Opinion of the Justices

• Decision Date: 14 May 1973
• Docket Number: No. 6631,6631
• Citation: 304 A.2d 881,113 N.H. 205
• Parties: OPINION OF THE JUSTICES. Request of House of Representatives
• Court: New Hampshire Supreme Court

Page 881

304 A.2d 881

113 N.H. 205

OPINION OF THE JUSTICES.

Request of House of Representatives No. 6631.

Supreme Court of New Hampshire.

May 14, 1973.

Ernest L. Bell, III, Keene, by memorandum of law, for affirmative answer to question No. 1 and for negative answers to questions No. 2, 3, and 4.

Shane Devine, Manchester, by memorandum of law and orally, for affirmative answer to question No. 1 and for negative answers to questions No. 2, 3, and 4.

McLane, Carleton, Graf, Greene & Brown and R. David DePuy, Michael P. Hall, James C. Hood, Stephen J. Selden, and Stanley M. Brown, Manchester, for affirmative answer to question No. 1 and for negative answers to questions No. 2, 3, and 4.

Wadleigh, Starr, Peters, Dunn & Kohls and John E. Friberg, James C. Wheat, and Philip G. Peters, Manchester, for affirmative answer to question No. 1 and for negative answers to questions No. 2, 3, and 4.

Sulloway, Hollis, Godfrey & Soden and Martin L. Gross, Concord, for American Ins. Assn., American Mut. Ins. Alliance, and National Assn. of Independent Insurors, for negative answers to questions No. 1 and 3.

The following request of the house of representatives for an opinion of the justices was adopted on March 20, 1973, and filed with the supreme court on March 21, 1973:

'Whereas, there is pending before the House of Representatives, House Bill No. 79, an act to implement a guaranteed protection plan of motor vehicle insurance and a proposed amendment to said bill, and

'Whereas, the constitutionality of House Bill No. 79 has been questioned because of the inclusion therein of the provisions of RSA 407-C:9 and 10 and in other regards, now therefore be it.

'Resolved by the House of Representatives that the Justices of the Supreme Court be respectfully requested to give their opinion upon the following questions of law:

'(1) Would any provisions of the Constitution of the United States or the Constitution of New Hampshire, particularly the 14th amendment of the Constitution of the United States and Articles 14, 20, 35 and 37 of Part One of the Constitution of New Hampshire, be violated by the enactment of the provisions of RSA 407-C:9 as proposed in said House Bill No. 79 which eliminates recovery of damages for pain and suffering in certain personal injury tort claims arising out of motor vehicle accidents?

'(2) If the answer to question no. 1 is in the affirmative, would the proposed amendment to House Bill No. 79 cure the defect?

'(3) If the answer to question no. 1 is in the negative, or if it is in the affirmative but the answer to question no. 2 is in the negative, would your opinion be different if the prohibition contained in RSA 407-C:9 was changed to increase the so-called threshold therein to one thousand dollars instead of five hundred dollars?

'(4) Can the Legislature constitutionally authorize arbitration of cases in which the amount in controversy is less than $3,000, and require pre-payment of costs of the arbitration procedure as a condition of appeal to the courts as proposed in RSA 407-C:10, in view of Articles 14 and 20 of Part I of the Constitution of New Hampshire?

'Be It Further Resolved, That the Speaker transmit seven copies each of this resolution, of House Bill No. 79, of the analysis of said bill, and of the proposed amendment hereinabove referred to, to the Clerk of the Supreme Court for consideration by said court.'

The following answer was returned:

To the House of Representatives:

The undersigned justices of the supreme court give the following answers to the questions contained in your resolution of March 20, 1973 filed in this court the following day. Memoranda thereon were to be submitted by April 4, and oral arguments were heard on April 5, 1973.

Your questions pertain to certain provisions of House bill 79 which proposes to amend our Revised Statutes Annotated by adding chapter 407-C entitled 'Guaranteed Protection Plan of Motor Vehicle Insurance.' This proposal is commonly known as a 'no-fault' insurance plan for all automobile insurance policies issued in this State. It provides that, in case of an accident involving a motor vehicle, as defined therein every person insured or covered by such a policy would be entitled to recover from his own insurer the following so-called first party benefits: medical benefits to a limit of $3000; income benefits amounting to 85% of lost wages with a limit of $175 per week for 52 weeks; income benefits for a temporarily unemployed person based upon a percentage of his usual earnings; disability benefit payments for a student 16 years of age or older; benefits for lost services which the injured person would have performed for himself and his family; and funeral and burial expenses up to $1000. It also provides that optional additional extensions of these coverages must be offered by the insurer. 407-C:2.

