Defendant appeals a judgment awarding plaintiff noneconomic damages in a negligence action arising from an automobile accident. In his answer to plaintiffs complaint, and again in a motion for summary judgment, defendant asserted that, because plaintiff did not have liability insurance at the time of the accident, ORS 18.592(1) barred her from recovering noneconomic damages.
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The trial court ruled that ORS 18.592(1) violates plaintiffs right to a remedy under Article I, section 10, of the Oregon Constitution and interferes with her right to a jury trial under Article I, section 17. The parties then waived a jury trial, and the trial court found defendant negligent and awarded plaintiff non-economic damages.
2
We review for errors of law,
Trabosh v. Washington County,
Plaintiff was injured when defendant drove through a stop sign at an intersection and collided with plaintiffs car. Plaintiff brought this action against defendant for negligence, seeking economic and noneconomic damages. Defendant asserted as an affirmative defense that ORS 18.592(1) barred plaintiff from recovering noneconomic damages. Plaintiff conceded that she did not have insurance at the time of the accident. Nevertheless, plaintiff filed a motion under ORCP 21E to strike defendant’s affirmative defense, arguing that ORS 18.592(1) violates Article I, sections 10 and 17, by depriving her of the right to recover noneconomic damages *95 and to have that issue tried to a jury. Before the trial court ruled on plaintiffs motion, defendant filed a motion for partial summary judgment on the ground that ORS 18.592(1) barred plaintiffs recovery of noneconomic damages. In a combined order, the court granted plaintiffs motion to strike defendant’s affirmative defense and denied defendant’s motion for summary judgment. The parties then settled plaintiffs claim for economic damages for $4,210 and, following a bench trial in which defendant conceded his negligence, the court awarded plaintiff $5,790 in noneconomic damages based upon the parties’ agreement that that amount was a reasonable sum to be awarded. This appeal followed.
Defendant makes three related assignments of error. He argues that the trial court erred in granting plaintiffs motion to strike his affirmative defense, in denying his motion for partial summary judgment, and in awarding noneconоmic damages to plaintiff. In a combined argument, defendant contends that ORS 18.592(1) survives both of plaintiffs constitutional challenges.
We begin with defendant’s argument that ORS 18.592(1) does not violate the remedy clause of Article I, section 10, which provides that “every man shall have remedy by due course of law for injury done him in his person, property, or reputation.” The Supreme Court recently has summarized the analytical methodology applicable to a challenge to legislation under Article I, section 10:
“In Smothers v. Gresham Transfer, Inc.,332 Or 83 , 124,23 P3d 333 (2001), this court examined in detail the origin and meaning of the remedy clause, and held that, because Article I, section 10, guarantees a remedy for any injury to absolute common-law rights respecting person, property, or reputation, the legislature does not have the authority to deny a remedy for such injuries. The conclusions about the remedy clause outlined in Smothers define the inquiry necessary to determine whether legislative action violates that constitutional guarantee. See Jensen v. Whitlow,334 Or 412 , 417-18,51 P3d 599 (2002) (so stating). In accordance with the analytical approach of Smothers, our first step, ordinarily, is to determine whether the injury that plaintiffs have alleged is one for which the remedy clause guarantees a remedy. Smothers,332 Or at 124 . If so, then the *96 next question is whether the legislation at issue * * * abolished that remedy without providing a constitutionally adequate substitute. Id.”
DeMendoza v. Huffman,
Plaintiff asserts that the remedy clause guarantees a remedy for her injury and that ORS 18.592(1) abolished that remedy. Defendant advances several rationalеs in defense of the statute. First, he contends that plaintiffs injury is not protected by the remedy clause, because no remedy was available for such an injury in 1857, when the Oregon Constitution was adopted. Defendant reasons that, because automobiles did not exist in 1857, there was at that time no recognized remedy for injuries resulting from the negligent operation of automobiles. It follows, according to defendant, that the legislature may limit the remedies available in such cases. Alternatively, defendant argues that ORS 18.592(1) does not violate the remedy clause because the legislature did not abolish plaintiffs remedy. Rather, defendant asserts, the statutory insurance requirement is merely a condition precedent to the right to recover noneconomic damages. Finally, defendant argues that, even if ORS 18.592(1) abolished a remedy within the meaning of Article I, section 10, the remedy that remains is constitutionally adequate.
