Hilburn v. Enerpipe, Ltd.

No. 112,765

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DIANA K. HILBURN,
Appellant,

v.

ENERPIPE, LTD.,
Appellee.

SYLLABUS BY THE COURT

1.
Because the jury's role at common law included the calculation of damages, the
limitation on damages contained in K.S.A. 60-19a02 encroaches on the right to a trial by
jury guaranteed by Section 5 of the Kansas Constitution. This encroachment alone does
not necessarily render K.S.A. 60-19a02 unconstitutional. The legislature may modify the
common law in limited circumstances without violating Section 5 of the Kansas
Constitution.

2.
The correct test to use to determine whether the legislature has overstepped its
constitutional authority by encroaching on the right to a trial by jury guaranteed by
Section 5 of the Kansas Constitution or the right to a remedy by due course of law
guaranteed by Section 18 of the Kansas Constitution by imposing statutory caps on
noneconomic damage recovery is the quid pro quo test outlined in Miller v. Johnson, 295
Kan. 636, 289 P.3d 1098 (2012).

1
3.
The quid pro quo test involves two steps. First, the court must decide whether
modification to the common-law remedy or right to jury trial is reasonably necessary in
the public interest to promote the public welfare. Second, the court must determine
whether the legislature substituted an adequate statutory remedy for the modification to
the individual right.

4.
Similar to the medical malpractice insurance discussed in Miller, Kansas requires
that drivers maintain a certain minimum level of automobile liability insurance under the
Kansas Automobile Injury Reparations Act (KAIRA), K.S.A. 40-3101 et seq. In addition,
motor carriers operating in the state are required to maintain minimum levels of liability
insurance pursuant to both state and federal law. Both statutory schemes have the purpose
of protecting the interests of the public by providing a means of quickly compensating
persons for injury resulting from the negligent operation of motor vehicles in the state.

5.
Because the damages cap at K.S.A. 60-19a02 operates in a broader scheme of
mandatory insurance and the State maintains an interest in that insurance remaining
available and affordable to compensate motor vehicle accident victims, the first step of
the Miller quid pro quo test is satisfied.

6.
Because the statutory motor vehicle and motor carrier insurance schemes adopted
in Kansas provide an adequate remedy for damages arising from personal injury, the
second step of the Miller quid pro quo test is satisfied.

2
7.
K.S.A. 60-19a02, establishing caps on recovery for noneconomic damages in
personal injury actions, is constitutional as applied to personal injuries resulting from
collisions between motor carriers and motor vehicles.

Appeal from Sedgwick District Court; TIMOTHY H. HENDERSON, judge. Opinion filed March 11,
2016. Affirmed.

Thomas M. Warner, of Warner Law Offices, P.A., of Wichita, for appellant.

Kelly A. Ricke and Andrew D. Holder, of Fisher, Patterson, Sayler & Smith, L.L.P., of Overland
Park, for appellee.

Before ARNOLD-BURGER, P.J., GREEN and STANDRIDGE, JJ.

ARNOLD-BURGER, J.: While Diana K. Hilburn rode home with her husband, a
truck owned and operated by Enerpipe, Ltd. (Enerpipe) rear-ended their car. The collision
negatively impacted Hilburn's recovery from a recent back surgery, resulting in a second
surgery and chronic pain. After a trial, a jury returned a verdict in the amount of
$335,000 in total damages for Hilburn, most of which compensated for her noneconomic
losses. Over Hilburn's objection, the district court reduced her damages pursuant to the
Kansas noneconomic loss damages statute, K.S.A. 60-19a02.

On appeal, Hilburn challenges the constitutionality of the statutory cap as applied
to a negligence claim that does not involve medical malpractice. But first, she asks this
court to conclude that the Supreme Court erred in its finding in Miller v. Johnson, 295
Kan. 636, 289 P.3d 1098 (2012), that a quid pro quo test applies to claims under Section
5 of the Kansas Constitution. Because this court is duty bound to follow Supreme Court
precedent absent some indication that the court is abandoning its prior position, Hilburn's
claim fails. Second, she asks us to limit the Miller ruling to medical malpractice claims

3
because the Supreme Court relied on the insurance scheme established in the Health Care
Provider Insurance Availability Act, an act that does not apply to other torts. Because the
State has established a similar insurance scheme for injuries caused by the negligence of
motor carriers and automobile drivers, we find the rationale of the Miller court controls
our decision in this case. Accordingly, the decision of the district court is affirmed.

