This bill for declaratory relief comes to us on a reservation and report from the single justice. It presents a multifaceted attack on the constitutionality of St. 1970, c. 670, which amends in part chapters 90, 175, and 231 of the General Laws, and which establishes a modified system of compensation through their own insurers for victims
The facts of the case are not disputed. The plaintiff, a resident of Massachusetts, is the owner of a motor vehicle duly registered under the laws of the Commonwealth and insured under a policy which includes personal injury protection benefits as defined in St. 1970, c. 670. The policy was not subject to the optional deductible endorsement (deductible) provided in c. 670. While he was driving his car on a public way in Boston early on the morning of January 3, 1971, two days after the effective date of that statute, he was involved in an accident which was caused exclusively by the negligence of the defendant. The car the defendant was driving was owned by one Daniel Mack, and
As a result of the accident, the plaintiff suffered injuries which included a bone contusion of the left lower scapula, a contusion and sprain of lower scapula muscles on both sides, and a severe low back sprain with radiation of pain into the lower right extremity. He incurred $115 in reasonable and necessary medical expenses for treatment of these injuries. Although he had no medical insurance in his own name, he was covered by a policy issued to his wife which provided for reimbursement of his medical expenses over $100. The entire $115 would have been recoverable in a traditional common law tort action against the defendant, as well as $800 for his pain and suffering.
Due to the accident the plaintiff lost in addition seventy-three hours from his position with the United States Post Office. His salary in this position was $176.77 a week, a figure which also represents his average weekly wages for the year preceding the accident. He received his usual salary for the entire period of his absence, however, due to the paid sick leave and annual leave to which he was entitled. His accumulated paid sick leave of forty hours was exhausted in the process, and his paid annual leave was reduced by thirty-three hours.
The plaintiff also held a second job at the time of the accident which paid him at the rate of $96.25 a week. This amount was his average weekly wage for that job for the year preceding the accident. The accident caused him to miss twelve days from this work, for which he was not compensated. In a tort action at common law, on these facts the plaintiff could have recovered $650 from the defendant for loss of earning capacity. His total recovery in tort against the defendant, including general and special damages, would therefore have been $1,565 ($115 + $650 + $800).
The plaintiff made demand on the defendant for reasonable compensation in accordance with the recoverable elements of damage at common law as outlined above. The
The plaintiff in this bill claims that this operation of c. 670 deprives him unconstitutionally of his right to full recovery in tort. He has supported this claim by an exceedingly prolix brief of 373 pages, the contentions of which are aided by amicus briefs filed with us by the American Trial Lawyers Association, the Massachusetts chapter of that organization, and the Massachusetts Bar Association. Supporting the law we have, in addition to the defendant's brief, arguments in behalf of the constitutionality of c. 670 submitted by the American Mutual Insurance Alliance and American Insurance Association, the Massachusetts Association of Independent Insurance Agents and Brokers, Inc., and the Attorney General acting pursuant to G.L.c. 231A, § 8.
SUMMARY OF CHAPTER 670.
The briefs before us, even those aligned on the same side of the case, reveal divergent views on how c. 670 operates. Accordingly, we believe it advisable to summarize the basic structure of the statute. In so doing we will not attempt a comprehensive description of its scope and operation, for much of that, as we have indicated, is irrelevant for our present purposes. We wish rather at this juncture to draw attention first to the difference in the legal position of the injured party under c. 670 from his position at common law, and, secondly, to the practical consequences of the statute on him, taking into consideration the interaction of various forms of compulsory and optional insurance with c. 670.
Those who challenge c. 670 have attributed to it not only
The key concept embodied in c. 670 is that of personal injury protection insurance, which is required of all owners of motor vehicles registered in Massachusetts. Under this coverage, personal injury protection benefits are paid by the insurer, as the expenses they cover accrue, to the insured, members of his household, authorized operators or passengers of his motor vehicle including guest occupants, and any pedestrians struck by him, regardless of fault in the causation of the accident.
Benefits allocable to medical expenses are paid regardless of any other insurance covering the same costs. However, to avoid duplicate recovery and reduce the expense of insurance, c. 670 provides the option to elect a deductible, binding on the insured or on the members of the insured's household. These policies, for a reduced premium, provide that an amount from the first $250 up to the entire $2,000 otherwise recoverable as personal injury protection benefits shall not be paid by the insurer.
Benefits allocable to lost wages, on the other hand, are reduced by any amounts received under a wage continuation plan or its equivalent. The victim, however, may incur (within a year of the payment of the last benefit) a later injury for which he would be entitled to payments under the wage continuation plan. If the amount then available to the victim to meet lost wages caused by the later injury has been reduced by reason of the payments under the plan attributable to the earlier accident then the insurer shall be responsible to the extent of the reduction.
