The decision of the court was delivered by Beier, J.:
This case requires us once again to examine the constitutionality of K.S.A. 60-19a02, which caps jury awards for noneconomic damages in personal injury actions. Plaintiff Diana K. Hilburn argues that the application of K.S.A. 60-19a02 to reduce her jury award of $ 335,000 to a judgment of $ 283,490.86 violated her rights under section 5 and section 18 of the Kansas Constitution Bill of Rights.
In Miller v. Johnson, 295 Kan. 636, 289 P.3d 1098 (2012), a majority of this court upheld the application of the noneconomic damages cap to a medical malpractice plaintiff's jury award in the face of challenges under section 5 and section 18. The Miller majority extended what it described as a "well-entrenched" section 18 quid pro quo analysis to section 5 challenges. Under that test, the Legislature must provide an "adequate and viable substitute when modifying a common-law jury trial right under Section 5 or right to remedy under Section 18." 295 Kan. at 654, 289 P.3d 1098.
Today, in this auto-truck accident case, we change course on section 5, declining to apply the quid pro quo test to analyze Hilburn's challenge. Section 5 declares, "The right of trial by jury shall be inviolate." As discussed below in detail, the noneconomic damages cap under K.S.A. 60-19a02 violates Hilburn's right protected by section 5 because it intrudes upon the jury's determination of the compensation owed her to redress her injury. We therefore reverse the Court of Appeals decision affirming the district court, reverse the district court's judgment, and remand this case to district court for entry of judgment in Hilburn's favor on the jury's full award. This decision eliminates any necessity of addressing Hilburn's section 18 claim.
FACTUAL AND PROCEDURAL BACKGROUND
Hilburn was injured in November 2010 when the car in which she was riding was rear-ended by a semi-truck. Hilburn sued the truck's owner, Enerpipe Ltd., alleging that the truck driver's negligence caused the collision and that Enerpipe was vicariously liable for its driver's actions.
In its answer to Hilburn's Petition, Enerpipe admitted the driver's negligence and conceded its vicarious liability.
The case proceeded to a trial on damages, after which a jury awarded Hilburn $ 335,000 in damages comprising $ 33,490.86 for medical expenses and $ 301,509.14 for noneconomic losses.
Defense counsel prepared a journal entry of judgment against Enerpipe for $ 283,490.86 because, "pursuant to K.S.A. 60-19a02(d), judgment must be entered in the amount of $ 250,000 for all of Diana K. Hilburn's noneconomic loss." Hilburn objected on the ground that K.S.A. 60-19a02 is unconstitutional. She alleged violations of sections 1, 5, and 18 of the Kansas Constitution Bill of Rights, as well as the jury trial and due process guarantees of the United States Constitution.
The district court judge acknowledged that Hilburn's case was distinguishable from Miller, which was a medical malpractice case, but he ultimately decided the constitutional issues in defendant's favor. The judge accepted Enerpipe's argument that there was an adequate substitute remedy for Hilburn's loss of any section 5 or section 18 rights, just as mandatory medical malpractice insurance had constituted an adequate substitute remedy in Miller. He relied on federal law mandating that a motor carrier operating in interstate commerce must maintain a minimum level of liability insurance, see 49 U.S.C. § 13906(a)(1) (2012); on Kansas law and regulation adopting the federal minimum liability requirements, see K.S.A. 2010 Supp. 66-1,108b; K.A.R. 82-4-3n (2014 Supp.); and on Kansas' no-fault auto insurance regime under the Kansas Automobile Injury Reparations Act, K.S.A. 40-3101 et seq. (KAIRA); see also K.S.A. 40-3107(e)-(f) (requiring all policies
Hilburn appealed to the Court of Appeals. In her brief, Hilburn asserted a facial challenge to the damages cap under section 5, asserting that the quid pro quo test should not be applied to analyze that claim. In addition, she argued that the cap violated section 18 because the Legislature had not provided a suitable or sufficient substitute remedy. According to Hilburn, the two necessary prongs of the quid pro quo test were unmet: The noneconomic damages limitation was not reasonably necessary in the public interest, "as applied" to her; and the Legislature failed to provide an adequate substitute remedy for impairment of her constitutional rights.
The Court of Appeals panel rejected Hilburn's arguments and affirmed. See Hilburn v. Enerpipe, Ltd., 52 Kan.App.2d 546, 560, 370 P.3d 428 (2016). Believing itself bound by the precedent of Miller, the panel summarily declined Hilburn's invitation to reexamine the threshold legal issue of whether the quid pro quo test should apply to section 5. 52 Kan. App. 2d at 554, 370 P.3d 428.
The panel then turned to the first prong of the quid pro quo test for both section 5 and section 18 and determined that it had been satisfied. Modification of the right to jury trial under section 5 and the common-law right to remedy under section 18 was "`reasonably necessary in the public interest to promote the public welfare,'" because "the damages cap operates in a broader scheme of mandatory insurance and the State maintains an interest in that insurance remaining available and affordable to compensate accident victims." 52 Kan. App. 2d at 554, 556, 370 P.3d 428 (quoting Miller, 295 Kan. at 657, 289 P.3d 1098).
The panel also concluded that the "`more stringent'" second prong of the quid pro quo test, that is, adequacy, had been satisfied because mandatory insurance for motor carriers guaranteed "a reliable source of recovery" for victims in accidents involving trucks. Hilburn, 52 Kan. App. 2d at 556, 558, 370 P.3d 428. The panel relied on federal and state mandatory motor vehicle insurance laws and KAIRA.
Hilburn petitioned this court for review, which was granted.
The Kansas Attorney General intervened after initial oral argument in this case, pursuant to K.S.A. 2018 Supp. 75-764. The Attorney General, like Enerpipe, argued that the quid pro quo test had been satisfied for both section 5 and section 18. But, like Hilburn, he questioned the applicability of the test to section 5, arguing that "legislative restrictions on remedies do not violate the right to trial by jury." The Attorney General also asked this court to reconsider whether a statute alleged to violate section 18 must satisfy the quid pro quo test.
DISCUSSION
Preservation
As a preliminary matter, we take up whether Hilburn preserved her challenge to the applicability of the quid pro quo test for section 5 analysis.
The version of Kansas Supreme Court Rule 8.03(a)(4)(C) in effect at the time Hilburn filed her petition for review required that such a petition contain a "statement of the issues decided by the Court of Appeals of which review is sought" and said that this court would "not consider issues not presented or fairly included in the petition." Supreme Court Rule 8.03(a)(4)(C) (2015 Kan. Ct. R. Annot. 79). Hilburn's petition focused exclusively on whether the Court of Appeals correctly held that the quid pro quo test was satisfied; it did not separately list as an issue or subissue whether the quid pro quo test applied in analyzing a section 5 claim. However, the same rule subsection that purported to limit the number and identity of issues that could be decided on petition for review also explicitly allowed us to "address a plain error not presented." Supreme Court Rule 8.03(a)(4)(C) (2015 Kan. Ct. R. Annot. 79). And, in civil cases such as this, a different subsection of Supreme Court Rule 8.03 permitted but did not require us to consider "other issues that were presented to the Court of Appeals and that the parties have
Hilburn argued in the district court that her section 5 jury trial right was violated by the noneconomic damages cap, preserving the necessary subissue on the proper legal test to determine the existence of a violation. Her brief to the Court of Appeals challenged whether the quid pro quo test should apply in analysis of her section 5 claim. Indeed, the Court of Appeals panel decided the issue in Enerpipe's favor. See Hilburn, 52 Kan. App. 2d at 554, 370 P.3d 428. Once Hilburn's petition for review was granted, she argued in her supplemental brief to this court that the "`inviolate' constitutional right to trial by jury should not be impaired by the judicial creation of a quid pro quo substitute remedy" and "urge[d] this court on review to strictly construe Section 5 to its simple, unambiguous meaning and not engage in the judicial creation of exceptions to this `inviolate' right." In Enerpipe's supplemental brief, filed the same day, it argued we should continue to apply the quid pro quo test in a section 5 analysis. It advanced this argument again in its response to Hilburn's supplemental brief. As mentioned, the Attorney General, as intervenor, also has dealt with the applicability of quid pro quo analysis in cases alleging section 5 violations.
Supreme Court Rule 8.03 has since been amended, effective July 1, 2018, in part to address the inherent tension in the language that was in effect when Hilburn filed her petition for review. See Supreme Court Rule 8.03 (2019 Kan. S. Ct. R. 53). We are satisfied, however, that the issue of whether the quid pro quo test applies to analysis of Hilburn's section 5 claim is properly before us under the old rule. It was preserved in the district court, argued and decided in the Court of Appeals, and addressed by both parties and the intervenor before us.
Standard of Review
The core substantive issue before us is whether K.S.A. 60-19a02 is constitutional. "Whether a statute is constitutional is a question of law." Board of Johnson County Comm'rs v. Jordan, 303 Kan. 844, 858, 370 P.3d 1170 (2016). We have often said that "before a statute may be struck down, the constitutional violation must be clear. The statute is presumed to be constitutional, and all doubts are resolved in favor of upholding it. If a court can find any reasonable way to construe the statute as valid, it must." Board of Johnson County Comm'rs, 303 Kan. at 858, 370 P.3d 1170; see also State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 (2009) ("Whenever a court considers the constitutionality of a statute, the separation of powers doctrine requires the court to presume the statute is constitutional.").
Recently, however, we pared back this presumption of constitutionality in cases dealing with "fundamental interests" protected by the Kansas Constitution. See Hodes & Nauser, MDs v. Schmidt, 309 Kan. 611, 673-74, 440 P.3d 461 (2019). In such cases, the presumption of constitutionality does not apply.
Section 5 of the Kansas Constitution Bill of Rights states that "[t]he right of trial by jury shall be inviolate." We have previously acknowledged that "[t]his right is `a basic and fundamental feature of American jurisprudence.'" Miller, 295 Kan. at 647, 289 P.3d 1098 (quoting Gard v. Sherwood Construction Co., 194 Kan. 541, 549, 400 P.2d 995 [(1965)]). "`It is a substantial and valuable right and should never be lightly denied. The law favors trial by jury, and the right should be carefully guarded against infringements.'" Miller, 295 Kan. at 647, 289 P.3d 1098 (quoting Gard, 194 Kan. at 549, 400 P.2d 995); see also Miller, 295 Kan. at 696, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part) (right is more than right to impanel a jury, it is a process that includes: right to assemble a jury, right to present evidence, right to have the jury determine and award damages, and right to a judgment for the full damages as determined by jury and supported by evidence).
