Opinion
No. 89-1130.
Decided May 6, 1991.
Williams, Jilek, Lafferty Gallagher Co., L.P.A., Jon A. Lafferty and Robert M. Scott, for plaintiff.
Law Offices of Jan A. Saurman and John V. Rasmussen, for defendant Hubbell, Inc.
This cause is before the court on defendant Hubbell, Inc.'s ("Hubbell's") motion for adjustment of verdict pursuant to R.C. 2317.45. After careful consideration of the pleadings, the memoranda of the parties, and the applicable law, the court holds that R.C. 2317.45 is unconstitutional as to wrongful death actions and, therefore, Hubbell's motion is denied.
I
On January 11, 1991, the jury in this wrongful death action rendered a verdict in favor of plaintiff in the amount of $810,000. Thereafter, defendant Hubbell filed a motion for adjustment of verdict pursuant to R.C. 2317.45. In her memorandum in opposition and reply brief, plaintiff contends that R.C. 2317.45 is unconstitutional as its impact is to limit the amount of damages recoverable by her in violation of Section 19a, Article I of the Ohio Constitution. Hubbell argues that R.C. 2317.45 places no cap or limit on the amount of damages a jury may award but merely reduces the damages after they have been determined by the jury to reflect collateral source benefits the plaintiff has received or is reasonably certain to receive within the next sixty months.
Plaintiff notes that R.C. 2317.45 has been held unconstitutional as to tort cases in general as a violation of a plaintiff's right to a jury trial, the right to an open court and a fair and impartial remedy, the right to due process, and the right to equal protection under the law. Cook v. Wineberry Deli, Inc. (Oct. 5, 1990), Summit C.P. No. CV88-08-2737, unreported [Reporter's Note: Cook was affirmed in part and reversed in part (July 17, 1991), Summit App. No. 14841, unreported, 1991 WL 131485]; Sorrell v. Thevenir (Jan. 14, 1991), Gallia C.P. No. 89 CL 121, unreported, appeal pending.
Hubbell also maintains that similar post-verdict adjustments are provided in other statutes such as R.C. 2315.19(C), R.C. 2307.32(F)(1), and R.C. 2744.05. However, since these statutes have not been challenged under Section 19a, Article I of the Ohio Constitution, this argument is irrelevant.
II
In response to what the General Assembly perceived to be an insurance crisis, R.C. 2317.45 was enacted to provide for the deduction of collateral benefits from compensatory damages awards in tort actions. It became effective on January 5, 1988 and was designed with a legislative purpose of making "changes in civil justice and insurance law, thereby reducing the causes of the current insurance crisis and preventing future crises, and ensuring the availability and affordability of insurance coverages required by charitable nonprofit organizations, public organizations, political subdivisions, individual proprietors, small businesses and commercial enterprises." 142 Ohio Laws, Part I, 1661, 1694-1695.
Whether such a crisis existed and whether R.C. 2317.45 cured that crisis are questionable.
See, e.g., Sorrell, supra ("Neither the existence of the crisis, nor the purported resolution of it are clearly proven by research studies."); Cook, supra ("[I]t was enacted in response to an `insurance crisis' continued by the insurance industry to promote and protect price gouging by underwriters, a basis having no relationship to its stated purpose."); Stewart, The "Tort Reform" Hoax (July 1986), 22 Trial 89, at summary ("The real cause of the insurance crisis lies not in the tort system but rather in the industry's own mismanagement and imprudent underwriting practices. * * *").
R.C. 2317.45 reads in pertinent part:
"(B)(1) Except as provided in division (C) of this section, if a plaintiff in a tort action is entitled to an award of compensatory damages, that plaintiff shall disclose to the court after such entitlement is determined all relevant collateral benefits, all rights of recoupment relative to the disclosed collateral benefits, and the costs, premiums, or charges for any of the disclosed collateral benefits paid or contributed within the three-year period immediately preceding the accrual of the cause of action * * *.