Section 407-C:9 provides that a person may not seek or recover compensation for pain and suffering in a tort action arising from an auto accident unless the reasonable and necessary expenses in treating his injury are determined to be in excess of $500. These expenses are to be measured by their reasonable value. This limitation of $500.00, however, will not apply if the injury results in death, dismenberment, permanent disability, disfigurement, loss of a bodily function, or certain specified fractures.

Section 407-C:10 authorizes the supreme and superior courts to rpovide by rules for mandatory arbitration of 'all or any specific types of cases' where the amount in controversy is $3000 or less. These cases are to be heard by a board of three arbitrators with a trial de novo on the facts and the law in the event of an appeal. Either party may appeal by paying all costs accrued to that time; appellant could recover these costs only if he prevails on appeal. Your questions pertain to the above sections 407-C:9 and 407-C:10.

It is reasonable to deduce from its title, its provisions, and its characterization as a 'no fault auto insurance plan' in the analysis attached to it for legislative purposes, that House bill 79 is intended and designed to alleviate the alleged inadequacies of the present tort liability system for reimbursing victims of automobile accidents. See Rokes, No Fault Insurance 12 (1971). Among the inadequacies advanced is the overtaxing of the court system by the existing fault method of determining who is entitled to damages and who is to pay them. Another is the inequities alleged to result from the overcompensation of less injured claimants as compared to that paid to those more seriously injured because of, so-called, nuisance settlements made to the former. The difficulty of assessing damages for pain and suffering is also advanced as an argument against retaining the present system. The fault-based system has also been characterized as 'inefficient, overly costly, incomplete and slow.' U.S. Department of Transportation, Motor Vehicle Crash Losses and Their Compensation in the United States 100 (1971).

In the multitude of literature and statistics published on this subject, one can find categorical denials of these alleged inadequacies as well as counter charges against the 'no fault' system. Some contend that the concept of accountability for bad conduct has been a fundamental principle of law relied on for centuries and its abrogation would lead to irresponsibility on the highways contrary to public policy and the public interest. It is also argued that 'no fault' substitutes an inadequate economic loss reparation system at the expense of recovery of full and fair damages for personal injury, including pain and suffering.

Before answering the questions propounded in your resolution it is useful to reiterate the often stated principle that this court is not concerned with, or expressing any opinion on, the wisdom or practicality of House bill 79. Those matters are within the exclusive province of the legislature. Niemiec v. King, 109 N.H. 586, 258 A.2d 356 (1969). Nor are we passing any judgment on the social policies in dispute. Our answers must necessarily be limited to the constitutional issues raised by your inquiries. Opinion of the Justices, 110 N.H. 117, 262 A.2d 290 (1970).

Your first question reads as follows: 'Would any provisions of the Constitution of the United States or the Constitution of New Hampshire, particularly the 14th amendment of the Constitution of the United States and Articles 14, 20, 35 and 37 of Part One of the Constitution of New Hampshire, be violated by the enactment of the provisions of RSA 407-C:9 as proposed by said House Bill No. 79 which eliminates recovery of damages for pain and suffering in certain personal injury tort claims arising out of motor vehicle accidents?'

We consider first whether 407-C:9 would violate provisions of our State constitution referred to in your question. We reserve, because of their similarity to the federal provisions, its due process and equal protection requirements. Section 407-C:9 which sets a dollar amount of medical expenses below which injury victims are denied access to general damages except under certain conditions, is commonly referred to as a threshold provision. Article 14 of part I of the New Hampshire constitution provides in part that 'Every subject of this state is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, . . . to obtain right and justice freely, . . . completely, and without any denial . . . comformably to the laws.' It is argued that the threshold provision violates this article as well as articles 2 and 12 of part I which respectively declare as inherent rights 'enjoying . . . life . . . and . . . seeking and obtaining happiness' (art. 2) and being protected in the enjoyment of one's 'life, liberty, and property.' Art. 12.

These rights are necessarily relative. Riendeau v. Milford Municipal Court, 104 N.H. 33, 34, 177 A.2d 396, 398 (1962). As indicated in...