Plaintiff responds that, even though automobiles did not exist in 1857, negligence was then recognized as a cause of action, and noneconomic damages were an available remedy for negligence. According to plaintiff, the nature of the particular instrumentality with which defendant negligently caused her injuries is irrelevant for purposes of the present inquiry. Plaintiff also argues that ORS 18.592(1) does not establish a permissible condition precedent to the recovery of noneconomic damages because, under Article I, section 10, the legislature may attach conditions precedent to the enjoyment of a remedy only if the conditions may be fulfilled after the right of recovery arises. Finally, plaintiff remonstrates that economic damages alone are not a constitutionally adequate residual remedy for her legal injury.
We begin our analysis with the question whether the remedy clause guarantees a remedy for plaintiffs injury. For
*97
purposes of Article I, section 10, “injury” means “a wrong or harm for which a cause of action existed when the drafters wrote the Oregon Constitution in 1857.”
Smothers,
The Supreme Court has never stated how closely a cause of action must resemble one that existed in 1857 in order to be sheltered by Article I, section 10. However, the court’s decisions in other contexts are instructive. In
Lakin v. Senco Products, Inc.,
Similarly, in the context of crimes involving speech, the court has held that Article I, section 8, does not shield the “use of words in the course of what indisputably would have been a conventional crime when Oregon’s Bill of Rights was adopted * *
State v. Robertson,
“The legislature, of course, may revise these crimes and extend their principles to contemporary circumstances or sensibilities. If it was unlawful to defraud people by crude face-to-face lies, for instance, free speech allows the legislature some leeway to extend the fraud principle to sophisticated lies communicated by contemporary means. Constitutional interpretation of broad clauses locks neither the powers of lawmakers nor the guarantees of civil liberties *98 into their exact historic forms in the 18th and 19th centuries, as long as the extension remains true to the initial principle.”
Id. at 433-34.
Article I, section 8, and Article I, section 17 — like Article I, section 10 — are original constitutional guarantees contained in the Oregon Bill of Rights. There is no reason to believe that the remedy clause does not, in like manner, safeguard “extensions” that remain true to its “initial principle.” We conclude that that is the case here. Article I, section 10, protects claims for negligence that are equivalent in substance — though modern in form — to those that existed at common law in 1857.
The common law recognized negligence actions involving horse-drаwn wagons.
See, e.g., Ford v. Umatilla County,
In
Stewart v. Houk et al.,
“[I]f prior to the enactment of the Constitution a host, who transported without charge a guest, owed to the latter a duty to exercise care, and if the lаw recognized that a breach of that duty with a resultant injury afforded the guest a cause of action, this jural right the Constitution preserved against legislative abolishment.”
*99 Id. at 595. The court concluded that a host’s duty of care to a guest was well established. Id. Notably, the court’s analysis was not affected by the fact that the parties’ relationship involved an automobile. After a rehearing en banc, the court acknowledged that “the police power of the state is broad enough to include the regulation of automobiles driven upon the public highways,” id. at 598, but it was not persuaded to alter its decision; it reaffirmed that section 10 “prohibit [s] the legislature from withholding a remedy where the breach of a well-established duty has injured one who now seeks relief.” Id. In other words, the state’s power to license and regulate drivers and motor vehicles remains subordinate to the remedy clause. Having fully addressed defendant’s arguments to the contrary, we conclude that Article I, section 10, guarantees a remedy for plaintiffs injury.
We turn to the issue whether the legislature has abolished the remedy for plaintiffs injury. We begin with defendant’s contention that, rather than abolishing plaintiffs remedy, ORS 18.592(1) merely imposes a condition precedent to her right to recover noneconomic damages. Defendant relies on the court’s statement in
Smothers
that it has “never held that the remedy clause prohibits the legislature from * * * attaching conditions precedent to invoking [a] remedy * *
Defendant replies that we upheld a similar statutory condition to bringing a claim in
Roelle v. Griffin,
Defendant argues that, in reaching the conclusion that the statute did not violate the remedy clause, we affirmed the legislature’s power to place conditions on the right to seek a remedy. However, in so concluding in
Roelle,
we relied on
Josephs v. Burns & Bear,
“If it were true that the legislature had authority to declare what rights are protected by the remedy clause, then it would follow that the legislature also had plenary authority to define what constitutes a legally cognizable injury to those rights. However, as we have explained above, the remedy clause protects absolute common-law rights respecting person, property, and reputation that existed when the drafters wrote the constitution. If the legislature constitutionally cannot abolish or alter those rights directly, then it cannot abolish them indirectly by defining narrowly what constitutes an injury to those rights. We disavow the holding * * * that the legislature constitutionally is authorized to define what constitutes an injury to absolute rights respeсting person, property, and reputation that are protected by Article I, section 10.”
