be appropriate where some relevant purpose for allowing its admission develops in the trial.” Majority opinion at 22, 897 P.2d at 949. By allowing the admission of the amount or the approximate amount of workers’ compensation paid by the employer, the majority undermines the purpose of third party actions as codified in HRS § 386-8 and increases the likelihood of misuse of such evidence by the jury, thereby providing a potential windfall for third party tortfeasors to the detriment of injured employees and employers.1

I. APPLICABLE RULES OF STATUTORY CONSTRUCTION

The first cardinal rule of statutory construction is that “legislative enactments are presumptively valid and[, if possible, every word, clause, and sentence of a statute] should be interpreted in such a manner as to give them effect.” Richardson v. City and County of Honolulu, 76 Hawai'i 46, 54, 868 P.2d 1193, 1201 (citation, internal quotation marks, and internal brackets omitted), reconsideration denied, 76 Hawai'i 247, 871 P.2d 795 (1994). See also Methven-Abreu v. Hawaiian Ins. & Guar. Co., 73 Haw. 385, 392, 834 P.2d 279, 284, reconsideration denied, 73 Haw. 625, 838 P.2d 860 (1992) (“[CJourts are bound, if rational and practicable, to give effect to all parts of a statute, and that no clause, sentence, or word shall be construed as superfluous, void, or insignificant if construction can be legitimately found which will give force to and preserve all the words of the statute.”) (citation omitted).

Absent any constitutional obstacles in applying the law, this court’s chief duty is “to ascertain and give effect to the legislature’s intention to the fullest degree,” which is “obtained primarily from language contained in the statute itself.” Sol v. AIG Hawaii Ins. Co., 76 Hawai'i 304, 307, 875 P.2d 921, 924 (citation and internal quotation marks omitted), reconsideration denied, 76 Hawai'i 353, 877 P.2d 890 (1994), and Kam v. Noh, 70 *23Haw. 321, 325, 770 P.2d 414, 416 (1989). When a law is enacted, “a presumption exists that the words [in the statute] express the intent of the legislature.” Sutherland Statutory Construction § 46.04 at 98 (5th ed. 1992) (citation omitted).

Although “departure from a literal construction of a statute is justified when such construction would produce an absurd result and ... is clearly inconsistent with the purposes and policies of the act,” this court may not reject generally unambiguous language “if construction can be legitimately found which will give force to and preserve all the words of the statute.” Richardson, 76 Hawai'i at 60, 868 P.2d at 1207; see also Methven-Abreu, 73 Haw. at 392, 834 P.2d at 284. “The legislature is presumed not to intend an absurd result, and legislation will be construed to avoid, if possible, inconsistency, contradiction and illogicality.” Sutherland Statutory Construction § 46.07 at 131 n. 8 (citation omitted). If such construction is reasonably possible, this court “must presume [that the legislature] meant what it said” and is further barred from rejecting otherwise unambiguous statutory language— absent some compelling evidence to the contrary, e.g., “unmistakable support in the history and structure of the legislation.” Richardson, 76 Hawai'i at 57, 868 P.2d at 1204. Here, the majority admits that “Unfortunately, the legislative history of HRS § 386-8 provides little guidance as to the statute’s underlying policy.” Majority opinion at 18, 897 P.2d at 944.

II. DISCUSSION

The dispositive issue on appeal is whether the circuit court erred when it admitted evidence that Russell Sato’s workers’ compensation benefits approximated his pre-accident salary in light of the clear and unambiguous language of HRS § 386-8 (1985).

A.

The language of HRS § 386-8 (1985) is plain and unambiguous and provides in relevant part:

Liability of third person. When a work injury for which compensation is payable under this chapter has been sustained under circumstances creating in some person other than the employer or another employee of the employer acting in the course of his employment a legal liability to pay damages on account thereof, the injured employee or his dependents (hereinafter referred to collectively as the employee) may claim compensation under this chapter and recover damages from such third person.
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The amount of compensation paid by the employer or the amount of compensation to which the injured employee is entitled shall not be admissible in evidence in any action brought to recover damages.[2]

(Emphases added.)

