Lead Opinion
I. FACTS
138 This case arose from the collision of an automobile driven by Chief Glen H. Burton of the Weber Fire District ("District") and an automobile in which Matthew J. Lyon and Christopher M. Walker were riding. Lyon and Walker, both minors, were severely injured and through their fathers, sued Chief Burton and the Weber Fire District. A jury found that defendants Burton and the District were 100 percent at fault in causing the accident and awarded Matthew Lyon $700,000 in general damages and $9,537.79 in special damages, and Christopher Walker $900,000 in general damages and $132,982.39 in special damages.
14 On the day of the accident, Chief Burton heard a report of a fire in the North View Fire District, which borders the Weber Fire District. After listening to additional reports on the fire's progress, Chief Burton decided to proceed to the fire. Ein route, he switched his Ford Explorer to "emergency" mode, which entailed turning on the vehicle's emergency lights and siren. Although the Explorer had intentionally not been accoutered to look like an emergency vehicle,
15 While proceeding in emergency mode, Chief Burton entered an intersection against a red light and collided with plaintiffs, who had the green light. He estimated that his speed immediately prior to the accident was from ten to fifteen miles per hour up to thirty-five to forty miles per hour. Both plaintiffs were severely injured. Matthew Lyon sustained a closed head injury for which relatively little medical treatment was required or possible but which resulted in significant and permanent brain damage. Christopher Walker sustained brain damage and also severe physical injuries.
T6 Plaintiffs filed suit against Chief Burton and the District. Prior to trial, defendants moved to dismiss the action against Chief Burton in his individual capacity on the ground that he was acting within the scope of his duties for the District at the time the accident occurred. Thus, defendants argued that suit against Chief Burton was barred under Utah Code Ann. § 63-804 (1993)
T7 Both defendants also moved for summary judgment on the ground that the general waiver of governmental immunity for damage caused by negligence under section 63-30-10 was not applicable because subsection (18)(b) of section 63-80-10 retained governmental immunity for fire fighting activi
18 Following the jury verdicts, the trial court granted defendants' pretrial motion to dismiss Chief Burton as a party defendant and the District's motion to limit the damages award against the District to $250,000 for each plaintiff pursuant to Utah Code Ann. § 63-30-34. The court denied plaintiffs' motions for judgment on the verdicts, prejudgment interest, and costs, but granted their motions for postjudgment interest. Thereafter, the District moved for a judgment notwithstanding the verdict (J.n.0v.) on the ground that under subsection (18)(b) of seetion 63-30-10, the District was not liable for negligence in fire fighting activities The court denied the motion.
T9 Both parties appealed. Plaintiffs appealed (1) the order dismissing Chief Burton pursuant to section 63-304; (2) the limitation of their damages to $250,000 each pursuant to section 63-30-84; (8) the denial of prejudgment interest on their special damages under section 78-27-44; and (4) the denial of costs under Rule 54(d) of the Utah Rules of Civil Procedure. The District cross-appealed the trial court's denial of its motions for summary judgment and j.n.o.v. on the ground that it was entitled to complete immunity for fire fighting activities.
II GOVERNMENTAL IMMUNITY
110 Defendants claim that sections 63-30-3(1) and 63-80-10(18)(b) of the Utah Governmental Immunity Act provide complete immunity in this case. We address this claim first because plaintiffs' other claims are relevant only if the Act does not provide complete immunity. Moreover, some of plaintiffs' claims are based on constitutional challenges, and "'this Court should avoid addressing constitutional issues unless required to do so.'" World Peace Movement of Am. v. Newspaper Agency Corp.,
T11 Defendants argue that the trial court erred in denying their motion for summary judgment and in denying the Dis-triet's motion for j.n.o.v. Both motions were based on the argument that the District is immune from liability because sections 63-30-3(1) and 63-30-10(18)(b) together provide immunity to governmental entities that negligently cause injuries while engaged in "activities of ... fighting fire." While the legal bases of both motions are the same, the standards by which the trial court is to evaluate the motions are different. Summary judgment "is appropriate only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law." State Farm Mut. Auto. Ins. Co. v. Clyde,
A. Weber Fire District's Liability to Suit under Section 68-80-10 of the Governmental Immunity Act
112 The District contends that the trial court erred in ruling that it was not immune from suit. Generally, it is appropriate to address liability issues, particularly the issue of whether a defendant owes a plaintiff a duty of due care, prior to addressing the affirmative defense of the defendant's immunity from suit. See, e.g., Ledfors v. Emery County Sch. Dist.,
113 Ledfors established a three-step analysis for determining whether a gov
First, was the activity the entity performed a governmental function and therefore immunized from suit by the general grant of immunity contained in section 63-30-37 [Utah Code Ann. § 63-30-3(1).] Second, if the activity was a governmental function, has some other section of the Act waived that blanket immunity? Third, if the blanket immunity has been waived, does the Act also contain an exception to that waiver which results in a retention of immunity against the particular claim asserted in this case?
Ledfors,
114 The first question, therefore, is whether driving an emergency vehicle to a fire is a "governmental function." This inquiry is mandated by section 63-80-3(1), which establishes the general principle of governmental immunity subject to certain exceptions. "Except as may be otherwise provided in this chapter, all governmental entities are immune from any injury which results from the exercise of a governmental function." Utah Code Ann. § 63-30-8(1) {emphasis added). The District qualifies for this blanket grant of immunity if Chief Burton was engaged in a "governmental function" at the time of the accident. See Utah Code Ann. § 68-30-2(4)(a). Under this statutory definition, we conclude that driving an emergency vehicle to the scene of a fire is a "governmental function" and is therefore presumptively cloaked with immunity by seetion 63-30-8 of the Acts.
T15 The second issue under Ledfors is whether the Act provides an exception to that immunity. Section 68-80-10 provides a broad waiver of governmental immunity for negligent acts of an employee committed in the course and seope of employment. "Immunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an employee committed within the scope of employment...." Utah Code Ann. § 63-30-10. Given the jury verdict, this waiver applies in this case.