In exchange for the protection extended by c. 670, the accident victim loses his right to recover in tort to the extent he is eligible for personal injury protection benefits. Because the exemption of the tortfeasor is exactly matched to the availability of personal injury protection benefits to the plaintiff, the plaintiff loses nothing by it.
The plaintiff stresses that the residual tort action left after the payment of personal injury protection benefits is
The only limitation imposed by c. 670 on the potential plaintiff's prior right of recovery at common law is the elimination of damages for "pain and suffering, including mental suffering associated with ... injury" except in certain specified categories of cases. Section 5 of c. 670 provides generally that the reasonable and necessary medical expenses incurred by a plaintiff in the treatment of his injuries must be over $500 to permit recovery for pain and suffering. However, recognizing that certain types of injuries could entail considerable pain and suffering which would warrant monetary compensation regardless of medical expense incurred, the Legislature provided by way of exception to the general rule that damages for pain and suffering could be sought in all cases involving five designated types of injuries. These are a fracture, injury causing death, injury consisting in whole or in part of loss of a body member, permanent and serious disfigurement, and injury resulting in loss of sight or hearing as elsewhere defined in the General Laws. The victim whose injury falls outside these categories and whose medical expenses are less than $500 cannot recover at all for pain and suffering.
The preceding discussion is not intended as a holding or ruling on any part of the statute, but only to permit a better understanding of that which follows.
NATURE OF RIGHTS AFFECTED.
In approaching the numerous issues before us, it is advisable to dispose first of a contention which the plaintiff has argued vigorously and at some length, for if we accepted it, it would require a somewhat different approach to the attacks leveled at the statute than that we feel appropriate. The plaintiff claims that c. 670 has impaired a cause of action which is on a higher, more sacrosanct level than the "ordinary" common law cause of action. Two alternative reasons are advanced in support of this contention: first, that the tort action has the status of a "vested property right," and, second, that the function of the cause of action is to safeguard the fundamental "right of personal security and bodily integrity" which, although not mentioned in the Bill of Rights of the United States Constitution, is nonetheless protected by it. We find both grounds unpersuasive.
In arguing that the cause of action affected by c. 670 constitutes a vested property right, the plaintiff seems to ignore the distinction between a cause of action which has accrued and the expectation which every citizen has if a
The applicability of this principle to the rights affected by c. 670 is not in any way changed by Part II, c. 6, art. 6, of the Constitution of Massachusetts, or by art. 11 of its Declaration of Rights, on both of which the plaintiff seems to rely. Article 6 provides for the continuation in the Commonwealth of the great body of the common law as amended by statute prior to the colonial immigration. Commonwealth v. Churchill, 2 Met. 118, 123. Crocker v. Justices of the Superior Court, 208 Mass. 162, 171. It explicitly contemplates the "... [alteration] or ... [repeal] by the legislature" of such prior existing law, as indeed it would have to in order to avoid freezing outmoded rules of law into our jurisprudence by placing them beyond the reach of the Legislature. See Holden v. Pioneer Bdcst. Co. 228 Or. 405, 411-412.
Article 11 of the Declaration of Rights guarantees "a certain remedy, by having recourse to the laws, for all injuries or wrongs which ... [one] may receive...." The
We are baffled by the plaintiff's further attempt to find in c. 670, in so far as it affects the tort action for bodily injury, an impairment of some fundamental right protected by the first ten amendments to the Federal Constitution. The plaintiff lays emphasis on Mr. Justice Goldberg's concurring opinion in Griswold v. Connecticut, 381 U.S. 479, 486. In that case a Connecticut law banning the use of contraceptives was held to violate the right of privacy as contained in the first ten amendments. Any supposed analogy of the present case to the Griswold case is inapposite and does nothing to advance the plaintiff's argument. Whatever may be the fundamental "right of personal security and bodily integrity" to which the plaintiff refers, it is not affected by c. 670. That chapter merely limits the common law right in the automobile accident situation to obtain money damages on account of unintentionally inflicted pain
We thus perceive no basis for treating a legislative alteration of the tort action for personal injuries differently from an alteration of any other preexisting rule of the common law. Hence we may summarily dispose of several of the plaintiff's arguments which are founded on the contrary premise. There is no cause here for application of the "compelling state interest" test, which is employed where a statute impairs fundamental rights protected by the Constitution. Nor, for the same reason, can the statute be struck down on the ground that it sweeps unnecessarily broadly in the face of a less restrictive alternative which would achieve the same ends. See National Assoc. for the Advancement of Colored People v. Alabama ex rel. Flowers, 377 U.S. 288, 307-308; Aptheker v. Secretary of State, 378 U.S. 500, 514. With respect to this latter test, we have noted that it has been applied in the past not only to "constitutionally sheltered activity" but also to "regulations affecting interstate commerce... and economic regulation." Commonwealth v. Leis, 355 Mass. 189, 195-196. However, no argument has been presented to us to show that c. 670 either in purpose or effect is discriminatory against interstate commerce; therefore, the less restrictive alternative test is not applicable to it as a regulation affecting interstate commerce. Dean Milk Co. v. Madison, 340 U.S. 349, 354. Nor is c. 670 a total prohibition of a hitherto lawful economic activity of the sort to which the less restrictive alternative test has been applied in the economic sphere. Weaver v. Palmer Bros. Co. 270 U.S. 402, 414-415. Furthermore, even this limited use of the test in this context is doubtful in the light of subsequent decisions according wide discretion to the Legislature in setting social and economic regulations according to its perception of the public interest. Olsen v. Nebraska ex rel. Western Reference & Bond Assn. Inc. 313 U.S. 236, 246-247. Staten Island Loaders v. Waterfront
We conclude that the principles by which c. 670 should be judged are those generally applied when economic and social regulations enacted under the police power are attacked as a violation of due process and equal protection of the laws. The two grounds of attack although similar are sufficiently distinct to warrant separate treatment, to which we now proceed.
