Kristine Neiman v. American National Property and Casualty Company
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2000 WI 83 SUPREME COURT OF WISCONSIN Case No.: 99-2554 Complete Title of Case: Kristine Neiman, individually and as Personal Representative of the Estate of Jared Neiman, and Steven Neiman, Plaintiffs-Respondents, v. American National Property and Casualty Company, Defendant-Appellant. ON BYPASS FROM THE COURT OF APPEALS Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: JUSTICES: Concurred: Dissented: July 7, 2000 May 4, 2000 Circuit Kenosha Mary Kay Wagner-Malloy BRADLEY, J., dissents (opinion filed). ABRAHAMSON, C.J., joins dissent. Not Participating: ATTORNEYS: For the defendant-appellant there were briefs by James W. Mohr, Jr., and Mohr & Anderson, S.C., Hartford, and oral argument by James W. Mohr, Jr. For the plaintiffs-respondents there was a brief by Eugene A. Gasiorkiewicz, Alice A. Rudebusch and Hanson & Gasiorkiewicz, S.C., Racine, and oral argument by Eugene A. Gasiorkiewicz. An amicus curiae brief was filed John S. Greene, assistant attorney general, with whom on the brief was James E. Doyle, attorney general, on behalf of the State of Wisconsin. An amicus curiae brief was filed by Robert L. Jaskulski and Domnitz, Mawicke & Goisman, S.C., Milwaukee, and William C. Gleisner, III, and Law Offices of William C. Gleisner, III, Milwaukee, on behalf of the Wisconsin Academy of Trial Lawyers. An amicus curiae brief was filed by Noreen J. Parrett, James A. Friedman and La Follette Godfrey & Kahn, Madison, on behalf of the Wisconsin Insurance Aliance, Wisconsin Association of Mutual Insurance Companies, Civil Trial Counsel of Wisconsin, Professional Insurance Agents of Wisconsin, Inc., Independent Insurance Agents of Wisconsin, Inc., and the State Medical Society of Wisconsin. An amicus curiae brief was filed by Mark E. Larson and Gutglass, Erickson & Bonville, S.C., Milwaukee, on behalf of the Wisconsin Patients Compensation Fund. An amicus curiae brief was filed by John S. Skilton, Michael B. Van Sicklen, Roberta F. Howell, and Foley & Lardner, Madison, on behalf of Physicians Insurance Company of Wisconsin, Inc. An amicus curiae brief was filed by Howard R. Orenstein, Terry L. Wade and Robins, Kaplan, Miller & Ciresi, L.L.P., Minneapolis, MN, on behalf of Barbara, Roger, Mitchell and Russell Schultz. 2 2000 WI 83 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 99-2554 STATE OF WISCONSIN : IN SUPREME COURT Kristine Neiman, individually and as Personal Representative of the Estate of Jared Neiman, and Steven Neiman, FILED JUL 7, 2000 Plaintiffs-Respondents, Cornelia G. Clark Clerk of Supreme Court Madison, WI v. American National Property and Casualty Company, Defendant-Appellant. APPEAL from a judgment of the Circuit Court for Kenosha County, Mary Wagner-Malloy, Circuit Court Judge. ¶1 WILLIAM A. BABLITCH, J. Reversed. Kristine Neiman was injured, and her child stillborn, as the result of an accident occurring in September 1995. At the time of the accident, Wis. Stat. § 895.04(4) (1995-96)1 provided that in a wrongful death action 1 Wisconsin Stat. § 895.04 (1995-96) states: Plaintiff in wrongful death action. . . . No. 99-2554 damages up to $150,000 could be awarded for the loss of society and companionship. Subsequently the legislature increased the amount of damages that could be awarded under this statute and 1997 Wis. Act 89.2 applied the increase retroactively. The American National Property and Casualty Company (ANPAC) appeals from a judgment of the circuit court declaring as constitutional the retroactive increase in wrongful death damages pursuant to Wis. Stat. § 895.04(4) (1997-98).3 available Application of the higher statutory damage limit to an event occurring before the amendment violates the to due § 895.04(4) process was enacted, protections ANPAC guaranteed contends, by the Fourteenth Amendment to the United States Constitution as well as art. I, § 1 of the Wisconsin Constitution. (4) Judgment for damages for pecuniary injury from wrongful death may be awarded to any person entitled to bring a wrongful death action. Additional damages not to exceed $150,000 for loss of society and companionship may be awarded to the spouse, children or parents of the deceased. 2 Wisconsin Stat. § 895.04(4) as amended by 1997 Wis. Act 89 provides: Judgment for damages for pecuniary injury from wrongful death may be awarded to any person entitled to bring a wrongful death action. Additional damages not to exceed $500,000 per occurrence in the case of a deceased minor, or $350,000 per occurrence in the case of a deceased adult, for loss of society and companionship may be awarded to the spouse, children or parents of the deceased, or to the siblings of the deceased, if the siblings were minors at the time of the death. 3 All subsequent statutory references are to the 1997-98 volume of the Wisconsin Statutes, unless noted otherwise. 