Sofie v. Fibreboard Corp.

Decision Date27 April 1989
Docket NumberNo. 54610-0,54610-0
CourtWashington Supreme Court
Parties, 57 USLW 2655, Prod.Liab.Rep. (CCH) P 12,169 Austin SOFIE and Marcia Sofie, husband and wife, Appellants, v. FIBREBOARD CORP.; The Celotex Corp.; Eagle-Picher Industries, Inc.; Keene Corp.; Raymark Industries, Inc.; Owens-Illinois, Inc., Respondents.

Schroeter, Goldmark & Bender, Janet L. Rice, Kirk I. Mortensen, William Rutzick, Seattle, Stritmatter, Kessler & McCauley, Paul Stritmatter, Hoquiam, for appellants.

Gibson, Dunn & Crutcher, Gary C. Grotz, Kent T. Van den Berg, Mark Hughes, Steven T. Johnson, Seattle, for respondents Fibreboard, Celotex, Owens-Illinois and Keene Corp.

Williams, Kastner & Gibbs, Elizabeth A. Christianson, Mary H. Spillane, Seattle, Williams, Kastner & Gibbs, William H. Mays, Tacoma, for respondent Eagle-Picher Industries.

McKay & Gaitan, Linda E. Blohm, Bellevue, for respondent Raymark Industries.

Bryan P. Harnetiaux, Spokane, Winston & Cashatt, Robert H. Whaley, Spokane, for amicus curiae on behalf of Washington Trial Lawyers Ass'n.

Jeffrey R. White, Washington, D.C., Sullivan & Golden, Daniel F. Sullivan, Seattle, for amicus curiae on behalf of Ass'n of Trial Lawyers of America.

Richard H. Robblee, Seattle, for amicus curiae on behalf of United Ass'n of Journeymen and Apprentices.

Kenneth Eikenberry, Atty. Gen., Michael E. Tardif, Asst., Olympia, Kenneth Eikenberry, Atty. Gen., Michael Madden, Asst., Seattle, Bertha B. Fitzer, Tacoma, Burgess, Kennedy, Fitzer & Strombom, P.S., F. Ross Burgess, Tacoma, for amicus curiae on behalf of Respondent Washington Defense Trial Lawyers Ass'n and Defense Research Institute.

Jeffrey I. Tilden, Rex C. Browning, Seattle, for amicus curiae on behalf of Respondent Liability Reform Coalition.

UTTER, Justice.

Austin and Marcia Sofie challenge the constitutionality of RCW 4.56.250. This statute, part of the 1986 tort reform act, places a limit on the noneconomic damages recoverable by a personal injury or wrongful death plaintiff. The Sofies brought a direct appeal to this court after the trial judge in their tort action, under the direction of the statute, reduced the jury's award of noneconomic damages. The respondents subsequently cross-appealed to the Court of Appeals, raising several issues of trial court error, issues we consider here.

The Sofies argue that RCW 4.56.250 violates their constitutional rights to trial by jury, equal protection, and due process. We find that the statute's damages limit interferes with the jury's traditional function to determine damages. Therefore, RCW 4.56.250 violates article 1, section 21 of the Washington Constitution, which protects as inviolate the right to a jury. Because the statute is unconstitutional on this basis, we do not consider its constitutionality under the latter two doctrines raised by appellants, although we briefly survey the equal protection issues. Respondents' arguments concerning trial court error are without merit.

The Washington Legislature passed RCW 4.56.250 in 1986 partly as a response to rising insurance premiums for liability coverage. The damages limit that the statute creates operates on a formula based upon the age of the plaintiff. 1 As a result, the older a plaintiff is, the less he or she will be able to recover in noneconomic damages. The trial judge applies the limit to the damages found by the trier of fact. If the case is tried before a jury, the jury determines the amount of noneconomic damages without knowledge of the limit. The jury goes about its normal business and the judge reduces, according to the statute's formula and without notifying the jury, any damage verdicts that exceed the limit.

In September 1987, the Sofies sued Fibreboard Corporation and other asbestos manufacturers for the harm caused to Mr. Sofie by their asbestos products. Mr. Sofie, then aged 67, was suffering from a form of lung cancer--mesothelioma--caused by exposure to asbestos during his career as a pipefitter. At trial, Mr. Sofie's attorneys presented evidence of the extreme pain he experienced as a result of the disease. The testimony indicated that Mr. Sofie spent what remained of his life waiting for the next "morphine cocktail," for the next hot bath, for anything that would lessen his consuming physical agony.

At the end of the trial, the jury found the defendants at fault for Mr. Sofie's disease. They returned a verdict of $1,345,833 in favor of the Sofies. Of this amount, $1,154,592 went to compensate noneconomic damages: $477,200 for Mr. Sofie's pain and suffering and $677,392 for Mrs. Sofie's loss of consortium. While the trial judge specifically found the jury's finding of damages reasonable, he indicated he was compelled under the damages limit to reduce the noneconomic portion of the verdict to $125,136.45, resulting in a total judgment of $316,377.45.


