Did you know that some of the most dangerous days of the year on our nation’s roadways are between Thanksgiving and New Year’s Day? According to the National Highway Traffic Safety Administration, from 2013 to 2017, more than 800 people died in alcohol-impaired crashes over the Thanksgiving weekend. With the holiday season quickly approaching, many look forward to gathering with friends and family. However, this year holidays may look and feel a little different, although some companies are stepping up to help.  For instance, Zoom is waiving their forty-minute limit for free meetings on Thanksgiving to help us all connect with family, while still staying safe.

What are your plans for the holidays? Will you be celebrating at home, visiting multiple people to drop off gifts, or meeting with loved ones virtually? No matter how you choose to spend your time, please keep safety as a top priority.

In the event of gathering with a small group of friends or family practice the following:

  • Gather in groups of five or less (it is currently the law in Hawai‘i);
  • Do not drink and drive – have a designated driver;
  • Always wear a mask around others, even family and friends (a revised mask mandate was issued last week).

We hope to see fewer cars on the road this year and look forward to celebrating in new ways.

Wishing you safe and Happy Holidays.

I Have Insurance, but Is That Enough?

Have you ever been in a motor vehicle accident, particularly when you were not deemed “at-fault?” If so, did you remember to exchange contact and insurance information with those involved? While it is relatively uncommon, there is a significant risk that the at-fault party failed to purchase enough insurance to cover the victim’s expenses, or were driving entirely uninsured. According to the most recent study conducted by the Insurance Research Council, in 2015, 13 percent of motorists, or about one in eight drivers are uninsured. The same study shows that 10.6 percent of Hawaii’s motorists drive uninsured.

What Is UM and UIM Coverage?

In Hawaii, drivers are required to have bodily injury, property damage, and personal injury protection (PIP) coverage. Uninsured motorist (UM) and underinsured motorist (UIM) coverage are optional types of protections that drivers may add on for a nominal fee. Covering yourself for UM/UIM situations is very important, although it is often misunderstood and sometimes overlooked. UM coverage protects you when the at-fault party does not carry auto liability insurance. UIM coverage kicks in when the responsible party does not have enough insurance coverage to fully pay your medical bills or car repair.

Why Is It Important to Have UM/UIM?

Although UM and UIM coverages are not legally required in Hawaii, it is highly recommended and extremely affordable. You are taking control of the unforeseen and protecting yourself from physical and financial harm caused by another drivers’ negligence. Furthermore, adding UM/UIM coverage to your policy is very affordable. It costs approximately five percent (5%) of your annual auto insurance premium (e.g. if your annual premium is $800, UM /UIM will be $40.) It is important to protect yourself and your loved ones against uninsured and underinsured motorists.

In a year of chaos, the Covid-19 pandemic, struggles for equality, and a deafening onslaught of political noise, there is another silent yet significant threat to our local communities and families.  Unreported and underreported cases of domestic abuse have risen sharply locally and worldwide.  Some public safety measures, specifically stay-at-home orders, which are designed to protect us from the external threat of Covid-19, are potentially causing an increase of domestic violence at home.  In these instances, both the victim and their abuser are living in the same location, yet with the added obstacle of sheltering-in-place for days or weeks at a time.  As a result, the victims are afforded little opportunity to leave, and it compounds an existing heath crisis even further.

Here in Hawai‘i, the Domestic Violence Action Center (DVAC) is reporting an increase of cases of potential domestic abuse.  Therefore, DVAC has implemented a text and chat feature on their website for discrete and effective accessibility for potential victims. DVAC is committed to stemming domestic violence and abuse through leadership, publicly available services, legal representation, survivor and system advocacy, community education and social change work.

Are you interested in assisting someone who may be in need? Please reach out to anyone you have concerns about to offer your support, make yourself a safe resource, and if at all possible, please consider donating to DVAC.