FACTUAL AND PROCEDURAL HISTORY

In November 2010, Hilburn underwent a lumbar fusion surgery to address
degenerated disks in her back. This surgery required removing abnormal disks and
inserting hardware to help fuse bone together. Nine days later, as she and her husband
drove home from picking up a prescription in Wichita, Hilburn's husband slowed their
car in heavy traffic to accommodate a law enforcement vehicle that had pulled onto the
median. The semi-truck behind them, driven by Jimmy Harris, attempted to stop but
ended up rear-ending their car. Neither party disputes that Enerpipe owned the truck,
employed Harris, and was operating as a motor carrier at the time of the accident.

After the collision, Hilburn suffered a large amount of pain and involuntary
muscle contractions in her back. The impact loosened the hardware from her surgery and
caused the bone fusion process to fail, which ultimately resulted in a second surgery.
Even after this surgery, Hilburn suffered chronic back pain that required daily medication
to manage.

Hilburn sued Enerpipe for negligence. Enerpipe admitted to many of her
allegations, including that the accident "was caused by the negligent actions of [the]
driver in operating [Enerpipe's] vehicle," and the case proceeded to jury trial on the issue
of damages. After hearing all the evidence, the jury returned a verdict of $335,000 in total
damages for Hilburn; $301,509.14 constituted noneconomic loss damages.

4
 Pursuant to our Kansas damages cap statute, K.S.A. 60-19a02, the district court
reduced the amount of noneconomic loss damages to $250,000. Hilburn objected to the
journal entry that memorialized application of the statute. At a hearing, she
acknowledged that a recent Kansas Supreme Court case, Miller, 295 Kan. 636, had
decided the issue, but she argued that because Miller concerned a medical malpractice
plaintiff, her case differed dramatically. The district court disagreed, explaining:

"I do agree with the plaintiff's description that [the Supreme Court] did allow for the
[reduction in noneconomic damages] because the legislature required . . . mandatory
malpractice insurance. Is this case distinguishable in the sense that this is not a medical
malpractice case? Yes. However, the Court finds it may be a distinction without a
difference. This is what I mean, is that while semis are regulated for insurance by federal
law, if that federal law did not exist and supersede Kansas law of our Constitution the
state law of mandatory insurance would also apply. The reason that is important is this
Court's finding that the legislature did the same thing with car insurance, effectively, as
they did with medical malpractice insurance that Kansas requires . . . .

"For that reason, the Court finds the same analysis that was in the Miller versus
Johnson case applies here as well and that the legislature also equally has the right to
limit noneconomic damages because they require and modify a common law obligation
that did not exist regarding mandatory automobile insurance."

The district court therefore denied Hilburn's request and reduced the award.
Hilburn timely appealed.

ANALYSIS

The sole issue in this case is whether the noneconomic damages cap contained at
K.S.A. 60-19a02 is constitutional in the context of a negligence claim against an out-of-
state commercial trucking company for injuries sustained in an automobile collision in

5
Kansas. We begin with the statute being challenged. In pertinent part, the statute
provides:

"(b) In any personal injury action, the total amount recoverable by each party
from all defendants for all claims for noneconomic loss shall not exceed a sum total of
$250,000.
....
"(d) If a personal injury action is tried to a jury, the court shall not instruct the
jury on the limitations of this section. If the verdict results in an award for noneconomic
loss which exceeds [$250,000], the court shall enter judgment for $250,000 for all the
party's claims for noneconomic loss." K.S.A. 60-19a02.

"'Noneconomic losses'" includes "'claims for pain and suffering, mental anguish,
injury and disfigurement not affecting earning capacity, and losses which cannot be
easily expressed in dollars and cents.'" Miller, 295 Kan. at 644. In this case, the jury
returned a verdict as to noneconomic damages of $301,509.14, and the district court
reduced it to $250,000 per the statute and our Supreme Court's ruling in Miller. Because a
review of the Miller case, which held that K.S.A. 60-19a02 is constitutional in the case of
a medical malpractice claim, will help to better understand Hilburn's arguments on appeal
and guide the ultimate outcome of this case, we will next review the Supreme Court
analysis in Miller.

