TOPEKA — Christopher Mann, a victim of a drunk driver, wants to dissuade Kansas lawmakers from eliminating a newly articulated fundamental right of plaintiffs in personal injury cases to allow a jury to decide the meaning of fair compensation for a person's pain and suffering.
The controversy erupted when the Kansas Supreme Court issued a decision declaring the state's noneconomic damage cap a violation of the Kansas Constitution. In a case arising from a Wichita traffic crash that injured Diana Hilburn, the justices ditched a law that set an artificial upper limit on financial compensation. That meant damages would be determined on a case-by-case basis by a trial jury listening to evidence. The ruling hinged on a fragment of Section 5 of the constitution, which says, "trial by jury shall be inviolate."
"The Hilburn decision helps victims of impaired driving crashes because it restores victims’ rights to trial by jury and it eliminates a major barrier to full and fair compensation for victims for their noneconomic injuries," said Mann, a national board member with Mothers Against Drunk Driving and a former Lawrence police officer. "Damage caps benefit impaired drivers and their insurance companies. Damage caps erase the impaired driver’s responsibility for the victim’s noneconomic injuries that exceed the cap."
In June, the Supreme Court issued the opinion and fashioned another issue for consideration during the 2020 legislative session.
The Kansas Medical Society and the Kansas Hospital Association shared cautionary perspective on the court's ruling, because the opinion appeared to have exempted noneconomic loss in medical malpractice lawsuits. The Kansas Trial Lawyers Association hailed the ruling as long overdue.
The Kansas Association of Property and Casualty Insurance Companies and the Kansas Chamber objected to the court's ruling because Hilburn v. Enerpipe would unravel a system designed to predictably deliver compensation to crash victims and keep insurance rates affordable. Both organizations warned the state's highest court expanded defendants' potential exposure in personal injury cases, a move certain to drive up insurance costs.
"Kansas consumers renewing or purchasing new policies will see higher rates. Insurance rates in Kansas will only continue to increase as companies see higher litigation and settlement costs," said Marlee Carpenter, a lobbyist with the property and casualty insurance companies.
Economic damages are out-of-pocket losses of a plaintiff resulting from the injury, such as medical bills, lost wages or property losses. Noneconomic damages compensate a plaintiff for subjective losses, such as disability or disfigurement, loss of companionship, reputation or "enjoyment of life."
The Supreme Court's opinion struck law limiting the total amount recoverable by each party from all defendants for noneconomic loss to $325,000. The cap was held at $250,000 from 1988 to 2014 but was scheduled to increase to $350,000 in 2022.
Hilburn was a passenger in a vehicle that was rear-ended by a large truck in 2010 operated by Enerpipe driver Jimmy Harris. A jury awarded her $33,490 for medical expenses and $301,500 in noneconomic damages for a total of $335,000. The trial judge reduced the award to nearly $284,000 to bring the amount into compliance with the noneconomic damage cap of $250,000.
On appeal, the Supreme Court agreed in a 4-2 decision with Hilburn's position that the cap violated her constitutional right to have a jury determine compensation appropriate to redress injuries. The two dissenting justices said the court shouldn't waver from the court's own 2012 analysis in Miller v. Johnson that affirmed the cap on noneconomic damages.
An interim committee of the Legislature declined to make a recommendation on whether to amend the constitution or impose a new state law in response to the decision.
Gov. Laura Kelly said she didn't believe responding to the judicial branch on this issue would be a top objective during the 2020 session opening in January.
"Obviously, this is something for the Legislature to consider," the Democratic governor said. "It's not going to be super high on my priority list one way or another."
Rachelle Colombo, incoming executive director at the Kansas Medical Society, said the organization was opposed to action by the Legislature that could jeopardize a cap on medical malpractice damages that appeared to be sustained by the Supreme Court.
"The court did not speak with specificity regarding the Hilburn ruling’s impact on medical malpractice liability," she said. "Though the court’s own public information officer distributed a statement indicating the malpractice caps are unaffected, questions remain about how the court’s intention to limit the ruling to personal injury will be applied or upheld. Understanding the ruling and its impact will require continued study."
Eric Stafford, vice president of the Kansas Chamber, said legislators had a responsibility to restore some form of the cap structure to neutralize leverage seized by plaintiffs filing lawsuits after crashes. He said Kansas businesses deserved stability of a system that was designed to "protect against excessive and frivolous litigation."
The Legislature had no business seeking new state law or an amendment to the constitution to thwart the Supreme Court's view that precise judgment of juries had to trump arbitrary perspectives of politicians, said David Morantz, president of the Kansas Trial Lawyers Association.
"The foundation of our jury system is built on fairness," Morantz said. "Each case before a jury has a unique set of facts. If you serve on a jury, you hear the facts of the case before you. This gives you a real understanding of what a victim of recklessness, dangerous actions, or destructive and dangerous behavior deserves to receive in compensation for their injuries.
"Blanket restrictions on what juries can and cannot do tie their hands and risk creating unfair and predetermined outcomes for all trials. Any attempt to re-impose a one size fits all verdict on what Kansas juries can award victims of life changing injuries is both unwarranted and unfair," he said.