Hence, we have little difficulty deciding that the right protected by section 5 is a "fundamental interest" expressly protected by the Kansas Constitution Bill of Rights. As such, we will not apply a presumption of constitutionality to challenges brought under section 5.
K.S.A. 60-19a02(a) defines "`personal injury action'" as "any action seeking damages for personal injury or death." Further,
The amount of the cap has since been amended upward and is currently $ 325,000. It is set to increase again, to $ 350,000, on July 1, 2022. But these changes are inapplicable to Hilburn and thus not at issue here. See K.S.A. 2018 Supp. 60-19a02(d).
The Test for Section 5 Claims
"Section 5 preserves the jury trial right as it historically existed at common law when our state's constitution came into existence." Miller, 295 Kan. at 647, 289 P.3d 1098 (citing State ex rel. v. City of Topeka, 36 Kan. 76, 85-86, 12 P. 310 [(1886)]); see also Miller, 295 Kan. at 696, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part) ("This language preserves the right to jury trial in those causes of action that were triable to a jury under the common law extant in 1859, when the Kansas Constitution was ratified by the people of our state."); In re L.M., 286 Kan. 460, 476, 186 P.3d 164 (2008) (Luckert, J., concurring) ("[T]he uncompromising language of [section 5] applies if an examination of history reveals there was a right at common law to a jury trial under the same circumstances.").
We have consistently held that the determination of noneconomic damages was a fundamental part of a jury trial at common law and protected by section 5. See Miller, 295 Kan. at 647, 289 P.3d 1098 (no dispute that determination of damages, including noneconomic damages, was question of fact for jury in common-law tort actions); see also Smith v. Printup, 254 Kan. 315, 324, 866 P.2d 985 (1993) ("There is no question in Kansas that the right to trial by jury includes the right to have a jury determine actual damages."); Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 358, 789 P.2d 541 (1990) (Samsel II) (jury trial right includes right to have jury determine damages in personal injury action), disapproved of on other grounds by Bair v. Peck, 248 Kan. 824, 811 P.2d 1176 (1991); Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 343, 757 P.2d 251 (1988) (jury's traditional role is to decide issues of fact, determination of damages is issue of fact; thus jury's responsibility to determine damages), disapproved of on other grounds by Bair, 248 Kan. 824, 811 P.2d 1176. Accord Watts v. Lester E. Cox Medical Centers, 376 S.W.3d 633, 640 (Mo. 2012) (Missouri Constitution's "inviolate" right to jury includes right to have jury determine facts, including noneconomic damages).
The noneconomic damages cap in K.S.A. 60-19a02 clearly implicates section 5's "inviolate" jury trial right, as that right has historically been understood. The next question is whether it impairs that right by interfering with the jury's fundamental function. See Markman v. Westview Instruments, Inc., 517 U.S. 370, 376, 116 S.Ct. 1384, 134 L.Ed. 2d 577 (1996) (after determining applicability, court considers impairment; Seventh Amendment jury trial analysis asks whether "particular trial decision must fall to the jury ... to preserve the substance of the common-law right as it existed" at ratification); 9 Wright & Miller, Federal Practice & Procedure: Civil § 2302.4 (2008) (analysis of whether procedure violates Seventh Amendment "must look to whether that procedure obstructs or interferes with the jury's substantive role as the fact-finder").
We hold the statute necessarily infringes on the constitutional right.
Despite this infringement of section 5's jury trial right by K.S.A. 60-19a02, a majority of this court held in Miller that any impairment was permissible as long as the two-part due process-based quid pro quo test applicable in section 18 analysis was satisfied. But the overlay of the quid pro quo test "transforms what the people made inviolate into something violable at will." 295 Kan. at 698-99, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part). The court's previous decision to apply the quid pro quo test to section 5 "overlook[ed] long-standing limitations on the legislature's power to modify the common law; overestimate[d] the persuasive force of prior Kansas cases; and shortcut[] the necessary cost-benefit evaluation" necessary when examining whether to keep or jettison originally erroneous precedent. 295 Kan. at 699, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part).
In Miller, the majority ignored
As all members of this court acknowledged in Miller, it is within the power of the Legislature to modify the common law. See 295 Kan. at 705, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part). But "what may have been a mere common-law right to jury trial on the day before ratification of Section 5 was no longer a mere common-law right from ratification onward." 295 Kan. at 705, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part).
As the United States Supreme Court emphasized long ago:
See also Watts, 376 S.W.3d at 643 (allowing Legislature to modify constitutional rights makes protections "of only theoretical value... [s]uch rights would not be rights at all but merely privileges that could be withdrawn"); Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731, 736, 691 S.E.2d 218 (2010) (general legislative authority to modify common law does not permit abrogation of constitutional rights); Sofie v. Fibreboard Corp., 112 Wn.2d 636, 652-53, 771 P.2d 711 (1989).
In Miller, a majority of this court relied on stare decisis to ground its application of the quid pro quo test to analysis of a section 5 jury trial challenge. In general, a "court of last resort will follow the rule of law it established in its earlier cases unless clearly convinced the rule was originally erroneous or is no longer sound because of changing conditions and more good than harm will come by departing from precedent." Rhoten v. Dickson, 290 Kan. 92, 112, 223 P.3d 786 (2010).
But this rule "excuses us from following precedent that is `plainly and unmistakably' the result of mistake and error.' Prowant, Administratrix v. Kings-X, 184 Kan. 413, 416-17, 337 P.2d 1021 (Jackson, J., dissenting), rev'd on rehearing, 185 Kan. 602, 347 P.2d 254 (1959)." Miller, 295 Kan. at 707-08, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part); see also Arizona v. Gant, 556 U.S. 332, 348, 129 S.Ct. 1710, 173 L.Ed. 2d 485 (2009) (Stare decisis does not require adherence to "a past decision when its rationale no longer withstands `careful analysis.'") (quoting Lawrence v. Texas, 539 U.S. 558, 577, 123 S.Ct. 2472, 156 L.Ed. 2d 508 [2003]); Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 610, 214 P.3d 676 (2009) ("This court is not inexorably bound by precedent; it will reject rules that were originally erroneous or are no longer sound.").
Moreover, "stare decisis is at its weakest in constitutional cases because our mistakes cannot be easily corrected by ordinary legislation." Miller, 295 Kan. at 708, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part) (citing State v. Hoeck, 284 Kan. 441, 463, 163 P.3d 252 [2007]); see also Agostini v. Felton, 521 U.S. 203, 235, 117 S.Ct. 1997, 138 L.Ed. 2d 391 (1997) (erroneous court interpretations in such cases "can be altered only by constitutional amendment or by overruling our prior decisions"); Watts, 376 S.W.3d at 644 (if people disagree with court interpretation of constitution, opportunity to change organic law more remote than opportunity to repeal, alter statute; "`[m]oreover, no set of judges ought to have the right to tie the hands of their successors on constitutional questions, any more than one [set of legislators] should those of its successors on legislative matters'") (quoting Mountain Grove Bank v. Douglas County, 146 Mo. 42, 54, 47 S.W. 944 [(Mo. 1898)]). And strict application of stare decisis must be tempered in constitutional cases because
A careful examination of the majority opinion in Miller and the precedent it relied on reveals that application of a quid pro quo test to section 5 claims rests on a shaky foundation.
In addition, application of a quid pro quo test to section 5 claims cannot be bolstered by reaching still farther back to Shade v. Cement Co., 93 Kan. 257, 144 P. 249 (1914).
It is inaccurate to say that Shade applied the quid pro quo test to reject the section 5 challenge, as we have previously recognized in multiple cases. See Baker v. St. Louis Smelting & Refining Co., 145 Kan. 273, 280, 65 P.2d 284 (1937) (260 emphasizing workers compensation system "`rests upon the free consent of employer and employee'"; thus "the liability of an employer to his employee under the act is a liability arising on contract") (quoting Shade, 93 Kan. at 260, 144 P. 249); Potocan v. Hamilton Coal & Mercantile Co., 120 Kan. 326, 329, 243 P. 537 (1926) (citing Shade, 93 Kan. 257, 144 P. 249, for proposition Workers Compensation Act subject to no constitutional infirmity because not compulsory); Smith v. Packing Co., 115 Kan. 874, 875, 225 P. 110 (1924) ("[Q]uestions as to whether various features of a workman's compensation act were violative of the fourteenth amendment have frequently been disposed of by reference to the fact that its application was made optional.") (citing Shade, 93 Kan. at 260, 144 P. 249).
In short, none of the Kansas cases relied upon by the Miller majority as controlling precedent for using the quid pro quo test on section 5 challenges withstands scrutiny.
The Miller majority also asserted that the cost-benefit analysis involved in evaluating the wisdom of following precedent favored application of a quid pro quo test to analysis of section 5 claims. In its view, "overruling our past application of the quid pro quo test to excuse violation of the right to jury trial would require dismantling of the workers compensation and no-fault automobile insurance systems. See Rajala, 233 Kan. at 440, 661 P.2d 1251 (workers compensation); Manzanares, 214 Kan. at 589, 522 P.2d 1291 (no-fault)." Miller, 295 Kan. at 712-13, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part). But the dismantling of those two systems was far from assured for several reasons.
In addition to overstating the potential cost of abandoning the quid pro quo test in section 5 cases, the Miller majority also overestimated the benefits of saving K.S.A. 60-19a02. It asserted that applying the quid pro quo test "foster[ed] certainty." 295 Kan. at 714, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part). But continuing to apply quid pro quo to section 5 does exactly the opposite.
Kansas' section 5 right to jury trial is distinct in every conceivable dimension from the section 18 due process-based right to remedy. They share no language; they share no drafting rationale. Indeed, the rights' placement in separate sections of the Bill of Rights makes it obvious that they articulate different concepts aimed to achieve different purposes, and thus merit unique analyses.