If you or someone you know needs help, please contact:

  • The Hawaii department of Health Hotline:
    • Call: (808) 531-3371
    • Text: (605) 956-5680
  • DVAC O‘ahu Helpline: (808) 531-3771, or use their website’s chat feature.
  • For emergencies: 911

Please also join DVAC in lighting a candle every Wednesday, from 8:30 – 9:30 p.m., during the month of September to raise awareness for those suffering in silence. Together, we can be a torch for change, and let survivors know we are here and committed to their safety.

Once again, we have a stay-at-home order for O‘ahu, from now through September 23, 2020. There are some new exceptions carved out in this order, which should involve a personal risk/reward analysis.  For example, you are now allowed to go hiking, but only “solo.” This means you may not hike in any size group, even if you practice physical distancing and wear PPE. Certainly, we all want to get out of the house, however, common sense should compel you to think hard about going on an intermediate or advanced hike, with no partner, even if it is technically permitted under the new rules. Bringing your phone may not be enough either, because not all carriers have service in every valley or corner of the island.  As such, if you want to go for a hike, perhaps tone it down and play it safe for the time being.

Check out these five safety tips from Oahu Search & Research (OSAR):

  1. Do Your Research
    • Review this website for trails
    • Note, that in Hawai‘i only marked State trails are considered legal for hiking
  2. Check the Weather
    • Check the forecast in advance and day of
  3. Pack Your Bag
    • Map & Compass
    • Sun Protection – sunscreen, hats, long sleeved shirts, and pants
    • Extra Layers
    • Flashlight
    • First Aid Kit
    • Fire Starter
    • Repair Kit
    • Extra Food & Water
    • Emergency Shelter
    • Signaling Device – whistle, mirror
  4. Share Your Plan
    • Be sure a friend always knows where you are going, and when you will be back, especially if you are hiking alone (which is something OSAR strongly discourages)
  5. If Lost: S.T.O.P
    • S: Stop/Sit – take a break
    • T: Think – analyze the situation
    • O: Observe – note surroundings and resources
    • P: Plan – create a plan based on your observations

Be smart, be prepared, and stay safe!

As more residents are moving to urban areas such as Honolulu to reduce their commute time to and from work, alternative modes of transportation including walking and bicycling have increased in popularity, especially with the introduction of biki – a bikeshare service. The City and County of Honolulu is implementing the Complete Streets program to improve the safety, accessibility, and comfort of transportation alternatives for all users, while encouraging physical activity.

According to the Hawaii Department of Transportation there were two bicycle fatalities in Honolulu in 2019. Did you know that using a bike helmet can reduce the risk of head injury by 85 percent? Wearing a helmet is just one of the ways you can protect yourself while riding a bike.

Check out Bike O‘ahu’s Top Ten Bicycle Safety Tips

  1. Wear a helmet every time you ride. The State of Hawaii requires all bicyclists under 16 years if age to wear a helmet.
  2. Obey traffic laws. Your bike is a vehicle, and just like a car, you must stop at stop signs and red traffic lights.
  3. Always ride with the flow of traffic. It is unlawful to ride facing traffic in Hawai‘i, as it is in all 50 states.
  4. Stop at the end of the driveway. Many crashes between a car and bike happen when riders don’t stop at the end of their driveway to look for cars. Always look left-right-left before entering or crossing a road.
  5. Be predictable. Don’t do anything that would surprise drivers, such as swerving in and out of parked cars or traffic.
  6. Look behind you, and make sure it is clear, before making a left turn or moving into the roadway. You should be able to glance over your shoulder without swerving. Also, let motorists know what you’re doing by using proper hand signals for turning and stopping.
  7. Be visible. Wear light-colored clothes when you ride. If you ride at night, you must have a white front light and a red rear reflector.
  8. Don’t use headphones when riding. You need to be able to hear the traffic around you.
  9. Don’t ride too close to parked cars. A driver may suddenly open the door in your path. Leave at least 3 feet of distance when passing parked cars, and be alert for cars that may be pulling out into the road.
  10. Make sure your bike is safe. Before you leave home, check to make sure that the brakes work, the seat and handlebars are tight, and the tires are properly inflated and in good shape. Also, make sure your bike is the right size. A bike that is too big is more dangerous than one that is too small.