116 The next question is whether the Act contains an exception to that waiver. Section 63-30-10 has several subsections that exclude certain activities from the waiver and thereby retain immunity. Subsections 15 and 18(b) are two exceptions that are arguably applicable here. Section 10 states:
Immunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an employee committed within the scope of employment except if the injury arises out of:
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(15) the operation of an emergency vehicle, while being driven in accordance with the requirements of Section 41-6-14;
..; or
(18) the activities of:
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(b) fighting fire....
Id. (emphasis added). These exceptions to the general waiver of immunity are in the alternative. Therefore, the District is immune from liability if either exception is satisfied. Although we have construed several of the exceptions in section 68-80-10 as to the waiver of immunity,
118 Giving full effect to the language of subsections (15) and (18) and reading them in harmony with related statutes, it is apparent that only subsection (15) applies to the facts of this case. Subsection (15) applies to "the operation of an emergency vehicle," and that is precisely the activity in which Chief Burton was engaged at the time of the accident. Subsection (18)(b), on the other hand, is more general; it provides an exception to the waiver of immunity for "activities of ... fighting fire." Standing alone, this provision could arguably apply to this case, but we conclude that because subsection (15) applies with greater specificity, it should govern. See Madsen,
119 This conclusion is bolstered by a detailed reading of subsection (15) and its reference to a provision of the Motor Vehicle Code. Subsection 63-30-10(15) provides that liability shall not attach for negligence if the injury arises out of "the operation of an emergency vehicle, while being driven in accordance with the requirements of Section 41-6-14." Utah Code Ann. § 68-80-10(15). At the time of the accident, section 41-6-14 provided:
(1) The operator of an authorized emer-geney vehicle, when responding to an emergency call or when in pursuit of an actual or suspected violator of the law or when responding to but not upon returning from a fire alarm, may exercise the privileges under this section, subject to Subsection (2).
(2) The operator of an authorized vehicle may:
(a) park or stand, irrespective of the provisions of this chapter;
(b) proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;
(c) exceed the maximum speed limits if the operator does not endanger life or property; or
(d) disregard regulations governing direction of movement or turning in specified directions.
(3) Privileges granted under this section to an authorized emergency vehicle apply only when the vehicle sounds an audible signal under Section 41-6-146, or uses a visual signal as defined under Section 41-6-132, which is visible from in front of the vehicle.
(a) The privileges under this section do not relieve the operator of an authorized emergency vehicle from the duty to operate the vehicle with regard for the safety of all persons, or protect the operator from the consequences of an arbitrary exercise of the privileges.
Id. § 41-6-14 (1988) (emphasis added). This section specifically refers to the privilege of driving an emergency vehicle through a red light when responding to a fire alarm. Because those are precisely the circumstances of this case, subsection 63-80-10(15), which
€20 But whether subsection (15) in fact provides an exception to the waiver depends on whether Chief Burton's conduct complied with the requirements of that section. For the District to be immune under subsection 63-80-10(15), it must show that plaintiffs' injuries arose out of "the operation of an emergency vehicle, while being driven in accordance with the requirements of Section 41-6-14." Id. § 68-80-10(15) (emphasis added). At the time of the accident, section 41-6-14 provided in pertinent part: "The operator of an authorized vehicle may ... proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation ...." Id. § 41-6-14(2)(b) (1988) (emphasis added). Chief Burton, therefore, had the privilege of running the red light only if he slowed down as necessary for safe operation. This plainly presented a factual question for the jury.
B. Defendant's Motion for Judgment Notwithstanding the Verdict
121 The District's motion for a jm.o~v. raised the question of whether the evidence supported the jury verdict which implicitly found that Chief Burton did not qualify for the privilege of proceeding through a red light. Regarding plaintiffs' theories of negli-genee, the trial court instructed the jury as follows:
In this case the plaintiffs claim the defendants were negligent in the following respects:
1. Glen Burton failed to yield the right of way at the intersection;
2. He entered the intersection at an unreasonably high speed under the cireum-stances;
3. He failed to keep a proper lookout;
4. He entered into the intersection against a red light in a vehicle that was not properly or adequately equipped to be an emergency vehicle.
To return a verdict for the plaintiffs, you must find by a preponderance of the evidence that:
i. The defendants were negligent in one or more of the particulars alleged by the plaintiffs; and
ii. The defendants' negligence was a proximate cause of the plaintiffs' injuries.
Concerning plaintiffs' second theory of negligence, the court instructed the jury that "Itlhe operator of an authorized emergency vehicle, when responding to a fire alarm, may exercise privileges such as ... proceed[ing] past a red or stop signal or stop sign, but only after slowing down as necessary for safe operation." To aid the jury in its resolution of plaintiffs' fourth theory of negligence, the trial court gave the jury a detailed instruction on the statutory requirements contained in sections 41-6-182 and 41-6-146 concerning how authorized emergency vehicles must be equipped.
122 The jury found that Chief Burton was negligent in causing the accident; however, the jury did not make separate findings as to each of plaintiffs' theories of negligence. When "the jury does not identify which theory or theories it relied on in reaching its verdict, we may affirm the verdict if the jury could have properly found for the prevailing party on any one of the theories presented." Billings v. Union Bankers Ins. Co.,
123 The next question is whether there was evidence sufficient to support at least one of plaintiffs' theories of negligence submitted to the jury. On this issue, we "view[ ] the evidence in the light most favorable to the prevailing party." Crookston,