*101 Id. Accordingly, defendant’s reliance on the cited portion of our reasoning in Roelle is unavailing. 5
But our rejection of defendant’s reliance on
Roelle
does not end the matter. The question remains what the court meant when it stated in
Smothers
that it “never has held that the remedy clause prohibits the legislature from * * * attaching conditions precedent to invoking [a] remedy * * *.”
We agree with plaintiff that, unlike the conditions precedent in the foregoing cases, ORS 18.592(1) does not *102 impose a post-injury requirement on the initiation and prosecution of an action. Rather, to the extent — but only to the extent — that an uninsured plaintiff is seeking an award of noneconomic damages, it requires the plaintiff to prove an additional fact that existed at the time of the accident, namely, that he or she had liability insurance. The question thus becomes whethеr the limitation of that form of damages violates the remedy clause.
Defendant argues that it does not because it does not entirely abolish plaintiffs common-law cause of action. We agree with defendant’s latter point; the cause of action is not entirely abolished. We disagree, however, with defendant’s further argument that that conclusion obviates the need to consider whether the limitation on noneconomic damages leaves plaintiff with a constitutionally adequate remedy. Defendant relies on the court’s prescription in Smothers of a sequential analytical methodology for remedy clause challenges:
“[I]n analyzing a claim under the remedy clause, the first question is whether the plaintiff has allеged an injury to one of the absolute rights that Article I, section 10 protects. Stated differently, when the drafters wrote the Oregon Constitution in 1857, did the common law of Oregon recognize a cause of action for the alleged injury? If the answer to that question is yes, and if the legislature has abolished the common-law cause of action for injury to rights that are protected by the remedy clause, then the second question is whether it has provided a constitutionally adequate substitute remedy for the common-law cause of action for that injury”
Smothers,
*103 However, in Smothers, the court also said:
“Recently, this court has suggested that, in addition to being a means for seeking redress for injury, the word ‘remedy' also refers to the amount of damages that a person is entitled to recover for an injury. In Hale [ v. Port of Portland,308 Or 508 ,783 P2d 506 (1989)], for example, the court held that, under Article I, section 10, the legislature may limit the size of an award that can be recovered for an injury, so long as ‘the remedy is a substantial one.’ [Id. at 523.] See also Greist v. Phillips,322 Or 281 , 290,906 P2d 789 (1995) (legislature entitled to amend amount of damages available in statutory wrongful death action without running afoul of Article I, section 10, ‘as long as the plaintiff is not left without a substantial remedyO; Neher [v. Chartier,319 Or 417 , 426,879 P2d 156 (1994)], (Article I, section 10, not violated so long as injured party has substantial remedy).
“As we have explained, the only question in this case is whether the legislature has deprived plaintiff of a means for seeking redress for the injury that he alleges that he suffered at work. Accordingly, it is beyond the scope of this opinion to address issues relating to the adequacy of the amount of damages that may be available under a legislatively substituted process for a common-law cause of action for injury to one of the rights that is protected by the remedy clause.”
Smothers,
The foregoing passage, considered in the light of previous decisions оf the court, suggests that the question of whether a remedy has been abolished may require an examination of the extent to which the amount of the plaintiffs damages has been limited by legislation. It is possible to reconcile that passage with the sequential analysis that the court prescribed in
Smothers
and that it reaffirmed in
DeMendoza,
by carefully focusing on the court’s use of the word “substitute,” which, when used as a noun, ordinarily means “replacement.”
See Entrada Lodge, Inc. v. BOLI,
That conceptualization raises the question whether, and under what circumstances, a remedy can be considered to have been abolished if there remains only a residual — as opposed to a substitute — remedy. It appears to us that the proper inquiry in that regard is the same: whether the relief that remains available to the plaintiff is substantial.
See Hale,
We turn to that inquiry. The Supreme Court has not precisely stated how the substantiality of a remedy is determined. However, cases construing other statutes that limit damages are instructive. In
Hale,
for example, the plaintiff sought economic and noneconomic damages in the combined amount of $4.5 million. The plaintiffs medical expenses alone exceeded $600,000. The defendants, Port of Portland and City of Portland, filed a motion to strike the plaintiffs prayer for damages in excess of $100,000 pursuant to ORS 30.270(l)(b), whiсh limits the liability of public bodies to $100,000 in personal injury cases. The trial court granted the motion. The plaintiff appealed, arguing, among other things, that ORS 30.270(l)(b) deprived him of an adequate remedy in violation of Article I, section 10. The Supreme Court affirmed, concluding that the remedy was “substantial.”
