Phillips v. Mirac, Inc

651 N.W.2d 437 (2002) 251 Mich. App. 586

Margaret PHILLIPS, Personal Representative of the Estate of Regeana Diane Hervey, deceased, Plaintiff-Appellee,
v.
MIRAC, INC., Defendant-Appellant.

Docket No. 227257.

Court of Appeals of Michigan.

Submitted January 16, 2002, at Lansing. Decided June 7, 2002, at 9:05 a.m. Released for Publication September 10, 2002.

Trogan & Trogan, P.C. (by Nicholas R. Trogan, III), Saginaw, for the plaintiff.

Plunkett & Cooney, P.C. (by Ernest R. Bazzana and Hans H.J. Pijls), Detroit, for the defendant.

Before: GAGE, P.J., and HOEKSTRA and METER, JJ.

HOEKSTRA, J.

In this appeal, we must determine whether the statutory cap on recoverable damages set forth in M.C.L. § 257.401(3) violates the Michigan Constitution. This provision limits a plaintiff's recovery in an action against a lessor of a motor vehicle, absent negligence by the lessor, when bodily injury or death occurs from an accident involving a motor vehicle leased for thirty days or less. We find that the damages cap provision of M.C.L. § 257.401(3) does not violate a party's rights to a jury trial, to equal protection, or to due process of law, under the Michigan Constitution. Consequently, we hold that the statute is constitutional. Because the trial court found the statute unconstitutional, we reverse and remand.

I. Facts and Procedural History

This action arises from an automobile accident in October 1997 that resulted in the death of Regeana Diane Hervey, a passenger in the automobile driven by Da-Fel Reed. Reed had rented the automobile involved in the accident for a period of thirty days or less from defendant Mirac, Inc., doing business as Enterprise Rent-A-Car. Plaintiff Margaret Phillips, who is the decedent's mother and the personal representative of the decedent's estate, commenced this action against defendant^[1] on the basis of owner's liability under § 401 of the Michigan Motor Vehicle Code (MVC), M.C.L. § 257.401. The parties stipulated that under Michigan law, defendant is responsible for Reed's authorized operation of the rented automobile. Plaintiff did not allege that defendant was negligent in leasing the automobile to Reed.

A jury trial commenced in November 1999, and the jury returned a verdict in favor of plaintiff.^[2] Both plaintiff and defendant presented orders for entry of judgment. Plaintiff sought entry of judgment for $250,000, plus statutory interest, fees, and costs, while defendant sought entry of judgment for $20,000, pursuant to M.C.L. § 257.401(3) (subsection 401[3]), plus statutory interest, fees, and costs. After oral argument concerning the constitutionality of the statutory cap on recoverable damages in subsection 401(3), the trial court determined that this provision is unconstitutional under the Michigan Constitution because it violates the rights to a jury trial, equal protection, and due process. Thus, on April 26, 2000, the trial court entered judgment in favor of plaintiff in the amount of $250,000, plus interest, fees, and costs. This appeal ensued.

II. Standard of Review

The constitutionality of a statute is a question of law that this Court reviews de novo. Tolksdorf v. Griffith, 464 Mich. 1, 5, 626 N.W.2d 163 (2001); Proctor v. White Lake Twp. Police Dep't, 248 Mich.App. 457, 461, 639 N.W.2d 332 (2001). "A statute is presumed constitutional, unless its unconstitutionality is readily apparent." Tolksdorf, supra; McDougall v. Schanz, 461 Mich. 15, 24, 597 N.W.2d 148 (1999); Proctor, supra at 461-462, 639 N.W.2d 332. A statute is not unconstitutional merely because it is undesirable, unfair, or unjust. Doe v. Dep't of Social Services, 439 Mich. 650, 681, 487 N.W.2d 166 (1992); In re Juvenile Commitment Costs, 240 Mich.App. 420, 440, 613 N.W.2d 348 (2000).

