*1
No. 1990. Appeals Maryland. Court of
Feb. 1992. *3 White, Miller, Jr., D. (George Jay W. Philip O. Foard Towson, Foard, Mindel, brief) White, all Clarke & respondents. petitioners/cross *4 Orlando, Fla., for Asso- Maher, amicus curiae
Michael of America. Lawyers of Trial ciation Baltimore, Scherr, Bekman, R. John J. Paul D. Scott Trial Rockville, Maryland amicus curiae for the Sellinger, Lawyers Ass’n. Niles, Sloane, K. Barton & (Marc
Robert P. O’Brien peti- brief) Baltimore, Wilmer, respondents/cross all for tioners. Funk, Bolton, Axilbund,
David M. D. Bryan Stuart C. Olander, Shapiro Baltimore, and Stephen P. Gen. Carney, Counsel, amicus curiae Medical Mutual Ins. Liability of Maryland. Soc. Howell, Gamse,
H. Alan Thomas N. Kathleen Howard Meredith, Goetsch, Semmes, Semmes, Scott D. Bowen & Baltimore, amicus curiae for The National Indepen- Ass’n of dent Insurers and The Ass’n Maryland of Defense Trial Counsel. Wharton,
Michael Roling, Wharton, T. David A. Levin & Ehrmantraut, Annapolis, curiae amicus for Product Liabili- Council, ty Advisory Inc. and The Motor Vehicle Mfrs.’ America, Ass’n the U.S. of Inc. Curran, Jr., Gen.,
J. Joseph Atty. Rowe, M. Kathryn Asst. Gen., Atty. Zarnoch, Gen., Robert A. Asst. Atty. Annapolis, amicus curiae for State Md. MURPHY,
Argued C.J., ELDRIDGE, before RODOWSKY, CHASANOW, JJ., McAULIFFE and LOVELESS, Jr., ERNEST A. Judge Administrative Md., GOUDY, Seventh Judicial Circuit and H. CHESTER Jr., Md., Judge of the Fifth Judicial Specially Circuit Assigned.
ELDRIDGE, Judge. principal question this case is Maryland’s whether $350,000 statutory cap on noneconomic personal actions, (1974, 11- injury Maryland Repl.Vol.), Code Article, 108 of the Proceedings Courts and Judicial violates Constitution.1 must We also decide whether provides 1. Section 11-108 as follows: injury "§ 11-108. Personal action —Limitation on noneconomic damages. "(a) damages. Noneconomic this section: —In (1) damages' pain, suffering, ‘Noneconomic means inconven- ience, consortium, physical impairment, disfigurement, loss of nonpecuniary injury; other damages’ damages. punitive ‘Noneconomic does not include *5 submitted properly damages was of punitive issue the jury. the
I. occurring on Decem- from an accident arose This action Mary- County, in Baltimore Interstate 83 14, 1987, on ber accident, Sarah plaintiff the time of the At the land. on southbound driving her automobile was Murphy proceeding Edmonds was Richard Andre the defendant and Port Edmonds, the defendant employee an northbound. owned Inc., a tractor-trailer Transfer, operating was East tire of the the left front Unexpectedly, Port East. left, out, to the the truck swerved and blew tractor-trailer of 1-83. In lanes and the southbound the median crossing Murphy’s Mrs. car. collided with process, the truck in the physical injuries sustained substantial Murphy Mrs. collision. and complaint her filed a
Mrs. and husband Murphy for in the Court Baltimore request for a trial Circuit jury 12, 1988, naming Richard Andre Edmonds on County May Transfer, Inc., I of defendants. count and Port East as puni- and sought compensatory complaint, plaintiff Count damages personal injuries Murphy. for Sarah tive damages behalf compensatory punitive II requested for loss of consortium. Murphy Mr. and Mrs. amended, the defendant complaint, later asserted that as scope employment within the of his acting Edmonds was "(b) $350,000 any for established. —In action dam- Limitation of ages personal injury of action arises on or for in which cause may July damages not for noneconomic after an award $350,000. exceed “(c) by the award health § under 3-2A-06 included. —An Award with 3-2A-06 this panel in accordance claims arbitration purposes of this section. an award for article shall considered trial, (1) “(d) jury jury may not be informed Jury In a trials. — (b) of subsection this section. established under the limitation jury If amount noneconomic awards an (b) of this sec- under subsection exceeds the limitation established tion, to the limita- the amount to conform shall reduce court tion.” collision, time that the conduct of both defen- unsafe, dants “negligent, was reckless outrageous,” *6 and the that defendants acted “with a conscious indiffer- ence to the consequences.” Specifically, the plaintiffs al- leged exceeding that Edmonds was the speed limit at the East, direction of that Port the defendants knew that the truck’s left front was in condition, tire an unsafe and that both defendants “knew should have known that their large actions in driving a vehicle an with unsafe tire at an excessive rate of an speed would create unreasonable risk of to other danger motorists on the highway____”2 trial,
At plaintiffs presented the the evidence that Ed- accident, monds late for on the of day was work the that he was to the supposed drive tractor-trailer Harrisburg, to he Pennsylvania, get that was in a hurry to there. Edmonds testified he inspected that had the tires the Harrisburg truck before for departing and had not observed wrong. Furthermore, anything Edmonds stated that the department service Port East had informed him that the tire new. was that, was There also testimony indicating out, after the blow Edmonds dove the floor of the cab attempting instead of control the tractor-trailer. that, The evidence at the trial further following disclosed collision, the manufacturer, Port East sent the tire to the Michelin, in order to determine the cause of the blow out. report by results Michelin’s product analysis engineer, Zambelas, Mr. Emanuel were introduced evi- plaintiffs. dence by Mr. opinion, Zambelas’s blow 10, 1989, July 2. party On Edmonds and Port East filed a third against complaint Corporation, Tire Michelin the manufacturer of party complaint the tire blew out. The third asserted that theory plaintiffs’ case was tire that the blew out because it had improperly patched. been Port East stated that if the "blew tire out patch required special because it was because the tire patching procedure safely patched,” or could not be and Michelin had Therefore, failed to warn Port East this. Port East and Edmonds claimed "contribution indemnification” and/or from Michelin. The party complaint responsive defendants dismissed the third before a pleading was filed Michelin. of the tire which improper repair an out was caused point repair. fatigue and fail” at the “the caused tire the tire and assert- patching East Edmonds denied Port Mr. patch. of the improper were not aware they ed that of the tire inspection that proper also stated Zambelas tread, hole the outside have revealed visible would replaced. indicating the tire should trial, returned verdicts jury At conclusion following in the amounts: plaintiffs for the $24,665.31; expenses, for medical past 1. $17,500; expenses, medical
2. for future $510,000; damages, 3. for noneconomic services, $20,000; loss of household past 4. *7 services, $225,000; for loss of household 5. future claims, $0; for of consortium 6. other loss Edmonds, $3,000; to Mr. damages 7. for as punitive Inc., Transfer, as Port East damages 8. for to punitive $1,000,000. post-trial motions delayed of final until
Entry judgment was motions. post-trial heard. The defendants filed three were for award nonec- sought compensatory first to have the The awards, of includ- damages and the loss consortium onomic services, aggregated ing the for loss of household awards in for $350,000 cap provided to the pursuant to and reduced Proceedings Article. the and Judicial 11-108 of Courts § the notwithstanding judgment was for The second motion remittitur, the a or in sought third motion verdict. The argued in alternative, plaintiffs, response, trial. The a new the Judicial Proceed- that 11-108 of Courts and inter alia § Maryland ings provisions violated several Article Rights. of Declaration for a circuit court denied the motions hearing,
After the also denied and for a remittitur. The court judgment n.o.v. with loss of consortium awards aggregate the motion to concluding that loss house- damages, the noneconomic damage. constituted economic hold services Moreover, the circuit court held that 11-108 violated § equal protection guarantee embodied in Article 24 of the Maryland Declaration of Rights. The judge initially trial (1) stated that statute creates a classification between plaintiffs tort who are less severely injured and enti- thus awards, to keep everything jury tled which the and tort plaintiffs catastrophically injured who and not who are $350,000. entitled to receive noneconomic damages over that, The trial then judge determined because the right press a claim for and pain suffering recognized was common law before the Maryland adopted, Constitution was press a claim for pain suffering an was “important right.” judge reasoned in- cap fringes upon this important right because an individual may have pain suffering excess of $350,000 light limitation. his view that the classifica- infringes tion created an upon “important § right,” judge protection prin- the trial concluded that equal ciples required classification be “heightened test. scrutiny” Applying “heightened scruti- test, the trial ny” judge held that 11-108 violated the equal protection guarantee in Article 24 embodied Rights. Declaration He refused to apply cap portion to the noneconomic the plaintiffs’ compensa- award, tory and final judgment was entered accordance the jury’s with verdicts.