Finally, looking beyond our state borders, we note that, at the time Miller was decided, 19 states had addressed whether damages caps violated their state's constitutional jury protections, and not one had employed the quid pro quo test in its analysis. See 295 Kan. at 701-02, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part) (collecting cases). Since the Miller decision, the Oregon Supreme Court has reversed its position in 1999's Lakin v. Senco Products, Inc., 329 Or. 62, 987 P.2d 463 (1999), upholding rather than striking down a damages cap under the Oregon Constitution's jury trial provision. See Horton v. Oregon Health and Science Univ., 359 Or. 168, 376 P.3d 998 (2016). It did not, however, rely on a quid pro quo test to reach the new outcome. On this point of law, Kansas has stood strangely alone.
For all of the reasons outlined above, we abandon the quid pro quo test for analyzing whether the noneconomic damages cap is unconstitutional under section 5 of the Kansas Constitution Bill of Rights.
Fact-Law or Fact-Policy Distinction
Because the Miller majority concluded that K.S.A. 60-19a02 satisfied the quid pro quo test, it did not need to engage in an exhaustive discussion of the more basic question of whether the damages cap infringes on section 5's right to trial by jury. It merely conceded quickly that the cap "encroaches" upon the jury trial right and moved to the quid pro quo analysis to excuse what would otherwise have been a fatal constitutional violation. As discussed in the concurring and dissenting opinion in Miller, the "encroachment" conclusion is logically and legally indistinguishable from a conclusion that the cap impairs the jury trial right of section 5 and is thus unconstitutional, and it should have ended the matter. See 295 Kan. at 698, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part). It still should and does. We pause, however, to acknowledge and reject one further argument advanced by the Attorney General.
The Attorney General urges us to uphold the damages cap because of what he and other states have characterized as a fact-law or fact-policy distinction. For example, in Virginia, the Supreme Court has said,
The fact-law or fact-policy distinction has been relied on in varying degrees by almost all courts that have upheld damages caps in
The lone exceptional rationale among decisions that have upheld a damages cap challenged under a state constitutional jury trial provision challenge appears to be that in Robinson v. Charleston Area Med. Center, 186 W.Va. 720, 731, 414 S.E.2d 877 (1991). In Robinson, the West Virginia Supreme Court of Appeals focused on a "reexamination" clause incorporated in the statement of the constitutional jury trial right. See W. Va. Const. art. 3, § 13 ("No fact tried by a jury shall be otherwise reexamined in any case than according to the rule of court or law."). Because that clause did not mention the Legislature, the legislatively mandated damages cap did not infringe on the jury trial right. 186 W. Va. at 731, 414 S.E.2d 877.
The decisions from 14 of our sister states that have upheld damages caps under attack for violating constitutional jury trial protections do not persuade us.
First, only 8 of the 14 interpreted and applied constitutional provisions including language similar to that of our section 5's "inviolate." See Kirkland, 134 Idaho at 466, 4 P.3d 1115 (Idaho); Johnson, 273 Ind. at 383, 404 N.E.2d 585 (Indiana); Gourley, 265 Neb. at 953, 663 N.W.2d 43 (Nebraska); Murphy, 325 Md. at 351 n.3, 601 A.2d 102 (Maryland; "inviolably preserved"); Tam, 358 P.3d at 238 (Nevada); Arbino, 116 Ohio St. 3d at 474, 880 N.E.2d 420 (Ohio); Horton, 359 Or. at 226, 376 P.3d 998 (Oregon); Matter of Certif. of Questions, 544 N.W.2d at 186 (South Dakota). These eight decisions compose a small majority when compared to those of the
Second, we 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. See Moore, 592 So. 2d at 164 ("Because the statute caps the jury's verdict automatically and absolutely, the jury's function, to the extent the verdict exceeds the damages ceiling, assumes less than an advisory status."). Although, as a purely technical, theoretical matter, we agree that the mere application of an existing damages cap to reduce a jury's award is a matter of law, this statement begs the question at the heart of this case: To whom have the people of Kansas assigned the determination of the amount of the award? Unless an injured party has decided to waive his or her right under section 5, the answer is "the jury."
The Washington Supreme Court has addressed the jury's unique role in determining "ultimate facts," such as damages, and the particular importance of its role in determining noneconomic damages.
Finally, we recognize that the people's assignment of the jury's role in assessing damages furthers the purpose of awards to make the particular injured party whole. See 22 Am. Jur. 2d, Damages § 28 ("The point of an award of damages, whether it is for breach of contract or for a tort, is, so far as possible, to put the victim where he or she would have been had the breach or tort not taken place."). Blackstone recognized this principle in his commentaries. "Now, as all wrongs may be considered as merely a privation of right, the one natural remedy for every species of wrong is the being put in possession of that right whereof the party injured." 3 Blackstone, Commentaries on the Laws of England, at *116 (1765). Ideally, this would be "effected by a specific delivery or restoration of the subject-matter in dispute to the legal owner." 3 Blackstone, at *116. But where this was not a possible or adequate remedy, the injured party should receive "pecuniary satisfaction in damages ... to which damages the party injured has acquired an incomplete or inchoate right, the instant he receives the injury, though such right be not fully ascertained till they are assessed by the intervention of the law." 3 Blackstone, at *116. The jury's traditional role in determining the amount of a pecuniary award necessary to make a party whole includes an assessment of noneconomic damages. See Atlanta Oculoplastic Surgery, P.C., 286 Ga. at 735, 691 S.E.2d 218 (noneconomic damages long recognized as element of total damages in tort, citing Blackstone).
Regardless of whether an existing damages cap is technically or theoretically applied as a matter of law, the cap's effect is to disturb the jury's finding of fact on the amount of the award. Allowing this substitutes the Legislature's nonspecific judgment for the jury's specific judgment. The people deprived the Legislature of that power when they made the right to trial by jury inviolate. Thus we hold that the cap on damages imposed by K.S.A. 60-19a02 is facially unconstitutional because it violates section 5 of the Kansas Constitution Bill of Rights.
CONCLUSION
For the reasons outlined above, we reverse the decision of the Court of Appeals affirming the district court and reverse the district court's judgment. We remand this case to the district court for further proceedings in keeping with this decision.
Nuss, C.J., not participating.
Stegall, J., concurring in part and concurring in judgment:
I agree with and join the majority of the court that today reverses the so-called "quid pro quo" test as applied in the context of a section 5 challenge under the Kansas Constitution Bill of Rights. I agree that if an act of the Legislature invades the historic province of the jury to decide a contested matter then the plain, original public meaning of section 5 is violated. I join the portion of the majority opinion describing and applying the plain and original public meaning of section 5.
I disagree, however, with the way a plurality of the court appears to assume that K.S.A. 60-19a02 must implicate section 5 in the first place. To me, this is far from clear. Whether the statute implicates section 5 is a threshold question and the answer may depend on the standard of review we apply. For this reason, I first consider and discuss the history of our "clear error" standard of review and our recent partial departure from that rule. Finally, I conclude that though it is a close call, K.S.A. 60-19a02 does in fact invade the historic province of the jury to decide a contested matter. As such, I concur
Background
To clarify how I differ from the three-justice lead opinion in today's decision, some background explanation will be helpful. For ease of reference, I will refer to the lead opinion as simply the "majority," although it is a true majority only for those portions I have joined, and otherwise represents only a plurality of justices on this court. The importance of this distinction will become apparent.
As the majority explains, there is a clear difference between section 5 and section 18 in the Kansas Constitution Bill of Rights. Op. at 513. The section 5 "right of trial by jury" that "shall be inviolate" is a procedural right to who decides contested questions in Kansas courts. It does not guarantee or prescribe the substantive matter of which questions Kansas courts can decide. A different provision of the Kansas Constitution —section 18—governs the latter. So the procedural right to have a jury (rather than, say, the Legislature) decide the kinds of contested questions juries historically decided is sacrosanct under the Kansas Constitution. But the substantive decision about what kinds of questions—in legalese, what causes of action—Kansas courts have the power to resolve is untouched by the section 5 guarantee. Put another way, just because a jury would have resolved a particular substantive question under Kansas common law in 1859 does not mean that a party has a constitutional right to a jury resolution of that question today. This is because the scope of contested questions that Kansas courts may answer can and does change— and this does not violate section 5.
Historically, which questions—which causes of action—Kansas courts have the power to resolve has been a matter of common law decision-making by Kansas courts. But it is a universally accepted principle that the Legislature has the power to abrogate or modify the common law. See, e.g., Manzanares v. Bell, 214 Kan. 589, 616, 522 P.2d 1291 (1974) ("[T]he Legislature has the power to modify the common law."). That is, the Legislature has the power to substantively change or even eliminate common law causes of action; or to create new statutory causes of action. See Shirley v. Glass, 297 Kan. 888, 893, 308 P.3d 1 (2013) ("Legislatures may create private causes of action that the common law did not recognize."); see also Stanley v. Sullivan, 300 Kan. 1015, 1018, 336 P.3d 870 (2014) ("As a general rule, statutory law supersedes common law."). With respect to civil remedies, the constitutional restraint on this legislative discretion is found in section 18 of the Kansas Constitution Bill of Rights. Put simply, so long as it does not run afoul of the Constitution, the Legislature has the power to describe and define which questions Kansas courts can resolve. And when those questions are of the kind historically given to juries to decide, section 5 only requires that those questions remain with Kansas juries.
Given this, the threshold question we should ask of K.S.A. 60-19a02 or any statute challenged under sections 5 and 18 is whether it is a procedural measure affecting who decides or a substantive measure affecting what is being decided. If it is the former, section 5 and its inviolate guarantee applies. If it is the latter, section 18—with its wider guard rails—applies.
Is K.S.A. 60-19a02 procedural or substantive?