Hale,
Here, by contrast, the challenged statute imposes no restriction on plaintiffs economic damages. We are hard pressed to say that that residual remedy is constitutionally inadequate, given that the Supreme Court concluded in Hale that a recovery that compensated less than one-sixth of the plaintiffs economic damages provided a substantial remedy. Moreover, economic damages encompass a broаd range of recovery. ORS 18.560(2)(a) provides:
“ ‘Economic damages’ means objectively verifiable monetary losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services, burial and memorial expenses, loss of income and past and future impairment of earning capacity, reasonable and necessary expenses incurred for substitute domestic services, recurring loss to an estate, damage to reputation that is economically verifiable, reasonable and necessarily incurred costs due to loss of use of property and reasonable costs incurred for repair or for replacement of damaged property, whichever is less.”
*106
Plaintiff contends that
Hale
and other cases upholding limits on damages are inapposite because, she argues, in each of those cases, the statutory scheme involved a
quid pro quo,
a tradeoff that gave the plaintiff some other benefit in exchange for the restricted remedy. In
Hale,
for example, the court said that, although the Oregon Tort Claims Act (OTCA)
7
limited the liability of public bodies to $100,000 for personal injury claims, “[t]he class of plaintiffs has been widened by the legislature by removing the requirement that an injured party show that the [public body’s] activity that led to the injury was a proprietary one.”
Hale,
“Before its enactment one workman out of three received a large compensation for his injuries by an action at law, while the remaining two were defeated and got nothing. Now every workman accepting [the statute’s] provisions receives some compensation if injured; and, taken as a whole, it will be found that more money in the way of compensation is received by the whole body of injured workmen than by the inadequate remedies afforded by the courts.”
Plaintiff nonetheless argues that a
quid pro quo
is necessary to uphold a statutory limitation on noneconomic damages under Article I, section 10, and she argues that ORS 18.592(1) doеs not afford any such tradeoff. In addition to
Hale
and
Evanhoff,
this court’s decisions support the first premise of plaintiffs
quid pro quo
argument.
See, e.g., Storm v. McClung,
In any event, we reject plaintiffs argument that ORS 18.592(1) does not provide such a tradе-off. The Supreme Court has not decided whether a “court must analyze the remedy categorically, by examining whether potential plaintiffs as a group, not as individuals, retain a substantial remedy.”
Jensen v. Whitlow,
Plaintiff asserts that no such trade-off exists. She contends that, in order to qualify, the benefit of a
quid pro quo
must inure to the same
individuals
who are forced to give something up. We disagree. When the workers’ compensation statutes were enacted, it was widely acknowledged that, under the pre-existing tort system, some injured workers received large compensatory awards while others received nothing.
See Evanhoff,
Admittedly, there is a risk in relying too heavily on the foregoing cases for guidance. They represent different strands of analysis that the Supreme Court has acknowledged do not share a single cohesive rationale. In
Evanhoff,
the court engaged in a balancing of interests, treating the remedy guarantee as a sort of substantive due process clause.
See Greist,
In any event, even if the remedy clause requires that an individualized benefit be conferred on a plaintiff, plaintiff here has not shown that the compensation she received for her economic damages did not provide a substantial remedy. The record shows that the parties settled that claim for the sum of $4,210. The parties stipulated that plaintiffs non-economic damages were $5,790. Thus, plaintiffs remedy leaves her with 42.1 percent of her total damages. That recovery constitutes a substantial remedy.
To recapitulate, Article I, section 10, applies to plaintiffs claim against defendant for negligent operation of a motor vehicle. ORS 18.592(1) does not abolish plaintiffs claim, because the portion of her remedy that remains unaffected by that statute is substantial. Therefore, ORS 18.592(1) does not violate the remedy clause.
We turn to the parties’ arguments concerning Article I, section 17. Section 17 provides that “[i]n all civil cases the right of Trial by Jury shall remain inviolate.” The trial court concluded that ORS 18.592(1) violates that provision because, when a plaintiff was uninsured at the time of an accident, the statutе interferes with the jury’s factfinding *109 function in determining noneconomic damages. Defendant argues that, because proof of liability insurance coverage is an element of a claim for noneconomic damages, and the jury determines whether that element has been proved, the jury’s function is not unconstitutionally impaired. Defendant also contends that, because plaintiff does not have a right to non-economic damages under Article I, section 10, there was no claim for a jury to hear and, thus, Article I, section 17, was not implicated.