Although the use of the word “shall” is generally mandatory, it is not necessarily dispositive of the issue and has been considered directory in certain situations. In re Fasi 63 Haw. 624, 626, 634 P.2d 98, 100-01 (1981) (citation omitted). However, where the words “shall” and “may” are used in close juxtaposition within a statute, the terms carry their ordinary meaning. Pele Defense Fund v. Puna Geothermal Venture, 8 Haw. App. 203, 212, 797 P.2d 69, 73 (1990) (citing In re Fasi 63 Haw. 624, 634 P.2d 98 (1981)). Thus, in the instant case, because the term “shall” and “may” appear throughout HRS § 386-8, one should infer that the legislature intended each term to carry its ordinary meaning. See Pele Defense Fund, 8 Haw. App. at 212, 797 P.2d at 73 (giving “may” its ordinary meaning because “both the statute and Rule use the words ‘shall’ and ‘may’ throughout”).

Accordingly, HRS § 386-8 mandates that the amount of workers’ compensation benefits paid by the employer is inadmissible in *24evidence in any third party actions brought to recover damages.

However, in the instant case, defendant-appellee Stephanie Tawata maintains that during cross-examination, Dr. Basting did not testify as to the “actual amount” of workers’ compensation benefits received by Sato. Tawata argues, inter alia, that Dr. Basting only testified that Russell’s workers’ compensation benefits “approximated” his pre-acci-dent salary, and, therefore, that HRS § 386-8 was not violated. Tawata contends that HRS § 386-8 applies only in situations where a party seeks to introduce as evidence the specific amount of workers’ compensation benefits received.

Tawata’s argument places form over substance. Section 386-8 states that the amount of compensation paid by an employer is inadmissible. Dr. Basting’s testimony that the-compensation “approximated” Russell’s pre-accident salary was sufficient to bring the testimony within the purview of § 386-8.

This is especially true in light of the fact that the jury was presented with the amount of Russell’s salary and was then told that his workers’ compensation benefits approximated his salary. Based on this information, the jury could infer the amount of workers’ compensation benefits received by Sato from his employer. This was a violation of the clear and unambiguous language of HRS § 386-8. Therefore, because HRS § 386-8 renders inadmissible evidence that Russell’s workers’ compensation benefits approximated his pre-accident salary and because the circuit court erred by admitting such evidence in the presence of the jury, I would vacate the judgment by special verdict and Tawata’s award of costs and remand this case for a new trial.

B.

However, “notwithstanding the language of HRS § 386-8,” the majority opinion holds that “[the] disclosure of workers’ compensation evidence, including the amount [of compensation paid by the employer], may be appropriate where some relevant purpose for allowing its admission develops in the trial.” Majority opinion at 22, 897 P.2d at 949. For, the reasons set forth below, I disagree.

1.

First, the majority states:

[W]here evidence of workers’ compensation benefits is relevant, that is, where some other basis for its admission exists, such as the credibility of witnesses, the trial court must exercise its discretion under Hawaii Rules of Evidence (HRE) Rule 403 (1985) to determine whether to admit such evidence[, such as the amount of workers’ compensation paid by the employer.]

Majority opinion at 18, 897 P.2d at 945 (footnote omitted). In other words, because the specific amount of workers’ compensation paid by the employer may become relevant in third party actions,3 the majority asserts that trial judges may admit such evidence when such relevant situations develop pursuant to HRE Rule 403.

However, HRE Rule 402 (1985) provides in relevant part: “[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States and the State of [Hawaii], by statute, by these rules, or by other rules adopted by the supreme court.” (Emphases added.) See Kealoha v. County of Hawaii, 74 Haw. 308, 315, 844 P.2d 670, 674 (1993) (“HRE 402 states unequivocally that, subject only to certain explicit exceptions, ‘all relevant evidence is admissible[.]’ ”).