Edmonds and East appeal Port took an to the of Court Special Appeals, contending that the cap noneconomic for in of the provided 11-108 Courts and Judicial § Article Port Proceedings was constitutional. Edmonds and East also relating raised several nonconstitutional issues to liability, damages, punitive damages. and compensatory plaintiffs, arguing The addition to that 11-108 violated § equal protection reiterated several other principles, constitu- challenges tional to the statute had made in the which been Specifically, circuit court. it was claimed § right violated the to trial under 23 of jury Articles and Rights,3 of was inconsistent with Declaration Maryland in Article 8 of the separation powers requirement of 19 of the Rights,4 infringed upon of and Article Declaration Rights.5 of Declaration all of the chal- Special Appeals rejected of Court validity of 11-108 and held that the statute
lenges to the
Murphy,
constitutional. Edmonds
Md.App.
was
(1990).
holding
the trial court's
considering
conclusion that the classification created 11-108 was
§
“heightened
Instead,
subject
scrutiny.”
according to the
court,
intermediate appellate
the classification was subject
to the
“rational
and,
test,
traditional
basis test”
under that
not in
clearly
equal
was
violation of
protection principles.
Alternatively,
Special Appeals
Court
held that even if
11-108 were
subject
“heightened scrutiny,” it would
§
infringe upon
equal
not
protection guarantee.
In addi
tion,
appellate
the intermediate
court held that
§
and,
constituted “reasonable” economic regulation
there
fore, did not violate Article 19 of the Declaration of Rights.
appellate
The
court further held that the statute violated
neither the
trial nor the
jury
separation of powers provi
sions of the
of Rights, relying
Declaration
upon the reasons
set forth in
v. Medical
Etheridge
Hospitals,
Center
237 Va.
(1989);
Subsequent Searle, United States in argument, this Court oral before (1991), 1263, 1266 held that “where 1, 7, 584 A.2d 322 Md. is the compensation for household services an award market value is based on the of services and loss domestic 11- the services,” the not lost award § of those Recognizing that Searle damages. 108 on noneconomic cap for loss of respect to the awards dispositive was with case, at oral in this the defendants services household Court for a reversal of the did not ask argument before us for loss concerning the awards Appeals’ decision Special of services. of household Court, constitutionality of plaintiffs attack the this First, that the they contend only grounds. two 11-108
§ protec- equal 11-108 violates the by created classification § of 24 of the Declaration of guarantee Maryland Article tion Second, upon argue infringes 11-108 Rights. they of 5 and 23 jury trial under Articles of Rights. Declaration
II.
A. no ex Although Constitution contains Maryland clause, it is settled that the Due press equal protection Constitution, contained Process Clause of the Rights, the con 24 of Declaration of embodies Article protection of laws to the same extent as cept equal of of the Fourteenth Amendm Equal Protection Clause Trustees, See, v. Board 310 Md. e.g., Hargrove ent.6 Rights provides as follows: 24 of Declaration of 6. Article process. “Article 24. Due ought imprisoned or his no to be taken or disseized "That man outlawed, exiled, or, freehold, manner, any privileges, or or liberties or life, liberty deprived property, destroyed, of his or but or judgment peers, of the land.” his the Law 354
406, 416,
denied,
cert.
1372,
(1987),
529 A.2d
1377
484 U.S.
1027,
753,
State,
Ennis v.
(1988);
108
98 L.Ed.2d
S.Ct.
766
579, 591,
573,
State v. Wyand,
(1986);
306 Md.
510 A.2d
579
denied,
721, 726,
43,
cert.
(1985),
304 Md.
501 A.2d
1095,
1492,
Hornbeck
(1986);
U.S.
106 S.Ct.
Consequently, even Mary- on the solely challenge to equal protection § light argument their Constitution, consider we shall land the Four- Protection Clause Equal applying of cases Article applying well as cases Amendment as teenth Rights. Declaration B. court, 11-108 of view like the circuit plaintiffs, classi- creating as Proceedings Article
Courts Judicial who plaintiffs tort seriously injured fication less between awards and jury everything which keep are entitled entitled to are not who plaintiffs tort seriously injured more $350,000. The exceeding noneconomic receive the statute is based challenge to protection plaintiffs’ equal court, this the circuit adopted by upon theory, degree “heightened” to a should be classification scrutiny. may it argument, light plaintiffs’ which have standards *12 to consider the different
desirable under the challenged classifications reviewing evolved when a In most instances protection guarantees. equal equal protection is attacked classification governmental the so-called under is reviewed the classification grounds, test, a court Generally under test. “rational basis” “ “ ” varying ‘unless the classification not overturn’ ‘will to is so unrelated persons or groups different treatment of legitimate purposes combination any the achievement [governmental] that the conclude only can that [the court] ” — U.S. Ashcroft, v. irrational.’ Gregory actions were 410, (1991), 430 2395, 2406, 115 L.Ed.2d -,-, 111 S.Ct. 939, 93, 97, 99 S.Ct. 440 U.S. Bradley, v. quoting Vance 356 Jose, Pennell v. San
943,
171,
(1979).
59 L.Ed.2d
176
849, 859,
1, 16 (1988).
L.Ed.2d
A
1, 14, 108
99
485 U.S.
S.Ct.
under the rational basis
classification reviewed
statutory
constitutionality
enjoys
strong presumption
a
standard
clearly
if the classification is
only
invalidated
and will be
See,
Dep’t,
Briscoe v. P.G. Health
323 Md.
e.g.,
arbitrary.
v.
Hargrove
1109,
(1991);
439, 448-449,
593 A.2d
1113-1114
1380;
Trustees,
423,
357 v. 585, 594, City, Ocean 541, 280 Md. 375 A.2d 547 (“we vote, are ... here dealing right with the and thus the classification is subject special to ... scrutiny”). there
Finally,
are classifications which have been
higher
to a
subjected
degree of
than
scrutiny
the traditional
test,
and deferential rational basis
but which
not
have
been
deemed to involve suspect classes or fundamental
rights
and thus
not
subjected
have
been
to the strict scrutiny test.
Included
these
among
have been classifications based on
gender (Mississippi
For
University
Women v.