III. Analysis

On appeal, defendant maintains that the trial court's finding that subsection 401(3) violates a party's rights to a jury trial, to equal protection, and to due process of law was error. Subsection 401(3) provides in pertinent part:

Unless the lessor, or his or her agent, was negligent in the leasing of the motor vehicle, the lessor's liability under this subsection is limited to $20,000.00 because of bodily injury to or death of 1 person in any 1 accident and $40,000.00 because of bodily injury to or death of 2 or more persons in any 1 accident. [MCL 257.401(3).]

The challenge to the constitutionality of this damages cap raises a question of first impression.

A. Right to Trial by Jury

In the trial court, plaintiff first challenged the damages cap provision of subsection 401(3) by claiming that the statute violates the right under the Michigan Constitution to a jury trial. Specifically, plaintiff maintained, and continues to maintain on appeal, that subsection 401(3) interferes with the plaintiff's right to have the jury assess damages and that the Legislature may not "whittle away" this right. According to plaintiff, the Legislature, by enacting this provision, has circumvented the jury's award of damages, which "hollows and eviscerates the right to trial by jury, thus rendering its existence one of mere form, and not substance."

To the contrary, defendant contends that subsection 401(3) is constitutional because it constitutes a valid and legitimate exercise of the Legislature's police power. In particular, defendant argues that subsection 401(3) does not violate the right to a jury trial because the Legislature has the authority to abolish or modify rights and remedies, whether they are based on common law or statutes. Defendant further argues that subsection 401(3) does not impinge on the jury's right to determine facts; rather, subsection 401(3) merely limits the legal consequences of the jury's finding. According to defendant, statutory damages caps constitute a legal, rather than factual, determination and therefore are not subject to the right to a jury trial.

In Michigan, our constitution guarantees the right to a jury trial. In relevant part, the Michigan Constitution provides that "[t]he right of trial by jury shall remain, but shall be waived in all civil cases unless demanded by one of the parties in the manner prescribed by law." Const. 1963, art. 1, § 14.^[3] First, we note that defendant does not challenge that the right to a jury trial extends to an action under the civil liability act of the MVC, M.C.L. § 257.401 et seq.^[4] Further, in Michigan the right to a jury trial includes the right to have the jury assess damages. See Wood v. DAIIE, 413 Mich. at 573, 583-584, 321 N.W.2d 653 (1982); Leary v. Fisher, 248 Mich. 574, 578, 227 N.W. 767 (1929); Mink v. Masters, 204 Mich.App. 242, 246, 514 N.W.2d 235 (1994); Equico Lessors, Inc. v. Original Buscemi's, Inc., 140 Mich.App. 532, 536, 364 N.W.2d 373 (1985). Overlying a plaintiff's right to have a jury decide damages in a suit against the owner of a motor vehicle is subsection 401(3), which the Legislature adopted to limit the amount that a plaintiff may recover against the owner in certain circumstances. Contrary to what the trial court held, we find that this damages cap provision does not impinge on a plaintiff's right to a jury trial for two reasons.^[5]

First, our Legislature has the power to abolish or modify common-law and statutory rights and remedies. The Michigan Constitution provides that "[t]he common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed." Const. 1963, art. 3, § 7; see Donajkowski v. Alpena Power Co., 460 Mich. 243, 256, n. 14, 596 N.W.2d 574 (1999) (our Legislature has express constitutional authority to change the common law); Myers v. Genesee Co. Auditor, 375 Mich. 1, 7, 133 N.W.2d 190 (1965) (O'Hara, J.) (the common law and statutes abide unless "changed, amended or repealed"). Simply stated, what the Legislature gives, it may take away. Lahti v. Fosterling, 357 Mich. 578, 589, 99 N.W.2d 490 (1959); Ramsey v. Michigan Underground Storage Tank Financial Assurance Policy Bd., 210 Mich.App. 267, 270, 533 N.W.2d 4 (1995). Where the Legislature can abolish a cause of action, it necessarily follows that it can limit the damages recoverable for the cause of action. Kirkland v. Blaine Co. Medical Center, 134 Idaho 464, 468, 4 P.3d 1115 (2000).