2 No. 99-2554 ¶2 We available settled conclude pursuant property benefit. that to a Wis. rights retroactive Stat. increase § 895.04(4) without achieving in damages unfairly a alters broad public As a result, the retroactive element of the statute is unconstitutional under our test set forth in Martin v. Richards, 192 Wis. 2d 156, 531 N.W.2d 70 (1995). Accordingly, we reverse the circuit court. ¶3 Steve The relevant facts are not in dispute. Neiman (the Neimans) purchased insurance coverage from ANPAC. Neiman was accident in an Kristine, automobile Kristine and underinsured motorist On September 5, 1995, Kristine accident. eight-months As pregnant, a result sustained of the personal injuries, and her child was stillborn. ¶4 Subsequently, the Neimans settled with the underinsured driver and received $100,000 for Kristine Neiman's personal injuries and $100,000 as damages for the loss occurred, the of society and companionship of Jared Neiman. ¶5 On the date the accident maximum statutory damage limit for a wrongful death claim was $150,000. On April 28, 1998, an amendment to the wrongful death statute went into effect, retroactively increasing the limit for recovery for loss of society and companionship from $150,000 to $500,000 in the case of a deceased minor and $350,000 in the case of a deceased adult. 1997 Wis. Act 89, § 3. In August 1998 the Neimans brought a claim against ANPAC, asserting that additional payments for the wrongful death of Jared Neiman were due pursuant to their underinsured motorist coverage. 3 No. 99-2554 ¶6 Before the circuit court, ANPAC moved for a judgment declaring that the retroactive application of increased wrongful death damage limits was unconstitutional. Circuit Court, the Honorable Mary The Kenosha County Wagner-Malloy presiding, denied ANPAC's motion and upheld the constitutionality of the statute as amended by 1997 Wis. Act. 89. ¶7 The agreement. additional parties subsequently Under this $50,000 as entered agreement, wrongful ANPAC death into paid a settlement the damages. Neimans This an amount represented the balance between the $100,000 collected from the underinsured motorist and the $150,000 limit for loss of society and companionship under Wis. Stat. § 895.04(4) (1995-96). The Neimans retained a claim against ANPAC for additional wrongful death damages, pursuant to the increase in the statutory limits established by 1997 Wis. Act 89. appeal the circuit court's ANPAC retained the right to judgment, finding the retroactive increase in wrongful death damage limits to be constitutional. Subsequently, ANPAC filed a petition to bypass the court of appeals, which we granted. ¶8 The retroactive sole issue application of presented the for increase review in is whether wrongful death damages as provided in 1997 Wis. Act 89 violates ANPAC's due process rights guaranteed by art. 4 I, § 1 of the Wisconsin No. 99-2554 Constitution4 and the Fourteenth Amendment to the United States Constitution.5 We have found the due process clause in our state constitution to be the substantial equivalent to its counterpart in the federal constitution. Reginald D. v. State, 193 Wis. 2d 299, 307, 533 N.W.2d 181 (1995). Whether or not a legislative act violates that applies retroactively due process question of law, which this court reviews de novo. is a Chappy v. LIRC, 136 Wis. 2d 172, 184, 401 N.W.2d 568 (1987). ¶9 A reviews rational the legislation. basis constitutionality is applied of when the retroactive court economic Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 730 (1984). determine test whether a Further, this court has held that to retroactive statute is supported by a rational basis, the public interest served by the statute is weighed against the private interest that it overturns, including any unfairness caused by the retroactivity. 192 Wis. 2d at 201. Martin, "'Every presumption must be indulged to sustain the law if at all possible and, wherever doubt exists as to a legislative enactment's constitutionality, it must be 4 Article I, § 1 of the Wisconsin Constitution provides: "All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed." 5 The Fourteenth Amendment to the United States Constitution states in relevant part that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law . . . ." 5 No. 99-2554 resolved in favor of constitutionality.'" Chappy, 136 Wis. 2d at 185 (quoting State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 46, 205 N.W.2d 784 (1973)). ¶10 There plaintiffs' effective Kristine 1995. is cause date no of of dispute action the on the actually change Neiman was involved in in an issue of accrued Wis. prior Stat. accident whether on to the the § 895.04(4). September 5, In April 1998 the legislature amended the wrongful death statute and increased damages available for the loss of society and companionship. 