Hogan,
458
718, 723,
3331, 3335,
102
1090,
U.S.
S.Ct.
73 L.Ed.2d
1097
Boren,
(1982);
Craig
v.
190,
451,
429 U.S.
97 S.Ct.
50
Reed,
(1976);
Reed v.
71,
L.Ed.2d 397
251,
404
92
U.S.
S.Ct.
(1971)),7
Supreme
opinions
Court’s
falling
single
catego-
within a
intermediate
classifications as
it
that
were
to
subject
and was said
classifications
ry,
or
or
scruti-
“scrutiny”
“heightened scrutiny”
“intermediate
See,
General
New
v. Soto-
e.g., Attorney
York
ny.”
905,
2317, 2322, 2324,
Lopez,
898,
909,
476
106
90
U.S.
S.Ct.
907,
899,
(plurality opinion, taking posi-
L.Ed.2d
910
forces
giving
statute
armed
veterans civil
tion
state
if
preference
they
service
were state residents
employment
subject
“height-
to
they
military
when
entered
service was
invalid under the
Protection
Equal
ened
and was
scrutiny”
Center,
v.
Clause);
Living
supra,
Cleburne
Cleburne
473
3254-3255,
440-442,
at
The above-described
scruti-
basis,
and strict
(i.e., rational
scrutiny,
intermediate
Marshall,
has
example,
for
criticized.
Justice
has been
ny)
rigidified ap-
“rejecting
favor
argued
forcefully
employing
and of
an
protection analysis,
equal
proach
scrutiny depend-
levels of
varying
that allows
approach
importance
constitutional and societal
'the
ing upon
invidiousness
recognized
affected and the
adversely
interest
particular
classification is
upon which
of the basis
”
Doe,
457 U.S. at
S.Ct.
Plyler
drawn.’
J.,
(Marshall,
concurring), quot-
L.Ed.2d at 808
District v.
Independent
Antonio
School
San
ing
from
*15
1330,
1, 99,
1278,
36 L.Ed.2d
411
93 S.Ct.
Rodriguez,
U.S.
v.
J.,
dissenting). See Cleburne
16,
(Marshall,
(1973)
81
Center,
460,
supra,
473
at
105 S.Ct.
Living
Cleburne
U.S.
(Marshall, J.,
in
3265,
concurring
part
L.Ed.2d at 333
at
87
dissenting
part).
Supreme
in
Whether the
Court will
and
scrutiny
any
statutory
an “intermediate”
test to
new
apply
may
questionable.
classifications
Some
Court’s
opinions
suggest
equal protection analy-
recent
seem
two-tiered,
that,
statutory
sis should be
unless a
classi-
scrutiny
fication is
to strict
because it burdens a
class or
suspect
impinges upon
right,
a fundamental
it
should
under the
be reviewed
traditional rational basis test.
See,
Jose,
e.g.,
supra,
v. San
14,
Pennell
Several
Court
have utilized the
classifications,
rational
test
legislative
basis
to invalidate
and,
some,
in
applied
the view of
the Court in these cases
less deferential
standard of
than had previously
review
See,
applied
been
under the traditional rational basis test.
Center,
e.g.,
Cleburne v. Cleburne
Living
473 U.S.
446-450,
324-327;
105
at
at
S.Ct.
87 L.Ed.2d
Assessor,
Hooper v. Bernalillo
612,
County
472 U.S.
105
Vermont,
2862,
(1985);
L.Ed.2d 751 U.S. (1982). L.Ed.2d 672 S.Ct. Some commentators have the Court’s review these similar characterized as with cases “rational basis teeth” “rational with basis Stewart, Equal A Growing bite.” See Protection D. Clause? (October) (1985), quot A.B.A. Journal ing University Victor Rosenblum Northwestern Law Rational Basis Interme School; With Bite: Pettinga, G. Name, diate Other (1987). Scrutiny by Any Ind.L.J. also Gunther, Evolving Search Doctrine On G. Protection, Equal A Model Newer Changing Court: For a (“these cases 86 Harv.L.Rev. found bite clause tradi equal protection explicitly voicing after standard”).8 minimal tionally scrutiny toothless indicated, plaintiffs’ equal protection As previously challenge 11-108 of and Judicial Proeeed- the Courts (G. expressed following 8. The has elsewhere view same author Gunther, Law, (11th 1985)): ed. Constitutional 605 n. 5 equal protection’ as "The ‘newer scrutiny developed is not the same the ‘intermediate’ quasi-suspect in the cases for some modern theory gender. equal protection’ as ‘newer classifications such does not take issue heightened scrutiny with the of ‘strict’and tiers Instead, solely appro- review. it is addressed to the ‘intermediate’ tier, intensity priate of review to be exercised when lowest review, rationality appropriate. is It in the ‘mere deemed *16 virtually rationality’ effec- cases that the Warren Court abandoned protection any equal scrutiny tive sort. the ‘newer model’ of What put scrutiny, be lowest level of that asks it be legislative that some teeth into that bite,’ second-guessing focusing means without applied ‘with (Evaluating importance of the ends is charac- ends. short, scrutiny.) equal higher ‘newer teristic all levels of protection’ slightly to raise the lowest tier review under seeks models; to ‘mere but it does not seek raise the two- rationality’ three-tier regulation appropriate run-of-the-mill economic level for way up to the of ‘intermediate’ or of ‘strict’ cases all the scrutiny.” level Tribe, Law, 16-3, Zobel, Compare (2d at 1445-1446 § L. American Constitutional 1988), Hooper on the and ed. where the author comments opinions Cleburne as follows: may grounds proliferate to new “While categories be for the reluctance there scrutiny, overtly triggering its classifications closer presents dangers rationality minimum label covert use under the openly acknowledged heightened its own. The lack of criteria the “inter theory ings entirely upon Article rests applied continue to be standard should scrutiny” mediate involved, rights” “important personal when infringe upon 11-108 does an classification created § that, therefore, the classifica right, and important personal scrutiny under interme subject heightened tion is to dealing cases with Among diate standard. the numerous challenges legislative “caps” upon to equal protection plaintiffs rely upon those recovery damages, of tort Maurer, applying heightened scrutiny. See Carson 925, 932, 941-943, 825, 830, N.H. 424 A.2d 836-838 (“the rights sufficiently important involved herein are require that on those imposed rights restrictions be subjected rigorous judicial scrutiny to more than allowed Olson, test”); Arneson v. under the rational basis (N.D.1978). Brannigan See also v. Usita N.W.2d lo, Richard (1991); 134 N.H. 587 A.2d 1234-1235 Restaurant, Inc., son Carnegie Library 107 N.M. Condemarin v. Universi (1988); 763 P.2d 1161-1164 Hosp., (Utah ty 1989). 775 P.2d plaintiffs’
We contention that the classifi reject cation created 11-108 of the Courts Judicial Pro- scrutiny permits Cleburne, inquiry arbitrary type use of the undertaken in essentially for which courts will remain unaccountable. principle guiding searching With no articulated the use of this more inquiry, regulations may even routine economic from time to time to a succumb form of review reminiscent of the Lochner era. A far approach heightened only better would review those quasi-suspect explicit judicial classifications after determined regarding amply debate over the reasons for so them—reasons present zoning mentally in the instance of out the retarded but not necessarily ly heightened scrutiny. recently subjected in all of the other instances to covert- resulting protection would not be left manipulable judges operating multiple to the discretion of with masquerading rationality.’ standards of review all as ‘minimum remaining regulation, For all the rationality forms of economic the minimum traditional, govern test would continue to under the as, part deferential ‘conceivable basis' for the most it still test— upholding brazenly does—as a means of all but the most
blatantly governmental irrational measures.” 362 any higher is of
ceedings
subject
scrutiny
Article
level
traditional,
More-
than the
deferential rational basis test.
over,
holdings in the
cases
disagree
we
with the
above-cited
legislative caps
recov-
applying heightened scrutiny
upon
mode of
damages.
may
appropriate
erable
Whatever
be the
analysis for some other
classifi-
equal protection
statutory
cations,
$350,000 upon
a
of
legislative cap
in our view
damages which can be
to a
amount of noneconomic
awarded
important “right”
does not
such an
plaintiff
implicate
tort
Instead, the statute
trigger any
scrutiny.
as to
enhanced
regu-
which has
type
regulation
economic
represents
test
been reviewed under
traditional rational basis
larly
Supreme
this
Court.