For more information about bicycle safety connect with the Hawai‘i Bicycling League at 735-5756 (www.hbl.org.) You can also find bike laws on their website.

The Complete Streets program will identify and design solutions that balance the needs of all users and modes in the urban core, including pedestrians, vehicles, bicyclists, and transit patrons. Bikeway improvements will be made in Downtown, Chinatown, and Ala Moana-Kakaako areas. A recent project on Pensacola Street has implemented a Two-way protected bike lane from Wilder Street to Kapiolani Boulevard on the Diamond Head side of the street. These bikeway improvements will make our streets safer for both bicyclists and motorists.

Every year, dozens of pedestrians are killed in Hawaii while crossing the street, walking along roadways, or traversing our sidewalks. According to the State of Hawaii Preliminary Traffic Fatalities Report, from January 1 through July 30, 2020 there were eight pedestrian fatalities.  This number is considered lower than some years, but is likely impacted by the 2020 Coronavirus pandemic. To address this growing epidemic of pedestrian accidents and fatalities, Hawaii designated August as Pedestrian Safety Month.

The Walk Wise Hawaii pedestrian committee works alongside the Department of Transportation Services (DTS) to educate the public on good pedestrian practices and driver awareness of pedestrian movement. Here are the Walk Wise Hawaii pedestrian safety tips:

Pedestrian Safety Tips

  1. Always cross the street at a crosswalk. When no crosswalk is available, please cross at a corner.
  2. Be vigilant. Always look left-right-left and continue to look while crossing the street.
  3. Do not enter the crosswalk if the light indicator is counting down. The countdown is for pedestrians already in the crosswalk.
  4. Always walk when crossing the street. Never run.
  5. Always wear bright or refl­ective clothing when walking between dusk and dawn.
  6. Always watch for vehicles backing out of driveways or parking stalls. Drivers do not always see you.
  7. If there is no sidewalk, always walk on the side of the roadway facing on-coming traffic.

Also, be mindful of sidewalk/crosswalk rules and regulations, such as:

Sidewalk/Crosswalk Rules & Regulations

  • The fine for pedestrians who jaywalk is $130.
  • The fine for pedestrians who begin crossing when the countdown signal begins to flash is $130. However, if you are already in the crosswalk when the countdown signal begins to flash, you are not violating the law and should finish crossing the street.

Whether you’re a pedestrian or a driver, please be safe, be aware, and let’s work together to make our streets, crosswalks, and sidewalks safer for our communities.

For more information about pedestrian safety, please visit this website.

DISCLAIMERThis post provides general information, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained in the post without seeking the advice of an attorney in the relevant jurisdiction.  Hew & Bordenave, LLLP expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

 

I just wanted to recap my seminar on business partnerships from last week at the Entrepreneurs Sandbox. Entitled All is Fair in Love and War: Navigating Business Partnerships, and playing off of Valentine’s Day, my panel and I discussed the ins and outs of business partnerships. We touched upon of course my focus, business law, as well as estate and financial planning, and marketing issues. I’d like to thank John Roth, esq. of Hawai’i Trust and Estate Counsel, Kai Ohashi, AAMS of Edward Jones, and Thomas Obungen of Slug Media LLC for their participation. Further their insight, knowledge, and personal experiences helping clients in business partnerships proved to be invaluable to the audience. A thorough discussion took place on the issues facing business partners inside and out of their business. Some of the topics included:

  1. Due Diligence of Potential Partner
  2. Choice/Forming Business Entity
  3. Operating Agreements
  4. Restrictive Covenants
  5. Goals & Metrics
  6. Succession Planning
  7. Departing Partners, Death & Disability
  8. Financing a Partnership
  9. Buy-Sell Agreements
  10. Differing Generations of Partners
  11. Partners that Have Competing Marketing/Branding Visions
  12. Communicating Internally and Externally
  13. Change of Business Partners
  14. and many more!