1997 Wis. Act 89, § 3 (enacted April 13, 1998; published April 27, 1998). Therefore, the cause of action accrued before the amendment to the statute. ¶11 There is also no dispute on the issue of whether the amendment to Wis. Stat. § 895.04(4), implemented by 1997 Wis. Act 89, is indeed retroactive. It is. The legislature provided that Act 89 "first applies to actions commenced on the effective date of this subsection." 1997 Wis. Act 89, § 4. This language indicates that the legislature intended to include within the scope of the amendment those claims in which the events giving rise to a cause of action had already occurred. See Martin, 192 Wis. 2d at 200. (phrase "filed on or after" in a legislative act indicated the legislature's retroactively). conclude that intention to apply the new law Thus, in this case we need not look further to the legislature intended § 895.04(4) to apply retroactively. ¶12 statute We "is must first remedial or determine procedural 6 whether rather the than retroactive substantive." No. 99-2554 Snopek v. Lakeland Med. Ctr., 223 Wis. 2d 288, 294, 588 N.W.2d 19 (1999). Statutes that are remedial generally given retroactive application. or procedural are Gutter v. Seamandel, 103 Wis. 2d 1, 17, 308 N.W.2d 403 (1981). ¶13 When the limit of damages that can be recovered is set by statute, the amount that can be recovered is fixed on the date of injury. Martin, 192 Wis. 2d at 206-07 (citing State ex rel. Briggs & Stratton v. Noll, 100 Wis. 2d 650, 655-56, 302 N.W.2d 487 (1981); Bradley v. Knutson, 62 Wis. 2d 432, 436-37, 215 N.W.2d 369 (1974)). The retroactive increase in damages available under Wis. Stat. § 895.04(4) for loss of society and companionship is a change in substantive rights. Bradley, 62 Wis. 2d at 436. Therefore, the retroactive application of the increase in wrongful death damage limits affects a substantive right fixed on the date that the auto accident occurred. ¶14 process Retroactive and merely legislation must identifying a meet the substantive, test or of due vested, property right is not dispositive for due process purposes. The concept of vested rights is "conclusory a right is vested when it has been so far perfected that it cannot be taken away by statute." Charles B. Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv. L. Rev. 692, 696 (1960). Having concluded that the statute retroactively affects a substantive right that accrued before the passage of the legislation, we then proceed to apply the balancing test set forth in Martin. To the extent the language in prior holdings implies that identifying a "vested" right is 7 No. 99-2554 dispositive in determining whether a clearly retroactive statute is constitutional, that language is overruled. See Noll, 100 Wis. 2d at 656 (acts of the legislature may not constitutionally impair vested rights acquired under prior law). When considering the constitutionality of expressly retroactive laws, the Martin test is applied. ¶15 The balancing test we set forth in Martin and employed here is not an opinion poll. "[W]e must balance the public interest served by the retroactive application of the [statute] against the private interests that are overturned including any unfairness inherent in such application." 211. by it, Id. at The test occurs within an established legal framework. ¶16 This framework includes the principle that, like prospective acts, retroactive legislative enjoys a presumption of constitutionality. Martin, 192 Wis. 2d at 201. However, retroactive legislation "often unsettles important rights" and "is viewed with some degree of suspicion." Id. We stated in Snopek: "Strong common-law tradition defines the legislature's primary function as declaring law to regulate future behavior. Thus, as a matter of justice, no law should be enforced before people can learn of its existence and conduct themselves accordingly. In short, retroactivity disturbs the stability of past transactions." Snopek, 223 Wis. 2d at 293-94 (quoting Employers Ins. v. Smith, 154 Wis. 2d 199, 453 N.W.2d 856 (1990)). ¶17 An additional part of our framework of analysis is the principle that the justification for prospective legislation may 8 No. 99-2554 not suffice for retroactive legislation. Martin, 192 Wis. 2d at 201 (citing Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 17 (1976)). to the The increase in damages at issue in this case applies "loss § 895.04(4). of society This and companionship." recovery protects "the Wis. Stat. emotional or sentimental aspects" in family relationships that is lost due to another's negligence. Theama v. City of Kenosha, 117 Wis. 2d 508, 519, 344 N.W.2d 513 (1984). The record illustrates that the legislature heard persuasive testimony about the need for this amendment to Wis. Stat. § 895.04(4) from the family members of children person. killed This through testimony increasing the wrongful the negligent presented death actions compelling liability limits of another arguments for prospectively. In our analysis of the legal question presented in this case, we do not and cannot dispute the suffering that these families have experienced or