Our Legislature has utilized its power to limit or eliminate defendant liability in certain cases. See, e.g., M.C.L. § 691.1407 (governmental immunity from tort liability); MCL 418.131 (worker's compensation is exclusive remedy against an employer); MCL 324.73301 (limitation of landowners' liability for injuries to guests to gross negligence or willful and wanton misconduct). In addition, through statutes of limitation or repose, our Legislature limits the time in which a plaintiff can bring an action, thereby preventing causes of action that it deems stale. See, e.g., M.C.L. § 600.5805 (statute of limitations for injuries to persons or property). Because our Legislature can change, amend, or repeal the common-law or statutory provisions and because that power allows it to limit or completely eliminate actions, we find that it logically follows that the Legislature may limit a plaintiff's remedy. We, like the Supreme Court of Idaho, "can discern no logical reason why a statutory limitation on a plaintiff's remedy is any different than other permissible limitations on the ability of plaintiffs to recover in tort actions." Kirkland, supra at 468, 4 P.3d 1115.

Nor do we believe that at the time the Constitution of 1963 was adopted, the intent was to prohibit the Legislature from addressing appropriate damages. A number of Michigan statutes at that time provided, and continue to provide, for double or treble damages in civil actions. See, e.g., M.C.L. § 230.7 (providing treble damages for injuries to bridges); MCL 429.103 (providing double the amount of damages sustained by breach contract of sale for Michigan wheat). Although these statutes increase, rather than decrease, the amount of damages awarded, they nonetheless modify the jury award. Such increases in damages demonstrate that a defendant's right to have a jury assess liability and damages can be legislatively altered.

Second, subsection 401(3) does not violate the right to a jury trial because it does not impinge on the jury's right to decide cases. In Michigan, trial by jury encompasses the right to have a jury hear a claim and determine issues of fact.

Great Lakes Gas Transmission Ltd. Partnership v. Markel, 226 Mich.App. 127, 132, 573 N.W.2d 61 (1997). The damages cap in subsection 401(3) in no way removes from the jury the determination of facts and of the amount of damages that the injured plaintiff incurred. Rather, subsection 401(3) simply limits the amount of those damages that can be recovered from a lessor of vehicles.^[6] In other words, subsection 401(3) only limits the legal consequences of the jury's finding. See Kirkland, supra at 469, 4 P.3d 1115. Once the jury has reached its verdict, the trial court merely enters a judgment on the verdict that is consistent with the law. See Heinz v. Chicago Rd. Investment Co., 216 Mich.App. 289, 299-300, 549 N.W.2d 47 (1996) (statute requiring that a jury damage award be reduced by the amount a plaintiff receives from a collateral source does not violate the right to a jury trial).^[7] Again, we agree with the Supreme Court of Idaho, that "[t]he legal consequences and effect of a jury's verdict are a matter for the legislature (by passing laws) and the courts (by applying those laws to the facts as found by the jury)." Kirkland, supra at 469, 4 P.3d 1115.

For these reasons, we hold that subsection 401(3) does not violate the right to trial by jury as guaranteed by the Michigan Constitution, Const. 1963, art. 1, § 14.

B. Equal Protection

Plaintiff also challenged in the trial court the damages cap provision of subsection 401(3) on the basis that it violates the right under the Michigan Constitution to equal protection. Specifically, plaintiff maintained, and continues to maintain on appeal, that the strict scrutiny review standard applies because the fundamental right to a jury trial is involved. Under this standard, plaintiff concludes that subsection 401(3) violates equal protection because defendant cannot prove that the damages cap serves a compelling interest. Plaintiff concludes, in the alternative, that the statute cannot survive the substantial relationship test and also "flunks" the rational basis test. Defendant contends, to the contrary, that subsection 401(3) does not violate equal protection because it is rationally related to the purpose of protecting the viability of the automobile rental business in Michigan.