Court
damages
tort
arguing
In
that the
recover
$350,000
is an “important
for noneconomic injury
excess
right” requiring
scrutiny,
plaintiffs
enhanced
personal
tort
common law
upon
principles
the fact that under
rely
recover
full
noneconomic
plaintiff could
his
Article 5 of
Declaration
injury. Under
however,
“to
the common law is
the revision
Rights,
of,
by,
Legislature
of this
repeal
and amendment
this
may
changed by
common
also be
State.” The
law
1, 9,
735,
v.
320
A.2d
Christopher,
Court. Julian
Md.
575
Fowler,
v.
12, 20,
McCrory Corp.
(1990);
319 Md.
570
739
State,
496,
v.
834,
(1990);
310 Md.
Wildermuth
A.2d
838
State,
Md.
Ireland
275,
(1987);
310
530 A.2d
291-292
v. R.G.
(1987);
Kelley
328, 331-332,
529 A.2d
Inc.,
Industries,
124,140,
1143, 1150-1151
304
A.2d
Md.
addition,
is no
(1985),
there cited.
“there
and cases
Attorney
of the common law.”
any
interest
rule
vested
Johnson,
57, 71,
274, 299, 385 A.2d
General v.
282 Md.
dismissed,
appeal
L.Ed.2d
U.S.
S.Ct.
689, 703,
A.2d
Hill v. Fitzgerald,
(1978).
304 Md.
Coupard,
Co.
Contract.
Whiting-Turner
(1985);
supra, 304 Md.
Simply
363 most, if common could be viewed principles not law Many, in in the same sense which the conferring “right” as “rights” one of these using Any that term. plaintiffs circumstances, could, per- to the important under some Furthermore, in Maryland where our basic son affected. changed legislatively by as except law is common law Court, deal a particular this most statutes which with modifying for the first time have the effect of subject A the com- principles. changes law statute which common litigation in to one in will party mon law a manner favorable changed opponent. it to the detriment of his Under have upon that a restriction plaintiffs’ statutory view enhanced scruti- “right” trigger common law is sufficient to there would be purposes equal protection analysis, ny legislative heightened classifications countless correct, heightened If plaintiffs’ position scrutiny. might of rational basis well become the scrutiny instead equal protection standard test.
Moreover, the
which have con-
great majority
cases
attacks
classifications created
equal protection
upon
sidered
upon
damages
tort
have
legislative caps
recoverable
The Supreme
utilized a traditional
rational basis test.
Study Group,
in
v.
Env.
Court Duke Power Co. Carolina
2620,
(1978),
59, 98
“The
impor-
reference to
with
particularly
ty limitations —
*19
private partic-
encouraging
congressional purpose
tant
energy
ample
of nuclear
exploitation
in the
ipation
—is
those
in treatment between
for the difference
justification
injuries
and those whose
in nuclear accidents
injured
regarding other
Speculation
causes.
from other
derived
the risk of
spread
used to
might
that
arrangements
is,
Price-Anderson Act
from the
different
liability ways
equal protection analysis.”
course,
pertinent
not
analysis
rational basis
a traditional
applying
cases
Other
caps
by legislative
created
classifications
reviewing
when
holding
legisla
and
that
damages,
recoverable tort
include, e.g.,
principles,
equal protection
not
tion did
violate
Cir.1989);
1155,
(3d
F.2d
1158
Omitowoju,
v.
883
Davis
(4th Cir.1989);
Bulala,
1191, 1196-1197
F.2d
v.
877
Boyd
(9th
1431, 1435-1436
States, 767 F.2d
v. United
Hoffman
Group,
Medical
38 Cal.3d
v. Permanente
Fein
Cir.1985);
665,
368, 385-387,
P.2d
682-
695
137, 162-164,
Cal.Rptr.
211
214,
892,
88
dismissed, 474 U.S.
106 S.Ct.
684, appeal
Hospital,
273
v. St. Vincent’s
Johnson
(1985);
L.Ed.2d 215
LaMark
(1980);
585, 600-601
374, 397-400, 404 N.E.2d
Ind.
Inc., 542 So.2d
(La.App.),
755-756
Hospitals,
v. NME
New
denied,
English
(La.1989);
cert.
So.2d
Inc.,
423, 427-430, Center,
405 Mass.
Medical
England
denied,
1056, 110
cert.
(1989),
493 U.S.
N.E.2d
332-333
West,
v. Hillhaven
Meech
(1990);
866, 107
L.Ed.2d
S.Ct.
(1989);
43-45,
501-502
Inc., 238 Mont.
776 P.2d
Nelson, 199 Neb.
256 N.W.2d
Prendergast
v. Colleton
School
Wright
County
(1977);
657, 668-669
Dist.,
282, 291-292,
(1990);
391 S.E.2d
301 S.C.
v. Medical Center
Etheridge
Hospitals,
Va.
103-104,
C. not in their Although plaintiffs did briefs this argue that 11-108 of the Courts and Judicial Pro Court § ceedings Article violated Article 19 of the Decla Rights, argument suggestion ration at oral was made created Arti implicated classification that, reason, cle 19 and for this the classification was heightened scrutiny purposes equal protec analysis Rights. tion under Article 24 of the Declaration of view, the classification not sufficiently our does affect a plaintiffs rights tort Article 19 so as to require enhanced scrutiny under Article 24. provides
Article 19 in pertinent part every person injury “for done to him in his any person property, ought remedy by land, to have the course of the Law ought justice denial, have without fully any ... according ... to the Law of the land.” The phrase “Law *20 in phrase land” Article 19 is the same used in 24 Article of law. Hill Fitzgerald, supra, v. and means process due 501 A.2d at Whiting-Turner Contract. 702, 33; 304 Md. at Coupard,
Co. v.
supra,
360,
189;
As the
and
cases
out,
also point
guarantee
Article 19 does
access to the
courts,
regulation.
but that access is
reasonable
A statutory
upon
restriction
access to the courts violates
Hill,
Article 19
if the
only
restriction is unreasonable.
Whiting-Turner,
703,
34;
Md. at
We have
with
to causes of action to
recover
violations of certain fundamental
an
rights, that
abrogation of access to the courts which would
leave
remediless
plaintiff
totally
would be unreasonable.