"(2) Upon the disclosure required by division (B)(1) of this section, the court shall do all of the following:
"(a) Determine whether both of the following are satisfied in relation to any of the disclosed collateral benefits:
"(i) The plaintiff has received the disclosed collateral benefit or is reasonably certain to receive it within the next sixty months after the entry of judgment;
"(ii) There are no rights of recoupment respecting the disclosed collateral benefit.
"* * *
"(c) Prior to entering judgment for the plaintiff, do both of the following:
"(i) Subtract from the compensatory damages that the plaintiff otherwise would be awarded the amount of any disclosed collateral benefits in relation to which both requirements of division (B)(2)(a) of this section are satisfied;
"(ii) Subject to the limitation specified in this division, add to the balance derived under division (B)(2)(c)(i) of this section the total of any costs, premiums, and charges described in division (B)(2)(b) of this section. * * *"
III
Section 19a, Article I of the Ohio Constitution states:
"The amount of damages recoverable by civil action in the courts for death caused by the wrongful act, neglect, or default of another, shall not be limited by law."
This provision, adopted in 1912, reflects the early lawmakers' concern that tort victims be adequately compensated for their injuries.
In interpreting Section 19a, the Ohio Supreme Court held that while the legislature could determine the types of damages recoverable, the amount of damages may not be limited by law. Kennedy v. Byers (1923), 107 Ohio St. 90, 140 N.E. 630.
IV
The primary issue before this court is whether R.C. 2317.45 actually limits the amount of damages recoverable by a plaintiff in a wrongful death action in violation of Section 19a, Article I of the Ohio Constitution. This is a case of first impression in Ohio.
Because the right to be free from legislative limitations on the amount of damages recoverable in a wrongful death action is a specifically enumerated right in the Constitution, it is fundamental and not subject to an analysis of rational basis or strict scrutiny. See Cook, supra.
Extensive research reveals that only Arizona has a similar constitutional provision (Section 31, Article 2). Arizona has recently adopted a statutory provision which abolishes joint and several liability. Ariz.Rev.Stat.Ann. Section 12-2506 (1984). Because this Act allows assignment of fault to parties not before the court, the Act could severely limit the amount of damages a tort plaintiff may recover. For that reason, commentators have stated that the Act violates Section 31, Article 2, and is therefore unconstitutional. See Mendelson, Tort Reform: Ensuring the Most Equitable Results for Plaintiffs and Defendants? (1989), 31 Ariz.L.Rev. 171; Coughenour, The Right to Recover Damages: Tort Reform and the Arizona Constitution (1988), 20 Ariz.St.L.J. 227. Unfortunately, there are also no reported cases challenging Arizona's Act under Section 31, Article 2 of the Arizona Constitution.
R.C. 2317.45 requires the court to subtract certain collateral benefits from compensatory damages to which a plaintiff is entitled. The evident effect of this statute is to limit the amount of damages recoverable in most tort cases. Section 19a, Article I of the Ohio Constitution prohibits such limitations in wrongful death actions. Consequently, R.C. 2317.45 is clearly in conflict with Section 19a.
The written Constitution is the paramount law and what the Constitution grants no statute may take away. State, ex rel. Weinberger, v. Miller (1912), 87 Ohio St. 12, 26-27, 99 N.E. 1078, 1079; State, ex rel. Hoel, v. Brown (1922), 105 Ohio St. 479, 138 N.E. 230, paragraph three of the syllabus. It is the duty of the court to sustain the paramount law and refuse to enforce the inconsistent legislation. Id.
This court finds that R.C. 2317.45 is irreconcilable with Section 19a, Article I of the Ohio Constitution and is, therefore, unconstitutional as to wrongful death actions. Accordingly, Hubbell's motion for adjustment of verdict is denied.
It is hereby ORDERED, ADJUDGED and DECREED that defendant Hubbell, Inc.'s motion for adjustment of verdict is denied, there being no just reason for delay.
Reporter's Note: The cause was subsequently settled and Hubbell's appeal was dismissed.