124 We affirm the trial court's denial of defendants' motion for a j. n.o.v.
III. CONSTITUTIONALITY OF SECTIONS 63-80-4 . AND 63-80-34
125 Based on Utah Code Ann. § 68-80-4(4), the trial court dismissed plaintiffs' negli-genee actions against Chief Burton, and based on Utah Code Ann. § 63-80-34, that court cut the damages the jury awarded plaintiffs and entered judgment against the District for the statutory limit of $250,000 for each plaintiff. Thus, plaintiffs were denied any remedy for their personal injuries against Chief Burton and given only a partial remedy against the District. The reason for plaintiffs' appeals, therefore, is that they have been denied the full amount of damages the jury awarded them for the severe injuries they suffered. They argue that (1) the abrogation of their remedy for damages against Chief Burton as an individual and (2) the limitation on the amount of damages awarded against the District are unconstitutional. Specifically, plaintiffs contend that Utah Code Ann. § 68-30-34, which sets a cap on damage awards against government agencies,
126 A just and peaceful society must secure by law the fundamental rights of all its citizens. Among the basic rights protected by the Utah Declaration of Rights are the
127 Unless the law allows a person the right to vindicate in a court of law injuries to his person, property, and good name and status in the community, resort to self-help will inevitably occur and result in violence. Thus, the right to restorative or compensatory justice is indispensable to the security of the individual and the security of society itself. Under the Utah Constitution, that right is protected from arbitrary and unreasonably discriminatory laws.
128 Prior opinions of this Court have recounted the long Anglo-American history of the principles protected by Article I, seetion 11 of the Utah Declaration of Rights. The right of access to the courts and to a civil remedy to redress injuries, which Article I, section 11 protects, is fundamental in Anglo-American law. See Craftsman Builder's Supply v. Butler Mfg.,
129 Indeed, that right is of increasing importance in the modern world. Politically powerful special interest groups pursuing their self-interests have from time to time sought to commandeer the law to advance their self-interests at the expense of a citizen's right to restorative justice by abrogating remedies essential to the protection of persons, property, and reputation. See id. The need to protect the right of access to the courts led the framers of the Utah and some thirty-eight other state constitutions to adopt open courts provisions, which had their origins in England and in this country in the constitutions of the first thirteen states. See id.
130 The legislative impetus to abrogate those rights has occurred from time to time because of majoritarian indifference and even hostility to the plight of those whose fundamental rights are harmed and whose only recourse is a judicial remedy. By and large, persons who suffer serious personal or property injuries are an isolated and unidentifiable minority who have little influence on legislative actions. These considerations were instrumental in the adoption of open courts clauses in a number of state constitutions. See id. As Justice Zimmerman trenchantly observed in his concurring opinion in Condemarin v. University Hospital,
The constitution's drafters understood that the normal political processes would not always protect the common law rights of all citizens to obtain remedies for injuries. See Berry,717 P.2d at 676 ; cf. Developments in the Law: The Interpretation of State Constitutional Rights, 95 Harv. L. Rev. 1324, 1498-1502 (1982) (protection of majority from politically powerful minorities as an approach to state constitutional interpretation); Note, State Economic Substantive Due Process: A Proposed Approach, 88 Yale L.J. 1487, 1498 (1979) (perfunctory judicial review is inadequate to protect against special interest legislation). At any one time, onlya small percentage of the citizenry will have recently been harmed and therefore will need to obtain a remedy from the members of any particular defendant class. The vast majority of the populace will have no interest in opposing legislative efforts to protect such a defendant class because the majority will not readily identify with those few persons unlucky enough to have been harmed. And those few persons directly affected will, in all likelihood, lack the political power to prevent the passage of legislation that, in essence, requires every member of the citizenry who is injured by members of the defendant class to bear some or all of the cost of those injuries.
Id. at 367.
{31 In a somewhat similar vein, in a concurring opinion in Craftsman, Justice Stewart wrote:
The Framers of the Utah Constitution included Article I, section 11 to anchor in the Constitution rights that originated in the English Magna Carta of 1215 and that are among those essential to a peaceful society. The purpose of those rights is to bar sovereign power, whether kingly, parliamentary, or legislative, from undermining an independent judiciary and arbitrarily abolishing remedies that protect the person, property, or reputation of each individual.
Craftsman,
A. Constitutionality of Cap on Damages of Weber Fire District
132 This Court has addressed the constitutionality of statutory limits or caps on compensatory damages in three cases. See Bott v. DeLand,
133 Plaintiffs argue that the cap on damages as applied to the District is unconstitutional under Condemarin. Condemarin held unconstitutional under Article I, sections 11 and 24, a cap on damages awarded against the University of Utah Hospital, a government agency that the Court held performed a "proprietary" or "nonessential governmental" function of providing medical services. Plaintiffs in this case contend that fire fighting activities are not essential governmental activities under the standards stated in DeBry v. Noble,
34 In response, the District argues that fire fighting is an "essential governmental function" and that McCorvey controls. McCorvey held constitutional a cap on damages against a governmental agency performing the "essential governmental" function of highway design and maintenance.
135 Thus, whether Condemarin or McCorvey governs the constitutionality of the damage cap depends on the nature of the services performed, the government agency, and the effect of liability in rendering those services. See DeBry,
137 In this state, the governmental/proprietary test, which gave rise to highly confused legal analysis and inconsistent results, is no longer determinative of whether a governmental agency is entitled to governmental immunity. See DeBry,
138 Standiford,
139 Following Standiford, DeBry for the first time addressed the inherent tension between Article I, section 11 rights and governmental immunity. In DeBry, this Court stated:
[Plolicies favoring governmental immunity cannot be viewed in isolation from article I, section 11 and the harsh effect of denying individuals a remedy for what may be dey-astating injuries. In applying the Standi-ford test, the Court must, among other things, evaluate whether the effect of tort liability would promote public safety or defeat essential or core governmental activities and programs that are critical to the protection of public safety and welfare.