We review Miller and the quid pro quo test it established.

In order to address some medical issues, Amy Miller consented to the removal of
her right ovary. Although the documentation from her surgery indicated that her doctor
had removed the correct ovary, she continued to suffer severe pain. An examination by
another doctor revealed that Miller's doctor had actually removed her left ovary instead of
her right. Nonsurgical options to manage Miller's pain failed, requiring a second surgery
and removal of her remaining ovary.

6
 Miller sued the original doctor for medical malpractice, and the jury "found the
doctor completely at fault." 295 Kan. at 642. The jury awarded Miller over $750,000 in
damages, including $575,000 for her noneconomic loss. But in accordance with K.S.A.
60-19a02, the district court reduced the noneconomic loss damages to $250,000. Miller
objected to this reduction.

Miller argued that K.S.A. 60-19a02 violated two of her rights under the Kansas
Constitution Bill of Rights: her right to trial by jury (Section 5) and her right to remedy
by due course of law (Section 18). Starting with Miller's right under Section 5, the
Supreme Court first observed that although the constitution preserves the "'inviolate'"
right of trial by jury, that preservation is limited to the right "as it historically existed at
common law when our state's constitution came into existence." 295 Kan. at 647. But
because the jury's role at common law included the calculation of damages, the Supreme
Court recognized that the statute indeed encroached on the right guaranteed by Section 5.
295 Kan. at 648.

But this encroachment alone did "not necessarily render K.S.A. 60-19a02
unconstitutional." 295 Kan. at 648. Instead, the court needed to decide whether the
legislature, which "may modify the common law in limited circumstances without
violating Section 5," had exceeded its authority. 295 Kan. at 648. After a lengthy
analysis, the court determined that the correct test to determine whether the legislature
overstepped its bounds was the same test used to address Section 18 challenges,
commonly called the quid pro quo test. 295 Kan. at 648-53.

As explained by our Supreme Court, the quid pro quo test involves two steps.
First, the court must decide "whether modification to the common-law remedy or the
right to jury trial is reasonably necessary in the public interest to promote the public
welfare." 295 Kan. at 657. This analysis resembles the one "used to decide equal
protection questions under the rational basis standard." 295 Kan. at 657. Second, the

7
court must "determine whether the legislature substituted an adequate statutory remedy
for the modification to the individual right." 295 Kan. at 657. This "more stringent" step
requires there be "an adequate substitute remedy conferred on those individuals whose
rights are adversely impacted." 295 Kan. at 657.

While recognizing that it had previously upheld the damages cap in Samsel v.
Wheeler Transport Services, Inc., 246 Kan. 336, 789 P.2d 541 (1990) (commonly
referred to as Samsel II), our Supreme Court elected against simply applying that
rationale to Miller's case. Miller, 295 Kan. at 657. Instead, the court found three reasons
to reconsider its analysis: (1) Miller, a medical malpractice plaintiff, differed
considerably from the car accident plaintiff in Samsel II; (2) the damages cap had
remained the same in the 20-plus years since the earlier decision, possibly rendering it
"inadequate over time or because of changed circumstances"; and (3) the Samsel II court
erred in part of its analysis by reading too much into a portion of the statute. Miller, 295
Kan. at 657-59.

With that in mind, the court moved on to the first quid pro quo consideration:
whether the economic damages cap promoted the public welfare. However, the court
quickly determined that "our caselaw generally settles the first step . . . in favor of the
statute's constitutionality." 295 Kan. at 660. After all, prior cases from our Supreme Court
had already established that "the legislature's expressed goals for the comprehensive
legislation comprising the Health Care Insurance Provider Availability Act and the
noneconomic damages cap have long been accepted by this court to carry a valid public
interest objective." 295 Kan. at 659.

Accordingly, the court moved to the second step, "determin[ing] whether the
legislature substituted an adequate statutory remedy for the modification of the individual
rights at issue." 295 Kan. at 660. The court acknowledged that the deprivation caused by
the noneconomic damages cap was significant when compared to those in other quid pro

8
quo cases. That said, the court also observed that Miller had "not been left without any
compensation for her loss as other plaintiffs in some of our other cases." 295 Kan. at 660-
61. Overall, our Supreme Court described the deprivation as "limited in scope" and
determined this limitation to be "a substantial consideration when deciding how adequate
the substitute remedy provided by the legislature must be." 295 Kan. at 661.