The Attorney General gets at this key threshold determination—albeit obliquely— when he argues the so-called "fact-law" distinction. He urges us to adopt the rationale of the Virginia Supreme Court, which the majority also quotes:
In my view, the majority does not give enough careful attention to the argument that K.S.A. 60-19a02 does not implicate section 5 at all because it is a remedy provision that simply modifies an available cause of action—and should therefore be analyzed under section 18 instead of section 5. I am concerned the majority repeats the error (identified by then Justice McFarland in Samsel) of "lumping together the right to trial by jury on the question of liability and the remedy to be afforded if liability is established, and then freezing the lump in a common-law time warp." 246 Kan. at 363, 789 P.2d 541 (McFarland, J., concurring). I agree with Justice McFarland that there is "no legal basis for including the scope of the remedy in the right to a jury trial. ... [T]he scope of the remedy to be afforded is a matter of legislative determination ...." 246 Kan. at 363, 789 P.2d 541 (McFarland, J., concurring).
In fact, the damage cap has some markings of both a procedural (who decides) and a substantive (what gets decided) measure. It cannot be both, and the constitutionality of the cap will likely turn on which category we assign it to. On the one hand, the effect of the cap is to substantively limit all causes of action for noneconomic damages. On the other hand, the cap is not written in the language of a modification of a personal injury cause of action. In fact, the cap does not take any question away from the jury or substantively alter its role at all. The very fact that the jury is permitted to "find" a phantom damage amount beyond the cap which is then "replaced" by the legislative judgment suggests the Legislature is actually substituting its decision for that of the jury.
Finally, K.S.A. 60-19a02(d)'s requirement that "the court shall not instruct the jury on the limitations of this section" is a clear indication to me that the Legislature sought to substitute its judgment for the judgment of the jury. Why else would the Legislature play hide-the-ball with something so consequential? Juries are told the substantive elements of the causes of action being tried in front of them. The legislative refusal to let the jury know about the damage cap tips the balance of consideration in my mind from a substantive modification of the cause of action to a procedural interference with the inviolate right to a jury protected by section 5. The Legislature that passed K.S.A. 60-19a02 wanted to achieve a substantive outcome without modifying the substantive cause of action. So, it decided to substitute its decision for that of the jury's. It changed who decides, not what is being decided.
There may be many reasons the Legislature took the procedural rather than the substantive route to achieve its policy goals. Perhaps the Legislature worried that straightforwardly modifying the substantive cause of action would incentivize juries to shift damage awards to other causes of action or categories of damages. Perhaps the political will did not exist to do directly what some believed could be accomplished procedurally.
So which category does K.S.A. 60-19a02 belong to? Answering this question, in turn, leads me to first consider our standard of judicial review.
De Novo or Clear Error Review?
The majority acknowledges the boilerplate standard of review we use to consider the constitutionality of a statute: "[B]efore a statute may be struck down, the constitutional violation must be clear. The statute is presumed to be constitutional, and all doubts are resolved in favor of upholding it. If a court can find any reasonable way to construe the statute as valid, it must." Board of Johnson County Comm'rs v. Jordan, 303 Kan. 844, 858, 370 P.3d 1170 (2016).
But, citing our recent decision in Hodes & Nauser, MDs v. Schmidt, 309 Kan. 610, 680, 440 P.3d 461 (2019), the majority declines to apply this "clear error" rule of judicial review in today's case. Op. at 513. In Hodes, a majority of this court rolled back the presumption of constitutionality in cases involving "fundamental interests" under the Kansas Constitution. 309 Kan. at 673, 440 P.3d 461.
I have been—and remain—critical of judicial exercises in dividing up constitutional rights and provisions into preferred (fundamental) and less preferred (or even ignored) categories. See Hodes, 309 Kan. at 774, 440 P.3d 461 (Stegall, J., dissenting) ("[I]t is the courts' job to patrol boundaries, not to decide... `fundamental' or `substantive' values."). I am even less enamored with the judicial practice of treating these categories differently as a matter of judicial review. See 309 Kan. at 720, 440 P.3d 461 (Stegall, J., dissenting) (critiquing the adoption of "judicially favored rights and a byzantine system of tiered scrutiny"). So I cannot agree with the proposition that we ought to exercise different standards of review depending on which part of the Constitution we are interpreting or enforcing. Even so, I am content, at present, to abandon our clear error standard of review in favor of de novo review in this case, as set forth by the majority. See op. at 513. The reason is two-fold. First, over my dissent in Hodes, de novo review in a case involving so-called "fundamental" rights is now controlling precedent in Kansas. Second, and more importantly, as discussed below, I suspect the infirmity in the precedent does not lie in going too far, but in not going far enough. Perhaps courts should exercise de novo review over Kansas statutes when any portion of our Constitution is implicated, not only when judicially favored rights are involved.
Thus, applying a de novo standard of review, I conclude the Legislature that passed K.S.A. 60-19a02 did not alter the cause of action for noneconomic damages but instead substituted its judgment for the jury's. As set forth in the majority opinion, this violates section 5 of the Kansas Constitution Bill of Rights.
Reconsidering the Clear Error Rule
I take this opportunity to question whether the clear error rule should be retained for any species of constitutional review in Kansas. Is it proper for this court to let statutes stand that probably—or even almost certainly —violate any part of the Kansas Constitution just because the violation is not clear or without any doubt? It is an important question that cuts to the heart of the judicial power itself. The parties, however, have not raised or argued the issue. Because resolving it in this case is unnecessary under the current precedent of this court, I will only embark on a skeletal discussion of the question which, by necessity, must arise in earnest sometime soon.
What I have been calling our "clear error" standard of review is often referred to as Thayerism in academic literature—named for Professor James B. Thayer after his 1893 article "The Origin and Scope of the American Doctrine of Constitutional Law" appeared in the Harvard Law Review. 7 Harv. L. Rev. 129 (1893); see Grey, Thayer's Doctrine: Notes on Its Origin, Scope, and Present Implications, 88 Nw. U. L. Rev. 28 (1993). After surveying the law of judicial review, Thayer concluded that courts "can only disregard the [statute] when those who have the right to make laws have not merely made a mistake, but have made a very clear one,—so clear that it is not open to rational question." 7 Harv. L. Rev. at 144.
Thayer's doctrinal formulation of what was otherwise an inchoate body of law received an early endorsement from the influential Supreme Court Justice Oliver Wendell Holmes. See Mendelson, The Influence of James B. Thayer upon the Work of Holmes, Brandeis, and Frankfurter, 31 Vand. L. Rev.
In Kansas, there is evidence that we at least acknowledged some form of Thayerism from our earliest days as a state. See State ex rel. Crawford v. Robinson and others, 1 Kan. 17, 27, 1862 WL 397 (1862) ("It has been repeatedly held, by the Supreme Court of nearly all the States of the Union, that no statute should be declared unconstitutional, unless its infringement of the superior law is clear, beyond substantial doubt."). There were also times we questioned the doctrine's relevance to our decision making. For example, in Comm'rs of Wyandotte Co. v. Abbott, 52 Kan. 148, 157, 34 P. 416 (1893), we noted that "[w]e appreciate the well-settled doctrine of this court, as, also, of the supreme courts of nearly all the states, that no statute should be declared unconstitutional unless the infringement of the superior law is clear, beyond substantial doubt." But even so, we declared that it would be "`dangerous ... to announce, that any of the provisions of the constitution may be obeyed or disregarded at the mere will or pleasure of the legislature, unless it is clear beyond all question that such was the intention of the framers of the instrument.'" 52 Kan. at 157-58, 34 P. 416.
For most of our history, however, we have routinely recited some version of Thayerism as a constraining principle when reviewing the constitutionality of statutes. See Board of Johnson County Comm'rs, 303 Kan. at 858, 370 P.3d 1170 ("[B]efore a statute may be struck down, the constitutional violation must be clear. The statute is presumed to be constitutional, and all doubts are resolved in favor of upholding it."); State v. Cook, 286 Kan. 766, 768, 187 P.3d 1283 (2008) ("We will not declare a statute unconstitutional as applied unless it is clear beyond a reasonable doubt that the statute infringes on constitutionally protected rights."); Moody v. Board of Shawnee County Comm'rs, 237 Kan. 67, 74, 697 P.2d 1310 (1985) ("A statute should not be stricken down unless the infringement of the superior law is clear beyond substantial doubt."); Hunt v. Eddy, 150 Kan. 1, 10, 90 P.2d 747 (1939) ("Statutes should not be declared unconstitutional unless the infringement of the superior law is clear beyond substantial doubt."); State v. Sherow, 87 Kan. 235, 239, 123 P. 866 (1912) ("This court has always endeavored to interpret acts of the legislature with the utmost liberality and to uphold them, unless beyond reasonable doubt they are found to conflict with some provision of the higher law. Doubts have always been resolved in favor of the statute.").
But we have never engaged in any sustained analysis of the constitutional roots of the rule or inquired whether Thayerism is proper under our government's constitutional structure. Simply put, the question is whether the "judicial power" vested by article 3, section 1 of the Kansas Constitution "exclusively in one court of justice" is limited by Thayerism. Do Kansas courts have the power to overturn statutes as unconstitutional even when the unconstitutionality is not clear beyond a reasonable doubt? As mentioned, answering this question is beyond the scope of today's opinion. But it is ripe for future litigation and review by this court. For now, four short thoughts will suffice.
First, deciding the proper measure of deference courts must show to the other branches of government implicates the separation of powers and thus our government's constitutional structure. I have noted before that the decline of "this court's separation of powers jurisprudence ... was aided in no small part by our application of judicial deference." Solomon v. State, 303 Kan. 512, 541, 364 P.3d 536 (2015) (Stegall, J., concurring). I criticized our court for invoking the presumption of constitutionality to uphold statutes we believed were unconstitutional, concluding that
While not a direct assault on Thayerism, at a minimum this suggests the strong presumption of constitutionality undermines the bedrock constitutional principle of separation of powers. Here it must be noted that Thayer's presumption is distinct from the doctrine of constitutional avoidance, which is a rule of statutory construction that applies when a statute is ambiguous. See State v. Ryce, 303 Kan. 899, 966, 368 P.3d 342 (2016) (Stegall, J., dissenting) (distinguishing the constitutional avoidance doctrine, which preserves the Legislature's policy choices, from deference, which abdicates the judicial role), adhered to on reh'g 306 Kan. 682, 396 P.3d 711 (2017).