DeBry,
¶ 40 Rollow v. Ogden City,
T41 There are compelling reasons why fire fighting activities historically have been, and should be, deemed an essential governmental activity. Fire fighting is essential to the safety of persons and property in a community. Those engaged in fire fighting activities, in discharging their necessary duties, undertake the highly hazardous activities necessary for the protection of persons and property. Fire fighting requires instantaneous decisions by persons in highly hazardous cireumstances that involve the safety of firefighters themselves and the security of the community, or large parts of it. Imposing the potential for legal lability for injuries occurring to persons and property is incompatible with the inherent risks of fire fighting. After-the-fact judicial decisions assessing the propriety of a firefighter's decision could seriously impede effective fire fighting by promoting the value of caution over that of prompt action. Indeed, tort actions for injuries to persons or property based on untoward results in fire fighting could result in an "overall loss in safety, rather than greater safety and protection," even more so than is the case with respect to the enforcement of building regulations. See DeBry,
{42 For these reasons, the law holds that the security of the community as a whole as well as the security of individuals is more safe and secure with tort immunity for fire fighting than without it. In short, we hold, consistent with the law as it existed prior to the enactment of the Act and consistent with sound policy, that fire fighting activities are an essential and core governmental activity.
{48 -It follows that fire fighting activities are core governmental activities under De-Bry, and are immune from tort remedies, except insofar as the Legislature has waived that immunity, as it has with respect to the operation of emergency vehicles, such as fire fighting vehicles, while driven on public highways. -It also follows that the limitation of the District's damages under Utah Code Ann. § 63-30-34 is constitutional under Article I, section 11 as construed in McCorvey,
B. The Historic Liability of Government Employees for Wrongs They Commut in the Course of Their Employment
T{44 We turn now to the separate and distinct issue of Chief Burton's liability in his personal capacity. Utah Code Ann. § 63-80-4 abrogates all actions against government employees for injuries they cause to others in their person and property, unless the employee acts with fraud or malice. The immunity given government employees by the 1978 and 1982 amendments to the Act created a sharp break with the Act as it existed prior thereto and, more importantly, with prior law holding such employees liable for their civil wrongs. The law in Utah, as in most other states, had been that government employees, like all business employees and all other persons, were personally liable for civil wrongs that injured the persons or property of others.
[The common law traditionally did not distinguish between public officials and private individuals for purposes of determining the scope of personal tort liability. In fact, courts that drew such a distinction often imposed a stricter standard of care on officials than on private individuals, holding them personally liable for the consequences of simple, non-negligent mistakes. ‘
George A. Bermann, Integrating Governmental and Officer Tort Liability, 77 Colum.
¶45 As in most jurisdictions, government employees in this state were personally liable for civil wrongs committed in a ministerial or operational capacity. See Frank v. State,
¶46 A government agent or employee performing a ministerial function could be liable even if the agency itself was engaged in a governmental function and was immune from suit. For example, in Connell v. Tooele City,
¶47 In keeping with these principles, pri- or to enactment of section 63-80-4 in its present form, a government employee who exercised governmental discretion in good faith was not personally liable for resulting civil wrongs. See Ross v. Schackel,
¶48 Under these long-established principles, Chief Burton would be personally liable to plaintiffs for his negligent driving. Jensen,
149 In sum, in Utah, as elsewhere, the law provided a "remedy by due course of law" for personal injuries caused by the negligent operation of an emergency vehicle, although the standard of negligence has been modified to free such vehicles from compliance with certain traffic regulations. Under that law generally, and specifically under Jensen and Cornwall, which held drivers of emergency vehicles liable for the manner in which they drove, Chief Burton would be liable personally for the injuries he caused plaintiffs and plaintiffs would have had a remedy under the law as it existed prior to the 1982 amendment to Utah Code Ann. § 63-30-4.
150 The Governmental Immunity Act as initially enacted in 1965 did not affect the law of government employee liability in any way; indeed, it recognized and accepted it. See 1965 Utah Laws ch. 139. The Act specifically authorized governmental agencies to purchase insurance to indemnify employees for, judgments against them for injuries they inflicted on the person and property of others. Section 33 of chapter 189, 1965 Laws of Utah, provided:
A governmental entity may insure any or all of its employees against all or any part of his liability for injury or damage resulting from a negligent act or omission in the seope of his employment regardless of whether or not said entity is immune from suit for said act or omission, and any expenditure for such insurance is herewith declared to be for a public purpose.
Thus, the Governmental Immunity Act of 1965 did not in any way affect government employees' liability for civil wrongs, but the Act did provide that government agencies could insure their employees against personal liability. Cornwall,
The Utah Governmental Immunity Act applies only to entities and does not include individuals (employees) and such was noted by the court in Sheffield v. Turner, . and the Act contains no language exempting employees from suit.... [Llegis-lative intent is clearly expressed in that portion of the Act which allows the entity to insure its employees against liability for their negligent acts.
Cornwall,
C. Constitutionality of Abrogation of Remedies Against Government Employees
{51 We turn now to the constitutionality of Utah Code Ann. § 68-80-4 under Article I, section 11. In 1978 and 1982, section 63-30-4 was amended to bar all actions against government employees for fault-based conduct except for fraud and malice.
First, section 11 is satisfied if the law provides an injured person an effective and reasonable alternative remedy "by due course of law" for vindication of his constitutional interest. The benefit provided by the substitute must be substantially equal in value or other benefit to the. remedy abrogated in providing essentially comparable substantive protection to one's person, property, or reputation, although the form of the substitute remedy may be different....
Second, if there is no substitute or alternative remedy provided, . abrogation of the remedy or cause of action may be justified only if there is a clear social or economic evil to be eliminated and the elimination of an existing legal remedy is not an arbitrary or unreasonable means for achieving the objective.
Id. at 680 (citations omitted); see also Craftsman,
1. Is there an equal alternative remedy to the abrogated remedy against Chief Burton? ‘
158 It stands to reason that under the first standard an abrogation of remedies is constitutional if there is "an effective and reasonable alternative remedy" that is "substantially equal in value or other benefit to the remedy abrogated." Berry,
154 In this case, plaintiffs have an alternative to the remedy against Chief Burton in the form of an action against the District. That remedy, however, unlike the traditional remedy against the employee is subject to the damage limitation and, therefore, is not "substantially equal" to the preexisting remedy against the employee.
2. Is abrogation justified by a clear social or economic evil and is abrogation arbitrary?
155 However, the conclusion reached above that the limited remedy against the government ageney is not an equal substitute for the remedy against the government employees does not necessarily mean that the abrogation is unconstitutional.
