Evans ex rel. Kutch v. State

Decision Date30 August 2002
Docket NumberNo. S-9313.,S-9313.
PartiesBetty EVANS, on her own behalf and on behalf of her minor son, David "Buddy" KUTCH, Jr.; Sharon Cross, on her own behalf and on behalf of her minor daughter, Laronsia Cross; Raymond Nealy, Sr.; and Lillian A. Wood, Appellants, v. STATE of Alaska, Appellee.
CourtAlaska Supreme Court

Robert H. Wagstaff and Wm. Grant Callow, Anchorage, for Appellants.

Gary M. Guarino, Assistant Attorney General, Anchorage, Bruce M. Botelho, Attorney General, Juneau, and Ronald W. Lorensen and L. Merrill Lowden, Simpson, Tillinghast, Sorensen, Lorensen & Longenbaugh, Juneau, for Appellee.

Amy S. Gurton, Robertson, Monagle & Eastaugh, P.C., Juneau, for Amicus Curiae Alaska State Hospital and Nursing Home Association. Roger F. Holmes, Anchorage, for Amicus Curiae Alaska State Chamber of Commerce.

Before: FABE, Chief Justice, EASTAUGH, BRYNER, and CARPENETI, Justices.


FABE, Chief Justice.


This appeal is a challenge to the 1997 tort reform legislation enacted by the Alaska Legislature in chapter 26, SLA 1997. The plaintiffs, all injured parties contemplating tort actions, asked the superior court for a declaratory judgment that this legislation is void under the Alaska Constitution. However, the superior court granted summary judgment to the State and refused to grant the relief sought by the plaintiffs. We affirm the trial court's decision that the legislation is facially constitutional.


In 1997 the Alaska Legislature enacted legislation including tort reform provisions, in chapter 26, SLA 1997. The legislation was later codified into various sections of the Alaska Statutes and became effective on August 7, 1997. It included many new tort law provisions, including caps on noneconomic and punitive damages,1 a requirement that half of all punitive damages awards be paid into the state treasury,2 a ten-year "statute of repose,"3 a modified tolling procedure for the statute of limitations as applied to minors,4 comparative allocation of fault between parties and non-parties,5 a revised offer of judgment procedure,6 and partial immunity for hospitals from vicarious liability for some physicians' actions.7

The appellants, all allegedly injured persons who have filed or plan to file tort actions, filed this action seeking a declaratory judgment that all of chapter 26, SLA 1997 is void under the Alaska Constitution. The case was assigned to Superior Court Judge Charles R. Pengilly. The plaintiffs and the State filed opposing motions for summary judgment. The Alaska State Chamber of Commerce and the Alaska Hospital Association filed amicus briefs in support of the legislation. The superior court heard oral argument on these motions, and subsequently granted the State's motion for summary judgment and denied the plaintiffs' motion in all respects, upholding all of chapter 26, SLA 1997. The plaintiffs appeal this decision.


This appeal requires us to review a grant of summary judgment; this review is de novo.8 We will affirm summary judgment if there are no genuine issues of material fact and if the moving party is entitled to judgment as a matter of law.9 When making this determination, we will draw all reasonable inferences in favor of the non-moving party.10 This appeal raises constitutional issues, which are issues of law subject to de novo review.11


In this appeal, the plaintiffs challenge seven provisions within chapter 26, SLA 1997:(1) the cap on noneconomic and punitive damages under AS 09.17.010 and .020; (2) the requirement that half of all punitive damages awards be paid to the State under AS 09.17.020(j); (3) the comparative apportionment of damages under AS 09.17.080; (4) the revised offer of judgment procedure under AS 09.30.065; (5) the limitations tolling procedure under AS 09.10.070(a)(2) and .140; (6) the partial tort immunity for hospitals under AS 09.65.096; and (7) the "statute of repose" under AS 09.10.055.

In addition to the specific challenges above, the plaintiffs claim that the entire act is unconstitutional under the "one subject" rule of article II, section 13 of the Alaska Constitution. The plaintiffs also claim that, once all of these constitutional infirmities are exposed, nothing in chapter 26, SLA 1997 remains severable, and that therefore, the entire act must be struck as unconstitutional. These two final issues will be addressed in Part IV.H of this opinion.