Second, to fully flesh out these arguments, it would be necessary to investigate the original public meaning of "the judicial power" at the time the Kansas Constitution was written and ratified. See State v. Riffe, 308 Kan. 103, 113-14, 418 P.3d 1278 (2018) (Stegall, J., concurring) (explaining the two basic tenets of original public meaning jurisprudence: that the Constitution's meaning is fixed at the time of its adoption and its meaning is based on the common understanding of the people adopting it). To date, the most thorough, though indirect, consideration of that question is found in my recent dissenting opinion in Hodes. Hodes, 309 Kan. at 707, 440 P.3d 461 (Stegall, J., dissenting).
In Hodes, I analyzed section 1 of the Kansas Constitution Bill of Rights at length, concluding that it was originally understood as a provision limiting the police power of the Legislature. 309 Kan. at 768, 440 P.3d 461 (Stegall, J., dissenting). I detailed how section 1 mandated judicial review of all legislative acts under a standard I colloquially called "rational basis with bite." 309 Kan. at 768, 440 P.3d 461 (Stegall, J., dissenting). Under this standard, "[a]pplying the necessary deference, a court must examine the actual legislative record to determine the real purpose behind any law in question before it can conclude the law is within the limited constitutional grant of power possessed by the State." 309 Kan. at 767, 440 P.3d 461 (Stegall, J., dissenting). Again, at least on the surface, it is difficult to square Thayerism with such review.
Third, justices on other state supreme courts have compellingly argued against the application of Thayerism in their jurisdictions. For example, in one notable concurrence, Justice Richard B. Sanders of the Washington Supreme Court rejected Thayerism because it lacked textual support in the constitution and denied citizens the protection of an independent and impartial judiciary. Island County v. State, 135 Wn.2d 141, 955 P.2d 377 (1998) (Sanders, J., concurring). As Justice Sanders explained, "`where the will of the legislature declared in its statute, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former.'" 135 Wash. 2d at 157, 955 P.2d 377 (quoting The Federalist No. 78 [Alexander Hamilton] [May 28, 1788], reprinted in The Federalist Papers by Alexander Hamilton, James Madison and John Jay, pp. 395-96 [Garry Wills ed., 1982]). For "it is the constitution, and only the constitution, through which the people speak for themselves. Their voice is fundamental, and it is only by their consent that we are governed." 135 Wash. 2d at 158, 955 P.2d 377. Similarly, Justice Rebecca Grassl Bradley of the Wisconsin Supreme Court warned, "[I]n contrast to the structural separation of powers our framers envisioned, judicial deference gives the legislature both the pen and the gavel over their own laws, and imposes a `tremendous burden' on individuals attempting to limit the constitutional
Fourth and finally, it is important to concede that despite its weaknesses, Thayerism is not without its virtues. Chief among them is the pragmatic virtue of encouraging judges to resist an excess of judicial formalism. Judge Richard Posner has, perhaps, done the most convincing work on this point. Judge Posner helpfully contrasts Thayerism with the rise of constitutional "theory." The promise of constitutional theory has always been that theoretical principles, properly applied, will produce "correct" constitutional outcomes. Thayerism, however, is not designed to produce a single "right" answer, but is instead designed to aid judges who want to decide cases "sensibly or prudently." Posner, The Rise and Fall of Judicial Self-Restraint, 100 Cal. L. Rev. 519, 535 (2012).
Judge Posner attributes—rightly so in my view—the decline in Thayeristic judging (if not the decline of its rhetoric) to the rise of constitutional theory purporting to deliver correct outcomes. "The precondition to a judge's embrace of Thayer's standard ... is to have no theory of how to decide whether a statute or an executive action violates the Constitution. ... Today, with constitutional debate awash with theory, judges may feel a certain nakedness in having none." 100 Cal. L. Rev. at 538. So, if there is one, knowable, and correct answer to every constitutional question, the idea (implicit in Thayer's formulation) that a statute might or might not be constitutional loses most of its rhetorical heft and all of its analytical oomph.
Thus, on the one hand, Thayerism has declined in an atmosphere of increasing confidence that constitutional theory can give judges and scholars "the keys to unlocking the Constitution's secrets." 100 Cal. L. Rev. at 546. On the other hand, Thayerism suffers from what Posner calls the "ratchet theory of judicial restraint," which occurs when "unrestrained liberals expand constitutional rights" and "restrained conservatives preserve those rights by complying scrupulously with precedent in order to limit their own discretion." 100 Cal. L. Rev. at 547. In this environment, "[j]udicial self-restraint has ceased to be a contender." 100 Cal. L. Rev. at 548.
Of course, Thayerism is not the only nontheoretical principle that can restrain judges. And Judge Posner's definition of judicial pragmatism—a rejection of the formalist notion that "a legalistic algorithm" will produce a correct decision in "every case"—suggests other paths of self-restraint are available to adherents of constitutional theory. 100 Cal. L. Rev. at 539-40. Even originalist judges must exercise judgment. See Issacharoff, Pragmatic Originalism?, 4 NYU J.L. & Liberty 517, 531 (2009); but see Kramer, Two (More) Problems with Originalism, 31 Harv. J.L. & Pub. Pol'y 907, 907 (2008) ("there is no such thing as pragmatic originalism").
The warning to judicial theorists that we abandon prudent, sensible, and self-restrained judging at our and the Republic's peril should not fall on theoretically deafened ears. Yes, even a committed originalist ought to be "a jurist aware of his own humanity, attuned to the humanity of those before him, and willing to allow both to shape his judgment." Judge, Judges and Judgment: In Praise of Instigators, 86 U. Chi. L. R. (forthcoming Feb. 2019); see Riffe, 308 Kan. at 117, 418 P.3d 1278 (Stegall, J., concurring) ("[H]umility—attendant as it is to the indeterminacy of language and the difficulties of the interpretive process—must be considered a third, equally important leg of the originalist stool."). Prudential principals such as justiciability, judicial humility, a recognition of the limits of judicial competency, constitutional avoidance, respect for precedent, and the duty of candor when explaining our decisions all should play a role.
Conclusion
In short, applying de novo review to what I consider a difficult constitutional call, I am compelled by the unique characteristics of the damage cap, as I describe them above, to conclude that the Legislature has substituted
Therefore, I concur in the judgment.
Luckert, J., dissenting:
I dissent from the majority's holding that the cap on noneconomic damages set in K.S.A. 60-19a02 violates the right to a jury trial as protected by section 5 of the Kansas Constitution Bill of Rights. Unlike the majority, I would follow Miller v. Johnson, 295 Kan. 636, 289 P.3d 1098 (2012), which applied the so-called quid pro quo test to determine K.S.A. 60-19a02 did not violate a medical malpractice plaintiff's rights under section 5. Applying that same test and the rationale of Miller to Diana Hilburn's claim of damages against a motor carrier and its driver, I conclude: (1) the various statutes and regulations mandating motor carrier liability insurance and K.S.A. 60-19a02 are reasonably necessary in the public interest to promote the public welfare; and (2) the Legislature has substituted an adequate statutory remedy for Hilburn's right to have a jury determine her damages. These two conclusions satisfy the quid pro quo test, meaning K.S.A. 60-19a02 does not violate Hilburn's rights under either section 5 or section 18 of the Kansas Constitution Bill of Rights.
Two threshold considerations require discussion before I reach the quid pro quo analysis, however. First, contrary to the majority's conclusion, Hilburn did not preserve for this court's review the issue of whether the quid pro quo test should not be applied to a section 5 analysis. Our analysis thus should begin where Hilburn started her argument before the district court. Citing Miller, she argued it is distinguishable. As I will discuss in more detail, I conclude it is not. Second, I disagree with the majority's decision to overturn Miller and other decisions that apply the quid pro quo test for deciding whether statutes limiting the right to a jury violate the Constitution. Overturning precedent runs against the doctrine of stare decisis, especially when Kansans have relied on the law when writing, negotiating, and agreeing to insurance, indemnity, and other contracts.
1. Hilburn did not preserve the issue of whether the quid pro quo test applies.
The majority concluded that Hilburn preserved the issue of whether the quid pro quo test applies to a section 5 analysis. I disagree because Hilburn did not present the issue to the district court, the Court of Appeals did not decide it, and Hilburn did not identify it as an issue in her petition for review. Thus, contrary to the majority's holding, Hilburn failed to preserve the issue for our review. (In this context, I refer to both the three-justice plurality and the concurring opinion as the majority. The plurality concludes Hilburn preserved this question. Op. at 512-13. The concurring opinion does not discuss the point but implicitly adopts that holding by joining the portion of the plurality that "reverse[s] the so-called `quid pro quo' test as applied in the context of a section 5 challenge under the Kansas Constitution." Op. at 524.)
In the district court, Hilburn acknowledged this court's decision in Miller and its holding that the quid pro quo test applied to section 5 challenges. Rather than argue a different test applied, she sought to distinguish Miller from her situation. In doing so, she pointed out that Miller's result hinged on the Health Care Provider Insurance Availability Act's, K.S.A. 40-3401 et seq., requirement that all medical providers have malpractice insurance coverage up to specified limits. The Miller court held that the existence of an insurance mandate guarantees a plaintiff will recover some amount of damages, and that guarantee, assured by Kansas statutes, provides an adequate quid pro quo. The cap on noneconomic damages was therefore constitutional as applied to a medical malpractice plaintiff. See Miller, 295 Kan. at 659-65, 289 P.3d 1098. Hilburn argued there was no similar quid pro quo in her case because "the requirement of mandatory insurance
The district court rejected Hilburn's argument, concluding her attempt to distinguish Miller rested on "a distinction without a difference." The district court thus held that Miller "applies here as well and that the legislature also equally has the right to limit noneconomic damages because they require and modify a common law obligation that did not exist regarding mandatory automobile insurance." Neither Hilburn nor the district court questioned whether Miller employed the correct test. Thus, the issue was not raised in the district court.
That procedural history leads to Hilburn's first preservation obstacle. A party usually cannot argue an issue on appeal that the party did not raise in district court. Exceptions exist, but the party must argue why an exception applies before we will consider the issue. See, e.g., State v. Thach, 305 Kan. 72, 81, 378 P.3d 522 (2016); see also Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 35) ("If the issue was not raised below, there must be an explanation why the issue is properly before the court."). Hilburn made no attempt to argue one of the exceptions applied. She has thus failed to preserve this question.