156 Defendants do not assert that the abrogation in this case is necessitated by some economic, social, or other evil. Defendants assert no factual or policy justification for the abrogation of remedies against government employees other than the saving of money. Indeed, Condemarin has already held that reducing the cost to government of assuming liability for certain types of lability was not a sufficient justification for requiring the most seriously injured persons to assume the whole of that cost. See Condemarin,
157 The Legislature has already provided the means for government agencies to protect their employees from the cost of liability. All government entities are authorized to insure their "employees against liability, in whole or in part, for injury or damage resulting from an act or omission occurring during the performance of an employee's duties ... regardless of whether ... that entity is immune from suit for that act or omission." Utah Code Ann. § 68-30-33(1)(a). And the insurer has no right of indemnification or contribution from either the government entity or the employee. See id. § 63-80-88(1)(c).
158 Furthermore, government employees are protected by the statutory right to have legal representation provided and by the right to indemnification from an agency if the employee is liable for an act occurring "during the performance of the employee's duties." Utah Code Ann. § 68-830-86(1). Thus, an employee is protected from financial loss as the law now stands. And the government agency itself can also be protected by insurance. In short, government agencies can spread the risk of loss in the same manner as private agencies can.
159 Defendants do not argue that there would be an undue financial burden on the government if government employees are held personally liable for torts committed on public highways. To the extent that the government experiences any financial burden from employee liability, it is only because the Legislature indemnifies employees for damages they incur in the course of their employment. But that is a burden that the Legislature voluntarily assumes; it has no legal obligation to do so. See Forseth v. Sweet,
160 Nor can the abrogation be justified on the ground that employee liability impedes or interferes with the performance of governmental responsibilities. Defendants do not so contend. Indeed, the common law barred actions against governmental officials when governmental operations would be impeded. That, indeed, is the policy underlying legislative and judicial immunity and the exception to liability for administrative and executive employees when exercising governmental discretion. See generally Bott,
161 Furthermore, the cap operates in a capricious and insidiously discriminatory fashion. First, the cap insidiously discriminates by allowing those who are not seriously injured to recover full damages but denies full recovery to those who are most seriously injured and whose damages exceed the cap. Those who are most seriously injured must therefore bear the greatest burden in reducing government costs. The result is a vicious policy: those who most need a full remedy to deal with the devastation wreaked on their lives and families because of the severity of the injuries inflicted are denied that recovery and shoulder the entire burden of protecting the government's treasury, while those whose injuries are less life altering receive full compensation for their injuries and shoulder no burden at all. Thus, the cap
[The $250,000 limit ... clusive by any standard. Millions of healthcare consumers [ie., taxpayers] stand to gain from whatever savings the limit produces. Yet, the entire burden of paying for this benefit is concentrated on a handful of badly injured viectims-fewer than 15 in the year MICRA was enacted. Although the Legislature normally enjoys wide latitude in distributing the burdens of personal injuries, the singling out of such a minuscule and vulnerable group violates even the most undemanding standard of underinelusiveness. is grossly underin-
Fein v. Permanente Med. Group,
162 It was in part this kind of invidious discrimination that was the basis of the holding in Pfost v. State,
163 Defendants rely on Masich v. United States Smelting, Refining & Mining Co.,
164 The Legislature's concern for protecting the financial resources of the state, its subdivisions, and its municipalities is certainly justified. Those resources could be threatened by unexpected and unforeseeable events, and certainly the Legislature should take precautions to protect against events that might threaten those resources. Catastrophic events could have severe financial consequences for government if there were unlimited civil liability in such circumstances. The Congress of the United States recognized as much in enacting the Price Anderson Act of 1946, for example, which placed an overall cap on the total amount of damages that could be recovered as a result of a nuclear accident. See Duke Power v. Carolina Envtl. Study Group, Inc.,
T65 We recognize that governmental budgets may be affected by such liability, and the burden of such liability may fall more heavily on smaller governmental agencies and municipalities than on larger entities because of smaller tax bases.
T66 The traditional rationale for sustaining damage caps, and indeed the concept of governmental immunity as such, is the potentiality of bankrupting a government agency. The Legislature has provided, however, a reasonable means to cope with the financial burden of potentially large judgments. First, punitive damages are barred outright. See Utah Code Ann. § 68-80-22(1)(a). Second, Utah Code Ann. § 63-80-26 provides that any political subdivision may create and maintain a reserve fund for the purpose of purchasing liability insurance to protect the subdivision from money judgments. Third, section 63-80-24 provides that the payment of any claim or judgment against a political subdivision may be made by installment payments if funds during the current fiscal year are not adequate to pay the amount due. These provisions clearly make it possible for government agencies to be responsible for the injuries their employees inflict on private citizens without imperiling governmental operations.
D. Response to Chief Justice Howe's and Justice Zimmerman's Opimions
167 Chief Justice Howe opines that seetion 63-30-84 does not violate section 11 of the Utah Declaration of Rights. He erroneously relies on Payne v. Myers,
168 Chief Justice Howe wholly ignores the case law that requires a conclusion contrary to the one he reaches. He does not even cite Condemarin v. University Hospital,
169 Justice Zimmerman also ignores both Bott and Condemarin, a case in which he wrote a concurring opinion strongly supporting Berry v. Beech Aircraft and our Article I, section 11 jurisprudence. He wrote:
The present case has given me a better appreciation of the wisdom of including article I, section 11's guarantee in Utah's basic charter. The constitution's drafters understood that the normal political processes would not always protect the common law rights of all citizens to obtain remedies for injuries. See Berry,
Admittedly, the interests of a majority of the populace are commonly overridden in the legislative process, and, indeed, such overriding may be essential to the responsible operation of a representative deliberative body. However, the very act of drafting a constitution such as ours, which does not bestow unlimited power on the legislature and which does reserve certain rights to the people, constitutes a recognition that there must be some limits on the legislature, that some interests of the people deserve special protection in the maelstrom of interest group politics that is the legislative process. Among the interests to which the Utah Constitution's drafters assigned a degree of sanctity are those mentioned in article I, section 11.