the gravity of their loss. However, the role of the judicial branch here is to apply established rules of law to the constitutional issue presented. judicial decisions legislative ideas that may be reviewed As illustrated by prior retroactive implemented only statutes, prospectively. many See Bradley, 62 Wis. 2d 432; Hunter v. School Dist. of Gale-EttrickTrempeleau, 97 Wis. 2d 435, 293 N.W.2d 515 (1980); Noll, 100 Wis. 2d 650; Martin, 192 Wis. 2d at 212. ¶18 Martin. We turn then to apply the balancing test set forth in First, we consider the private interests overturned by this retroactive legislation, including any unfairness inherent in its application. ANPAC contends that its private rights are 9 No. 99-2554 analogous Martin. to those protected from retroactive legislation in We agree. ¶19 In Martin, we held that at the time of the injury the plaintiffs had a right pursuant to Wis. Stat. ch. 655 (1986) to unlimited damages and that this right could not be abrogated by retroactive legislation. Martin, 192 Wis. 2d at 206. We cited our prior holdings in Noll and Bradley for the proposition that the right to recover a particular measure of damages is fixed on the date of injury. ¶20 Id. ANPAC contends that it, too, possessed a substantive right to have its liability fixed on the date of injury. ANPAC asserts that at the time of the injury the Neimans accrued a right to recover up to $150,000 under Wis. Stat. § 895.04(4); ANPAC's exposure to liability for damages accrued at that same maximum level. These accrued rights retroactive aspect of § 895.04(4). ¶21 ANPAC further points retroactive application statute in Bradley, Quinn Railway Co., 141 Wis. of 497, out that Chicago, 500, unsettled by the We agree. amendments v. are 124 this to court the wrongful Milwaukee, N.W.2d rejected 653 death & St. Paul (1910), and Keeley v. Great Northern Railway Co., 139 Wis. 448, 121 N.W.2d 167 (1909). In our 1995 decision in Martin, this court rejected retroactive application of a cap on noneconomic damages in a medical malpractice action created by 1985 Wis. Act 340. The United States Supreme Court has stated that one of the concerns about retroactive statutes is that "[t]he Legislature's unmatched powers allow it to sweep away settled expectations 10 No. 99-2554 suddenly and without individualized consideration." USI Film Prods., 511 U.S. 244, 266 (1994). ANPAC, as well as individuals who have Landgraf v. Defendants such as purchased a specific level of insurance, would reasonably rely upon the law as set forth by the courts and the legislature. The retroactive application of 1997 Wis. Act 89 deprived ANPAC, as well as other defendants in tort actions, of a meaningful notice of the potential increase in exposure to claims or an opportunity to increase premiums to pay the expense of this increased exposure. ¶22 An individual who purchased insurance in reliance upon the terms of Wis. Stat. § 895.04(4) and this court's decisions regarding the constitutionality of retroactive legislation, may not have sufficient coverage for liability in wrongful death claims if the amendment to the statute is applied retroactively. For example, an individual insured for $250,000 could now face a $500,000 judgment in an action based upon the wrongful death of a minor. Had the defendants anticipated that a greater liability could be imposed, he or she may have altered their conduct accordingly and purchased greater insurance coverage. The result for ANPAC, and other insurers and insureds, is that the retroactive change in law unfairly overturns settled expectations. ¶23 and We turn then to the second prong of the Martin test examine whether the public purpose for this retroactive application of the statute outweighs the private interests it overturns. In Martin we noted that the balancing test being employed in our due process analysis was similar to that test 11 No. 99-2554 used in Chappy. Martin, 192 Wis. 2d at 201 n.8 (citing Chappy, 136 Wis. 2d at 192-94). In Chappy, the litigants challenged a statute as unconstitutional under the contract clause of the United States and Wisconsin Constitutions. at 185-86. Chappy, 136 Wis. 2d The balancing test employed in Chappy included an examination of the public purpose behind the statute. stated that the public purpose must be Id. "significant We and legitimate" and "directed towards remedying a broad and general Id. at 187-88. social or economic problem." As in the Chappy analysis, the public purpose supporting retroactivity under a due process analysis must also be substantial, valid and intended to remedy a general economic or social issue. ¶24 ANPAC contends that there is no public purpose that supports the retroactive increase in wrongful death limits for loss of society and companionship. The Neimans argue that the legislative history identifies several public purposes for the retroactive change, including full compensation for loss of society and companionship, deterrence of