HRS § 386-8 clearly provides such an exception. As discussed supra, HRS § 386-8 (1985) provides, in relevant part, -that “the amount of compensation paid by the employer ... shall not be admissible in evidence in any action brought to recover damages.” (Emphasis added). It goes without saying that, in HRS § 386-8, the legislature was referring to “relevant evidence.” Thus, in *25enacting this statute, the legislature weighed the danger of prejudicing the jury against the probative value of relevant evidence of workers’ compensation benefits paid by the employer. As evidenced by the plain language of HRS § 386-8, the legislature made the “judgment call” that the likely misuse by the jury substantially outweighs the possible probative value of such evidence in third party actions. Accordingly, because the legislature unequivocally intended to exclude the amount of workers’ compensation benefits paid by the employer in third party actions, I would hold that trial courts generally have no discretion to admit such evidence pursuant to HRE Rule 403.

2.

Second, the majority asserts that:

By adopting a blanket prohibition of workers’ compensation evidence, a jury could be precluded from considering relevant evidence that would result in a verdict based on incomplete and misleading facts and could potentially result in a distorted and unjust verdict. Such a result would frustrate the fundamental purpose of a trial, which is to provide the finder of fact with all relevant evidence on the issue to be determined.

Majority opinion at 20, 897 P.2d at 947. More specifically, the majority contends that evidence of the specific or approximate amount of workers’ compensation must be admissible for certain relevant purposes, e.g., the credibility of witnesses, despite the language of HRS § 386-8. Majority opinion at 18, 897 P.2d at 945. In short, the majority seems to believe that it is inconceivable to give effect to the language of HRS § 386-8 without producing absurd results, such as unjust verdicts based on misleading evidence and distorted versions of the truth. See Majority opinion at 20, 897 P.2d at 947.

Contrary the majority’s opinion, it is possible to give effect to the language HRS § 386-8 without producing an absurd result. For example, in the instant case, Sato claimed that he could not return to work solely because of the disability he suffered as a result of the prior automobile accident. However, because evidence suggested that there was no physiological basis for Sato’s pain, Tawata sought to challenge Sato’s credibility regarding his motive for not returning to work. Specifically, Tawata was allowed to introduce evidence about the specific or approximate amount of workers’ compensation paid by Sato’s employer in order to prove that it may have been a factor in his not returning to work.

In light of the clear and unambiguous language of HRS § 386-8, the trial court in the instant case should have denied Tawata’s request to admit such evidence because Tawata could have introduced other evidence having more probative value and involving less likelihood of prejudice. For example, Tawata introduced other evidence such as: (1) Dr. Rogers’s testimony that Sato was capable of returning to part-time sedentary work as early as August 1990; (2) the fact that Sato was also able to drive his wife to work; and (3) the fact that Sato volunteered at the Mo'ili'ili Community Center, where he cooked, shopped, and exercised with his elderly clients.

Because it is reasonably possible to give full effect to the language of HRS § 386-8 without leading to an absurd result, the trial court should have “presume[d that] [the legislature] meant what it said” and refused to admit the evidence regarding the amount or approximate amount of workers’ compensation paid by Sato’s employer. Richardson, 76 Hawai'i at 57, 868 P.2d at 1204.

I only see one situation in which giving full effect to the words of HRS § 386-8 would produce an absurd result, and departure from a literal construction of the statute is justified. The situation arises when the injured party raises or “opens the door” to the issue of the amount or approximate amount of workers’ compensation paid by the employer. For example, in the instant case, if Sato testified on direct examination that his workers’ compensation benefits only represented a small percentage of his actual wages or he has not received any form of benefits, justice would require that Tawata be given the opportunity, if desired, to cross-examine Sato and impeach him about the specific or approximate amount of workers’ compensa*26tion actually paid by his employer. It would be absurd and contrary to the purpose of HRS § 386-8 to allow Sato to lie or directly mislead the jury in an attempt to increase the amount of his recovery. Thus, in my view, “[t]he amount of compensation paid by the employer ... shall not be admissible” unless such evidence is used for the narrow purpose of rebutting direct testimony on the issue. See HRS § 386-8 (1985).