Condemarin,
170 Justice Zimmerman's current position in this matter is quite extraordinary. The fundamental issue he addresses was not raised, briefed, or argued in this Court. His opinion is a personal expression of a private opinion related to no issue properly before the Court. Indeed, in Craftsman,
T71 Until the last year or so, Justice Zimmerman was a foremost proponent of the due process-type test laid down in Berry,
172 Justice Zimmerman acknowledges that he carries a heavy burden under the doctrine of stare decisis in reversing his very own position. His assertion that he met that burden in his separate opinion in Craftsman,
IV. PREJUDGMENT INTEREST
173 Plaintiffs argue that the trial court erred by not awarding them prejudgment interest pursuant to Utah Code Ann. § 78-27-44.
T 74 The trial court denied plaintiffs' request for prejudgment interest on the basis that prejudgment interest is properly classified as "damages" under section 63-80-34 and is therefore subject to that section's cap, which plaintiffs had already reached. Since section 63-30-84 is unconstitutional, the trial court was incorrect to deny plaintiffs' claims for prejudgment interest on the grounds given. The decision of the trial court denying prejudgment interest is reversed with instructions to reconsider the issue of prejudgment interest on remand.
V. COSTS
175 Plaintiffs claim that the trial court erred in refusing to award them costs under Rule 54 of the Utah Rules of Civil Procedure. Rule 54(d) provides:
(1) To whom awarded. Except when express provision therefor is made either in a statute of this state or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; provided, however, where an appeal or other proceeding for review is taken, costs of the action, other than costs in connection with such appeal or other proceeding for review, shall abide the final determination of the cause. Costs against the state of Utah, its officers and agencies shall be imposed only to the extent permitted by law.
(2) How assessed. The party who claims his costs must within five days after the entry of judgment serve upon the adverse party against whom costs are claimed, a copy of a memorandum of the items of his costs and necessary disbursements in the action, and file with the court a like memorandum thereof duly verified stating that to affiant's knowledge the items are correct, and that the disbursements have been necessarily incurred in the action or proceeding,
Utah R. Civ. P. 54(d) (emphasis added). The trial court denied plaintiffs' requests for costs on two different grounds. First, regarding the Lyons' request, the court denied costs because the Lyons did not satisfy the portion of Rule 54(d)(2) emphasized above, requiring the filing of a verified memorandum of costs within five days after the entry of judgment. Second, regarding the Walkers' request, the court denied costs because of the absence of statutory authority permitting the award of costs as required by the sentence in Rule 54(d)(1) emphasized above, conditioning the awarding of "[closts against the state of Utah, its officers and agencies." Id. The trial court's reasoning regarding the Lyons' request is correct, but the trial court erred when it denied the Walkers' request by applying the last sentence of Rule 54(d)(1) to the District.
176 We begin by stating the appropriate standard of review. Generally, "Itlhe determination to award taxable costs is within the sound discretion of the trial court and will not be disturbed absent an abuse of the discretion." Ong Int'l (U.S.A.), Inc. v. 11th Ave. Corp.,
177 The requirement in Rule 54(d)(2) that "the party who claims his costs must within five days after the entry of judgment" file with the court a verified memorandum of costs controls our disposition of the Lyons' request for costs. The trial court issued its judgment on July 11, 1995, and the Lyons did not file a verified memorandum of costs with the trial court until July 26. This is well beyond the five-day deadline of Rule BA4(d)(2). As we stated in Walker Bank & Trust Co. v. New York Terminal Warehouse Co., failure to satisfy the requirement for filing a verified memorandum of costs is fatal to a claim to recover costs under Rule 54. See Walker Bank,
178 The Lyons argue, however, that they preserved the issue of costs for appeal by objecting on July 6 to the lack of any provision for costs in the proposed judgment and the order of motions drafted by defendants for the trial court's use. This argument is without merit. Though the Lyons' objection does preserve the issue of costs for appeal, as we stated above, to be eligible to receive costs the Lyons had to satisfy the requirements of Rule 54(d)(2). They failed to do so; therefore, the trial court did not err by denying the Lyons' request for costs.
179 Whether the Walkers are entitled to recover their costs turns on the requirement of Rule 54(d)(1) that "[closts
180 Our review of enactments by the Legislature indicates that the District is not a state agency. Several statutes in the Utah Code juxtapose the state of Utah and its agencies with fire protection districts like the District. For example, in defining "public body," section 11-81-28) states:
"Public body" means the state and any public department, public ageney, or other public entity existing under the laws of the state, including, without limitation, any agency, authority, instrumentality, or institution of the state, and any county, city, town, municipal corporation, quasi-municipal corporation, state university or college, school district, special service district or other special district, improvement district, water conservancy district, metropolitan water district, drainage district, irrigation district, fire protection district, separate legal or administrative entity created under the Interlocal Cooperation Act or other joint agreement entity, redevelopment agency, and any other political subdivision, public authority, public agency, or public trust existing under the laws of the state.
Utah Code Ann. § 11-82-2(7) (1999) (emphasis added); see also id. § 11-7-1(2)(d) ("Every incorporated municipality and every county may ... contract to receive fire protection from any ... fire district, state agency, or federal governmental agency ...."); id. § 11-84-1(2) (same as section 11-82-2(7)). This section defines "public body" as "any agency ... of the state, and any ... fire protection district," not as any agency of the state including any fire protection district. Thus, under the plain language of the statute, fire protection districts are categorized with other nonstate agency entities like counties, towns, and metropolitan water districts. If the District were an agency of the state, the separate reference to fire protection districts would be meaningless. Because the District is not an agency of the state, the trial court erred by denying the Walkers request for costs on the basis of the requirement in Rule 54(d)(1) that "[elosts against the state of Utah, its officers and agencies shall be imposed only to the extent permitted by law." The trial court's denial of the Walkers' request for costs is therefore reversed and remanded for a determination of what costs the Walkers should recover.
