On June 14, 2019, a plurality of the Kansas Supreme Court struck down Kansas’s statutory cap limiting noneconomic damages for personal injury awards in Hilburn v. Enerpipe Ltd., No. 112,765, 2019 Kan. LEXIS 107, 2019 WL 2479464 (Kan. June 14, 2019). Just seven years ago, a plurality of the same court deemed the same statutory cap constitutional in Miller v. Johnson, 295 Kan. 636, 289 P.3d 1098 (2012). Hilburn, therefore, overturns the relatively recent Miller precedent. Hilburn found that the noneconomic damages cap violated the Kansas Constitution’s Section 5, which enshrines the right to a jury trial.
While the plurality opinion is hardly a resounding statement of principle by the Kansas high court, it will be difficult for even a motivated Kansas legislature to undo. The decision rests on an extremely recent case altering the standard of review for certain constitutional issues and a deep consideration of the words the Kansas Constitution uses to express the province of a jury. Insurers in Kansas must consider the noneconomic damages cap a thing of the past, and underwrite insurance policies that consider noneconomic damages unlimited in personal injury cases.
The facts of the underlying injury are straightforward. Ms. Hilburn was injured in an auto accident. A jury awarded about $300,000 in noneconomic damages, which was reduced, per statute, to the maximum allowable amount, then $250,000.
The statute at issue in Hilburn, and Miller before it, is K.S.A. 60-19a02(a), originally established in 1988, which defines “personal injury action” as “any action seeking damages for personal injury or death.” Its limitation on noneconomic damages was expressed in the following language: “In any personal injury action, the total amount recoverable by each party from all defendants for all claims for noneconomic loss shall not exceed a sum total of $250,000.” The statute specifically indicates that a jury should not be informed of the noneconomic damages cap, but that any award by the jury in excess of the cap is to be reduced. Hilburn v. Enerpipe Ltd., No. 112,765, 2019 Kan. LEXIS 107, 2019 WL 2479464, at *4.
The court, in another very recent decision, determined that certain interests were so fundamental as to erode the presumption of a statute’s constitutionality, which changes the level of scrutiny a court may apply. Hodes & Nauser, MDs v. Schmidt, 309 Kan. 611, 673-74, 440 P.3d 461 (2019) declined to presume a partial birth abortion law constitutional because the court found at odds with the fundamental interest set forth in the Kansas Constitution’s Section I, protecting personal autonomy.
Hodes & Nauser provided a tool that allowed the court to easily overturn Miller. Section 5 of the Kansas Constitution provides that the right to a jury trial “inviolable,” and the use of that term indicates the right at issue is fundamental, akin to the personal autonomy right in Section I. Hilburn carefully distinguished several cases Miller had relied upon, which considered whether a given statute provided a “quid pro quo” for the constitutional right seemingly compromised. Miller and the quid pro quo test find significant the statutory guarantee of compensation by way of insurance requirements up to the limit of the statutory cap. The quid pro quo test is unique to Kansas, as the Hilburn court noted, but the result — upholding statutory damages caps under constitutional scrutiny — is not.
But, if one views the statute and Section 5 through a Hodes & Nauser lens, the statutory cap invades a jury’s role; it impermissibly substitutes the jury’s judgment for the legislature’s. The plurality thought deeply about whether a damages cap infringes upon a jury’s fundamental fact-finding function or merely imposes an outer limit on a remedy. It disagreed with those states finding damages caps constitutional in spite of provisions protecting the right of a jury trial (Alaska, Idaho, Indiana, Maine, Maryland, Massachusetts, Nebraska, Nevada, Ohio, South Dakota, Utah, Oregon, West Virginia). It instead cast its lot with those states finding damages caps unconstitutional, violating the “inviolable” constitutional right: Alabama, Florida, Georgia, Missouri, Washington.
The plurality may have been influenced by the fact that the available insurance was greatly in excess of the medical malpractice cap, even though the jury award was not greatly reduced.
Hilburn changes exposure in all personal injury cases, and underwriters must account for unlimited noneconomic damages in Kansas going forward. Whether Hilburn will prompt the legislature to attempt to reinstate the statutory limit on noneconomic damages remains to be seen.