For the purposes of our discretionary review of the panel's decision at Hilburn's request she faces a different preservation issue, this time related to her arguments before the Court of Appeals. There, she specifically argued this court should not have applied the quid pro quo test in Miller or any other situation in which legislation encroached on the jury trial right under section 5. But the Court of Appeals panel, apparently overlooking Hilburn's failure to preserve the issue in the district court, quickly disposed of this argument, noting it "is duty bound to follow Supreme Court precedent absent some indication that the court is abandoning its prior position." Hilburn v. Enerpipe, Ltd., 52 Kan.App.2d 546, 554, 370 P.3d 428 (2017) (citing Farley v. Above Par Transportation, 50 Kan.App.2d 866, 877, 334 P.3d 883 [2014], rev. denied 302 Kan. 1009 [2015]). The panel thus "use[d] the quid pro quo test when considering the constitutionality of K.S.A. 60-19a02 as applied to Hilburn." 52 Kan. App. 2d at 544, 371 P.3d 923. Consequently, the panel did not reach any conclusion about whether this court had correctly decided Miller. Instead, applying the quid pro quo test, the panel affirmed the district court. At one point, it summarized its reasoning:
Hilburn petitioned for our review of this holding, raising four issues. All four relate to the panel's analysis of whether the insurance requirements in motor carrier regulations and the Kansas Automobile Injury Reparations Act (KAIRA), K.S.A. 40-3101 et seq., supply an adequate substitute remedy for the cap's encroachment on her section 5 rights. None mentioned whether the panel applied the appropriate test. Not until after this court granted review did Hilburn file a supplemental brief advancing arguments about whether the quid pro quo analysis has a place in section 5 jurisprudence and, if not, what test should apply in its stead. Hilburn waited too long to raise the issue.
When Hilburn filed her petition for review, our rules required:
A party thus must list an issue it wants this court to reach. Then, and only then, is the issue properly preserved. And only if properly preserved does the exception relied on by the majority—Rule 8.03(h)(1)—come into play. That exception states: "In civil cases, the Supreme Court may, but need not, consider other issues that were presented to the Court of Appeals and that the parties have preserved for review." (Emphasis added.) Rule 8.03(h)(1) (2015 Kan. Ct. R. Annot. 81). We recently discussed this preservation rule in Castleberry v. DeBrot, 308 Kan. 791, 796, 424 P.3d 495 (2018).
There, we held a petitioner must list any issue not decided by the Court of Appeals that the petitioner wants this court to consider. Otherwise, the petitioner fails to preserve the issue in a way that allows us to exercise our discretion to consider the issue. We explained that the discretion granted by (h)(1) "ties to Rule 8.03(a)(4)(C), which requires parties to identify and separately list any issues presented to—but not decided by—the Court of Appeals that the party believes the Supreme Court should consider in its review." 308 Kan. at 796, 424 P.3d 495. We reminded litigants that "Rule 8.03(h)(1) is not a stealth mechanism to excuse the specificity required by Rule 8.03(a)(4) and our other rules controlling the review process." 308 Kan. at 796, 424 P.3d 495.
Despite Rule 8.03(a)(4), Hilburn did not list the issue. Yet the majority attempts to untether the provisions without explaining why Castleberry was erroneous or, alternatively, why Castleberry does not apply.
Instead, the majority relies on the plain error exception in Rule 8.03(a)(4)(C). I can find no case discussing this exception or how to apply it. And the majority cites none. But, in context, I read the provision to require that the district court or the Court of Appeals panel—not this court—to have committed plain error. But neither the district court nor the Court of Appeals panel committed plain error when they applied Miller. As noted, both courts recognized they had to follow Miller. Their conclusion is correct under settled caselaw. See Rhoten v. Dickson, 290 Kan. 92, 112, 223 P.3d 786 (2010). Today's majority does not suggest otherwise. Instead, the majority holds this court erred in Miller. Rule 8.03(h)(1)—a rule about this court's review of a Court of Appeals decision —does not open the door for us to revisit one of our prior decisions unless a party preserves the issue. Hilburn did not.
I thus would hold that Hilburn has not preserved the issue of whether a test other than quid pro quo should apply. This court should thus apply the quid pro quo test to Hilburn's assertion that the noneconomic damage cap violates her right to a jury trial under section 5 of the Kansas Constitution Bill of Rights.
2. The doctrine of stare decisis instructs us to apply Miller.
After stretching our rules to reach whether Miller's application of the quid pro quo analysis to section 5 should be reversed, the plurality concludes the doctrine of stare decisis does not dictate we apply Miller. Op. at 517-19. Two members of today's plurality took that same position in their dissent in Miller. For the most part, those justices repeat that analysis today.
The Miller majority explained why the stare decisis doctrine applied when we decided Miller and nothing has altered the validity of that explanation:
Today, a majority of this court rejects these reasons for applying the stare decisis doctrine. I am no more persuaded by the majority's position today than I was when two members of the plurality expressed their view when dissenting from Miller. That said, for me, the stare decisis doctrine plays a compelling and determinative role in my position, just as it did when the court decided Miller. In my view, the majority downplays the consequences of overruling Miller. The majority's decision today upends caselaw addressing jury trial limitations imposed in workers compensation, medical malpractice, no fault insurance, and general tort litigation. If nothing else, Kansans have written, negotiated, and executed innumerable insurance policies and indemnity contracts relying on the limitations of the damages caps. As we have recognized, "`[c]onsiderations in favor of stare decisis are at their acme in cases involving property and contract rights, where
In part, today's majority does so by taking the view that the Miller majority misread the caselaw holding the workers compensation system did not infringe on section 5 rights. Today's majority concludes the analysis in these cases was based on consent, not the quid pro quo test. The Miller majority discussed this argument at some length:
Today's majority rejects this discussion because these later cases involved a section 18, rather than a section 5, challenge. This misses the point that a quid pro quo analysis would—and has—served as a basis for upholding the constitutionality of the Workers Compensation Act, even if on section 18 grounds. And because until today this court has analyzed section 18 and section 5 under the same test, the section 18 caselaw implicitly foreclosed a section 5 attack. But no longer. Today's majority leaves shaky ground in many areas of law that had long been firmly settled.
In such circumstances, the doctrine of stare decisis instructs us to follow precedent. And that is what I would do.
3. Mandatory motor carrier liability insurance provides an adequate substitute remedy for the rights K.S.A. 60-19a02 curtails.
I agree with the majority on one point: "[T]he determination of noneconomic damages was a fundamental part of a jury trial at common law and protected by section 5." Op. at 514 (citing Miller, 295 Kan. at 647, 289 P.3d 1098). But I disagree with the majority's analysis of how K.S.A. 60-19a02 impacts the common-law right or the test to be applied. Using the quid pro quo test, I view Miller as persuasive and conclude K.S.A. 60-19a02 does not violate section 5. Thus, I dissent. And because I reach that conclusion I must consider Hilburn's section 18 claim. For the issue presented today, the two sections go hand-in-hand because Miller applied the same quid pro quo test to both sections 5 and 18. Miller, 295 Kan. at 657, 289 P.3d 1098.
In reaching this conclusion, I reject Hilburn's position on the four issues she preserved in her petition for review. Each of them focuses on the panel's application of the quid pro quo test and Miller to the factual and legal circumstances of Hilburn's claim. Hilburn's four issues can be distilled into a single question: Has Hilburn received an adequate substitute remedy for the limitation caused by the noneconomic damages cap in K.S.A. 60-19a02 on her section 5 and section
I reach this conclusion by extending the rationale in Miller, which applied the same quid pro quo test to both sections 5 and 18. Under this test, K.S.A. 60-19a02 does not violate either section 5 or 18 so long as it (1) is reasonably necessary in the public interest to promote the public welfare; and (2) the Legislature has substituted an adequate statutory remedy for the modification of the individual rights at issue. Miller, 295 Kan. at 657, 289 P.3d 1098.
Before us, Hilburn disputes only the second prong of the test. She did not seek our review of the Court of Appeals panel's conclusion that the damages cap satisfies the first prong. As a result, she failed to preserve for this court's review any aspect of that portion of the panel's analysis. See Snider v. American Family Mutual Ins. Co., 297 Kan. 157, 172, 298 P.3d 1120 (2013). For this appeal, the cap thus satisfies the first prong—it is reasonably necessary in the public interest to promote the public welfare. See Hilburn, 52 Kan. App. 2d at 556, 370 P.3d 428.
Under the second prong of the quid pro quo analysis, a court must determine whether the Legislature provided an adequate statutory remedy for the modification of the individual rights at issue. Miller, 295 Kan. at 664, 289 P.3d 1098. This analysis focuses on "the context" within which the impairment of the common law right "operates." See 295 Kan. at 659, 289 P.3d 1098 ("As a medical malpractice plaintiff, Miller's damages cap operates within the context of the comprehensive statutory scheme created in the Health Care Provider Insurance Availability Act."). Analyzing context necessarily means we must decide each case on its own merits. A court thus must consider both the extent of the deprivation and the relative significance of the substitute. See 295 Kan. at 660-62, 289 P.3d 1098 (comparing scope of limitation on noneconomic damages with significance of readily available recovery from doctors' mandatory liability insurance); Bair v. Peck, 248 Kan. 824, 843-44, 811 P.2d 1176 (1991) (reasoning mandatory liability insurance minimums were "a sizeable quid pro quo ... and certainly [were] an adequate substitute remedy for the common-law rights given up by injured malpractice victims.").
Focusing first on the extent of the deprivation, the Miller court determined the cap on noneconomic damages is "very real, [but] limited in its scope." 295 Kan. at 661, 289 P.3d 1098. The court noted the cap's application, which causes a plaintiff to lose some noneconomic damages, is "significantly more serious" than deprivations upheld in other cases. 295 Kan. at 660-61, 289 P.3d 1098 (citing Lemuz, 261 Kan. 936, 933 P.2d 134 [holding statute barring action for corporate negligence against hospital for negligently extending staff privileges to doctor whose malpractice injured plaintiff did not violate section 18]; Aves v. Shah, 258 Kan. 506, 524, 906 P.2d 642 [1995] [holding statute immunizing state fund that provides excess liability coverage to doctors from claims based on fund's alleged bad-faith refusal to settle a claim within policy limits did not violate section 18]; Bair, 248 Kan. at 845, 811 P.2d 1176 [holding statute immunizing health care providers qualified for excess coverage under state fund from vicarious liability for professional services negligently provided by other fund-covered health care providers did not violate section 18]; Manzanares v. Bell, 214 Kan. 589, 599, 522 P.2d 1291 [(1974)] [holding statute prohibiting actions for noneconomic loss arising from automobile accidents unless medical expenses exceeded statutory threshold did not violate section 18] ).