negligent conduct, and adequate legal representation. We consider each of these in turn. ¶25 First, the Neimans correctly point out that it is the policy of tort law in Wisconsin to provide full compensation to those who are injured by the negligent conduct of another. Heath v. Zellmer, 35 Wis. 2d 578, 600, 151 N.W.2d 664 (1967). However, a wrongful death claim is a cause of action created by statute, and the right to recover damages as well as the total amount of recovery is restricted to what is enumerated in the 12 No. 99-2554 statute. Chang v. State Farm Mut. Auto. Ins. Co., 182 Wis. 2d 549, 560-61, 514 N.W.2d 399 (1994). ¶26 Prior legislature maximum to had amount the made could passage a of 1997 deliberate be awarded by Wis. judgment statute made decades.6 this type of assessment many 89, regarding for society and companionship in such an action. has Act the the what loss of The legislature times over the past Each time the legislature amended the wrongful death statute, it made a determination as to what amount of damages would be appropriate Thus, wrongful death for loss damages of society for the and loss of companionship. society and companionship was not a new type of injury being provided a remedy, nor was the extent of the loss experienced by the plaintiffs unforseeable prior to the legislature acting in 1997 Wis. Act 89. The remedy fixed by statute before the amendment was enacted was the legislature's best judgment at the time as to what maximum amount of damages fully compensates for loss of society and companionship. As a cause of action created by statute, and expressing the legislature's judgment as to what remedy should companionship, be the available terms of the for loss statute at of the society and time the of accident define full compensation. 6 For example, prior to the enactment of 1997 Wis. Act 89, the legislature increased statutory damage limits for the loss of society and companionship in a wrongful death claim in § 1, ch. 548, Wis. Laws 1949; ch. 194, Wis. Laws 1959, ch. 436, Wis. Laws 1969; ch. 287, Wis. Laws 1975; ch. 166, Wis. Laws 1979; 1983 Wis. Act 315; 1991 Wis. Act 308. 13 No. 99-2554 ¶27 Next, the Neimans assert that the retroactive application of the increase in damages will deter negligence. The prospect of liability for tort damages is an incentive for individuals to act with the level of due care that the law demands. damage However, retroactive application of an increase in limits for loss of society and companionship impact negligence that has already occurred. potential penalties prospectively change for negligently future behavior, Increasing the causing but cannot injury not past might behavior. Arguably these results may be suited to supporting a prospective change in wrongful death damages, but we find it unpersuasive here. ¶28 Finally, we agree with the Neimans that access to the courts and legal counsel is essential to curb negligence and assure that those who negligently injure another are made to be responsible involves for complex the damages legal and they cause. factual Tort issues and litigation the record indicates that the litigants may incur significant costs. again, however, is a persuasive rationale for This prospectively increasing the amount of damages for a wrongful death claim, not retroactive application. ¶29 justice Retroactive by application making it easier for will not expand individuals to access obtain to legal representation where, as here and in other pending claims, the plaintiffs already have retained legal counsel. Claims arising, but not filed, before the 1998 amendment to the wrongful death statute fall in numbers as the statute of limitation tolls for 14 No. 99-2554 bringing such an action. As a result, this public purpose is important, but does not support a broad public policy purpose for retroactivity. ¶30 All of the public interests identified would arguably support prospective application of an increase in damages for loss of society and companionship; however, these reasons provide weak support for retroactive increases in damages. Noll, a majority of this court concluded that a In retroactive increase in worker's compensation benefits was unconstitutional. Noll, 100 Wis. 2d at 653-54. inflationary pressures The dissent in Noll argued that justified retroactive increase in worker's compensation. Id. at 667 ("[T]he public purpose to be served is by the inflationary otherwise, statute economy.") appears to to protect No disabled workers in an such support pressure, economic or the retroactive increase in damages for loss of society and companionship. The litigants do not argue that the limits in effect prior to enactment of 1997 Wis. Act 89 were so low as to be unconscionable. ¶31 In sum, the public interests served by retroactive application of the increase of wrongful death limitations do not support abrogation of the settled expectations that accrued at the time of the accident. We conclude, therefore, that ANPAC has established beyond a reasonable doubt that the retroactive application of the statute violates due process. By the Court. The judgment reversed. 