The Michigan Constitution guarantees the right to equal protection: "[n]o person shall be denied the equal protection of the laws." Const. 1963, art. 1, § 2. "This constitutional guarantee requires that persons similarly situated be treated alike." Wysocki v. Felt, 248 Mich.App. 346, 350, 639 N.W.2d 572 (2001). Our first task in determining whether subsection 401(3) violates the constitutional guarantee of equal protection is to ascertain the proper level of review to apply. Crego v. Coleman, 463 Mich. 248, 259, 615 N.W.2d 218 (2000). If the legislation creates an inherently suspect classification, such as race, ethnicity, and national origin, or affects a fundamental right, the "strict scrutiny" test applies. Crego, supra; Vargo v. Sauer, 457 Mich. 49, 60, 576 N.W.2d 656 (1998); Proctor, supra at 469, 639 N.W.2d 332. Other classifications that are suspect, but not inherently suspect, such as gender and mental capacity, are subject to the intermediate-level "substantial relationship" test. Proctor, supra; Neal v. Oakwood Hosp. Corp., 226 Mich.App. 701, 717, 575 N.W.2d 68 (1997). However, social or economic legislation is generally examined under the "rational basis" test. People v. Perlos, 436 Mich. 305, 331, 462 N.W.2d 310 (1990); Wysocki, supra at 354, 639 N.W.2d 572; Proctor, supra.

Here, the legislation does not create an inherently suspect classification, nor is the fundamental right to a jury trial implicated, as explained above, and thus strict scrutiny is not required. Thus, we reject plaintiff's contention that strict scrutiny is appropriate. Nor is the heightened scrutiny of the substantial relationship test necessary. In other cases, this Court has held that classification schemes created by various tort reform legislation are social or economic legislation subject to the rational basis test. Wysocki, supra at 366, 639 N.W.2d 572; Stevenson v. Reese, 239 Mich.App. 513, 517, 609 N.W.2d 195 (2000); Neal, supra at 718, 575 N.W.2d 68; Heinz, supra at 300, 549 N.W.2d 47. Because the statute in question falls into that category, the rational basis test must be applied.

Our Supreme Court has recently explained the rational basis test:

Under rational-basis review, courts will uphold legislation as long as that legislation is rationally related to a legitimate government purpose. To prevail under this highly deferential standard of review, a challenger must show that the legislation is "arbitrary and wholly unrelated in a rational way to the objective of the statute." A classification reviewed on this basis passes constitutional muster if the legislative judgment is supported by any set of facts, either known or which could reasonably be assumed, even if such facts may be debatable. Rational-basis review does not test the wisdom, need, or appropriateness of the legislation, or whether the classification is made with "mathematical nicety," or even whether it results in some inequity when put into practice. Rather, the statute is presumed constitutional, and the party challenging it bears a heavy burden of rebutting that presumption. [Crego, supra at 259-260, 615 N.W.2d 218 (citations omitted).]

In the present case, plaintiff failed to overcome the presumption of constitutionality. In her brief, plaintiff asserts that the automobile rental lobby essentially duped the Legislature into believing that a problem existed within the industry regarding large jury-determined damages awards in negligence cases and that the industry needed legislative protection in order to ensure the continued operation of these businesses in Michigan, when in fact no problem actually existed. Whether we agree with this assertion is not the issue before us. The "wisdom, need or appropriateness of the legislation" is not for us to decide. Crego, supra at 260, 615 N.W.2d 218. Rather, we must determine only if "any set of facts, either known or which could reasonably be assumed" supports the Legislature's judgment. Crego, supra at 259-260, 615 N.W.2d 218. We find that this legislation passes that test because it can reasonably be assumed that Michigan has a legitimate interest in the continued operation of automobile rental businesses, and protecting those businesses from large damages awards in jury trials bears a rational relationship to that end. Because subsection 401(3) is rationally related to a legitimate government purpose, it survives rational basis review and is constitutional. No violation of the Equal Protection Clause exists here.