DUE PROCESS ISSUES.
A. Applicable Principles. We will deal first with the propriety of c. 670 under the due process clause. The overall test under this clause is whether the statute bears a reasonable relation to a permissible legislative objective.
In dealing with an alteration of the preexisting common law, we are guided also by cases which have dealt specifically
In the instant case, however, the Legislature has not attempted to abolish the preexisting right of tort recovery and leave the automobile accident victim without redress. On the contrary, as was pointed out above, the statute has affected his substantive rights of recovery only in one respect and has simply altered his method of enforcing them in all others. Therefore, c. 670 may be judged by the stricter test which the plaintiff urges upon us and for which there is considerable authority in workmen's compensation cases: whether the statute provides an adequate and reasonable substitute for preexisting rights. New York Cent. R.R. v. White, 243 U.S. 188, 201 (New York workmen's compensation statute). See Mountain Timber Co. v. Washington, 243 U.S. 219, 240-241 (Washington workmen's compensation statute). The similarity between c. 670 and the workmen's compensation statutes, in the nature of their purposes and the means chosen to achieve them, also leads us to conclude that the reasonable and adequate substitute test is appropriate to apply here even if its application is not constitutionally
B. Does c. 670 bear a rational relation to a legitimate legislative objective? The ills against which c. 670 is aimed are obvious. One of the most prominent of these will be found in a brief consideration of the impact of the automobile on the burden of litigation carried by courts in general and Massachusetts courts in particular. No one who has for any time been in charge of a trial court system (as was the author of this opinion for a number of years) can be unfamiliar with the devastating effect upon the administration of justice which the automobile has produced. For years, in the face of countless experiments, the trial calendars of this country, particularly in metropolitan areas, have become increasingly clogged with motor vehicle tort litigation. No one as yet, notwithstanding heroic efforts in this regard, has found a satisfactory method of disentangling this morass. Indeed, the problem intensifies as American courts are increasingly called upon to deal with complexities of our society not evident when the motor vehicle first appeared on the national scene and to broaden the scope of their activities into areas not traditionally subject to judicial cognizance. The courts with their scarce resource of time simply cannot respond to new challenges or meet the new requirements imposed on them in criminal matters as long as their time continues to be consumed to the extent it has been by motor vehicle accident cases. The problems of society to which the courts have been called no longer permit the luxury of using them as a forum for resolving the ever increasing numbers of automobile accident claims to the extent that has obtained hitherto.
Total law entries of which there were Total Motor Vehicle entries
1967 34,730 23,279 1968 33,558 22,289 1969 34,381 22,598 1970 35,155 22,690
When it is recognized that many of these automobile entries represent multiple party suits, the weight which this type of litigation places on Massachusetts courts is evident.
Less obvious is the burden on the clerks' offices, lawyers and litigants which follows this proliferation of entries of motor cases, currently at the rate of almost 2,000 a month in the Superior Court and more than 3,200 a month in the District Courts. Every paper submitted must be filed and docketed, and each entry prompts an avalanche of them. In addition to the writ, declaration, answer and appearance slips; interrogatories by parties on both sides, applications to nonsuit or default for failure to answer interrogatories, motions to extend time for answering or to remove nonsuit
Both in the pre-trial and later stages, claims for small amounts possess, of course, the same capability of clogging the judicial system as their larger brothers. They must be dealt with either on the Superior Court level where they do not belong or in the District Courts, from which removal or retransfer to the Superior Court will often occur. And, unfortunately, it cannot be concluded that the bulk of automobile accident claims in the Superior Court represents causes of great value. For many years the secretary of the Judicial Council maintained a record of the amount of jury verdicts.