Next, the court examined the Health Care Provider Insurance Availability Act,
which mandates that healthcare providers in Kansas maintain a minimum level of
professional liability insurance. 295 Kan. at 661. Specifically, each provider needed to
maintain minimum coverage of at least $200,000 per claim, "subject to not less than a
$600,000 annual aggregate for all claims made during the policy period." K.S.A. 40-
3402(a). Providers also needed to obtain excess coverage from the Health Care
Stabilization Fund at a minimum of $100,000 with an aggregate limit of $300,000 per
year in excess coverage for any one judgment or settlement. K.S.A. 2010 Supp. 40-
3403(l); 295 Kan. at 661-62. The court determined that these provisions made "recovery
of at least the statutory minimums directly available as a benefit to medical malpractice
plaintiffs when there is a finding of liability." 295 Kan. at 662. This protection, the court
reasoned, separated Miller from "many other tort victims." 295 Kan. at 662. Our Supreme
Court further observed that, in other cases, it had determined that the remedy provided by
the Act constituted an adequate substitute for their common-law counterparts. 295 Kan. at
662. Moreover, the court noted that "in the context of our workers compensation and no-
fault automobile insurance caselaw, we have found the requirement of reliable sources of
partial recovery for serious injuries to be significant in the quid pro quo analysis." 295
Kan. at 662.

In conclusion, Miller's access to "an available source of recovery of the statutorily
mandated minimums" constituted "a significant, individualized substitute remedy" to the
common-law rights the damages cap encroached on. 295 Kan. at 662. And after rejecting
Miller's claim that the legislature's failure to raise the cap from $250,000 "diluted the

9
substitute remedy" enough to render the statute unconstitutional, our Supreme Court
determined that K.S.A. 60-19a02 did not violate Sections 5 and 18 of the Kansas
Constitution. 295 Kan. at 662-65.

When faced with a challenge to the constitutionality of a statute, our review is unlimited.

In light of our Kansas Supreme Court's ruling in Miller, Hilburn presents two
challenges to K.S.A. 60-19a02. First, she contends that our Kansas Supreme Court erred
in applying the quid pro quo test to Section 5 challenges. Second, she argues that because
she differs dramatically from a medical malpractice plaintiff, the rationale in Miller is
inapplicable to her case. As a note, it is somewhat unclear from her brief whether her as-
applied challenge is based on Section 5 or Section 18 of the Kansas Constitution.
However, because the quid pro quo test applies to both sections, the distinction is
ultimately immaterial.

As our Supreme Court observed in Miller, the question of whether a statute
violates our Kansas Constitution is a question of law subject to unlimited review. 295
Kan. 636, Syl. ¶ 1. That said, courts are charged with presuming a statute's
constitutionality and resolving all doubts in favor of that statute's validity. 295 Kan. 636,
Syl. ¶ 1. Accordingly, "[a] statute must clearly violate the constitution before it may be
struck down." 295 Kan. 636, Syl. ¶ 1.

This court must use the quid pro quo test when considering the constitutionality of K.S.A.
60-19a02.

In her first argument, Hilburn "urges the court to abandon its finding in Miller that
the quid pro quo test is applicable to Section 5 claims." But even overlooking Hilburn's
confusion as to which court originated this test, this court cannot simply ignore Supreme
Court precedent. In fact, this court is duty bound to follow Supreme Court precedent

10
absent some indication that the court is abandoning its prior position. Farley v. Above Par
Transportation, 50 Kan. App. 2d 866, 877, 334 P.3d 883 (2014), rev. denied 302 Kan.
___ (2015). No such indication exists in this case. Accordingly, this court must use the
quid pro quo test when considering the constitutionality of K.S.A. 60-19a02 as applied to
Hilburn. So next we will discuss the application of the quid pro quo test to the facts of
this case.

Applying the first step of the quid pro quo test to the instant case, the statute serves to
promote the public interest and welfare.