C. Due Process

Finally, defendant challenges on appeal the trial court's holding that the damages cap violates the Due Process Clause of the Michigan Constitution, which provides that no person shall "be deprived of life, liberty or property, without due process of law." Const. 1963, art. 1, § 17. Because the test to determine whether legislation passes constitutional muster under the Due Process and Equal Protection Clauses is essentially the same, Doe, supra at 682, n. 36, 487 N.W.2d 166; Shavers v. Attorney General, 402 Mich. 554, 612-613, 267 N.W.2d 72 (1978), subsection 401(3) does not violate due process.

Reversed and remanded for entry of judgment consistent with this opinion. We do not retain jurisdiction.

GAGE, P.J., concurred.

METER, J. (dissenting).

I respectfully dissent because I believe the damages cap in M.C.L. § 257.401(3) violates the right to trial by jury as guaranteed by the Michigan Constitution. I would affirm the trial court's finding of unconstitutionality.

Our constitution states that "[t]he right of trial by jury shall remain, but shall be waived in all civil cases unless demanded by one of the parties in the manner prescribed by law." Const. 1963, art. 1, § 14. The owner's liability statute in particular confers a right to trial by jury, because it provides for actual damages and it constituted an action at law at the time the 1963 constitution was adopted. See Anzaldua v. Band, 457 Mich. 530, 538-539, 548, 578 N.W.2d 306 (1998).

In Michigan, the right to a jury trial extends to the determination of damages. See, e.g., Leary v. Fisher, 248 Mich. 574, 578, 227 N.W. 767 (1929), Equico Lessors, Inc. v. Original Buscemi's, Inc., 140 Mich.App. 532, 536, 364 N.W.2d 373 (1985), and Waisanen v. Gaspardo, 30 Mich.App. 292, 294, 186 N.W.2d 75 (1971). In Leary, supra at 576, 227 N.W. 767, the plaintiff sued the defendant for injuries sustained when the defendant hit him with an automobile. The Supreme Court stated that "[p]laintiff is entitled to a right of trial by jury, and one of the necessary incidents of the trial of cases of this character by jury is that the jury shall fix the amount of damages." Id. at 578, 227 N.W. 767 (emphasis added).

In light of these cases and in light of our constitution's language, the necessary outcome for the instant case appears to me rather clear: Because our constitution confers a right to trial by jury, and because the right to trial by jury in Michigan extends to a determination of damages, the damages cap in the instant case is unconstitutional. Indeed, if the trial court must automatically reduce the amount of damages assessed by the jury to conform to the statutory cap, then the jury is not "fix[ing] the amount of damages" as required by Leary. See id.

The majority contends that because the Michigan Constitution provides that "[t]he common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed," see Const. 1963, art. 3, § 7, the Legislature is free to impose statutory damages caps. The majority states, "Where the Legislature can abolish a cause of action, it necessarily follows that it can limit the damages recoverable for the cause of action." Ante at 442. The fatal flaw with this argument is that the existence of a particular cause of action, at least in many instances, is not mandated by the constitution. Many causes of action are creatures of the Legislature, and therefore the Legislature is free to abolish these causes of action. The right to a jury trial, on the other hand, is indeed mandated by the constitution, as discussed earlier. Accordingly, the Legislature is not free to abrogate this right. In other words, while the Legislature may take away what it has given, it may not take away what the constitution has given.

Support for this rationale can be found in Sofie v. Fibreboard Corp., 112 Wash.2d 636, 651-652, 771 P.2d 711 (1989), amended 780 P.2d 260 (1989). In Sofie, the Supreme Court of Washington, responding to a similar argument, stated:

The Legislature has power to shape litigation. Such power, however, has limits: it must not encroach upon constitutional protections. In this case, by denying litigants an essential function of the jury [by way of damages caps], the Legislature has exceeded those limits.

* * *

... Because of the constitutional nature of the right to jury trial, litigants have a continued interest in it—it simply cannot be removed by legislative action. As long as the cause of action continues to exist and the litigants have access to a jury, that right of access remains as long as the cause of action does. [Emphasis added.]

Similarly, I believe that here, as long as a cause of action remains under the owner's liability statute, litigants are entitled to a jury trial on damages, and this right entails having the jury determine the amount of damages. Leary, supra at 578, 227 N.W. 767.