Amount of Jury Verdict Percentage of Cases Which Were for Plaintiff Automobile Accident Claims Less than $200 80.3% (53 out of 66) $ 200 — $500 61.4% (70 out of 114) $ 500 — $1,000 59.3% (92 out of 155) $1,000 — $2,000 59.8% (100 out of 167) $2,000 — $3,000 39.4% (28 out of 71) $3,000 — $4,000 56.2% (27 out of 48) $4,000 — $5,000 56.7% (21 out of 37) $5,000 — $10,000 53.7% (57 out of 106) over $10,000 47.8% (44 out of 92)
Other nonAmerican court systems, heirs with ourselves of the common law, have managed to solve this problem of the superabundance of motor vehicle tort claims in one way or another. It remains, however, a cancer to be rooted out in American courts. Presumably the Legislature had this in mind. Chapter 670, in providing for limited recovery without the necessity for adversary proceedings in automobile accident cases, was an appropriate step to alleviate this problem which defied more conservative solutions.
Finally, and not to be discounted among the evils associated with automobiles which c. 670 might have been designed to cure, are the inequities which have been visited upon claimants. In this regard the Legislature might have felt, as expressed in the Department of Transportation Report, that "[t]he present tort liability reparations system allocates benefits very unevenly among the limited number of victims that it purports to serve." P. 94.
It cannot be seriously argued that it was beyond legislative competence to assess this situation and to effect the necessary statutory repair. What we have discussed are evils which it was within the province of the Legislature to consider and which it endeavored to correct or eliminate. We do not intimate that the legislative determination which is c. 670 was the only answer or solution to the problem, but it cannot be successfully maintained that its salient provisions, as outlined above, are not a rational approach to the solution of these patent inefficiencies and inequities.
C. Does c. 670 provide a reasonable substitution for prior rights? We are urged to apply a test derived largely from the suggestion in New York Cent. R.R. v. White, 243 U.S. 188, 201, that a State might not have the power under the due process clause "suddenly [to] set aside all common-law rules respecting liability as between employer and employee, without providing a reasonably just substitute.... [I]t perhaps may be doubted whether the State could abolish all rights of action on the one hand, or all defenses on the other, without setting up something adequate in their stead." The proposed test may best be considered and understood, therefore, in the light of the facts before the court in that case.
The Workmen's Compensation Act dealt with in the White case substituted an administrative system of compensation for the common law rights of employees engaged in hazardous employments. The new system was compulsory on both employers and employees. The employee injured or killed in the course of his employment was entitled to a fixed compensation according to a prescribed schedule without
It is immediately apparent that c. 670 alters prior legal rights to a much less drastic extent than did the act involved in the White case. However, the overall difference in status quo effected by c. 670 may be described in part in much the same terms as those used by the court in the White case.
In considering the effect of c. 670, we cannot view it from the point of view of plaintiffs and defendants, for these are not preexisting categories as are the employers and employees affected by a workmen's compensation act. Every driver is a potential plaintiff and, equally, a potential defendant. The desired effect of c. 670 on all motorists alike is initially to make available to them compulsory insurance at lower rates due to the savings to insurance companies in administrative expenses and total payments which are expected to follow from c. 670. If injury occurs on the road, motorists are assured of the probability of quick and efficient payment of the first $2,000 of defined losses incurred. In cases of accidents in which the motorist was not negligent, he avoids the uncertainty, delay and cost of a tort proceeding. He still retains the option of recovering more by litigation if he so wishes and the facts so warrant. Although c. 670
This exchange of rights cannot be viewed in isolation, however, for non-negligent drivers are not a distinct class. To it must be added the effect of c. 670 on the driver in a case where he has been negligent or where negligence cannot be determined. In this situation, rather than no compensation for his own injuries, c. 670 accords him the same benefits he would have if he were non-negligent.
It may be argued that c. 670 affects a second distinct class of persons, the pedestrian, and that the exchange of rights effected on this class must be considered separately from its effect on drivers. It is obvious, however, that all drivers are at some moment in time pedestrians. With this realization, the class of pedestrians as distinct from drivers is sharply reduced. Whether or not we define the class to include pedestrians who also drive, however, the effect of c. 670 on that class is no different from its effect on drivers.
D. Do specific provisions of c. 670 violate due process? Having answered the plaintiff's claim that the operation and effect of c. 670 as a whole is violative of due process, we turn to several other challenges based likewise on the due process clause which focus on specific provisions of c. 670. The same general test of reasonableness in relation to a proper legislative objective is applicable to these narrower attacks. However, since they are unrelated to the fact that c. 670 as a whole alters prior rights, the reasonably just substitute test which we also discussed in considering the statute as a whole is not material here.