Hill,
702-703,
quoting Allen
tort under 11-108 of the Courts Judicial § upon Article does not amount to a restriction Proceedings distinction between re- access to the courts. There modifying access to the courts and substantive stricting plaintiffs’ courts. The cause of applied by law to be not 11-108. negligence action was abolished based § Instead, modifies the law of simply noneco- cases. to recover applied tort While $350,000 this abrogated, was damages exceeding nomic upon not restriction in the law is change substantive access to the courts. *21 as however, 11-108 to be viewed
Assuming, that were § courts, it access to the degree upon some of restriction
367 the reasons entirely reasonable restriction for an would be opinion.9 in II D of this set Part forth below reasonable statutory classification constitutes a If a 19, the courts Article access to the under upon restriction to the may implicate classification access fact that applied require heightened scrutiny not that courts does Con Whiting-Turner in protection analysis. equal 360, 499 Md. Coupard, supra, 304 at tract. Co. 184, (classification a statute A.2d 189 created courts upon to the reasonable restriction access repose is a scrutiny heightened 19 and is not under Article equal protection guarantee applying purposes 24). in Article embodied
D. above, plaintiffs’ forth For the reasons set created equal protection challenge to classification Proceedings the Courts Judicial Article will 11-108 of § under traditional test. be considered rational basis Whiting-Turner Contract. Co. Thus, as summarized 352, 185, 304 499 Coupard, Md. at A.2d at statute if the is without only
“can be invalidated classification Further, purely arbitrary. reasonable basis and any having reasonable need not be classification some basis Maryland, for the 9. The United States District Court District 1325, (D.Md.1989), F.Supp. Corp., Motor Franklin v. 704 1337 Mazda Proceedings 11-108 of the Courts and Judicial also concluded upon a reasonable restriction access to the courts. Article was statutory caps upon have recoverable Courts elsewhere held provisions not constitutional similar tort do violate state 859, Medicine, See, e.g., Board 97 Idaho Jones v. State Article 19. 2173, denied, (1976), S.Ct. cert. 431 U.S. 555 P.2d 282, 291, School, (1977); Wright S.C. v. Colleton L.Ed.2d courts, however, (1990). held that have 391 S.E.2d Other remedy statutory caps upon damages, no or commen where alternate provi provided, was are in violation of constitutional surate benefit Ins., See, e.g., Department So.2d Smith v. sions like Article 19. States, (Fla.1987); v. United 757 S.W.2d 1087-1088 Lucas (Tex.1988). *22 made with mathematical nicety and in may result some If inequality. any state of facts can con- reasonably ceived that sustain classification, would the existence of that state of facts at the time the law was enacted must be assumed.” “
Moreover, statutory classification tested the ration- ‘[a] al standard enjoys strong basis presumption of. constitu- tionality, and a reasonable doubt as to its constitutionality is sufficient to sustain it.’” Briscoe v. Dep’t, P.G. Health 323 Md. supra, at 593 A.2d at quoting State v. Good Samaritan Hospital, supra, 299 Md. at A.2d at 901.
Section 11-108 in response was enacted to a legislatively perceived concerning crisis availability and cost of liabil- in ity insurance this State. This crisis resulted in the unavailability of liability insurance for some individuals and entities, especially engaged those in hazardous activities removal, such as asbestos and increasing difficulty ob- taining reinsurance. Report the Governor’s Task of Insurance, (Dec.1985). Force to Study Liability The also crisis affected the medical profession, resulting in premiums excessive insurance for doctors declining services for patients, high risk especially specialties such as Report obstetrics. See the Joint Executive/Legisla- of tive Malpractice Insurance, Task Force on Medical (Dec.1985).10 considering cap whether enact the on tort damages,
the General
had
it
Assembly
before
the above-cited task
force reports,
$250,000
both of which advocated a
cap on
damage
noneconomic
Report
awards. See
the Gover-
pointed
10. One commentator has
out that
the reasons behind enact-
"(1)
damage cap
private
ment of the
are:
the desire to attract
insurers
market;
(2)
qualified physicians
back to the
the need for
providing
complement
Maryland;
a full
of medical services in
necessity
providing
liability
affordable
insurance to health care
Comment,
providers."
Blasting
Cap:
Arising
Constitutional
Issues
Maryland’s
Damages
From
Limitation
Noneconomic
in Personal
Claims,
(1987).
Injury
16 U.Balt.L.Rev.
Insurance,
supra,
Liability
Study
Force to
nor’s Task
Task
Executive/Legislative
the Joint
10-13;
Report of
Insurance,
at 28-29.
Malpractice
Medical
Force on
cap
that the
should be extended
force believed
Neither task
the Governor’s
Report
Ibid.
The
damages.
to economic
Insurance
stated that
Study Liability
Force to
Task
awards,
damage
greater predictability
cap would lead
more
and attrac-
the insurance market
stable
making
thus
noted that noneco-
Report
also
tive to underwriters.
precision
“impossible
to ascertain with
nomic
*23
so that a
appeals
jury,”
to emotional
to a
and are
in this
$250,000
recovery
a more realistic
cap
permit
would
Force to Study
the Governor’s Task
Report
area. See
Insurance,
supra,
at 11.
Liability
Assembly also
reports,
to these
the General
addition
urging enact-
petitions
numerous letters and
had before it
medical profession
from members of the
cap
ment of the
and from
high
premiums
relief from
insurance
seeking
that the insurance crisis
of the
who feared
public
members
of medical services.
availability
result
in reduced
would
Furthermore,
reports urging
had
Assembly
the General
such as The Business
cap
groups
of the
interest
adoption
Before
Working Group.
Policy
and the Tort
Roundtable
existing
considered
Legislature
enacting
cap
in all
legislation
insurance
liability
tort reform and
proposed
Cities,
Reform,
Tort
League
states.
National
fifty
in 1986
Insurance
Liability
Legislation
Liability
Reference’s file
(June 1986)
Legislative
(Department
Session).
Bill 558 of the
Senate
enacting
cap
in
was
Assembly’s objective
The General
insurance, at
liability
availability
of sufficient
to assure
for
cost,
personal
in
claims
order to cover
a reasonable
obviously
This is
public.
injuries to members
dam-
A
on noneconomic
legislative
cap
legitimate
objective.
thus
calculating premiums,
in
greater
lead to
ease
ages may
insurers, and ulti-
attractive to
the market more
making
making insurance
premiums,
to reduced
may lead
mately
organizations perform-
for individuals and
more affordable
therefore,
reasonably
cap,
needed services.
ing
See,
Davis
e.g.,
legislative objective.
legitimate
related to a
the ...
supra,
(“Clearly
883 F.2d at
Omitowoju,
v.
costs of
curb,
through legislation,
high
decision
medical
promote quality
and thereby
insurance
malpractice
the amount of
capping
a rational basis
provides
care ...
v.