Before these provisions are discussed in turn, we note that these are facial challenges. The plaintiffs do not complain of specific application of the challenged statutes to tort actions brought by the plaintiffs. Instead, the plaintiffs seek a declaratory judgment "in order that they may better determine how to proceed" with their contemplated tort actions. The result we reach in this opinion might be different if we were presented with challenges to the law as applied in a particular case. Therefore, our ruling is limited to the facial import of the challenged provisions of chapter 26, SLA 1997.

A. The Caps on Noneconomic and Punitive Damages Under AS 09.17.010 and.020 Are Facially Constitutional.

Chapter 26, SLA 1997 modified AS 09.17.010 to place a cap on the amount of noneconomic damages that may be awarded in tort actions "for personal injury and wrongful death."12 The new AS 09.17.010 lists specific claims for which noneconomic damages shall be recoverable and specifies financial limits for damage awards for each claim. Availability of noneconomic damages is first limited to "compensation for pain, suffering, inconvenience, physical impairment, disfigurement, loss of enjoyment of life, loss of consortium, and other nonpecuniary damage."13 These damages are further limited in amount to $400,000 or $8,000 multiplied by the injured person's life expectancy in years, whichever is greater, for each single injury or death.14 When the damages are awarded for "severe permanent physical impairment or severe disfigurement," the cap is extended to $1,000,000 or, in the alternative, $25,000 multiplied by the injured person's life expectancy in years, whichever is greater.15

Chapter 26, SLA 1997 also modified AS 09.17.020(f)-(h)16 to limit the amount of punitive damages in most cases to three times compensatory damages, or $500,000, whichever is greater.17 If the defendant knowingly caused the injuries for financial gain, the cap is expanded to four times compensatory damages, four times the amount of financial gain, or $7,000,000, whichever is greater.18 A different cap applies when the action is against an employer to recover damages for an unlawful employment practice prohibited by AS 18.80.220; in that case the cap is $200,000 if the employer has fewer than 100 employees in Alaska, $300,000 for 100-200 employees, $400,000 for 200-500 employees, and $500,000 for 500+ employees.19

The plaintiffs claim that the caps on noneconomic and punitive damages violate six provisions of the Alaska Constitution: (1) the right to a jury trial; (2) the right to equal protection; (3) the right to substantive due process; (4) the separation of powers; (5) the right of access to the courts; and (6) the ban on "special legislation." Each of these arguments will be addressed in turn.

1. The damages caps do not infringe on the right to a trial by jury.

The plaintiffs' first argument concerning the damages caps is that the caps constitute a violation of the right to trial by jury granted by article I, section 16 of the Alaska Constitution and the Seventh Amendment to the United States Constitution. The plaintiffs argue that the calculation of damages is the exclusive province of the jury—subject to the judicial power of remittitur—and that the legislature has unconstitutionally invaded this province by enacting the damages caps. The superior court rejected the plaintiffs' argument and held that the damages caps did not invade the province of the jury.

We have not previously examined the scope and extent of the right to a trial by jury under article I, section 16 of the Alaska Constitution.20 However, the language of the Alaska Constitution's trial by jury provision mirrors the language of the Seventh Amendment to the United States Constitution,21 and proposals to create a right to trial by jury with different language were rejected during the Alaska Constitutional Convention.22

We agree with the reasoning employed by the Third Circuit Court of Appeals, which interpreted the Seventh Amendment to the United States Constitution to allow damages caps. In Davis v. Omitowoju, the court held that a damages cap did not intrude on the jury's fact-finding function, because the cap was a "policy decision" applied after the jury's determination, and did not constitute a re-examination of the factual question of damages.23

Other state courts have similarly interpreted trial by jury provisions to allow damages caps. In Pulliam v. Coastal Emergency Services of Richmond, Inc.,24 and Etheridge v. Medical Center Hospitals,25 the Virginia Supreme Court drew a distinction between the jury's exclusive province of fact-finding, and the legislature's power to alter the law that applied to the jury's determination: "Once the jury has ascertained the facts and assessed the damages ... the constitutional mandate is satisfied, [and] it is the duty of the court to apply the law to the facts."26 That is, the Virginia court held that the jury has the power to determine the plaintiff's damages, but the legislature may alter the permissible recovery available under the law by placing a cap on the award available to the plaintiff.27 Eight other courts have upheld damages caps using the same or similar reasoning.28

We agree with Davis, Pulliam, and the other decisions that have held that damages caps do not violate the constitutional right to a trial by jury.29 The decision to place a cap on damages awarded is a...

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  • Toward a Theory of Medical Malpractice
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