The plaintiff argues that c. 670 deprives him of due process inasmuch as it forces him to insure against loss or injury to himself through a private, profit-making corporation. There is no constitutional infirmity, however, in the self-insurance feature of c. 670. First, contrary to the plaintiff's claim, it is not required. Every motor vehicle owner has the option under c. 670 of electing a deductible which will exclude him entirely from personal injury protection benefits. Even if the self-insurance were compulsory, however, it would create no constitutional problems. Any doubts as to the power of the Legislature to require the citizen, for the good of the public as a whole, to take measures for his own benefit have long since been settled in a series of cases sustaining such statutes. The fact that in many of these cases this feature of the act was not even attacked indicates the lack of gravity of the objection. Howes Bros. Co. v. Unemployment Compensation Commn. 296 Mass. 275, 286
Nor can the plaintiff complain because the medium through which the optional self-protection must be obtained is a private, profit-making corporation, as opposed to some kind of governmentally managed pool. A virtually indistinguishable mechanism was provided by the Legislature when it first required compulsory liability insurance for motor vehicles, and we sustained it. Opinion of the Justices, 251 Mass. 569. In addition insurers are, of course, subject to State regulation both in the setting of premiums and in the conduct of their business. We see no distinction for due process purposes between the requirement of private insurance for self-protection and for the protection of others. It is an incidental and completely nonobjectionable concomitant of many regulatory statutes that citizens are required thereby to enter into transactions for their own benefit with private corporations. G.L.c. 90, § 7 (motorcyclists' protective headgear). G.L.c. 90, § 7A (motor vehicle inspection by private garages).
It is asserted secondly that since premiums under c. 670 are set according to the same basis used for premiums under the preexisting compulsory liability insurance there is a violation of due process in that each owner in a territory or class pays the same unallocated, undifferentiated premium for his total compulsory insurance. It is argued that the insured, by virtue of the amount of his wages or the extent of his wage continuation program, may be forced to pay for a program of benefits not available to him to the same extent that it may be to another paying the same premium.
In any event, there is authority in abundance sustaining fixed rates even though they fall unequally on some, where a more precise calculation would be administratively unfeasible. Brest v. Commissioner of Ins. 270 Mass. 7, 14-15. Schlabach v. Commissioner of Ins. 290 Mass. 585. This is the case here, where the basis for premiums suggested by the plaintiff is dependent on wages, other forms of insurance, and participation in a wage continuation plan, all of which are subject to change at any time. The burden is not on the Legislature to prove that an alternative method is not feasible. It has wide discretion in this area and we see no basis for holding that it has abused it here. Howes Bros. Co. v. Unemployment Compensation Commn. 296 Mass. 275, 286 (unemployment fund contributions need not be apportioned according to industries' relative unemployment rates). Lowell Co-op. Bank v. Co-operative Cent. Bank, 287 Mass. 338, 347 (insurance levy on banks need not be fixed according to their financial condition). See Carmichael v. Southern Coal & Coke Co. 301 U.S. 495, 520-521 (benefits
The plaintiff objects to the requirement that the insured look first to a wage continuation plan before he may receive benefits for lost wages under c. 670. He cites no authority for his objection, and under applicable constitutional principles the Legislature could properly limit double reimbursement for the same loss. In any event, c. 670 in no way prevents him from obtaining such double recovery through his residual tort action. In addition, it provides for automatic subsequent reimbursement by the insurer of prior reductions in benefits due to a wage continuation plan in certain circumstances.
Two final due process objections which have been raised do not involve the facts of this case. The first is directed at the provision that a policyholder may elect a deductible applicable not only to himself but to members of his household. The second is the claim that the extension of personal injury protection benefits in lieu of damages to the "pure pedestrian," who neither owns a car nor is a member of a household which owns one, is a deprivation to him of due process. We treat with neither pursuant to our statement at the outset of this opinion that we would confine ourselves to issues raised on the facts.
EQUAL PROTECTION ISSUES.
A. Applicable principles. The plaintiff has leveled two attacks against c. 670 based on a denial of equal protection of the laws, both directed at the classification in § 5 of cases for which pain and suffering are recoverable. Again it is helpful to state at the outset the general principles which are applicable under the equal protection clause. A principle analogous to that we applied to due process issues is likewise applicable where a legislative classification is attacked as a violation of equal protection: if the legislative difference in treatment is reasonably related to a legitimate
B. Does the classification in § 5 of c. 670 bear a rational relationship to a proper legislative objective? The plaintiff claims that the criteria delineating when pain and suffering are recoverable are arbitrary and unreasonable. The purpose of the Legislature in limiting recovery in this way was clearly to eliminate minor claims for pain and suffering. We have already described the crisis faced by the courts of the Commonwealth and the part played by the abundance of personal injury claims in contributing to it. The Legislature could reasonably have thought that the number of such cases was largely attributable to speculative and exaggerated claims for pain and suffering in instances of relatively minor injury. As is well known, the subjective complaint of pain and suffering defies accurate monetary appraisal. In addition, the time and expense necessary to investigate these claims might well have been perceived to be a burden both on the insurance industry and ultimately on the motoring public. Minor "nuisance" claims were often overpaid by insurers in order to avoid the expense of defending them,
A necessary corollary of this decision was that the minor claims had to be eliminated according to objective, easily applicable rules. If the rules were themselves subjective — for instance, keyed to the dollar amount of pain and suffering involved — the perceived evils would continue. Courts might well be clogged with claimants alleging damages over the required figure, and there would remain the incentive for the injured party to exaggerate his claim in order to prompt a generous settlement from an insurer which did not feel the claim was worth the expense of a contest.