plaintiff”);
that can be awarded
Hoffman
States,
(the “Legislature
Since, Assembly before General $250,000 most noneco- would cover concluded that which claims, arbitrarily did not act Legislature damage nomic $350,000. significant It is also enacting cap equally claimants injury all cap applies personal of claimants. category out one singling rather than *24 legislative classification Therefore, hold that the we noneco- tort claimants whose 11-108 between by drawn § $350,000 and tort claimants less that damages are nomic $350,000, than greater are noneconomic whose is not irrational arbi- cap, to the are thus who of protection component equal It not violate the trary. does Rights. of 24 of the Declaration Article III. challenge to constitutional
The alternate plaintiffs’ guaranteed trial right jury the to a upon 11-108 is based § Rights. Declaration of Maryland the Articles 5 and 23 of by required the argue procedure plaintiffs the Specifically, being from informed 11-108, the prohibits jury by which inter- damages, $350,000 limitation on noneconomic
371 damages. to determine ability properly with the jury’s feres addition, mandatory the contend that the reduc- plaintiffs $350,000 dam- the for noneconomic jury’s tion to award in deter- jury’s province “interferes exclusive ages with factual issues.” mining Rights, guarantee Declaration of in requisite in right a to a trial civil cases where the
ing jury 'unimpaired in present, “preserves is controversy amount ” as at law. right ultimate historical it existed’ common Barnes, v. 542, 724, Higgins 532, Md. 530 729 310 A.2d Co., 87 City Ry. 623, 627, Knee v. Pass. (1987), Md. quoting 890, (1898). As the of Article 23 itself wording A. 892 40 in to “issues indicates, right trial civil cases relates jury It not extend to issues legal of fact” actions. does issues, were law, historically or matters which equitable general jury. rather than judge resolved Prohibition, For In re Petition Writ ly, e.g., Md. 312 664, (“fact 280, 319, finding 539 683 A.2d v. Higgins jury”); function primary basic Barnes, 542-548, 551-552, A.2d at Md. at 530 310 Collins, v. Bringe 338, 346, 729-732, 733-734; 274 Md. 335 denied, stay 983, application for 676, 95 670, 421 U.S. A.2d Dev. Community Md. 1986, (1975); 44 475 L.Ed.2d S.Ct. S.R.C., 645-646, Inc. v. 205, 211-214, 641, Md. 274 A.2d dismissed, appeal 30 L.Ed.2d 404 U.S. S.Ct. Houston v. Lloyd’s, (1965); (1971); 241 Md. A.2d Comm., Sanitary Turner Wash. 221 Md. (1960).
A.2d Moreover, is con- jury the constitutional trial those jury the court or the shall decide cerned with whether judicial proceeding. which resolved issues Prohibition, supra, For See, In re Petition e.g., Writ of (trial judge’s at 677-686 312 Md. 539 A.2d determination, against weight setting aside as jury Higgins evidence, function); usurp jury’s did not *25 Barnes, supra, 310 728-734 Md. at 530 A.2d at (whether court or the specified jury); issues were for the Comm., Sanitary 503, v. Wash. Turner at 221 Md. 372 (“To
Thus, Co., 482, 487, in Indemnity Branch v. Ins. 156 Md. 696, (1929), 144 pointed long A. this Court out that as as the abolition of a common law cause of action was valid provisions under other of the Constitution Articles 19 (e.g., of Rights), of Declaration “there would be [an] nevertheless, in inconsistency holding, right ... that a jury according trial to course the common law must Branch, in recognized____” such cases be The Court in quoting approval 156 Md. at A. at with from Clausen, 156, 210-211, P. State v. 65 Wash.
(1911), on as went follows: “ ‘If do in power away any with cause action ..., right by jury
case exists all then the of trial longer right thereafter no involved such cases. The action, jury being right destroy trial incidental to the is to nothing upon one leave the other which to ” operate.’ Moreover, Branch, Court 156 Md. at A. at 697, indicated that Legislature jury where authorizes regard liability, trial to determine the facts with but the damages, statute itself fixes the there is no interference with the constitutional to a trial. also jury Jacobs 930, 940, Adams, 505 A.2d Md.App. cert. *26 Cauthen, 513, 510 A.2d 306 Md. sub nom. Barnes denied action, nothing is (“If cause of there there is no attach”). can right by jury to the trial which 11-108 of the had in Assembly provided If the General Proceedings judge, Article that the trial and Judicial Courts nonec- determine the amount of the should jury, rather than in damages or the amount of noneconomic damages onomic $350,000, concerning issue the validi- a excess of substantial Assem- The presented. statute would be General ty of the however, not to transfer is traditional- attempt did what bly, Instead, to the General judge. function the trial ly jury a action noneconomic cause of abrogated any Assembly issue $350,000; it the in excess of removed damages tort concerning the No exists judicial question from the arena. to noneconom- respect the with judge jury role of the versus Therefore, $350,000. ques- no damages ic excess of tort right a trial concerning jury tion the constitutional to presented. a fully right having jury 11-108 the preserves
Section regard the factual to the amount resolve issues with $350,000 on recov- damages. noneconomic Neither the limit shall informed of ery provision jury nor the that the not be its limit, interferes role and jury’s proper with to issues which pertinent to resolve factual ability of action. cause the issue majority of courts which have considered damages tort agree legislative caps upon recoverable right do a trial. jury not violate the constitutional to infringes upon rejecting argument that § trial, for the a States District Court jury United (Franklin Motor v. Mazda District stated 1331): at Corp., supra, F.Supp. define, augment, or even power legislature
“The in- complete necessarily of action must abolish causes damages may statute power clude the define what cause of particular litigant be recovered with action.”
The Supreme Virginia, Court of v. Medical Etheridge Hospitals, Center Va. 376 S.E.2d at similarly rejected argument that a legislative cap recoverable tort Virginia violated the Constitu- trial, guarantee tion’s of a jury saying: Virginia guarantees Constitution only jury that a “[T]he facts____ will disputed resolve question, “Without the jury’s fact-finding function ex- *27 tends to the assessment of damages____ Once the jury has ascertained the facts and damages, assessed the satisfied____ however, the constitutional mandate is Thereafter, it is the of the court duty apply the law to facts____ the
“The
malpractice
limitation medical
con-
recoveries
tained in
nothing
Code
8.01-581.15 does
more than
§
the outer
remedy provided
establish
limits of a
the
law,
General
A
Assembly.
remedy is a matter of
not a
fact____
matter of
A trial court applies the remedy’s
limitation
has fulfilled
only
jury
fact-finding
its
after
Thus,
function.
Code
8.01-581.15 does not infringe
§
upon
right
to a
trial
the section
jury
because
does not
apply
completed
until after a
has
its
jury
assigned func-
in
process.”
tion
the judicial
also, e.g.,
Omitowoju, supra,
See
Davis v.
We Articles 5 and 23 of protected trial jury Rights. Declaration
IV. puni awards of jury’s concerns the final issue damages.
tive court, Special Appeals, and in the Court of circuit upon Court, proceeded this case have parties all this sufficient for the if the evidence was assumption guilty gross were found that the defendants to have jury to award punitive then the was entitled jury negligence, for a writ of certiorari nor petition Neither damages. applicability gross cross-petition questioned Moreover, granting the our order negligence standard. add issue to the relating did not an petitions certiorari punitive damages for an award of standard appropriate 8-131(b). this. Rule Conse case such as assume, only, for this case quently purposes we shall allowing an negligence proper is the standard gross showing in this case and that a punitive award of *28 State, v. Boyer is not required. of actual malice 121, (1991). 15, n. 594 A.2d 132 n. 15 Md. Cf. Miller, 297, 312-332, v. 587 A.2d 498- 322 Md. Schaefer Cole, (1991) Judges Eldridge, of and Chasa (opinion now). of Special Appeals the Court the agree
We with for the was insufficient presented by plaintiffs evidence has gross negligence, found which been de- jury to have tort “a ‘wanton or reckless in motor vehicle cases as fined of operation human life’ in the a motor disregard for Co., Gray Pipe 267 Md. Concrete Smith vehicle.” Lockett, See also Nast (1972). 167, 297 A.2d (1988). 350, 539 A.2d Md. gross negli- that the evidence showed plaintiffs argue East of the defendant Port Transfer
gence part (1) East the front improperly repaired because Port either of tire the tractor-trailer and allowed it to be knowing used that it so, (2) was unsafe to do knew or should have known that another party had improperly patched truck’s front tire based on its routine inspections and al- lowed the truck to be driven of knowing its unsafe condi- tion. The plaintiffs argue that, also although Port East had knowledge of the condition, tire’s unsafe it its urged driver Edmonds to exceed the speed limit on day of the plaintiffs accident. The contend that the defendant Ed- monds was guilty gross of negligence because of evidence (1) showing based on his inspection of the tires on the day the accident he knew or should have known of the improper repair tire, of the and he chose to drive the truck at an anyway excessive rate of speed, and after the tire out, blew he dove to the floor of the rather cab than trying to bring control, the truck under thus unreasonably endan- gering other motorists.
