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Wednesday, July 24, 2019

Business leaders bothered by Kansas Supreme Court's 'awful' decision to remove cap on damages

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By John Breslin | Jun 28, 2019


TOPEKA, Kan. (Legal Newsline) – An industry insider says business leaders in Kansas are reacting with "extreme disappointment" at the decision by the state Supreme Court to scrap the cap on non-economic damages in personal injury actions.

The Supreme Court voted 4-2 earlier this month to remove the cap, ruling that the denial of the right of a jury to decide an amount of an award is unconstitutional.

But the decision was greeted with some surprise as it was believed the issue was settled following decades-old legislation and an earlier 2012 opinion by the same court upholding the cap on damages in personal injury litigation.

The cap remains in place for medical malpractice cases, the court stated, though it is not clear how the justices managed to differentiate from a constitutional point of view, said Dan Murray, Kansas state director of the National Federation of Independent Business.

Among small business owners, the decision was greeted with a mixture of "extreme disappointment" and surprise because it overturns long-established legislation, Murray said.

"I think it is an awful decision," Murray said. "It (the legislation) is 30 years on the books, and it has been effective in keeping costs down for small business owners."

Murray described Kansas as having, historically, a "very favorable legal climate" for businesses, comparing the state to neighboring Missouri, which has no caps and has recorded decisions that have affected patient care and business costs, he says.

The Supreme Court was deciding on the case of Diana Hilburn v. Enerpipe. Hilburn was injured when the vehicle she was traveling in was hit from behind by a semi-truck owned by the company in 2010.

A jury awarded actual damages of approximately $34,000, largely for medical expenses, and a further $301,000 for non-economic damages. That was cut to $250,000, the cap at the time. It rose to $325,000 following the conclusion of the case.

“We need to let juries decide damages rather than politicians,” Thomas Warner, a Wichita personal injury attorney who represented Hilburn, told the Kansas City Star.

The majority decided it was unconstitutional to prevent the right to trial and decision by jury. In her dissent, Justice Marla Luckert, who was joined by Justice Dan Biles, said the requirement motorists must have insurance, in tandem with the caps, are "reasonably necessary in the public interest to promote the public welfare."

Murray said that a number of groups and individuals opposing the decision are exploring options, but no decisions have been made as the discussions are in the formative stage.

But the business leader said there are number of possibilities, including pursuing a constitutional amendment stating it is within the remit of legislators to decide caps on damages. 

Another option is one from Justice Caleb Stegall, who concurred but laid out other potential scenarios such as the principal of an informed jury.

The third area of attack may be in lobbying for wider legal reform, including caps on attorney fees or action when a lawsuit is found to be frivolous.

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Organizations in this Story

Kansas Supreme Court National Federation of Independent Business (NFIB)

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