The majority alternatively contends that the damages cap in subsection 401(3) does not violate the right to trial by jury because "[t]he damages cap ... in no way removes from the jury the determination of facts and of the amount of damages that the injured plaintiff incurred." Ante at 443. The majority states that "subsection 401(3) simply limits the amount of those damages that can be recovered from a lessor of vehicles." Ante at 443. Once again, this logic is fatally flawed. Indeed, in a case such as the instant one, having the jury "determin[e] ... [the] facts and... the amount of damages that the injured plaintiff incurred" but then arbitrarily reducing this amount to a prescribed statutory number renders the jury's function purely illusory.^[1] As noted in Sofie, supra at 655, 771 P.2d 711:

Respondents also contend that the damages limit affects only the judgment as entered by the court, not the jury's finding of fact. This argument ignores the constitutional magnitude of the jury's fact-finding province, including its role to determine damages. Respondents are essentially saying that the right to trial by jury is not invaded if the jury is allowed to determine facts which go unheeded when the court issues its judgment. Such an argument pays lip service to the form of the jury but robs the institution of its function. This court will not construe constitutional rights in such a manner. [Emphasis added.]

A similar rationale was adopted by our neighbor state, Ohio, in State ex rel Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St. 3d 451, 484-485, 715 N.E.2d 1062 (1999), in which the court stated, "[A] statute that allows the jury to determine the amount of punitive damages to be awarded but denies the litigant the benefit of that determination stands on no better constitutional footing than one that precludes the jury from making the determination in the first instance."

While it is true that a trial court may lower a jury's determination of damages under the doctrine of remittitur, this type of diminution, unlike one that occurs as a result of a statutory damages cap, does not render the jury's role illusory. Indeed, in cases of remittitur, a court may lower the jury's determination of damages as a matter of law only after determining that the award is unsupported by the evidence introduced at trial. See Szymanski v. Brown, 221 Mich.App. 423, 431, 562 N.W.2d 212 (1997). By contrast, a statutory damages cap mandates a reduction solely because of legislative fiat, notwithstanding that a much greater amount of damages may be supported by the evidence introduced at trial.^[2] As noted in Sofie, supra at 654, 771 P.2d 711:

[R]emittitur is wholly within the power of the trial judge. Within the guidelines of the doctrine, the judge makes the legal conclusion that the jury's damage finding is too high. This judicial finding—arrived at with judicial care—is fundamentally different from a legislatively imposed "remittitur" that operates automatically....

The judge's use of remittitur is, in effect, the result of a legal conclusion that the jury's finding of damages is unsupported by the evidence. The Legislature cannot make such case-by-case determinations. Therefore, the legislative damages limit is fundamentally different from the doctrine of remittitur.

In the instant case, the statute at issue required the trial court to arbitrarily reduce the amount of damages awarded by the jury without any determination regarding whether the award was supported by the evidence at trial. The necessary component of judicial discretion was eviscerated, and the constitutional right to trial by jury was violated.

In sum, I conclude that because art. 1, § 14 of our constitution guarantees the right to trial by jury, and because this right in Michigan includes the right to have the jury determine the amount of damages, see Leary, supra at 578, 227 N.W. 767, M.C.L. § 257.401(3) must be deemed unconstitutional. I note that in Galayda v. Lake Hosp. Systems, Inc., 71 Ohio St. 3d 421, 427, 644 N.E.2d 298 (1994), the Supreme Court of Ohio ruled that a statute mandating that any future damages awards in excess of $200,000 be paid in a series of periodic payments violated the constitutional right to trial by jury because it deprived the plaintiff of the full value of the jury's award by reducing the interest available on the award. The court emphasized the following:

It is well established that the right of trial by jury in this state is a fundamental and substantial right guaranteed by the Ohio Constitution.... Included in that right is the right to have a jury determine all questions of fact, including the amount of damages to which the plaintiff is entitled. [Id. at 425, 644 N.E.2d 298.]