Although presented evidence plaintiffs sup- ports the conclusion that the defendants negligent, were it support does not the jury’s finding of gross negligence. The plaintiffs presented through evidence testimony Zambelas, Emanuel product analysis engineer for Miche- Co., lin Tire that the tire blew out improper because an repair or patching Furthermore, the tire. the witness testified that the improper repair would have been visible an upon inspection tire, external because there would have been a hole in the stated, tread. Mr. Zambelas also however, improper repair that the resulted rusting the steel belts the tire which eventually caused the rusting blowout. This was not upon inspec- visible external tion Moreover, of the tire. except for the hole in the tire, external surface of the which was between width of one to pencils, two the testimony was uncontradicted that the tread of the failed tire exceeded the minimum tread *29 depth required by both federal and Maryland Department of Transportation standards and the good tire was in condition. While the claimed plaintiffs that Port East had tire, repaired the did they present not any evidence that either it Port East denied of this contention. support tire, but neither defendant patched Edmonds had the or who did the tire. patch evidence as to presented party respon- as to the Considering the lack evidence tire, physical that a for the and the fact patching sible the internal rust would not have revealed inspection not belts, the tire was suffi- regarding the evidence steel for life disregard or reckless to demonstrate a wanton cient tread, in the it of the hole light either defendant. or defendants inferred one or other both could be the hole carefully enough to observe inspect not the tire did that, one It inferred while both in the tire. also could be surface the hole the tire’s observed defendants not serious concluded that it was during inspection, they tire was attention since the to immediate enough require supports finding inference losing not air. Neither negligence. gross Edmonds was as to defendant
The evidence whether but, conflicting, at the time of the accident was speeding the evi- light plaintiffs, in a favorable to taken most exceeding speed Edmonds was show that dence would have may While this been by only m.p.h. limit four five Moreover, al- grossly negligent. it not negligent, was for that Edmonds was late though presented evidence was no in a there was hurry, he have been may and that work Port East allegation that supporting plaintiffs’ evidence limit. speed to exceed the Edmonds directed point to evidence that sometime plaintiffs Finally, out, the floor of the Mr. Edmonds dove to after the blow plaintiffs life. From this the he feared his cab because the truck’s brakes. apply Edmonds failed infer that Nevertheless, that there uncontradicted the evidence was it crossed the by Edmond’s truck as skidmarks made were that these caused of Interstate 83 and were six lanes Thus, if did Edmonds dive even application the brakes. floor, he his brakes. applied after apparently it was *30 The various acts of on the of negligence part defendants not, law, do as a matter of permit conclusion that either defendant a disregard acted with wanton reckless for human Special life. Court of Appeals correctly re- versed for punitive damages. the awards
JUDGMENT OF THE OF COURT SPECIAL APPEALS AFFIRMED. TO PAY PLAINTIFFS COSTS.
McAULIFFE, Judge, concurring.
I
in the
agree
concur
result.
I do not
with
majority
that
this
legislation
interests affected
are not of
importance
sufficient
trigger
“as to
enhanced
any
scruti-
ny.”
opinion
added).
Majority
(emphasis
at 361
In this
case
particularly, where we
called
upon
conduct an
equal protection analysis pursuant
to the
provisions
Constitution,
Maryland
I
utilize
would
the flexible “contin-
uum” or “full-spectrum”
rather
approach1
rigid
than
two-
tier
approach.
or three-tier
v. Board
Hargrove
Trustees,
406, 427-30,
(1987) (McAu-
310 Md.
Employing approach subjecting the statute to a level of scrutiny consistent with the significance curtailed, I benefit nevertheless conclude General Assembly’s upon of societal need judgment rests suffi- ciently firm basis to justify limitation of benefits in- volved and that will inequality sometimes inevitably result.
CHASANOW, Judge, dissenting. The majority contends that the recovery to full pain, suffering, disfigurement, and other noneconomic dam- approach varying scrutiny 1. The more flexible "allows for levels of depending upon importance ‘the constitutional societal adversely recognized interest affected and the invidiousness ’’ upon particular Plyler basis which the classification is drawn.’ Doe, (Marshall, (1982) U.S. 102 S.Ct. L.E.2d 786 J., quoting concurring), Independent from San Antonio School District 1, 99, Rodriguez, 411 U.S. S.Ct. 36 L.Ed.2d (Marshall, J., dissenting). such tortious acts caused whose person from the ages respectfully I “important right.” personal is not an injuries (1974, Repl.Vol.), Code dissent. Under (hereinafter Article, Proceedings & Judicial Courts to include damages are defined noneconomic cap”), “the inconvenience, disfig- impairment, suffering, physical “pain, consortium, injury.” urement, non-pecuniary or other loss *31 full and fair right me that to recover It seems important personal an is compensation from tortfeasor right should be limitation right, any and Further, in my scrutiny. or “intermediate” “heightened” dam- limiting of noneconomic recovery opinion, legislation if scrutiny applied might heightened such ages survive cases, height- it should not survive but malpractice medical other tort actions or tort in motor vehicle scrutiny ened no need for clearly has been established actions where there legislation. such dealing non- legislature had three choices when with 1) eliminated them alto- damages. It could have
economic 2) plaintiff’s noneco- every reduced gether; proportionately 3) people of those damages or reduced the damages; nomic $350,000. It chose damages over who suffer noneconomic all, and, some, not deprived but thereby, the third course their full noneconomic of the recover plaintiffs injuries. tortfeasors caused their damages from the who reduced, damages their injured The most will have severely plaintiffs will recover their seriously injured whereas less damages. entire noneconomic class of tort sad, aspect is even tragic,
There by cap. significantly most affected victims who will be damages noneconomic will be It obvious that those whose will be those cap and will lose the most greatest who as who severe well as those injuries are the most whose period of time. injuries longest for the must endure their legs, young or arms or paralyzed Infants with severed disfigured, permanently scarred hideously children permanent will cause them injuries with youngsters expected pain and who can excruciating unremitting to suffer from injuries these over the full seventy-plus years probable their lifetimes will be the ones with the highest damages and, therefore, noneconomic the ones most affected cap. Disregarding the somewhat offsetting effects of income, inflation and investment $350,000 in damages noneconomic could $5,000 amount to less per than year children, such tragically injured and these child victims will not even have the same loss of earnings dam- ages that most adults would have.
The defendants do not contend that the cap was a legisla $350,000 tive decision that represented the maximum rea sonable amount of that should be awarded for noneconomic injuries. To so construe the statute would mean that the legislature was saying that juries incapa rendering ble of fair verdicts for noneconomic if damages; so, cap may violate Article 23 of the Maryland Constitu tion, guarantees which litigants civil the right to a jury trial. If cap be, effect, is intended to a legislatively imposed remittitur, may it even violate the doctrine of *32 separation powers. of v. Fibreboard Corp., Sofie Wash.2d 771 P.2d (1989). 720-21 Defendants agree Special with the Court of Appeals determination that ‘object’ 11-108(b) of is the increase in availability “[t]he § and affordability of liability insurance Maryland.” Ed monds v. 133, 162, Murphy, Md.App. 573 A.2d (1990).
