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State v. United States Steel Corp.6/24/1996
> 1140 (1981)), reconsideration denied, 77 Haw. 489, 889 P.2d 66 (1994).
Craft v. Peebles, 78 Haw. 287, 302, 893 P.2d 138, 153 (1995).
b. The Trial Court Erroneously Instructed the Jury Regarding the Definition of Unfair or Deceptive Acts or Practices In the Conduct of Trade or Commerce.
The trial court read three instructions to the jury regarding the state's claim of unfair or deceptive acts or practices in the conduct of trade. The court's instruction no. 36 provided:
The plaintiff State of Hawaii has the burden of proving by a preponderance of the evidence the following elements of its claim for unfair or deceptive acts or practices in the conduct of trade:
(1) Unfair or deceptive acts or practices on the part of defendant U.S. Steel in the conduct of trade; and
(2) Such acts or practices were the legal cause of harm or loss to plaintiff's property.
The court's special instruction no. 18, read immediately after instruction no. 36, provided that " practice or act is unfair or deceptive when the practice or act is immoral, unethical, oppressive, or unscrupulous. Proof of negligent misrepresentation alone does not establish a claim for unfair or deceptive trade practices or acts." The court's instruction no. 37, read immediately thereafter, provided that " deceptive trade practice is a practice which has the capacity or tendency to mislead consumers."
The state first argues that the court's special instruction no. 18 erroneously stated the law in that it defined both "unfair" and "deceptive" acts as being "immoral, unethical, oppressive, or unscrupulous." The state contends that while an unfair act is properly defined as one that is "immoral, unethical, oppressive, or unscrupulous," a deceptive act need not fit that definition, but need merely have the capacity or tendency to mislead or deceive. By collectively defining the two terms in the same definition, the state asserts, the trial court erroneously stated the law of unfair or deceptive acts or practices in conduct of trade or commerce and misled the jury by effectively requiring the jury to find that USX's conduct was immoral, unethical, oppressive, or unscrupulous, when all it actually needed to find was that USX's conduct had the capacity or tendency to mislead. We agree.
In Eastern Star, Inc. v. Union Building Materials Corp., 6 Haw. App. 125, 712 P.2d 1148 (1985), the Intermediate Court of Appeals (ICA) noted that:
The phrase "unfair or deceptive acts or practices in the conduct of any trade or commerce" is not defined in HRS chapter 480. However, HRS § 480-3 (Supp. 1984) provides that the chapter "shall be construed in accordance with judicial interpretations of similar federal antitrust statutes[,]" and HRS § 480-2 is "a virtual counterpart of § 5(a)(1) of the Federal Trade Commission Act." Island Tobacco Co. v. R.J. Reynolds Tobacco Co., 63 Haw. 289, 300, 627 P.2d 260, 268 (1981) (footnote omitted). Our supreme court has stated, "HRS § 480-2, as its federal counterpart in the FTC Act, was constructed in broad language in order to constitute a flexible tool to stop and prevent fraudulent, unfair or deceptive business practices for the protection of both consumers and honest business [persons]." Ai v. Frank Huff Agency, Ltd., 61 Haw. 607, 616, 607 P.2d 1304, 1311 (1980) (footnote omitted).
In Rosa v. Johnston, 3 Haw. App. 420,
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