As previously explained, the first step of the quid pro quo test asks "whether the
modification to the common-law remedy or the right to jury trial is reasonably necessary
in the public interest to promote the public welfare." Miller, 295 Kan. at 657. In
addressing this step, Hilburn argues that the damages cap cannot possibly be in the public
interest because it provides out-of-state companies like Enerpipe a windfall by limiting
their liability in Kansas. As a preliminary note, and aside from two brief references to
caselaw outside of this jurisdiction, Hilburn fails to cite any pertinent, relevant authority
to support this point. As is frequently reiterated, failure to support a point with authority
is akin to failing to brief the issue. State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273
(2013).

Moreover, even if an unintended consequence of the damages cap is that it limits
liability in some cases, the stated purpose of the cap is entirely different. As explained in
Samsel II, an automobile collision case:

"The legislature's enactment of [the cap] was influenced by the Citizens
Committee Report. The Citizens Committee found that the unpredictability of awards for
pain and suffering 'makes it very difficult to write insurance or to self-insure at
appropriate premium or cost levels, and also sometimes results in pain and suffering

11
 awards that are so high they result in unreasonable premium increases. In many instances,
these increases reach the level of unaffordability.'" 246 Kan. at 353.

When placing the damages cap in its proper context in Miller, our Kansas Supreme Court
found a similar purpose: namely, to make medical malpractice insurance available and
affordable. See 295 Kan. at 660.

Clearly, the cost and availability of medical malpractice insurance are not
particularly relevant in the instant case. But like with malpractice insurance, Kansas
requires that drivers maintain a certain level of automobile liability insurance under the
Kansas Automobile Injury Reparations Act (KAIRA), K.S.A. 40-3101 et seq. K.S.A.
2010 Supp. 40-3104(a). In fact, the stated purpose of the law requiring liability insurance
for drivers "is to provide a means of compensating persons promptly for accidental bodily
injury arising out of the ownership, operation, maintenance or use of motor vehicles in
lieu of liability for damages." K.S.A. 40-3102. Moreover, and as will be discussed in
more detail later, our Kansas statutes also require that motor carriers operating in the state
maintain liability insurance. K.S.A. 2010 Supp. 66-1,108b (granting the Kansas
Corporation Commission "full power, authority and jurisdiction to supervise and control
motor carriers"); K.A.R. 82-4-3n (2015 Supp.) (adopting the federal minimum for
liability insurance). Like with personal automobile insurance, these mandatory minimums
exist to "to protect the interests of the public for injuries due to the negligent operation of
licensed motor carriers . . . ." Brown v. Green, 204 Kan. 802, 807, 466 P.2d 299 (1970),
overruled on other grounds by Spruill Motors, Inc. v. Universal Underwriters Ins. Co.,
212 Kan. 681, 512 P.2d 403 (1973). Additionally, albeit in other contexts, our Supreme
Court has emphasized the importance in protecting those Kansans who travel on public
highways by assuring they receive prompt compensation for automobile accidents.
Manzanares v. Bell, 214 Kan. 589, 601, 522 P.2d 1291 (1974) (holding the KAIRA, also
referred to as the no-fault automobile insurance law, constitutional).

12
 Aside from her contentions regarding Enerpipe's status as a motor carrier, which
will be discussed next, Hilburn offers no real explanation for why the public interest
rationale in Miller is inapplicable here. Because the damages cap operates in a broader
scheme of mandatory insurance and the State maintains an interest in that insurance
remaining available and affordable to compensate accident victims, the first step of the
quid pro quo test is satisfied.

Applying the second step of the quid pro quo test to the instant case, an adequate
statutory remedy is provided within the scheme of motor carrier insurance.

In the second step of the quid pro quo analysis, this court must "determine whether
the legislature substituted an adequate statutory remedy for the modification to the
individual right." Miller, 295 Kan. at 657. This "more stringent" step requires there be
"an adequate substitute remedy conferred on those individuals whose rights are adversely
impacted." 295 Kan. at 657.

In her brief, Hilburn acknowledges that, like with healthcare providers and
medical malpractice insurance, motor carriers are required to carry a certain level of
liability insurance. However, Hilburn appears to contend that because it is federal rather
than state law that mandates this particular liability insurance, our legislature has not
substituted an adequate remedy. To put it another way, Hilburn argues that because the
wrong legislature provided the substitute remedy, this step remains unsatisfied.