What I Had to Say on Having Business Partners

Attorney Ryan K. Hew enjoying hosting the seminar with a doughnut!
All is fair in love and war, including eating a doughnut while presenting on business partnerships, while the litigation partner is at the office!

Talk it Out

For this recap I am not going over the whole presentation, but instead I would highlight a couple of items. I myself have a business partner, he handles the commercial litigation. So we see a lot of business partnership breakups; it says something when the transaction attorney and commercial litigator both feel the two biggest factors for business divorce:

  1. Lack of communication
  2. Differing Expectations

If you think about it, number 2 is an off-shoot of number 1. If you and your partner have differing goals and fail to talk about those issues, then over time the gap in goals widens. This gap is sometimes too wide to overcome. For example, money issues tend to be the biggest source of complaint. Of course they are, as profit is the nature of what a partnership. If you don’t know what the law defines as a “partnership” check my other post here. Frequently, partners that contribute different amounts of capital have differing exit strategies. Also know that even when the company is making money partners fight. Yes, I’ve seen arguments over profitable businesses because the partners failed to talk about what they would with their success. Distribute? Reinvest?

Then Write it Down

Even if you and your partner have discussed the issues, if you fail to formalize those discussions that is still a lack of communication. The reason being is memories fade, goals change, and in general life happens. What happens is the partners remember conversations differently. Then law firms, like mine, spend countless hours sifting through emails, texts, and images, trying to piece together what could’ve been the agreement. So the next thing to do after discussing and agreeing is writing it down. One of the activities that separates us from other animals is our desire (some more than others) to record things. Mark Kurlansky an author that focuses on interesting history topics, talks about this in his book Paper: Paging Through History.

Not every documentation needs to be a book, but having the formalities is crucial for a healthy business partnership. This is especially true for big ticket items. Consider items such as capital contributions, members’ interest, distributions, profit/loss allocation, and member’ responsibilities and duties. With a professional’s assistance, partners can discuss what they want and then document in a legally, binding enforceable agreement. For LLCs and their members, that is an Operating Agreement. Note: I am mostly sticking to limited liability company (LLC) language just due to the nature of my practice. For partners forming a corporation these items will be discussed, but will have differing terms and restrictions due to the choice of entity.

Operating Agreements & Employment Agreements: Separated or Incorporated

One other thing about why using a professional to assist in drafting your formal agreements is best. The advice on whether to separate or incorporate several relationships and arrangements in one document as opposed to several. The reason I bring this up as an audience member had an excellent question. Their question was:

Should an Operating Agreement contain the members’ employment duties and obligations?

Generally, an Operating Agreement is used to outline the LLC’s financial and functions processes as it relates to the LLC and its members (the owners of the LLC). It acts an internal governance document of the operations with respect to the way the owners interact with each other and the entity as a whole. Yes, in an Operating Agreement duties and obligations can be placed on the members, such as a restrictive covenant for non-competition. However, employment duties and benefits, such as position/title and duties under that position, compensation, vacation may be considered in a separate arrangement, an Employment Agreement. Why?

Consider a partnership were there are multiple members, the membership may elect one of them to be the Manager in a Manager-Managed LLC. Therefore, management authority would reside in the Manager and would be spelled out in the Operating Agreement. However, for their day-to-day tasks, compensation package and benefits, and termination provisions, those may be considered under an Employment Agreement. The reason for this separation is what if the membership wants to “fire” the Manager under the Employment Agreement, but there is an understanding that individual remains a member under the terms of the Operating Agreement. Having one giant document where duties and rights are confused or entangled may be problematic in enforcement or trying to carry out, especially in tense situations. Separation sometimes provides flexibility. Obviously, the trade-off is more documentation.

Last Words: Get it Signed

That was a brief recap of some of the interesting discussions that took place at the seminar. Hopefully, this will prompt you to consider your own business partnerships and what you need to do to improve their health. One last consideration: if you get a formal agreement, then get it signed! There is no point in engaging a professional to draw up a mutually agreed upon contract to then not execute it. It is worst, to then later to get into a dispute over the very subject matter in that formal agreement. Obviously, please speak to your advisers, including an attorney in your relevant jurisdiction. While, it may be costly, consider the costs of miscommunication, then the potentiality of lawsuits due to your business partnership dispute.