The only question that remains, therefore, is whether the objective criteria the Legislature chose are rationally related to their purpose of eliminating minor claims for pain and suffering. We think there can be no doubt that they are. The plaintiff's attack is leveled chiefly at the general rule that reasonable and necessary medical expenses must be over $500 to allow recovery for pain and suffering. There is no objection to the mitigation of this rule by the criteria of death, loss of a body member, permanent and serious disfigurement, or loss of sight or hearing. Our attention has been drawn, however, to the contrast between the comparatively minor pain and suffering which may result from a minor fracture and the serious and long-continued pain and suffering which may result in cases for which the statute denies recovery. It is argued that the $500 limit will exclude many sizable claims for pain and suffering which do not at the same time fall within the five other categories. No doubt this is so. Nor do we doubt that relatively minor claims for pain and suffering may be permitted in some cases, particularly in the fracture category. But fracture, like the $500 limit and the other four criteria based on the type of
As to the amount of reasonable and necessary medical expenses, it is constitutionally irrelevant that the actual point of demarcation had necessarily to be arbitrary. As was stated by Mr. Justice Holmes in Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 41, "When a legal distinction is determined, as no one doubts that it may be, between night and day, childhood and maturity, or any other extremes, a point has to be fixed or a line has to be drawn, or gradually picked out by successive decisions, to mark where the change takes place. Looked at by itself without regard to the necessity behind it the line or point seems arbitrary. It might as well or nearly as well be a little more to one side or the other. But when it is seen that a line or point there must be, and that there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark." Such distinctions of degree expressed in terms of differences in number have been particularly subject to attack. However, they have been just as widely upheld as a determination which was peculiarly a question for legislative decision. St. Louis Consol. Coal Co. v. Illinois, 185 U.S. 203, 207 (coal mines employing five or more persons subject to inspection). McLean v. Arkansas, 211 U.S. 539,
It is alleged in addition that the $500 limit operates as an invidious discrimination against the poor because they are charged less than others for medical care. Passing over the plaintiff's lack of standing to make this argument, it may be briefly dismissed on the ground that the plaintiff has failed to come forward with any evidence that this is in fact the case. See Merit Oil Co. v. Director of the Div. on the Necessaries of Life, 319 Mass. 301, 305.
Finally, argument has been made to us that c. 670 violates art. 11 (remedies by recourse to the law to be free, complete and prompt), art. 15 (right to trial by jury sacred), and art. 30 (separation of executive, judicial and legislative departments), all of which articles are contained in the Declaration of Rights of the Massachusetts Constitution, and Part II, c. 1, § 1, art. 4, which sets forth various powers of the Legislature. We see no necessity for a discussion of c. 670 in the light of these constitutional provisions. It is entirely clear that the statute violates none of them.
A decree is to enter in the county court declaring (1) that St. 1970, c. 670 and c. 744, as applied to the plaintiff are constitutional under both Federal and State Constitutions,
TAURO, C.J. (concurring).
I concur in the result reached by the court, but I am constrained to disagree with much of the reasoning by which this result has been reached.
Considering the application of established principles of law to the limited record before us, the court has no alternative but to conclude that St. 1970, c. 670, and the amendatory provisions of St. 1970, c. 744, are constitutional.
All legislative enactments are presumed to be constitutionally valid. The Legislature, when it acts, "is presumed to be supported by facts known to the legislature unless facts judicially known or proved preclude that possibility." South Carolina State Hy. Dept. v. Barnwell Bros. Inc. 303 U.S. 177, 191. "All rational presumptions are made in favor of the validity of every legislative enactment. Enforcement is to be refused only when it is in manifest excess of legislative power." Commonwealth v. Finnigan, 326 Mass. 378, 379. See Howes Bros. Co. v. Unemployment Compensation Commn. 296 Mass. 275, 284; Slome v. Chief of Police of Fitchburg, 304 Mass. 187, 192; Druzik v. Board of Health of Haverhill, 324 Mass. 129, 138; Coffee-Rich, Inc. v. Commissioner of Pub. Health, 348 Mass. 414, 422. "Unless the act of the Legislature cannot be supported upon any rational basis of fact that reasonably can be conceived to sustain it, the court has no power to strike it down as violative of the Constitution." Sperry & Hutchinson Co. v. Director of the Div. on the Necessaries of Life, 307 Mass. 408, 418. See also Merit Oil Co. v. Director of the Div. on the Necessaries of Life, 319 Mass. 301, 305; Commonwealth v. Chamberlain, 343 Mass. 49, 51-52; O'Gorman & Young, Inc. v. Hartford Fire Ins. Co. 282 U.S. 251, 257-258; Borden's Farm Prod. Co. Inc. v.
