Kansas Supreme Court Strikes Down Statutory Caps on Noneconomic Damages
On June 14, 2019, in the case of Hilburn v. Enerpipe, Ltd., the Kansas Supreme Court struck down the state’s statutory cap on noneconomic damages in personal injury cases. The court held that the damages cap deprives plaintiffs of the Constitutional right to have a jury decide damages.
By eliminating one of the key protections Kansas has traditionally extended to businesses, insurers, and other personal injury defendants, the decision dramatically increases both the unpredictability of civil litigation in the state and the risk of being surprised by a potentially devastating runaway verdict. Furthermore, because the Kansas Supreme Court has ruled the statutory damages cap “facially unconstitutional,” the ruling will affect not only future claims, but also those currently pending in Kansas courts.
I. The Judicial Invalidation of the Kansas Noneconomic Damages Cap
The Hilburn case arose out of a motor vehicle accident. Plaintiff Diana Hilburn was a passenger in a car that was rear-ended by a semi-truck owned by Defendant Enerpipe, Ltd. Enerpipe admitted liability but contested damages. After a trial solely on the damages question, the jury awarded Ms. Hilburn $33,490 for medical expenses and $301,510 for noneconomic losses. The trial court reduced the award of noneconomic damages to the noneconomic damages cap of $250,000, pursuant to K.S.A. §60-19a02.
Hilburn appealed on several bases, including a challenge to the constitutionality of the damages cap. The Supreme Court held that Section 5 of the Kansas Constitution provides that “the right of trial by jury shall be inviolate.” Courts have interpreted this language to preserve the right to a jury trial “in those causes of action that were triable to a jury under the common law extant in 1859, when the Kanas Constitution was ratified by the people of our state.” The plurality opinion emphasized that that “the determination of noneconomic damages was a fundamental part of a jury trial at common law” and, therefore, ought to be protected as “inviolate” under Section 5 of the state constitution.
“The cap’s effect,” Justice Beier concluded, “is to disturb the jury’s finding of fact on the amount of the award. Allowing this substitutes the Legislature’s nonspecific judgment for the jury’s specific judgment. The people deprived the Legislature of that power when they made the right to a trial by jury inviolate. Thus we hold that the cap on damages imposed by K.S.A. §60-19a02 is facially unconstitutional because it violates Section 5 of the Kansas Constitution Bill of Rights.”
Until recently, the cap on noneconomic damages seemed to be very well entrenched in Kansas law. The limits were codified in the statute books, and judges and practitioners had become familiar with their application and importance in personal injury cases. As recently as 2012, the Kansas Supreme Court, in Miller v. Johnson, affirmed the constitutionality of a very similar cap applicable in medical malpractice cases. The majority held that the legislature’s cap on noneconomic damages was “an adequate and viable substitute” to the common-law right to a jury trial on the question of damages. With its decision in Miller, Kansas had become the eighteenth state to affirm the constitutionality of some type of cap on noneconomic damages.
In Hilburn, the Kansas Supreme Court tossed out the same statutory cap that it had affirmed a mere 7 years ago. The recent case illustrates the importance a single judicial appointment can have. Justices Johnson, Beier, Biles, and Luckert remained consistent in their opinions from Miller (2012) to Hilburn (2019). Justices Rosen, who did not participate in the Miller decision, and Stegall, who was not on the Court in 2012, both sided with the plurality in Hilburn to hold the damages cap unconstitutional.
Kansas law still presents advantages to civil defendants. It follows a modified comparative fault rule that precludes any recovery by a plaintiff who bears more than 50% of the fault for an occurrence. It allows the comparison of fault of non-parties and has enacted a “one-action rule,” requiring that all parties have their fault determined in a single trial. It has abandoned joint and several liability, holding each defendant responsible only for its percentage of the damages awarded.
But make no mistake, the cap on noneconomic damages provided by K.S.A. §60-19a02 was one of the more important protections Kansas law offered to defendants in personal injury cases. That protection is now gone, and it seems unlikely to come back with the current court makeup.