At the same time, the cap is limited in scope because it does not leave a litigant totally without compensation. Miller and Hilburn were left in a better position than some litigants in other cases in which we had applied the quid pro quo test. See Miller, 295 Kan. at 661, 289 P.3d 1098 (citing Bonin v. Vannaman, 261 Kan. 199, 221, 929 P.2d 754 [(1996)] [holding statute of repose barring claims arising from tortious acts committed against minors not brought within 8 years of act did not violate 18-year-old plaintiff's section 18 rights when it barred her tort claims arising from medical malpractice allegedly committed 15 years earlier]; Rajala v. Doresky, 233 Kan. 440, 442, 661 P.2d 1251 [(1983)] [holding statute barring civil action
The second consideration is the significance or quality of the substituted remedy. To satisfy the quid pro quo analysis, the litigant must have been provided "a significant, individualized substitute remedy." See Miller, 295 Kan. at 661, 289 P.3d 1098. Because "a judgment that cannot be collected is worthless," mandatory insurance requirements providing a litigant with a guaranteed source of recovery for the injury for which the capped noneconomic damages are sought may constitute an adequate quid pro quo. See Miller, 295 Kan. at 661-62, 289 P.3d 1098 (holding mandatory minimum primary and excess liability coverage for medical malpractice adequate quid pro quo for cap on noneconomic damages in malpractice lawsuit).
The fact of mandatory minimums, alone, is insufficient, however. The court must also consider the relative balance between the benefits conferred and the right curtailed. In doing so, a court is not required "to look only to a contemporaneous quid pro quo within the same statutory enactment containing the noneconomic damages cap." 295 Kan. at 661, 289 P.3d 1098. "[M]ajor statutory enactments establishing a broad, comprehensive statutory remedy or scheme of reparations in derogation of a previously existing common-law remedy may be subsequently amended or altered without each such subsequent change being supported by an independent and separate quid pro quo." 295 Kan. at 660, 289 P.3d 1098 (citing Lemuz, 261 Kan. at 955, 933 P.2d 134). This must be done case by case, and "the proper test to apply is whether the substitute remedy would have been sufficient if the modification had been a part of the original Act. If so, then no new or additional quid pro quo is necessary to support the modification ...." Bair, 248 Kan. at 844, 811 P.2d 1176. Because this test is applied case by case, the Miller court framed its quid pro quo analysis in the context of a damages cap applied in a medical malpractice case governed by the comprehensive statutory scheme created in the Health Care Provider Insurance Availability Act.
Under that Act as it existed when we decided Miller, doctors had to maintain professional liability insurance with policy minimums of at least $ 200,000 per claim and at least a $ 600,000 annual aggregate for all claims made during the policy period. The Act required doctors to elect one of three levels of excess coverage from the state Health Care Stabilization Fund ranging from $ 100,000 to $ 800,000. And the Act required insurers to participate in an apportionment plan to supply insurance to doctors who are unable to obtain insurance "through ordinary methods." Miller, 295 Kan. at 662, 289 P.3d 1098. The Act guaranteed to those who obtain medical care from a doctor that the doctor is insured, and that the insurance would cover damages up to $ 200,000 from primary insurance coverage and another $ 100,000 from the Fund.
Based on these mandatory levels of insurance coverage, the Miller court held an adequate substitute remedy existed for the cap even though Miller's jury had awarded her $ 575,000 in noneconomic damages, for which the district court entered judgment for $ 250,000 as K.S.A. 60-19a02 required. In holding the cap did not violate sections 5 and 18, the Miller court reasoned:
Then, considering the cap's amount, the court observed "the legislature's failure to increase the $ 250,000 cap on noneconomic damages over the more than 20 years since it first set that amount is troubling ...." But, despite its concern, the court could not conclude "that the legislature's failure to increase the statutory cap has sufficiently diluted
Likewise, this court held the Health Care Provider Insurance Availability Act provided an adequate substitute remedy when deciding the two earlier cases of Bair and Lemuz. In Bair, the court reasoned that without the mandatory insurance coverage there would be no guarantee of coverage and a fund from which to collect. "That is a sizable quid pro quo, established by the Act, and certainly is an adequate substitute remedy for the common-law rights given up by injured malpractice victims," specifically for loss of the ability to hold defendants liable under a theory of vicarious liability. Bair, 248 Kan. at 843-44, 811 P.2d 1176. In Lemuz, where the elimination of liability for a hospital negligently granting privileges to a doctor was at issue, the court considered whether the reduction in the amount of mandatory insurance from what the court had considered in Bair changed the result. The court held the reduction did not change its holding:
The Lemuz court also noted that the Legislature had supplemented the quid pro quo provided by the insurance requirements by enacting statutes requiring hospitals to "engage in risk management to ensure that all incompetent physicians are discovered and denied staff privileges. With these statutes, the very purpose of the corporate negligence cause of action is fulfilled." 261 Kan. at 958, 933 P.2d 134. But the court reiterated that the mandatory insurance requirements alone were sufficient:
Enerpipe argues a similar rationale applies because motor carriers have mandatory insurance obligations that guarantee a source from which a plaintiff injured by a motor carrier can collect a damage award. Under Title 49 of the United States Code, the federal secretary of transportation and the Surface Transportation Board have jurisdiction as specified in Title 49, Subtitle IV, Part B, "over transportation by motor carrier and the procurement of that transportation to the extent that ... property ... [is] transported by motor carrier ... between a place in ... a State and a place in another State ...." 49 U.S.C. § 13501 (2012). The Code defines "motor carrier" as "a person providing motor vehicle transportation for compensation." 49 U.S.C. § 13102(14) (2012). Motor carriers must be registered under U.S.C. Title 49, Subtitle IV, Part B, Chapter 139, in order to legally operate. 49 U.S.C. § 13901(a) (2012). Registration is permitted only if the Secretary of the United States Department of Transportation (USDOT) determines the
The parties agree these regulations apply here. Hilburn stated in her brief to the Court of Appeals that the semi-truck that hit her vehicle was a motor carrier, was registered and titled in Texas, was engaged in interstate commerce at the time of the accident, was over 47,000 pounds, was 50 feet long and had 5 axles, and was registered with the United States Department of Transportation. She added: "The fact that the semi had a [US]DOT number alone indicates that the [US]DOT has exercised its jurisdiction over the semi-truck. See Vanartsdalen v. Deffenbaugh Indus., 2011 U.S. Dist. LEXIS 28279, [2011 WL 1002027] (Dist. Kan. [March 18] 2011)."
In Enerpipe's reply, it agreed with these facts and said that the federal regulations required it to maintain a minimum of $ 750,000 in liability insurance. Hilburn responded by agreeing with that representation and citing 49 U.S.C. § 31139(b)(2); 49 C.F.R. § 387.301(a), and Carolina Cas. Ins. Co. v. Yeates, 584 F.3d 868 (10th Cir. 2009).
Kansas statutes also apply to vehicles using Kansas roadways. As applicable here, "[n]o public motor carrier of property or passengers or private motor carrier of property or local cartage carrier shall operate any motor vehicle for the transportation of either persons or property on any public highway in this state except in accordance with" the Kansas motor carrier laws. K.S.A. 66-1,111. The Kansas Corporation Commission (KCC) has "full power, authority and jurisdiction to supervise and control motor carriers as defined in K.S.A. 66-1,108 ...." K.S.A. 2010 Supp. 66-1,108b; see also K.S.A. 66-1,112(a) (granting KCC authority over motor carriers of property). The Legislature has also charged the KCC with adopting safety rules and regulations with which public and private motor carriers of property must comply as a condition of operating "any motor vehicle on any public highway in this state ...." K.S.A. 66-1,129.
Kansas has also integrated with the regulatory network established through the federal system. Kansas statutes make it "unlawful for any private motor carrier to operate as a carrier of property or passengers within this state either in intrastate commerce or in interstate commerce without first having obtained from the commission a license or permit or without being registered pursuant to federal statutes." K.S.A. 66-1,115. And the Act makes it "unlawful for a public motor carrier of property, of household goods or of passengers to operate in interstate commerce regulated by the relevant federal agency without registering its motor vehicles in its base state pursuant to federal statutes in order to operate in Kansas." K.S.A. 66-1,116(a).
The Kansas laws apply only to the extent not preempted by federal law. Federal law generally preempts state legislation "related to a price, route or service of any motor carrier ... or any motor private carrier ... with respect to the transportation of property." 49 U.S.C. § 14501(c)(1). But it does not, among other things, "restrict ... the authority of a State to regulate motor carriers with regard to minimum amounts of financial responsibility relating to insurance requirements and self-insurance authorization ...." 49 U.S.C. § 14501(c)(2)(A).
Under its authority to supervise public motor carriers to the extent not preempted by federal law, to issue permits to private motor carriers, and to promulgate motor carrier safety rules and regulations, the KCC has generally adopted the requirements of 49
Insurance is mandated by both federal and Kansas law. The KCC regulations prohibit public motor carriers and contract motor carriers of property, household goods, and passengers and private motor carriers of property or household goods from "operat[ing] a motor vehicle, trailer, or semitrailer for the transportation of persons or property within the provisions of the motor carrier law of this state until an insurance policy is filed in accordance with K.S.A. 66-1,128." K.A.R. 8-4-21. "Each policy of insurance filed with the commission for approval shall be in amounts not less than the minimum of liability required under K.S.A. 66-1,128 ...." K.A.R. 82-4-23(f). For motor carriers subject to KCC licensure, the Legislature has charged the KCC with setting insurance limits at:
Enerpipe asserts it is subject to these requirements. The record lacks sufficient information to verify that assertion. Perhaps only Enerpipe's base-state's requirements and the federal regulations define the level of its insurance coverage. Regardless, through the web of federal regulations that Kansas has incorporated into its framework, the parties agree Enerpipe had to have at least $ 750,000 in insurance coverage.