Notes
. Chief Burton testified at trial that the Explorer had been disguised for two reasons. First, Chief Burton was authorized to use the vehicle for both personal use and to pick up supplies needed by the District, and the District was concerned that citizens would complain if they observed the vehicle parked at stores or while being used by Chief Burton for personal uses. Second, the District wanted to be able to use the vehicle for stakeouts during arson investigations.
. All citations to Utah Code Annotated refer to the 1993 edition unless otherwise indicated.
. For constitutional purposes, the scope of governmental immunity insofar as it may be subject to various provisions in the Declaration of Rights is a judicial, not a legislative, question. See DeBry v. Noble,
. See, e.g., Nelson v. Salt Lake City,
. The conclusion that subsection (15) governs this case is also mandated by our duty to avoid interpreting a statute in a manner that renders portions of the statute, or related statutes, meaningless. See Schurtz,
. Section 63-30-34 states:
(1) (a) Except as provided in Subsection (2), if a judgment for damages for personal injury against a governmental entity, or an employee whom a governmental entity has a duty to indemnify, exceeds $250,000 for one person in any one occurrence, or $500,000 for two or more persons in any one occurrence, the court shall reduce the judgment to that amount.
(b) A court may not award judgment of more than $250,000 for injury or death to one person regardless of whether or not the function giving rise to the injury is characterized as governmental.
(c) Except as provided in Subsection (2), if a judgment for property damage against a governmental entity, or an employee whom a governmental entity has a duty to indemnify, exceeds $100,000 in any one occurrence, the court shall reduce the judgment to that amount, regardless of whether or not the function giving rise to the damage is characterized as governmental.
(2) The damage limits established in this section do not apply to damages awarded as compensation when a governmental entity has taken or damaged private property for public use without just compensation.
. Section 63-30-4(4) states:
An employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no employee may be held personally liable for acts or omissions occurring during the performance of the employee's duties, within the scope of employment, or under color of authority, unless it is established that the employee acted or failed to act due to fraud or malice.
. The 1965 Act abolished the prior distinction made by the case law between state immunity and municipal immunity, a development that was started by cases decided by this Court prior to enactment of the Act. In addition, the Act provided for governmental liability for the negligent conduct of governmental employees, whether state, county, or municipal, with some exceptions.
. From the earliest days of state constitutions-even before the adoption of the United States Constitution-inherent tension was observed between the doctrine of sovereign immunity and state constitutional rights of persons to civil law remedies for injuries to their persons and properties. For example, the Pennsylvania constitution provided an open courts remedies provision that also referred to sovereign immunity. See Craftsman,
. Almost all, if not all, governmental functions can be performed by nongovernmental entities. The more an activity is revenue producing and especially profit making, the more likely this factor weighs in favor of its being nongovernmental.
. We recognize that the Legislature in a 1983 amendment to the Governmental Immunity Act labeled all governmental activities as essential, core activities entitled to immunity unless the Legislature waives immunity. But governmental immunity is subject to the Constitution and whatever limitations it imposes on such immunity. See DeBry,
. This immunity is characterized as "qualified," not absolute, because actions taken in bad faith or with malice are not immune.
. In the instant case, the Legislature in effect specified the standard of legal care required by the operators of emergency vehicles. This standard is necessarily somewhat different from the standard of reasonable care that is required of all persons generally. This modification of the standard of care for emergency vehicles raises no substantial constitutional issues.
. Sun Valley Water Beds, Inc. v. Herm Hughes & Son, Inc.,
. The District argues that the Legislature expanded governmental liability as a quid pro quo for eliminating employee liability for recklessness and negligence. This argument is historically incorrect. Defendants' attempt to fit this case into the mold of Masichk is errant.
. Although the purpose of sovereign immunity has been said to protect the public treasury from depletion, it is fronic that at common law the states enjoyed an absolute immunity, whereas actions against municipalities could be maintained in many instances, irrespective of the fact that municipalities' treasuries were considerably smaller than that of the state. See DeBry,
I cannot agree with the Chief Justice [ie., Gordon Hall] that due process-type balancing analysis is inappropriate here. Plaintiffs have certainly raised the article I, section 11 issue in this case by arguing that the legislation infringes rights protected by that provision. While plaintiffs may have phrased some portions of this argument in terms of equal protection concepts, we are certainly not limited to so analyzing the issue. Berry teaches that it is precisely due process concepts, rather than those of equal protection, that are involved when rights protected by article I, section 11 are claimed to have been abridged.
. Section 78-27-44 states:
(1) In all actions brought to recover damages for personal injuries sustained by any person, resulting from or occasioned by the tort of any other person, corporation, association, or partnership, whether by negligence or willful intent of that other person, corporation, association, or partnership, and whether that injury shall have resulted fatally or otherwise, the plaintiff in the complaint may claim interest on the special damages actually incurred from the date of the occurrence of the act giving rise to the cause of action.
(2) It is the duty of the court, in entering judgment for plaintiff in that action, to add to the amount of special damages actually incurred that are assessed by the verdict of the jury, or found by the court, interest on that amount calculated at the legal rate, as defined in Section 15-1-1, from the date of the occurrence of the act giving rise to the cause of action to the date of entering the judgment, and to include it in that judgment.
(3) As used in this section, "special damages actually incurred" does not include damages for future medical expenses, loss of future wages, or loss of future earning capacity.
Utah Code Ann. § 78-27-44 (1996).
. By concluding that the trial court's decision regarding the five-day filing requirement is a legal determination, which we review for correctness, this author expressly disavows the conclusion in Watson v. Watson,
Concurrence Opinion
concurring in the result.