The court has properly concluded that the plaintiff has failed to sustain this burden of proof, a virtually insuperable task in the circumstances. To say, however, that it follows from this negative conclusion that the Legislature has acted wisely or even expediently in enacting the no-fault insurance law is a non sequitur. In my view the court is not presently in a position to form a proper judgment as to the wisdom or desirability of the no-fault statutes. Nor should we, in any event, attempt to do so. "It is not for us to inquire into the expediency or the wisdom of the legislative judgment." Sperry & Hutchinson Co. v. Director of the Div. on the Necessaries of Life, supra, at 418. Slome v. Chief of Police of Fitchburg, supra, at 189. The court might well have rested its decision solely on the basis of the plaintiff's failure to sustain his burden of proof. Nevertheless, despite the absence of any prior judicial fact-finding proceeding, the court gratuitously discusses at great length the reasonableness and merits of the legislation in question. In so doing, the court indulges in much speculation as to the Legislature's intent and as to the existence of the "facts" purportedly underlying the Legislature's action and, in the process, understates the departures from preexisting tort law. Moreover, the court, in view of the experimental nature of the no-fault law, is unduly generous in assessing its attributes and overly optimistic as to its ultimate success. Nor is there any saving grace in the statement by the court that no-fault may not be the sole solution. Implicit in this statement is the premise that no-fault is a
Given the context and posture in which these important issues have been presented to us, I believe that a more appropriate approach could have been followed and a more useful purpose served had the court opinion subjected the legal principles underlying the no-fault insurance law to more severe and objective critical analysis and avoided endorsement of the social policy in dispute. This is especially true in a case such as this with its vast implications and where additional constitutional challenges undoubtedly will be made concerning other aspects of the statute.
A novel statute, denying a long-standing common law right to a substantial number — if not a majority — of persons injured by another's negligence indeed presents a "solemn occasion." Any law so drastically altering legal rights and liabilities deserves minute scrutiny and analysis. Although a potential personal injury claim may not rise to the level of a vested property right, as maintained by the defendant, the courts, nonetheless, must scrupulously insure that no person is deprived of any right by arbitrary legislative action.
The reduction of automobile insurance premiums and the removal from the courts of frivolous and even fictitious claims for pain and suffering allegedly associated with injuries received in automobile accidents is undeniably a most desirable objective.
I agree that the volume of such claims and the manner of their disposal undermined the former compulsory insurance law, causing its failure. The elimination of these claims is of paramount importance to the success of any alternative plan of insurance. No plan, however, should resort to "burning down the barn to get rid of the mice." See fn. 1.
Our Commonwealth's Constitution does recognize that principles of the common law in use at the time of its adoption are subject to legislative modification. Massachusetts Constitution, Part II, c. 6, art. 6. The Legislature may alter common law rights, liabilities and remedies at least
The issue, however, is not nearly so clear-cut as the court suggests. The parties have stipulated that the plaintiff, prior to the no-fault law would have been entitled to $1,565 in damages. It would require much more than ordinary powers of persuasion to convince the plaintiff in the instant case that, in comparison to the exchange of rights and defences under the workmen's compensation law, he is just as well off (as the defendant maintains) to receive a fraction of the $1,565.
The court relies heavily on Silver v. Silver, 280 U.S. 117, and Hanfgarn v. Mark, 274 N.Y. 22, app. dism. 302 U.S. 641. The Silver case, however, was decided on narrow equal protection grounds. 280 U.S. at 122. The Hanfgarn case and other decisions upholding the legislative power to enact "Heart Balm" statutes generally rest on the State's plenary power over the institution of marriage. See Langdon v. Sayre, 74 Cal.App.2d 41; Fearon v. Treanor, 272 N.Y. 268; Clark, Law of Domestic Relations 15-22. Compare Daily v. Parker, 61 F.Supp. 701 (N.D. Ill.); Zaremba v. Skurdialis, 395 Ill. 437, and Heck v. Schupp, 394 Ill. 296, in which the Illinois "Heart Balm" statute was declared unconstitutional. The constitutionality of our "Heart Balm" statute, G.L.c. 207, § 47A, was not decided in Thibault v. Lalumiere, 318 Mass. 72, simply because the issue was not raised. Furthermore, the broad holding of Thibault v. Lalumiere was subsequently limited by this court on nonconstitutional grounds in De Cicco v. Barker, 339 Mass. 457.
The analogy of no-fault insurance to workmen's compensation is also overly simplified. Without dwelling on the history of workmen's compensation legislation and litigation in Massachusetts, it should be noted that "[t]he workmen's compensation act (except in Part II) is not an amendment to the common law, but the establishment of heretofore unknown obligations, compensations and methods
Parenthetically, our workmen's compensation law, which was drafted for the benefit of the employee, and not to reduce insurance rates, still permits an employee to retain his common law rights as an alternative to coverage by workmen's compensation. More significant is that workmen's compensation creates no classifications for employees and treats equally all persons coming within its coverage.
