Caps and Comp
Gov. Barbour's amicus curiae brief in Double Quick v. Lymas is, as was his friend-of-the-Court brief in Price v. Clark, remarkably light on law. Of the five sections spent arguing that the Mississippi Supreme Court should affirm the constitutionality of the limits placed on quality-of-life damages by Tort Reform legislation in 2004, just one section addresses the legal merits of the governor's position -- and even that argument spans just over one page.
Of course, that's probably the point. Barbour enlisted a team of very talented attorneys (top men?) to work on the brief, and its almost-exclusive attention to policy reflects a pragmatic, albeit not philosophical, basis for affirming the law.
Still, brevity notwithstanding, the governor puts forth an interesting argument: that, just as the Legislature enjoys the constitutional authority to limit recovery in workers' compensation, so too does it have the power to limit recovery in tort.
The case relied upon is Walters v. Blackledge, 220 Miss. 485, 71 So. 2d 433 (1954), in which Justice Kyle, writing for a unanimous Court, held that the limits on workers' compensation did not violate the constitutional right to a jury's determination of damages, nor did the creation of the Comp Commission represent an infringement of the separation of powers. In rendering that decision, Justice Kyle quoted a workers' comp treatise in writing the language on which Gov. Barbour now relies: "It is well settled that there is no vested right in any remedy for torts yet to happen, and except as to vested rights a state legislature has full power to change or to abolish existing common law remedies or methods of procedure." Walters, 220 Miss. at 518.
On its face, that language appears to be broad enough to carry the day for the governor. But aside from that passing language, the Walters analogy, on its merits, doesn't really carry much water for Barbour's position. Regarding separation of powers, Justice Kyle found constitutional salvation in the fact that the commission's decisions regarding damages always would be subject to judicial review. There's no such judicial "signing off" on limiting quality-of-life damages. Secondly, from what was perhaps a more pragmatic point of view, Justice Kyle appreciated the fact that, although injured laborers faced limits on recovery, they also were guaranteed some level of damages. Obviously, Tort Reform provided for no such gesture.
We probably won't know any time soon, though, how big a problem that poses for Barbour and Double Quick. Briefing by the parties ended on December 10, which means a decision isn't due until early September.
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