To a certain extent, Hilburn is correct. Federal law mandates that a motor carrier
operating in interstate commerce must maintain a certain level of liability insurance. See
49 U.S.C. § 13906(a)(1) (2012) (requiring that, in order to register as a motor carrier, the
registrant must file "a bond, insurance policy, or other type of security . . . in an amount
not less" than the required minimum); 49 U.S.C. § 31139(b) (2012) (setting out the
general minimum liability amount). Specifically, a for-hire motor carrier operating a

13
vehicle with a weight of more than 10,001 pounds that carries nonhazardous material
must maintain at least $750,000 of insurance on that vehicle. See 49 U.S.C. § 31139(b)
(2012); 49 C.F.R. § 387.9 (2015). The minimum level of insurance is even higher for
those motor carriers transporting hazardous material. 49 C.F.R. § 387.9 (2015).

However, our Kansas Legislature has also enacted laws concerning the regulation
of motor carriers in our state. See K.S.A. 2010 Supp. 66-1,108b (granting the Kansas
Corporation Commission "full power, authority and jurisdiction to supervise and control
motor carriers"). Among the regulations promulgated by the corporation commission is
K.A.R. 82-4-3n (2015 Supp.), which specifically adopts the minimum liability
requirements from the federal regulations. In fact, our Kansas regulation explicitly
incorporates 49 C.F.R. § 387, subject to some alterations. K.A.R. 82-4-3n (2015 Supp.).
These changes and deletions do not alter the $750,000 liability minimum present in the
applicable federal regulation. See K.A.R. 82-4-3n (2015 Supp.). Moreover, our Kansas
statutes also provide an independent liability insurance requirement for motor carriers
outside of the federal scheme. See K.S.A. 2010 Supp. 66-1,128(a) (stating that except as
provided in federal statutes, motor carriers must obtain liability insurance in the amount
of $100,000 for one injury or death in one accident, $300,000 for two or more injuries or
death in one accident, and $50,000 for the loss of property in one accident). The purpose
of this statute, at least according to one appellate court, is to "requir[e] all persons using
the Kansas highways as commercial carriers to carry sufficient insurance on their motor
equipment to protect the public in case of injuries sustained from the negligent operation
of the same." Marriott v. National Mut. Cas. Co., 195 F.2d 462, 466 (10th Cir. 1952); see
Brown, 204 Kan. at 807.

In her reply brief, Hilburn suggests that our state's adoption of the federal liability
minimum is insufficient to constitute our Kansas Legislature creating an adequate
statutory remedy. In support, she points to a federal regulation that limits a state's ability
to pass or enforce laws concerning interstate motor carriers. But that regulation clearly

14
only limits a state's ability to pass laws that are incompatible with the federal regulations.
49 C.F.R. § 355.25(a) (2015) (barring states from passing or enforcing laws or
regulations "pertaining to commercial motor vehicle safety in interstate commerce which
the Administrator finds to be incompatible with the provisions of the Federal Motor
Carrier Safety Regulations"). Given that our Kansas regulation adopted its federal
counterpart with only minor changes, it is disingenuous to suggest the laws are
incompatible. This conclusion is bolstered by the fact that the federal regulations actually
define compatible state laws as those that are either identical to their federal counterparts,
have the same effect as their federal counterparts, or "fall within the established limited
variances" allowed by the regulations. 49 C.F.R. § 355.5 (2015).

Although the required insurance amounts are different, this motor carrier liability
scheme behaves similarly to the medical malpractice insurance one that our Supreme
Court found so important in Miller. There, the court emphasized that it had previously
"found the requirement of reliable sources of partial recovery for serious injuries to be
significant in . . . deciding what constituted an adequate substitute remedy." 295 Kan. at
662. Here, a reliable source of recovery exists in the form of motor carrier liability
insurance mandated by both our state legislature and the federal government, and
Hilburn, as someone involved in an automobile accident with a motor carrier, is entitled
to its benefits.