I know somber last words, but cheerfully check back for future seminars and similar content.

Thanks for reading!

DISCLAIMER: This post provides general information, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained in the post without seeking the advice of  an attorney in the relevant jurisdiction.  Hew & Bordenave, LLLP expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

The Problem and Statistics to Prove It

I just wanted to take this time to make you aware of a problem that we need to confront. Sex assault is a harm that not only impacts the victims, but society as a whole.

Consider these sobering statistics for the United States:

  • One in five women and one in 71 men will be raped at some point in their lives
  • In the U.S., one in three women and one in six men experienced some form of contact sexual violence in their lifetime
  • The lifetime cost of rape per victim is $122,461
  • Annually, rape costs the U.S. more than any other crime ($127 billion), followed by assault ($93 billion), murder ($71 billion), and drunk driving, including fatalities ($61 billion)
  • One in four girls and one in six boys will be sexually abused before they turn 18 years old
  • 30% of women were between the ages of 11 and 17 at the time of their first completed rape
  • Rape is the most under-reported crime; 63% of sexual assaults are not reported to police

These statistics and their references can be found here with other heart-wrenching data: https://www.nsvrc.org/statistics.

April is Sexual Assault Awareness month. Help us help others through supporting the SATC.

So What Can You Do About this Crisis?

First, did you know that every April, the National Sexual Violence Resource Center puts together the National Sexual Assault Awareness campaign, in honor of Sexual Assault Awareness Month (SAAM)? SAAM started in 2001 and as an annual campaign its goal is to increase public awareness and educate individuals and communities on how to prevent sexual assault.

Second, for us here in Hawaii, our firm supports the Sex Abuse Treatment Center (SATC). The SATC’s mission is to support the healing process of those assault in Hawaii AND most importantly here increase awareness. Education helps combat and reduce these terrible incidences. However, the SATC just like any organization needs help, and yes, that includes monetary donations. Every bit counts to address this issue.

So here is the thing. Even a small firm like ours can help.  We’ve decided to pledge matching donations (up to $500.00) for SATC in the hopes that people join us in giving money to SATC. We hope this shows you can do your part by joining us and organizations like SATC fight against sexual assault.

Mahalo for your consideration and please find the donation link down below.

Trejur P. Bordenave

To help this cause, please visit: https://giving.hawaiipacifichealth.org/make-a-gift/honor-memorial-giving/hew-bordenave-llp/

Riding a bike on a sidewalk can negatively impact a person’s personal injury claim and could your chances of recovery.

I enjoy walking around our office neighborhood a lot, and watching the protected bike lane on King Street & Punahou brings a couple thoughts to mind. Personally, I am glad to see the number of bike share users increasing. I also wish the City and County of Honolulu would add more bike lanes. I’ve also hear  from many friends, clients, and neighbors about bike users on the sidewalks.  On the flip side, traffic congestion  explains the desire to ride on the sidewalk. The streets in Honolulu (and in Hawaii) are scary for bike riders!

However, as a personal injury attorney, I am concerned for the general public, and particularly motor vehicle accident (MVA) clients. Why? Because where you ride your bike matters. If you ride your bike on the sidewalk, and are hit by a car, that may impact your ability to seek recovery. Compensation from insurance is often determined by variables.  One important variable is what you chose to do to contribute to the accident. Like the choice of where to ride your bike.

Why Does It Matter Where A Bike Is Ridden?

The State of Hawaii and the City and County of Honolulu put a lot of energy into encouraging alternative transportation. More bikes, buses, and walking are all goals for a livable community.  The City and County even has a dedicated page to a Bicycle program here.

These efforts are made with safety in mind.  Protected bike lanes, enlarged sidewalks, and clear street signs makes streets and sidewalks safer. If you follow the traffic laws, then getting around is predictable for all.  However, when a person walks down the middle of the street, or a rides their bike on the sidewalk, it creates an unsafe situation.  Why?  It makes traversing the area unpredictable. Additionally, it can create animosity between the various roadway users.