However, because Sato did not introduce on direct examination evidence regarding the amount or approximate amount of workers’ compensation paid by the employer, the trial court was barred from rejecting the otherwise clear and unambiguous statutory language of HRS § 386-8. In addition, because the provision regarding the inadmissibility of the amount of workers’ compensation benefits is mandatory, the trial court cannot correct it by a jury instruction limiting the admissibility of such evidence. Aspinwall v. Tanaka, 9 Haw.App. 396, 405, 843 P.2d 145, 149 (1992), cert. denied, 74 Haw. 651, 845 P.2d 1193 (1993) (citing Jack Endo Elec., Inc. v. Lear Siegler, Inc., 59 Haw. 612, 616, 585 P.2d 1265, 1269 (1978)) (if a statute is mandatory, the failure to follow it renders the proceedings to which it relates illegal and void). Accordingly, because the trial court improperly admitted evidence of the approximate amount of workers’ compensation paid by Sato’s employer, the trial was illegal and therefore void. See Aspinwall, 9 Haw.App. at 405, 843 P.2d at 149.4

III. CONCLUSION

Because there is no unmistakable support in the history or the structure of HRS § 386-8 to justify a departure from the clear and unambiguous language of the statute in this case, I would conclude that the circuit court erred when it admitted evidence of the approximate amount of Sato’s workers’ compensation benefits. Accordingly, I would vacate the judgment by special verdict and Tawata’s award of costs and remand this case for a new trial.

. HRS § 386-8 preserves an employee’s right of action in common law or under a statute against a third party tortfeasor. Hun v. Center Properties, 63 Haw. 273, 276, 626 P.2d 182, 185 (1981). In addition, § 386-8 permits, inter alia, the employer to recover compensation paid to the employee for work injuries caused by a third party tortfea-sor. Berkness v. Hawaiian Elec. Co., 51 Haw. 437, 440, 462 P.2d 196, 198 (1969).

. The inadmissibility of such evidence is completely consistent with the concept underlying third party actions — that a third party tortfeasor should pay exactly the damages he or she would normally pay, since reducing his or her burden because of the relation between the employer and the employee would be a windfall to the tortfeasor. See 2A A. Larson, Larson’s Workmen's Compensation Law, §§ 71.10, 71.20 (1993).

. Although asserting that relevant evidence of workers' compensation is admissible in third party actions, the majority clarifies that such evidence is inadmissible "for the sole purpose of attempting to reduce the amount of any recovery.” Majority opinion at 18, 897 P.2d at 944 (quoting Powers v. Temple, 250 S.C. 149, 157, 156 S.E.2d 759, 763 (1967) (emphasis omitted)). See discussion of Powers, infra, at 11 n. 4.

. The majority cites only one jurisdiction with a statute virtually identical to HRS § 386-8. Majority opinion at 18, 897 P.2d at 953 (citing Powers v. Temple, 250 S.C. 149, 157, 156 S.E.2d 759, 763 (1967) (speculating on the purpose and intent of a statute virtually identical to HRS § 386-8)). However, I believe that the majority’s reliance on Powers is misplaced. First, the Powers court declares the statutory intent ipse dixit. Secondly, the Powers court ignores a fundamental tenet of statutory construction by entirely ignoring the clear and unambiguous text of their statute and, instead, utilizes the collateral source rule. Cf. Dines v. Pacific Ins. Co., 78 Hawai'i 325, 337, 893 P.2d 176, 188 (Ramil, J., joined by Moon, C.J., dissenting) ("Statutory construction dictates that an interpreting court should not [generally] fashion a construction of statutory text that effectively renders the statute a nullity.... It goes without saying that a legislature does not go through the enactment process to accomplish absolutely nothing[.]”), reconsideration denied, 78 Hawai'i 474, 896 P.2d 930 (1995). Because it is rational and practicable to give full effect to the text in HRS § 386-8, the majority’s reliance on Powers is inapposite. See Methven-Abreu, 73 Haw. at 392, 834 P.2d at 284 ("if rational and practicable, to give effect to all parts of a statute, and that no clause, sentence, or word shall be construed as superfluous, void, or insignificant”) (citation omitted).