Additionally, this motor carrier liability insurance is not the only substitute remedy
available to Hilburn. As previously mentioned, under the KAIRA, all Kansas drivers are
required to carry liability insurance on their personal vehicles. K.S.A. 2010 Supp. 40-
3104(a). In fact, uninsured vehicles are not permitted on our Kansas highways unless
they are "expressly exempted" from the general insurance requirement. K.S.A. 2010
Supp. 40-3104(b). Each policy must carry coverage for at least $25,000 for injury or
death of one person in one accident, $50,000 for injury or death of two or more people in
one accident, and $10,000 for harm to property in one accident. K.S.A. 40-3107(e). It

15
stands to reason that, as a driver of a vehicle on a Kansas highway, Hilburn and her
husband had this mandatory insurance—insurance that protected both of them in the
event of an accident. Our Supreme Court has previously upheld this insurance as an
adequate substitute remedy under the quid pro quo test. Manzanares, 214 Kan. at 599.
And when discussing Manzanares in another context, the court noted that the insurance
requirement constituted an adequate remedy "even though the injured party was required
to purchase the insurance himself or herself." Aves v. Shah, 258 Kan. 506, 522-23, 906
P.2d 642 (1995).

In her reply brief, Hilburn contends for the first time that the requirement of
mandatory automobile insurance cannot constitute an adequate substitute remedy because
it predated K.S.A. 60-19a02. In other words, Hilburn argues that to satisfy the quid pro
quo test, the substitute remedy must follow the modification of the individual right.

But our Kansas Supreme Court rejected a similar argument in Bair v. Peck, 248
Kan. 824, 844-45, 811 P.2d 1176 (1991), and disapproved of other, earlier language to
the contrary. There, the Supreme Court considered a certified question concerning a
challenge to the Health Care Provider Insurance Availability Act. Specifically, the
medical malpractice plaintiff argued that because the substitute remedies provided by the
statute predated the adoption of a provision that eliminated vicarious liability for
employer healthcare providers, those remedies could not satisfy the quid pro quo test. But
our Supreme Court aptly observed "that major statutory enactments establishing a broad,
comprehensive statutory remedy or scheme of reparation in derogation of a previously
existing common-law remedy may be subsequently amended or altered without each such
subsequent change being supported by an independent and separate quid pro quo." 248
Kan. at 842. Closely examining the "sizeable quid pro quo" provided by the act at issue,
the court concluded that the remedy's sufficiency was not reduced because it predated the
new provision. 248 Kan. at 843-44. According to the court, the proper test was simply

16
"whether the substitute remedy would have been sufficient if the modification had been a
part of the original [a]ct." 248 Kan. at 844.

Of course, this case differs slightly from Bair, as no court has previously
determined that the mandatory vehicle insurance discussed above constitutes adequate
quid pro quo for purposes of the damages cap. But Hilburn offers no argument that the
minimum insurance requirements for either motor carriers or other drivers are insufficient
or that this insurance scheme differs significantly from the medical malpractice insurance
discussed in Miller. Instead, her only arguments revolve around which legislature
provided the remedy at issue and the passage date of the statutes. And importantly, Miller
relied in part on cases discussing the mandatory automobile insurance scheme to decide
that the comprehensive medical malpractice insurance scheme constituted an adequate
substitute remedy. See 295 Kan. at 662.

Obviously, the recovery schemes discussed above are not available to all tort
victims. But for Hilburn, the victim of an automobile accident caused by a motor carrier,
they provide "a significant, individualized substitute remedy." Miller, 295 Kan. at 662.
Therefore, the second step of the quid pro quo test is satisfied, and the damages cap found
in K.S.A. 60-19a02 does not violate the Kansas Constitution as applied to Hilburn.

As a final note, Hilburn concludes her appellate brief by arguing that our Supreme
Court's individualized quid pro quo test essentially creates a scenario in which different
types of tort victims are treated differently depending on the statutes applicable to their
cases. In support of her argument, she cites the equal protection provision of Section 1 of
the Kansas Constitution Bill of Rights. But as Hilburn recognizes, equal protection
challenges focus on statutes, not on judicially created factor tests. See Miller, 295 Kan. at
666 (discussing the steps of an equal protection challenge to a "statutory classification").
Moreover, our Kansas Supreme Court considered an equal protection challenge to K.S.A.
60-19a02 in Miller but upheld the statute as constitutional. 295 Kan. at 666-70. As

17
previously stated, this court is duty bound to follow Kansas Supreme Court precedent,
regardless of whether we agree with the analysis. Farley, 50 Kan. App. 2d at 877.
Accordingly, the district court decision is affirmed.

Affirmed.

18