In order to reduce insurance premiums and increase the availability insurance, of legislature the shifted the econom- ic burden from liability insurance carriers and tortfeasors to the horribly injured and maimed victims whose noneconomic $350,000. damages exceed legislature clearly has the power to change law, modify common but in doing so, it must be mindful of the rights constitutional of those affected by the changes. cap Since the impacts statute on some, all, victims, but not tort it raises an equal protection issue. How do we examine legislation? this Do give we it passing glance test, under the rational basis look at it or close- scrutiny, glass heightened of magnifying under microscope scrutiny? of strict it under examine ly height- emergence that the of Tribe noted Professor response to ened, judicial level of review was a intermediate that the awareness growing rationality minimum “all-or-nothing choice between of aris- range broad situations scrutiny ill-suits the strict clause, many of which protection equal under the ing rubber-stamp the virtual through with neither best dealt through nor the virtual death- review truly minimal of methods more scrutiny, through of strict but truly blow less yet former and of than the injustice to risks sensitive flexibility than governmental of the needs blind latter.” Tribe, Law H. American Constitutional
Laurence (2d 1988). scholarly A of articles ed. number 1609-10 damage of scrutiny analysis heightened advocated a have Willis, See, Recovery Ann Mary Limitation caps. e.g., A Damages; Malpractice Medical Cases: Violation of (Spr.1986); Protection?, 54 1329-51 Equal U.Cin.L.Rev. Medi- Harper, Equal Gail Which Protection Standard for L.Q. 125-52 Hastings Const. Malpractice cal Legislation, (Pall 1980). the ranks those join
I believe that should people to be recognized that have states amply “certainly for their compensated fully injuries invocation of at justify and substantial important mini test instead heightened, least the intermediate Library rationality Carnegie test.” mum Richardson (1988). Restaurant, Inc., 107 763 P.2d N.M. U., 477 Louisiana State Sibley of Sup’rs See also v. Bd. (La. 1985) (damage cap So.2d Usitalo, 587 review); heightened scrutiny Brannigan *33 in all (N.H.1991) (cap on noneconomic A.2d most only the “precluded actions which personal injury receiving compensa full victims ... from seriously injured under equal protection tion for their violated injuries” review); University heightened scrutiny Condemarin Hosp., (Utah P.2d 1989) (court used height- scrutiny ened because deference under minimum scrutiny “is when inappropriate dealing with a fundamental principle American law that victims wrongful negligent or acts compensated should extent they that have been harmed”). Waldron,
In Attorney General v. 289 Md. 426 A.2d (1981), we stated that: important “[Wjhen personal rights, not held to yet merit scrutiny deserving strict but of more than protection a accord, perfunctory review would legis- are affected a classification, lative a court should engage a review with the importance consonant in- personal right volved.”
289 Md.
946.
A.2d at
At issue was the judicial
pension
provided
statute which
that a full-time judge who
retires
elects to
a judicial
may
receive
not
pension
compensation.
thereafter practice law for
This Court held
judge
receiving
pension
a
was
a
right
who
practice
an “important personal
resume the
of law is
right”
heightened
scrutiny.
or intermediate
We further
“equal protection
determined
statute violated the
contained in
Article
component
both
24 of
of Rights
Declaration
and the fourteenth amendment
to the
United
States Constitution.”
Md. at
If Waldron’s to resume the Judge right practice law pension after a a retired is an accepting judge “impor- as maimed, personal right,” disfigured, tant I a or pain- believe racked victim’s to recover full as as- compensation, sessed jury, against person whose tortious judge act least as injury important personal caused their is at right. Waldron we also noted: equal clause the fourteenth
“Although protection protection principle amendment and the embodied equal materia,’ 24 are ‘in pari applying Article and decisions
383 involving in cases persuasive authority provision one independent, each is other, provision reiterate that we necessarily of one is not a violation a and violation other.” that A.2d 946. further stated Md. 426 at We
289
at
possessed
is
protection principle
equal
the State
“because
animation,
applica-
in
other circumstances
independent
Rights
Declaration
tion of
Article
Supreme
at variance with the
Court’s
require a result
may
equal protection
of the fourteenth amendment’s
application
n. 20.
Md.
714 n.
deciding to noneconomic the same. liability treated all insurers should not have they There was clear evidence that there was a crisis in the availability affordability of medical malpractice liability Report the Joint Executive/Legislative insurance. Task Force on Malpractice Medical Insurance (1985). No one has demonstrated crisis, there awas or that the cap crisis, would any solve in the availability and affordability *35 of automobile liability insurance. The Minority Report, Governor’s Task Force on Liability Insurance (1985) sum- marized the testimony before the Task Force and concluded: Task Force has heard no testimony that claims
“[T]his experience or verdicts are the reasons for affordability availability Indeed, insurance. there has been no testimony as to the amount of insurance premium that could be saved even if all of the recommendations of this Task adopted. short, Force were the testimony devel oped this by Task Force does not justify the drastic changes and the elimination rights of innocent people and perhaps, more importantly, no testimony that if even these changes were adopted, would problems be (Emphasis solved.” in original).
Id. 48-49. Unquestionably automobile insurance rates are high, but are they equally high states; in other yet few other states limit the right of automobile accident victims to in recover full their noneconomic damages. I recognize limiting damages noneconomic of only medical malprac- tice plaintiffs is a further form of unequal treatment. But the information contained in the Report the Joint Execu- tive/Legislative Task Force in Medical Malpractice Insur- ance may justify such legislation even under the heightened scrutiny analysis under especially the ma- jority’s rational basis analysis. Most of the cap statutes that have withstood constitutional challenges caps on medical malpractice recovery.
In my opinion, defendants have failed to prove that Judge Murphy was in incorrect his determination that Courts & Art., Judicial Proceedings 11-108 did not meet height- ened scrutiny test and that it was a denial of equal protec- tion for this motor vehicle tort victim to deprived jury. noneconomic assessed $160,000 car plaintiffs occurred when It ironic that this accident highway. on an interstate was a tractor-trailer struck states. has offices in several corporation The defendant in tractor- know state defendant’s We do not which insur- liability in state registered or which trailer was of a loss for this truck written. Plaintiff’s ance was policy know, damages may, for all we of her noneconomic portion insurance rates or availability, have no effect to a national unanticipated an windfall only provide may but but was policy, an out-of-state insurance insurer who wrote occur negligence its insured’s enough have fortunate Maryland. joins me to that he has authorized state
Judge GOUDY dissenting opinion. this
601 A.2d KENNEDY al. Marlene et Cohen MOBAY et al. CORPORATION Term, 152, Sept.
No. 1990. Maryland. Appeals Court of 11, 1992. Feb. Frankel, Rothschild, (Fox, O’Brien & Fleishman
Wendy Goldstein, Pa., Hood & Goldstein Philadelphia, Bertram Associates, Baltimore, brief), for petitioners. all Seamans, Eckert, (Dennis McEwen, Siegfried R.
Willis A. Pa., brief), Mellott, all on Clifford J. Pittsburgh, Cherin & Akin, Jameson, Gump, (David Allen, Ann H. Zatz C.