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Phillips v. Mirac6/7/2002
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 the amount of damages" as required by Leary. See id.
The majority contends that because the Michigan Constitution provides that " 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to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed," see Const 1963, art 3, ยง 7, the Legislature is free to impose statutory damages caps.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." 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 supra. 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, 771 P2d 711, amended 780 P2d 260 (Wash, 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.
The majority alternatively contends that the damages cap in subsection 401(3) does not violate the right to trial by jury because " 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." The majority states that "subsection 401(3) simply limits the amount of those damages that can be recovered from a lessor of vehicles." Once again, this logic is fatally flawed. Indeed, in a case such as the instant one, having the jury "determin . . . 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. As noted in Sophie, supra at 721:
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 ma
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