Most drivers, or pedestrians, do not expect to see bikes on the sidewalks.  If a bike user rides on the sidewalk and is involved in an accident, they could be deemed more at fault than the other person involved. This could mean a bar to recovery for the bike rider.  Putting it another way – it may be found that it was the bike rider’s choice to ride on the sidewalk, and getting hurt was their fault, and thus, no recovery.

What Does Honolulu Law Say About the Situation?

Following the law and knowing where you can ride your bike is critical to everyone’s safety.

Specifically, City and County provides the following on their FAQ page:

Q: Are bicyclists allowed to ride on the sidewalk?

A: The City and County of Honolulu prohibits bicyclists from riding on sidewalks within business districts or where prohibited. In all other areas, bicycles may be ridden on sidewalks provided the speed is 10 mph or less. The bicyclist must yield the right-of-way to pedestrians, giving an audible signal before overtaking them. ROH 15-18.7 

The State of Hawaii defines business districts as “the territory contiguous to and including a highway when within any six hundred feet along such highway there are buildings in use for business or industrial purposes, including but not limited to hotels, banks, or office buildings, and public buildings which occupy at least three hundred feet of frontage on one side or three hundred feet collectively on both sides of the highway.” HRS 291C-1

The Government Should Continue Their Effort To Better Educate Tourists

You can park your bike on sidewalks, but you cannot ride it in certain areas.

Many people ride bikes on the sidewalks.  My understanding, from transportation specialists, is that in many other countries riding on the sidewalk is the norm.  My business partner, Ryan, recently attended the Honolulu Society of Business Professionals (HSBP) Multimodal Transportation Luncheon.  The attendees and presenters echoed the same in their experiences. Todd Boulanger, the Executive Director of Biki (Honolulu’s bike share service) understands this issue as well. Biki  is working on ways to educate their customers, so they do not hurt themselves by riding on sidewalks when they should not. Perusing Biki’s website, I see they provide information in other Japanese about Biki services.

However, the government can and should continue to better educate the public about where to legally ride their bike. Ideally, this will help prevent accidents, whether riding on sidewalks is due to this cultural difference or not. Further, for educated bike riders that do get into accidents, at least they were following the law, and the path to recovery is more predictable.

Honolulu’s roads will likely become more busy and crowded as additional alternate means of transportation become available. There will be cars, bikers, rider sharers, bus riders, rail users, and pedestrians.

What Else Do You Think Can Be Done: Improving Cyclists’ Safety And Transportation Means

What can Honolulu do to alleviate these problems?  Please email me your thoughts. I am happy to discuss this issue with you. Or if you have ideas, maybe we can approach a legislator to introduce a bill for the legislative process. I think there are opportunities to make Honolulu a safe bike riding city for all.

DISCLAIMER: This post provides general information, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained in the post without seeking the advice of  an attorney in the relevant jurisdiction.  Hew & Bordenave, LLLP expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

2nd Anniversary

What’s Going On with Our 2nd Anniversary

It is our 2nd Anniversary and we are celebrating by inviting you to our Open House! If you are in the Honolulu area on Thursday, November 1st then stop by our offices to meet with us, our staff, and learn something. We will be conducting five (5) free seminars throughout the day. I, Ryan K. Hew, will be doing various business law topics meant for small business owners. My partner, Trejur P. Bordenave, will be going over the basics of personal injury and making a claim.

2nd Anniversary

Join us on November 1st for our free seminars!

Sign Up at EventBrite

So if you are interested in:

  • Internet and Social Media Law for Small Business Owners
  • Contracts for Small Business Owners
  • Forming a Business Entity
  • Plaintiff’s Injury Claims: What to do if you get hurt

Then please find the details and sign-up at Eventbrite. Also throughout the day, if you want to swing by and say hi or sign up for an initial consult for another date and time that would be great too.

Thanks and see you around!

-RKH