15 of the circuit court is No. 99-2554 16 No. 99-2554 1 No. 99-2554.awb ¶32 ANN WALSH BRADLEY, J. The (dissenting). majority acknowledges the presumption of constitutionality but fails to apply it to the retroactivity provision of 1997 Wis. Act 89. Had it applied constitutional the presumption, muster. Even the under legislation the would Martin test pass that the majority purports to apply, the retroactive application of Wis. Stat. § 895.04(4) must be upheld. ¶33 Retroactive legislation is presumed constitutional. Martin v. Richards, 192 Wis. 2d 156, 200, 531 N.W.2d 70 (1995). Challengers bear a heavy burden to "prove unconstitutional beyond a reasonable doubt." the law to be Jackson v. Benson, 218 Wis. 2d 835, 853, 578 N.W.2d 602 (1998); State ex rel. Hammermill Paper Co. v. LaPlante, 58 Wis. 2d 32, 46-47, 205 N.W.2d 784 (1973). Despite the continued validity of these principles, the majority pays only lip service to the existence of the presumption and fails to demonstrate the application of the burden of proof. ¶34 Instead, the majority attempts to undercut the presumption of constitutionality by implying that the unsettling effect of retroactive legislation and the suspicion with which it is viewed in some way diminish the import of the presumption. Majority op. at ¶16. ¶35 The However, this misses the mark. unsettling effect and suspicion surrounding retroactive legislation explain the existence and application of the balancing test. viewed with legislation Although retroactive legislation may be suspicion, "are of constitutional limited scope." 1 restrictions Landgraf v. on such USI Film No. 99-2554.awb Prods., 511 U.S. 244, 267 (1994). Thus, the presumption of constitutionality and the burden of proof remain unaffected as part of the "established legal Martin balancing test occurs. framework" within which Majority op. at ¶15. the Had the majority applied the presumption, the retroactive application of Wis. Stat. § 895.04(4) would have survived the present constitutional challenge. ¶36 Having failed to apply the presumption of constitutionality, the majority even fails to pass the Martin test it chooses to apply. In Martin, this court set forth the balancing test we must undertake in an analysis of retroactive legislation: retroactive "[W]e must weigh the public interest served by the statute overturned by it." ¶37 concluded the private interests that are Martin, 192 Wis. 2d at 201. Applying that against the the balancing private test, interests the Martin abrogated court by the retroactive statute that placed a cap on non-economic damages far outweighed the public interests served by the statute. As to the first part of its analysis, the court noted the "minimal, if any, public interest served by applying the retroactive cap" to limit a tort victim's recovery for damages. Id. at 211. The court concluded that aside from the "generic comments" offered in favor of caps on non-economic damages, there was a dearth of evidence supporting the assertion that the cap would lower medical malpractice costs or ensure health care in the future. Id. 2 No. 99-2554.awb ¶38 The Martin court then examined the private interests at stake, including considerations of fundamental fairness, and observed the significant interest in preserving the substantive right of a tort victim to collect unlimited damages. 198. Id. at Retroactive application of the cap on damages would impair a fixed right to unlimited damages that had previously vested to the most severely injured of tort victims. Id. at 209. Balancing the two competing interests, the Martin court held the statute unconstitutional. ¶39 dubious In the present case, the inverse situation exists: a private interests. affected by interest balanced against significant public The majority first considers the private interests the retroactive legislation. It recognizes the private interests of ANPAC but primarily focuses its discussion on the private interests of the individual who may purchase insurance in reliance upon the cap on damages under the prior statute. ¶40 appeal. Majority op. at ¶22. At first blush, the majority's discussion holds some Upon closer examination, however, the discussion evades the reality that loss of society and companionship represents only one of several items of damages that may be attributable to the tortfeasor. More often than not, loss of society and companionship is coupled with other items of damages, including past and future pain and suffering, past and future wage loss, or past and future medical expenses. Generally, the exposure to financial liability under these types of damages far outweighs 3 No. 99-2554.awb the financial exposure attributable to loss of society and companionship. ¶41 The suggestion is simplistic that insureds rely on reduced coverage because