The Court of Appeals panel held this motor carrier insurance scheme was an adequate substitute remedy because, "[a]lthough the required insurance amounts are different, [the scheme] behaves similarly to the medical malpractice insurance one" by providing Hilburn with "a reliable source of recovery." 52 Kan. App. 2d at 558, 370 P.3d 428. Hilburn did not persuade the panel that the insurance benefitting her was mandated by the federal government, rather than the Kansas Legislature. See 52 Kan. App. 2d at 558, 370 P.3d 428. The panel also discounted the fact that the federal government might have mandated this insurance coverage because Kansas also regulates motor carriers by granting the KCC regulatory authority, and because the KCC has adopted the federal minimums. It further noted Kansas has insurance minimums independent of the federal scheme, designed to ensure all motor carriers have sufficient insurance to protect the public. 52 Kan. App. 2d at 556-57, 370 P.3d 428 (citing Marriott v. National Mut. Cas. Co., 195 F.2d 462, 466 [(10th Cir. 1952)]).
Hilburn argues the panel erred in holding the motor carrier laws provide an adequate substitute because Miller turned on "a connection between the [Health Care Provider Insurance Availability Act] and K.S.A. 60-19a02" but "[t]here is no temporal or historical tie between K.S.A. 60-19a02 and financial responsibility requirements for foreign motor carriers involved in interstate trucking." She argues "[t]he cost and availability of medical malpractice insurance was at the heart of the Supreme Court's decision in Miller upholding the non-economic damages cap." Hilburn also argues the "mere adoption of federal motor carrier insurance requirements by a Kansas administrative agency" is not "on the same level as comprehensive health care legislation unique to Kansas implemented as a substitute for rights taken away by K.S.A. 60-19a02." And she argues federal law imposes the insurance minimums and that the KCC could impose neither a lower nor a higher limit, citing 49 C.F.R. § 355.25(a).
Importantly, Hilburn does not argue the minimum insurance coverage mandated by these laws fails to supply guaranteed recovery in an amount necessary to satisfy the quid pro quo analysis. Like the Health Care Provider Insurance Availability Act's insurance requirements, the motor carrier laws and regulations make, for plaintiffs like Hilburn, "the prospects for recovery of at least the statutory minimums directly available as
As to Hilburn's remaining arguments, I would conclude: (1) the lack of a temporal or historical connection between the cap and the motor carrier laws does not matter; (2) Kansas law need not be the sole source of the substitute remedy; and (3) the substitute remedy of mandatory insurance is created by the comprehensive regulatory network of federal and state law and that network of laws provides an adequate substitute remedy for the damage cap.
As to the first point, the temporal or historical connection between motor carrier laws and the cap are not relevant to whether one supplies an adequate substitute for the other. As noted above in the discussion of Lemuz, under the second step of the quid pro quo analysis, the court need not look only to contemporaneous quid pro quo within the same statutory enactment containing the cap. See Lemuz, 261 Kan. at 959-60, 933 P.2d 134. Also, in determining whether there was an adequate substitute remedy for the cap's application, the Miller court noted simply that "[a]s a medical malpractice plaintiff, Miller's damages cap operates within the context of the comprehensive statutory scheme created in the Health Care Provider Insurance Availability Act." 295 Kan. at 662, 289 P.3d 1098. The decision did not suggest, however, that the court could only look to the Health Care Provider Insurance Availability Act as a potential substitute for the cap because of a particular relationship between the two. Rather, the two provided the context of the case because both applied under the facts. In fact, while the cost and availability of medical malpractice insurance was central to the court's analysis under the first step of the quid pro quo test about whether the cap served a public policy purpose, it was not central to the court's second-step analysis. See 295 Kan. at 661-62, 289 P.3d 1098.
In addition, in Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 337, 362, 789 P.2d 541 (1990), the court upheld the damage cap against a facial section 5 and 18 challenge. Samsel answered a certified question from the United States District Court for the District of Kansas that broadly applied to all tort plaintiffs—not just those bringing a medical malpractice action—and essentially asked if the damage cap was facially unconstitutional. In answering that it was not, the court broadly discussed the availability and affordability of all liability insurance, not just insurance covering medical malpractice. This analysis applies here even though Miller overruled Samsel because Samsel "premised its inquiry at step two on an interpretation of K.S.A. [60-19a02(d)]... that we cannot accept." 295 Kan. at 658, 289 P.3d 1098. That premise related to how the reduction of damages would operate under the statute. This disagreement did not impact Samsel's suggestion that the cap can be constitutionally applied to plaintiffs other than those injured by medical malpractice, however. The essential point I take from Samsel is that a public policy relationship between the damage cap and the substitute remedy suffices.
I thus conclude a temporal or historical connection between the laws that supply the substitute and the cap is unnecessary.
Second, Hillburn argues the substitute remedy must be found in Kansas statutes and we cannot rely on the $ 750,000 policy limit mandate of federal law. Granted, our caselaw strongly suggests—but does not hold—that the substitute remedy must be found in a state statute. Step two of the quid pro quo analysis in the caselaw turns on whether "the legislature substituted an adequate statutory remedy for the modification to the individual right at issue." (Emphasis added.) Miller, 295 Kan. at 657, 289 P.3d 1098; see Bair, 248 Kan. 824, Syl ¶ 11, 811 P.2d 1176 ("The legislature can modify the common law so long as it provides an adequate substitute remedy for the right infringed or abolished." [Emphasis added.]).
These statements appear to be more artifacts of the context of the cases than a statement of a requirement, however. In every quid pro quo case to date, the source of the substitute remedy found to satisfy the second step of the quid pro quo inquiry has been state law. See Miller, 295 Kan. at 663, 289 P.3d 1098 (holding medical malpractice
Nothing in these decisions mandated that Kansas law be the sole source of the substitute remedy, however. Rather, the cases broadly require an available remedy. For example, Miller established that an "available source of recovery" from mandatory insurance coverage can constitute an adequate substitute remedy. Miller, 295 Kan. at 662, 289 P.3d 1098. More generally, this court's caselaw has
The evaluation of the substitute remedy's adequacy therefore turns on the balance of the derogation of the plaintiff's rights and the available substitute at the time of the section 18 challenge, regardless of the source of the mandate. See Bair, 248 Kan. at 843-44, 811 P.2d 1176 (holding medical malpractice insurance requirements existing "[a]t the time of the malpractice alleged by the plaintiff" were adequate to support amendment eliminating vicarious liability claims against doctors' employers because quid pro quo would have been sufficient if amendment was part of original Act); see also Miller, 295 Kan. at 662-65, 289 P.3d 1098 (considering "continued adequacy of the $ 250,000 limitation that has admittedly devalued over time due to the legislature's failure to adjust it" but concluding failure to increase the cap had not "sufficiently diluted the substitute remedy to render the present cap clearly unconstitutional when viewed in light of [other statutory provisions] that directly and exclusively benefit a medical malpractice plaintiff"). If an adequate substitute for a common-law right infringed upon is mandated and available, the purposes of sections 5 and 18 are satisfied.
In a damages cap case, the Kansas Constitution guarantees the litigant gets the benefit of something valuable in place of the loss of the right to be made whole through damages. See Miller, 295 Kan. at 656, 289 P.3d 1098 (discussing purpose of right to damages protected by section 18). This guarantee is not undermined based on how the exchange occurs. The caselaw shows the quid pro quo test is satisfied when the litigant gets the benefit of the guarantee. It does not matter whether the Legislature provided for the guarantee when it infringed on the right, see Manzanares, 214 Kan. at 599, 522 P.2d 1291; or whether the Legislature infringed the right after providing for the benefit, see Bair, 248 Kan. at 843-44, 811 P.2d 1176, and Rajala, 233 Kan. at 441-42, 661 P.2d 1251. As for mandatory insurance requirements, the quid pro quo is the assured recovery of one's
Finally, I would hold the network of laws that provides this guarantee of recovery through mandatory insurance satisfied the test. Even assuming Enerpipe carried insurance only because of federal requirements, motor carrier regulation cannot be easily characterized as exclusively a state or federal product. Kansas has incorporated federal law into its regulations. Plus, a review of motor carrier regulations reveals that motor carriers are governed by interrelated schemes of state and federal regulation imposed through statutes and through administrative agencies tasked with implementing the statutes. Which laws control a given aspect of motor carrier operations may depend on the type of carrier; the cargo carried; the origin, destination, and travel route of the subject cargo; and the subject of the regulation, e.g., financial responsibility and driver and vehicle requirements. See 49 U.S.C. § 14501(a)(2), (c)(2)(A) (outlining areas related to motor carriers of persons and property in which states' regulatory authority not limited); K.S.A. 66-1,129(a) (outlining areas in which KCC has regulatory authority over motor carrier safety).
The regulation of entities operating commercial vehicles in interstate commerce is only part of these schemes. And whether state or federal laws apply turns on other factors. As the Court of Appeals panel concluded, through Kansas' own statutory scheme the Legislature has regulated motor carriers in a manner complementary to federal law so that all carriers who operate their vehicles on Kansas roadways meet minimum financial responsibility requirements. The Legislature has therefore provided Kansas victims of motor carrier negligence a substantial, individualized remedy in the form of an assured source from which to recover judgments in recompense.
In summary, I conclude (1) the various statutes and regulations mandating motor carrier liability insurance and K.S.A 60-19a02 are reasonably necessary in the public interest to promote the public welfare and (2) through these statutes and regulations, the Legislature has substituted an adequate statutory remedy for Hilburn's right to have a jury determine her damages. Because I reach these conclusion, I need not discuss the parties' arguments about the KAIRA. My conclusions that the motor carrier liability insurance requirements satisfy the quid pro quo test means that, in my view, K.S.A. 60-19a02 does not violate Hilburn's rights under either section 5 or section 18 of the Kansas Constitution Bill of Rights.
Biles, J., joins the foregoing dissenting opinion.
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