Appellants argue that RCW 4.56.250 violates their right to equal protection under the law as guaranteed by Washington Constitution article 1, section 12. This constitutional provision states:

No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.

Although the language of article 1, section 12 differs from the fourteenth amendment of the federal Constitution, this court has generally followed the federal tiered scrutiny model of equal protection analysis originally developed by the United States Supreme Court. See, e.g., Daggs v. Seattle, 110 Wash.2d 49, 55, 750 P.2d 626 (1988). We have followed this approach because a separate analysis focusing on the language and history of our state constitution has not been urged. In one of their briefs, appellants point out that this court initially used an analysis based upon the different language of our own constitution. See, e.g., State v. Carey, 4 Wash. 424, 30 P. 729 (1892). They argue that it is appropriate to consider both the tiered scrutiny model of equal protection analysis as well as a language-specific analysis similar to the one developed by the Oregon Supreme Court. See, e.g., State v. Clark, 291 Or. 231, 630 P.2d 810 (1981); State v. Edmonson, 291 Or. 251, 630 P.2d 822 (1981).

In the context of tiered scrutiny, appellants argue that this court should review the noneconomic damages limit under the mid-level scrutiny followed in State v. Phelan, 100 Wash.2d 508, 671 P.2d 1212 (1983) and Hunter v. North Mason High School & School Dist. 403, 85 Wash.2d 810, 539 P.2d 845 (1975). They contend that Mr. Sofie belongs to a "semi-suspect class"--discrete but not suspect--of severely injured plaintiffs. Citing Hunter, they also claim that the damages limit affects an important right: the right to be indemnified for personal injuries. Under such a mid-tier analysis, this court generally requires that the challenged law further a substantial state interest. Daggs, 110 Wash.2d at 55, 750 P.2d 626.

Respondents contend that intermediate scrutiny should not apply because the damages limit amounts to economic legislation. Such legislation, they maintain, is reviewed under the deferential rational basis test. In support of this they cite, among other cases, Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978) (upholding the Price-Anderson Act).

Courts in some other states have struck down similar tort damage limits on equal protection grounds. See, e.g., Carson v. Maurer, 120 N.H. 925, 424 A.2d 825, 830 (1980) (striking limit on noneconomic damages after finding right to recover for personal injuries an "important substantive right," citing Hunter ); Arneson v. Olson, 270 N.W.2d 125, 132 (N.D.1978) (applying heightened scrutiny to flat damages limit); see also Comment, Constitutional Challenges to Washington's Limit on Noneconomic Damages in Cases of Personal Injury and Death, 63 Wash.L.Rev. 653 (1988); Development in the Law: The 1986 Washington Tort Reform Act, 23 Willamette L.Rev. 211 (1987). Other courts, however, have upheld limits, analyzing the legislation under the rational basis test. See, e.g., Fein v. Permanente Medical Group, 38 Cal.3d 137, 695 P.2d 665, 211 Cal.Rptr. 368, appeal dismissed, 474 U.S. 892, 106 S.Ct. 214, 88 L.Ed.2d 215 (1985); see also Boyd v. Bulala, 647 F.Supp. 781 (W.D.Va.1986) (finding that damages limit passes the rational basis test under equal protection analysis but violates the right to a jury trial).

As for the analysis based on the language of our privileges and immunities clause, this question must wait for another case. 2


The dispositive issue of this case is the right to a jury trial.

This court has long approached the review of legislative enactments with great care. The wisdom of legislation is not justiciable; our only power is to determine the legislation's constitutional validity. Petstel, Inc. v. County of King, 77 Wash.2d 144, 151, 459 P.2d 937 (1969); State ex rel. Bolen v. Seattle, 61 Wash.2d 196, 198, 377 P.2d 454 (1963), Smith v. Centralia, 55 Wash. 573, 576, 104 P. 797 (1909). In matters of economic legislation, we follow the rule giving every reasonable presumption in favor of the constitutionality of the law or ordinance. Shea v. Olson, 185 Wash. 143, 152, 53 P.2d 615, 111 A.L.R. 998 (1936). 3 We employ this caution to avoid substituting our judgment for the judgment of the Legislature. See State Public Employees' Bd. v. Cook, 88 Wash.2d 200, 206, 559 P.2d 991 (1977), aff'd on rehearing, 90 Wash.2d 89, 579 P.2d 359 (1978); Fritz v. Gorton, 83 Wash.2d 275, 283, 517 P.2d 911 (1974); Jones v. Jones, 48 Wn.2d 862, 868, 296 P.2d 1010, 54 A.L.R.2d 1403 (1956); see also Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L.Rev. 491, 522-23 (1984).

Other courts, faced with unconstitutional tort damage limits, have...

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