June 20, 2019, Trial News
Kansas Supreme Court declares noneconomic damages cap unconstitutional
A cap on noneconomic damages violates the Kansas Constitution’s right to a jury trial, the state’s highest court has ruled. The court also rejected the quid pro quo test it had previously used to analyze challenges to the right to a jury trial, finding that the proper test for questions involving a fundamental constitutional interest is whether the statute interferes with that interest.
A cap on noneconomic damages violates the Kansas Constitution’s right to a jury trial, the state’s highest court has ruled, 4-2. The court also rejected the quid pro quo test it previously used to analyze challenges to the right to a jury trial, finding that the proper test for questions involving a fundamental constitutional interest is whether the statute interferes with that interest. (Hilburn v. Enerpipe Ltd., 2019 WL 2479464 (Kan. June 14, 2019).)
Diana Hilburn was injured in 2010 when the vehicle she was riding in was rear-ended by a semi-truck. She sued the truck’s owner, Enerpipe Ltd., alleging that it was vicariously liable for its driver’s negligence. The defendant conceded liability, and a jury awarded Hilburn $335,000, of which approximately $301,500 was for noneconomic damages. However, Kansas Statute §60-19a02 caps noneconomic damages at $325,000 ($250,000 at the time of Hilburn’s case), which reduced Hilburn’s award. Hilburn challenged the reduction, alleging the cap violated §5 of the state constitution and the trial by jury and due process provisions of the U.S. Constitution. Section 5 of the Kansas Constitution states that “the right of trial by jury shall be inviolable.”
The trial court judge found that the cap did not violate Hilburn’s constitutional rights because an “adequate substitute remedy” existed for her losses—namely federal and state minimum insurance requirements and Kansas’s no-fault auto insurance system. The court relied on Kansas Supreme Court precedent in a medical negligence case challenging the same damages cap, Miller v. Johnson (289 P.3d 1098 (2012)). In that case, the court held that §5 challenges should be analyzed under a quid pro quo test to determine whether the legislature provided an “adequate and viable substitute when modifying a common-law jury trial right.”
Hilburn appealed, and the appellate court affirmed, again relying on Miller and the quid pro quo test. She petitioned the Kansas Supreme Court for review. The state high court rejected the quid pro quo test and reversed the lower court, ruling the noneconomic damages cap is unconstitutional.
First, the court addressed the appropriate standard of review for constitutional questions. It noted that a recent case clarified how a statute’s constitutionality would be reviewed: In cases involving a “fundamental interest” expressly protected by the state constitution’s bill of rights, the court would no longer presume a statute to be constitutional. The court found that because §5 of the Kansas Constitution states “the right to trial by jury shall be inviolate,” it falls within “fundamental interests.” The court therefore would not presume the caps constitutionality and would not be bound to “find any reasonable way to construe the statute as valid.”
The court noted that it has “consistently held that the determination of noneconomic damages was a fundamental part of a jury trial at common law and protection by section 5.” Thus, it next considered whether the cap interfered with that right and held that it does because “the individual right to trial by jury cannot ‘remain inviolate’ when an injured party is deprived of the jury’s constitutionally assigned role of determining damages according to the particular facts of the case.” The court also concluded that Miller’s reliance on the quid pro quo test to determine that an infringement of §5 could be permissible “rests on a shaky foundation,” finding that the cases cited for precedent mandating use of the test did not withstand scrutiny and that the decision ignored the “uncompromising” language of §5. While the legislature may alter the common law, once §5 was ratified into the state constitution, it occupied a different status that puts “it beyond everyday legislative meddling.” The court also noted that when Miller was decided, no other state used a quid pro quo test when assessing the constitutionality of damages caps, and none has applied one since.
The state attorney general had argued that the application of the damages cap is a matter of law and not a question of fact for a jury, but the court rejected this, again highlighting the “inviolate” language from §5. The majority explained, “[W]e simply cannot square a right specially designated by the people as ‘inviolate’ with the practical effect of the damages cap: substituting juries’ factual determinations of actual damages with an across-the-board legislative determination of the maximum conceivable amount of actual damages.” Although the cap’s application is a matter of law, the jury assigns that amount under Kansas law—not the legislature—the court concluded.
Kansas City, Kan., attorney David Morantz, who was on the amicus brief filed by the Kansas Trial Lawyers Association, said, “To the frustration and harm of Kansas personal injury victims, the cap had been in place for more than 30 years, despite attempts to overturn it. . . . The ruling means that personal injury victims in Kansas are entitled to receive the full amount of what a jury determines their noneconomic damages to be. From 1988 until 2014, the noneconomic damages cap was $250,000. . . . Based on fears after the Miller decision that the stagnant amount of the cap might not withstand a future challenge, the legislature amended it to stair-step up to $350,000 in 2022. But that amendment, and the original 1988 law, are now gone. This is a significant victory for personal injury victims and forces defendants and their insurers to seriously consider and determine a victim’s pain, suffering, loss of enjoyment of life, and inconveniences arising from serious and preventable injuries.”
“For 30 years, a one-size-fits-all cap for noneconomic damages was mandated by Kansas statute that also prohibited lawyers from telling the jury the truth about the existence of the cap,” said Wichita attorney Tom Warner, who argued the case on behalf of the plaintiff. “With the Hilburn decision, the Kansas Supreme Court restored the right under §5 of the Kansas Constitution to have citizen juries decide the amount of noneconomic damages rather than politicians.”