of the existence of the $150,000 cap on loss of society and companionship claims. that the amount of the damage cap There is no evidence for loss of society and companionship in and of itself was, or likely would have been, a consideration in determining the level of underinsured motorist coverage purchased. ¶42 Likewise, majority's there suggestion is no that the evidence to support retroactive the legislation frustrates an insurer's reasonable expectations of its exposure to liability. Majority op. at ¶21. Insurers like ANPAC sell policies with varying levels of coverage and charge premiums accordingly. When an insurer sells a certain level of coverage, be it $500,000 or $250,000 per person, its limit of liability is fixed at that amount. ¶43 and This limit does not parse claims for loss of society companionship from claims for past and future medical expenses or from claims for past and future wage loss. The exposure for to liability is not increased beyond the which the insurer contracted and retained a premium. level Here the record reflects that the limit of liability was $250,000 and the premium charged was $33. Nothing in the record suggests that the premium was in any way affected to account for the $150,000 cap on loss of society and companionship. Thus, any assertion of ANPAC's reliance to its detriment is tenuous. 4 No. 99-2554.awb ¶44 In the absence of evidence in the record, the majority's claim is unpersuasive that the increase in caps will invade substantive vested rights of individual insureds or the insurers. However, it is against this unpersuasive premise that the majority then examines the public interests at stake. ¶45 The majority next identifies the public interests potentially served by this legislation, each of which it then dismisses. intended First, to the provide full Majority op. at ¶25. reconcile its majority concedes compensation that to tort injured law is parties. However, the majority then attempts to concession by deferring to the legislature's imposed limits on recovery in various re-formulations of the wrongful death statute. the majority, since Majority op. at ¶25-26. the legislature set the According to maximum damage amount at $150,000 at the time of the plaintiff's injury, that amount is necessarily full compensation. ¶46 The majority's deference to the policy choices of the legislature disapproval is of at the odds with the legislature's majority's choice to enact simultaneous retroactive legislation affording tort victims a greater measure of damages. A determination that the legislature is the final arbiter of determining compensation cannot also conclude that the legislature has no power to modify the amount of compensation as it sees fit. ¶47 legal Another counsel, is public interest, acknowledged majority misses its significance. 5 by access the to the courts and majority. Yet, the The majority suggests that No. 99-2554.awb increasing the potential value of a wrongful death cause of action, so as to make representation by counsel more likely, is an interest served only by prospective legislation. Majority op. at ¶28. ¶48 The legislation at issue in this case was enacted in April 1998. Assuming a three-year statute of limitations, there still exist causes of action that can be brought, but that might not be litigated, because the potential for recovery remains so limited. As in the present case, if the wrongful death damages are sought in a complex automobile accident case or a medical malpractice case, and no other damages such as wage loss or pain and suffering are available, it may be difficult to find an attorney willing to undertake incurring the enormous costs of trial preparation when faced with such a limited potential for recovery. Such litigation often requires the hiring of expert witnesses, deposition lengthy trial. costs, and days of preparation for a The costs and attorneys fees alone could easily exceed the cap. ¶49 Given their proper due, the public interests served by the retroactive legislation at issue far outweigh the private interests. "minimal Unlike public in Martin, interest" to be where this outweighed court by a found the significant private interest, 192 Wis. 2d at 211, this case presents us with private interests of a dubious nature outweighed by legitimate and significant public interests. Adding the presumption of constitutionality to this analysis tips the scales even farther from the majority's conclusion. 6 No. 99-2554.awb ¶50 The majority neither applies the presumption of constitutionality nor properly applies the Martin test to uphold this retroactive legislation. to meet its burden unconstitutional of beyond I conclude that ANPAC has failed proving a the reasonable challenged doubt. legislation Accordingly, I dissent. ¶51 I am authorized to state that SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE, joins this dissenting opinion. 7 No. 99-2554.awb 1
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