Plaintiff responds that allowing a jury to determine whether a plaintiff was driving uninsured is no substitute for a jury determination of the plaintiffs noneconomic damages. She urges that “[n]o law empowеrs a jury to deprive a litigant of fundamental rights even when, as in criminal cases, the loss of fundamental rights may be the legal consequence of its decision.” Plaintiff relies on
Lakin,
“Article I, section 17, guarantees a jury trial in civil actions for which the common law provided a jury trial when the Oregon Constitution was adopted in 1857 and in cases of like nature. In any such case, the trial of all issues of fact must be by jury. The determination of damages in a personal injury case is a question of fact. The damages available in a personal injury action inсlude compensation for noneconomic damages resulting from the injury. The legislature may not interfere with the full effect of a jury’s assessment of noneconomic damages, at least as to civil cases in which the right to jury trial was customary in 1857, or in cases of like nature.”
Lakin,
Plaintiffs reliance on Lakin is misplaced.
“Article I, section 17, is not a source of law that creates or retains a substantive claim or a theory of recovery in favor of any party. * * * The right to pursue a ‘civil action,’ if it exists, must arise from some source other than Article I, section 17, because that provision ‘is not an independent guarantee оf the existence of a cognizable claim.’ ”
*110
Jensen,
Our conclusion is supported by our previous determination that plaintiff has no right to noneconomic damages as a remedy under Article I, section 10. In DeMendoza, the Supreme Court held that ORS 18.540, which allocates 60 percent of punitive damage awards to the state, does not violate Article I, section 10, and that it also does not violate Article I, section 17. Its reasoning is apt here:
“Here, in contrast [with Lakin], plaintiffs have no underlying ‘right to receive an award’ that reflects the jury’s determination of the amount of punitive damages, nor are those damages necessary to ‘compensate’ plaintiffs for a ‘loss or injury [to them].’334 Or at 446 (no right to punitive damages as remedy under Article I, section 10). Because plaintiffs lack that right, the legislature’s allocation of a portion of the punitive damages award to the state does not implicate Article I, section 17.”
DeMendoza,
In sum, ORS 18.592(1) prescribes an additional factual issue for the trier of fact to decide in motor vehicle accident cases, namely, whether the plaintiff had liability insurance at the time of the accident. If the trier of fact finds that *111 the plaintiff did not have such coverage, it may not reach the issue of noneconomic damages. Because ORS 18.592(1) does not prevent a jury from deciding each factual element of a claim for personal injuries arising from the negligent operation of a motor vehicle, it does not violate Article I, section 17. The trial court erred in so concluding.
Judgment awarding noneconomic damages reversed; otherwise affirmed.
Notes
ORS 18.592(1) provides:
“Except as provided in this section, a plaintiff may not recover noneco-nomic damages, as defined in ORS 18.560, in any action for injury or death arising out of the operation of a motor vehicle if the plaintiff was in violation of ORS 806.010 [prohibiting driving while uninsured] or ORS 813.010 [prohibiting driving while intoxicated] at the time the act or omission causing the death or injury occurred. A claim for noneconomic damages shall not be considered by the jury if the jury determines that the limitation on liability established by this section applies to the claim for noneconomic damages.”
Although plaintiff waived her right to a jury trial, she contends that Article I, section 17, remains relevant to her argument that, by enacting ORS 18.592(1), the legislature interfered with the judicial factfinding process. Article I, section 17, prohibits such interference, whether the court or a jury sits as finder of fact.
Lakin v. Senco Products, Inc.,
ORS 701.065 (1979), amended by Oregon Laws 1999, chapter 402, section 16, provided:
“A builder may not file a lien or bring or maintain in any court of this state a suit or action for compensation for the performance of any work or for the breach of any contract which is subject to this chapter, unless he was registered under this chapter at the time he bid or entered into the contract for performance of the work.”
We were not required to consider whether Article I, section 10, applies to claims for breach of contract.
Defendant relies alternatively on our statement in
Roelle
that, “[i]n agreeing to undertake work on defendants’ residence without a valid registration, plaintiffs entered into an illegal agreement.”
Roelle,
Defendant’s argument is superficially appealing, because the rule barring enforcement of illegal contracts existed at common law,
see Hendrix v. McKee,
In
Hale,
ORS 30.260 - 30.300.
The legislative history of ORS 18.592(1) shows that the legislature relied on statistics demonstrating that the number of uninsured drivers in California fell by at least three percent after the voters of that state enacted a similar statute. Minutes, House Judiciary Civil Law Committee, Jan 28,1999.
The Supreme Court decided Jensen after the trial court entered judgment in this case; thus, the trial court did not have the benefit of Jensen’s guidance in making its rulings.
In
Lakin,