182 I concur in the remand for the purposes stated in the summary. I join in holding that section 63-80-34 is constitutional. In Payne v. Myers,
¶83 The Supreme Court of Oregon, in construing that state's open courts provision, which is almost identical to Utah's, held in Mattson v. Astoria,
Concurrence Opinion
concurring in the result with Chief Justice HOWE and Justice RUSSON: >
¶85 The other members of the court are equally divided on the merits of the central issue in this case. I am casting the deciding vote. I join Chief Justice Howe and Justice Russon in upholding the damage caps contained in section 68-30-34 of the Code. However, I do not join in their article I, section 11 rationale which purports to follow the two-step analysis of Berry v. Beech Aircraft,
¶86 On the one side, Associate Justice Durham has joined in an opinion authored by Justice Stewart that would employ the two-step analysis of Berry to strike down the $250,000 damage cap established by seetion 63-30-34 of the Code. Under the first prong of the Berry test, they would find that the cap does not provide a "reasonable alternative remedy" for the common law negligence special and general damage award that the plaintiffs would have been entitled to receive from a state employee absent the For them, any reduction in the dollar amount available at common law appears unacceptable under Berry's first prong. Proceeding to the second prong, they would hold that there is no "clear social or economic evil to be eliminated" and that the abrogation of the common law damage remedy is an "arbitrary or unreasonable means for achieving" the legislature's declared objective. See Berry,
¶87 On the other side, Justice Russon has joined in an opinion authored by Chief Justice Howe that would uphold the damage cap as satisfying the first prong of Berry. They reason that although the governmental liability is capped at $250,000, the plaintiffs receive something that they would not have had under the preexisting common law-a certain ability to collect any award up to the cap. Thus, by substituting a governmental entity for a governmental employee as the financially responsible party, the legislature has provided the plaintiffs with a "reasonable alternative remedy," albeit a potentially far smaller award of damages.
¶88 I do.not join in either opinion on the article I, section 11 point. I would uphold the caps because I would overrule Berry and reject its two-step analytical. model. I acknowledge that as one calling for the overruling of a precedent of this court, I carry a heavy burden under the doctrine of stare decisis. See State v. Menzies,
¶89 I will only summarize the main points from that lengthy opinion here: I concluded that Berry has proven unworkable and should be abandoned. The two step test it advances is without solid definition. In an effort to make sense of it, we have repeatedly shifted course over the fifteen years since Berry was decided. This had led us to effectively constitutionalize the common law, and, most recently, even legislative enactments, to put them beyond the reach of attempts by the legislature to reduce exposure to tort Kability. See id. at ¶ 123,
190 In my Craftsman opinion, I offered my alternative interpretation of the language of article I, section 11, as I felt duty bound to do, and to which I adhere today. I conelud-ed that article I, section 11 should be read as a procedural guarantee and that we should largely retreat from second-guessing the legislature on the substantive matters that we have brought within our reach through the use of Berry. I suggested that there were other provisions within the Utah Constitution that might act to constrain the legislature when it acts to severely limit rights to recover for damages, but I did not attempt to elaborate on how those might operate. See Id. at ¶ 152,
91 No member of this court joined any portion of my opinion in Craftsman. Yet again today, the result reached departs from what Berry requires. Chief Justice Howe's opinion, although seeming to apply the Berry test, is inconsistent with any meaningful application of Berry, as, for example, a simple comparison of his reasoning with that set forth in Berry or Sun Valley Water Beds, Inc. v. Herm Hughes & Son, Inc.,
192 I call upon the bar and the members of this court to drop the fixation on Berry and to creatively address the problem of how, in a post-Berry world, this court can remain within its appropriate sphere, while giving meaning to the constitutional provisions that speak of the importance of remedies for civil wrongs. What understandable standards can be fashioned that are practically capable of predictable application? There are plenty of ideas in various opinions written by members of this court over the years addressing, inter alia, article I, section 7 (due process clause); article I, section 24 (uniform operation of laws); article I, section 22 (takings clause); and article XVI, section 5 (wrongful death actions), that could be useful. The various opinions in Condemarin, for example, contain a number of veins of thought that could be profitably mined. But wherever the ideas are found, the fact remains that this court needs creative and capable advocates to advance new approaches and to help the court find its way.
. In his two-judge opinion, Justice Stewart spends considerable time attacking my failure to adhere to Berry. This appears to be a continuation of the diatribe he launched in response to my separate opinion in Craftsman. See Craftsman,
First, Justice Stewart atiempts to portray me as a one-time strong supporter of his Berry analytical model by selectively quoting certain portions of my opinion in Condemarin. But the truth is that my Condemarin opinion did not rely on his two-step Berry analytical model. See Condemarin v. University Hosp.,
Second, I agree with Justice Stewart that the opinions in Condemarin are instructive, but I draw a different lesson from them than does he. Considered as a whole, I think those opinions show that as long as ten years ago, some members of this court were not fully comfortable with the rather rigid Berry analytical model Justice Stewart has championed and continued to write into the law with such persistence over the past fifteen years and were searching for other more useable models.
This debate between Justice Stewart and me is at an end. I trust that in the future, new solutions will be found to the real and knotty problem with which we have struggled for so long and with such vigor.
Lead Opinion
On Petition for Rehearing
T1 Both plaintiffs and defendants have asked this court to reconsider various portions of its opinion in this case, issued on January 19, 2000. A majority of the court is unwilling to rehear any of the issues raised by plaintiffs' petition. However, defendants have identified an inconsistency between the "Summary" portion of our earlier opinion and the actual holding of the majority regarding the constitutionality of section 638-80-10(15) of the Utah Code and its implications for the trial court's decision on prejudgment interest.
T2 The court's Summary noted, in subsection (i) of paragraph one, that all members of the court agreed with Justice Stewart's holding "that the trial court erred in denying plaintiffs prejudgment interest." Lyon v. Burton,
T3 Although I shared Justice Stewart's views on the constitutional question, I agree with defendants that, given the majority holding, prejudgment interest must, in fact, be considered part of the "judgment" the statute intended to limit. I therefore write for a reconstituted majority of the court
16 Chief Justice HOWE and Associate Chief Justice RUSSON concur in Justice DURHAM's opinion.
. Justice Stewart retired and Justice Zimmerman resigned from the court shortly after the opinion in the case was handed down, leaving only myself, Chief Justice Howe, and Associate Chief Justice Russon with authority to consider the petition for rehearing.