When the Legislature clearly oversteps the limits of its police power and enacts a statute, recognizable on its face as violative of fundamental precepts of constitutional law, the courts may adequately review such actions purely on the basis of legal arguments. In matters not so patently offensive — or permissible, for that matter — the courts' ability to scrutinize legislative acts is severely limited and circumscribed. In addition to legal arguments, the courts may take judicial notice of indisputable and either generally known or easily ascertainable facts. See the "plethora" of
No such judicial inquiry was made in this case and, thus, the court's opinion must be interpreted accordingly. I do not speculate whether the holding of such an evidentiary proceeding would have led to a different result, but it might have eliminated any conjecture as to what facts the Legislature may reasonably have conceived to exist and considered.
I do not intend that the courts should set themselves up as "super-Legislatures." However, by careful use of evidentiary inquiries in appropriate circumstances, the courts might avoid becoming virtual rubber stamps in upholding the constitutionality of challenged legislation on the basis of abstract and perhaps necessarily superficial review of an inadequate record. I personally experience a deep sense of frustration in being compelled to sit in review of so important a case as this without the benefit of controlling
One of the most important and difficult issues raised by this case, for example, is the classification system adopted whereby claimants are denied their former common law right to seek damages in a jury trial for pain and suffering associated with injuries received in a motor vehicle accident unless they incur reasonable medical expenses exceeding $500 or suffer death, any form of fracture regardless of its degree of severity, loss of sight or hearing, partial or total loss of a bodily member, or serious and permanent disfigurement. It is argued that one of the intended purposes of this legislative classification is the elimination from the courts of minor and supposedly by definition "nuisance," claims for pain and suffering. Yet, this case has not been presented in a manner that would make us aware of any facts conceivably considered or ignored by the Legislature in appraising any possible relationship between the extent of reasonable medical expenses and the legitimacy of claims for pain and suffering. In fact, specific questions were put by me to counsel on both sides during oral argument but no information was available to us as to the approximate percentage of automobile tort cases in which the reasonable medical expenses do not excede $500.
I entertain still further doubts as to the reasonableness of other aspects of the statutory classification system of the no-fault insurance law both on due process and equal protection grounds. For example, a slight linear fracture of a single bone in the little finger, regardless of the amount of resulting medical expenses, would permit a suit for pain and
Calling attention to his prior service as Chief Justice of the Superior Court, the author of the court's opinion suggests that the eradication of the "cancer" of automobile tort litigation and its "devastating effect upon the administration of justice" supports the enactment of the no-fault insurance law.
While recognizing the impact of the motor vehicle upon our judicial system, I believe that the impression conveyed by the court in this regard ought to be clarified. Admittedly, a high percentage of the civil entries in the Superior Court involve motor vehicle torts. Yet, the court nowhere indicates what percentage of such cases are transferred to the District Courts and the Municipal Court of the City of Boston for disposition. In fact, the no-fault law should have little, if any, effect upon the judicial workload of the
No mention is made by the court of the small percentage of motor vehicle tort cases entered that are ever tried in the Superior Court. A careful survey conducted by the clerk's office in Suffolk County in 1967 indicated that only thirteen per cent of Superior Court judges' time is spent in the trial of motor vehicle tort cases. Surveys conducted in other jurisdictions tend to verify this finding. See The Law's Explosion, 44 J. of Am. Ins. 18 (Nov.-Dec. 1968).
The volume of these cases and of all other forms of civil and criminal litigation do indeed strain our inadequate judicial resources, but, based upon my experience, other
The court, I believe, has gone too far in lauding this experimental no-fault insurance plan. It is for this that I have offered my comments and observations in this concurring opinion. Had an evidentiary hearing been held in this case prior to its submission to us, it might have facilitated a more satisfactory resolution of the issues presented.
In the circumstances of this case, it is enough to say that the presumption of constitutional validity must prevail in the absence of some factual foundation specifically brought to our attention that would preclude it. Commonwealth v. Chamberlain, 343 Mass. 49, 51-52. Pacific States Bow & Basket Co. v. White, 296 U.S. 176, 185. I do not, however, consider the court's decision necessarily dispositive of issues
As an alternative I would remand this case to the Superior Court for the purpose of conducting an appropriate judicial inquiry into those controverted facts, beyond the sphere of judicial notice, upon which the existence of a rational basis for the no-fault insurance plan and the classification system contained within it might depend. See Borden's Farm Prod. Co. Inc. v. Ten Eyck, 297 U.S. 251.
The report also concludes that the impact of motor vehicle tort litigation on the courts relates "to the differences in mean delay of case terminations i.e., the fewer resources allocated to motor vehicle accident litigation, the greater the corresponding delay." Id. at 7-8.