Michigan similarly guarantees a plaintiff a jury trial with respect to damages, and if depriving a plaintiff of interest on a jury's award violates the constitutional right to a jury trial, then surely an arbitrary reduction of a $250,000 award to $20,000 violates the right to a jury trial.^[3]

I would affirm.

NOTES

[1] Plaintiff also sued Reed, who the jury found negligent, but Reed is not a party to this appeal.

[2] Interestingly, and for that matter ironically, the jury verdict regarding plaintiff's damages was $900,000. However, before the jury rendered its verdict, the parties, including plaintiff, defendant herein, and the driver of the automobile, Reed, entered into a "high-low" agreement. The agreement placed a $150,000 minimum and $250,000 maximum on plaintiff's recovery, subject to reduction pursuant to M.C.L. § 257.401(3). The agreement stated that Reed is uncollectible and that plaintiff will not seek entry of judgment against Reed on any verdict.

[3] The Michigan Court Rules also indicate that "[t]he right of trial by jury as declared by the constitution must be preserved to the parties inviolate." MCR 2.508(A).

[4] We also note that although not raised directly, at the time that the 1963 constitution was adopted, the civil liability act conferred a right to a jury trial because the act provided for actual damages, and therefore, an action brought pursuant to that act was an action at law, not equity. See Anzaldua v. Band, 457 Mich. 530, 539, 548, 578 N.W.2d 306 (1998).

[5] Many other jurisdictions have addressed whether damages caps impinge on the constitutional right to a jury trial, and those cases decidedly point to two schools of thought: those striking down damages caps and those upholding damages caps. The trial court found persuasive cases in the former category, such as Sofie v. Fibreboard Corp., 112 Wash.2d 636, 771 P.2d 711 (1989), amended 780 P.2d 260 (1989), and Smith v. Schulte, 671 So. 2d 1334 (Ala., 1995), which since the trial court's decision has been abrogated in Ex parte Apicella, 809 So. 2d 865 (2001). This Court finds more persuasive the cases in the latter category, i.e., those upholding damages caps as constitutional. See, e.g., Kirkland v. Blaine Co. Medical Center, 134 Idaho 464, 4 P.3d 1115 (2000); Etheridge v. Medical Center Hosps., 237 Va. 87, 376 S.E.2d 525 (1989); Franklin v. Mazda Motor Corp., 704 F. Supp. 1325 (D.Md., 1989).

[6] Subsection 401(3) does not limit the recovery of damages if the lessor was negligent, nor does it affect the right to collect damages from other tortfeasors.

[7] The trial court found inapplicable Heinz, supra, which held that the collateral-source rule codified in M.C.L. § 600.6303 did not alter the jury's assessment of damages, but simply recognized that the plaintiffs were compensated already for part of the damages, because "there was no statutory limit on the jury's ability to assess the plaintiff's damages." We disagree. Here, like in Heinz, there is no statutory limit on the jury's ability to assess a plaintiff's damages; rather, subsection 401(3) merely provides that recovery of the damages from a specific party, the lessor of a vehicle leased for a specific period, is limited to a certain amount, not that the jury may not assess a higher amount of damages that may be recoverable from tortfeasors.

[1] I note that in the instant case, plaintiff does not have the option, as the majority suggests, of recovering damages from "other tortfeasors," because the negligent driver of the automobile in which plaintiff's decedent was a passenger is not collectible and was uninsured.

[2] I note that in this case, the jury found damages in the amount of $900,000, and this amount was reduced to $250,000 because of an "over/under" agreement entered into by the parties before trial. This diminution of the jury verdict was acceptable because it resulted from an agreement entered into freely and voluntarily by the parties.

[3] See also Lakin v. Senco Products, Inc., 329 Or. 62, 78-82, 987 P.2d 463 (1999), amended 329 Or. 369, 987 P.2d 476 (1999), and Smith v. Dep't of Ins., 507 So. 2d 1080, 1088-1089 (Fla., 1987), for additional authority supporting my position today.