dissenting
I respectfully dissent, inasmuch as Sims has failed to carry his burden of rebutting the presumption of constitutionality of Ind. Code § 22-3-4-12.1, the bad faith statute. See Boehm v. Town of St John, 675 N.E.2d 318, 321 (Ind.1996). I would note that the alleged torts at issue here are an offshoot of the Workers Compensation Act: but for the Act there would be no insurance carrier against whom to bring *238an action. Further, it is apparent to me that the bad faith statute includes the alleged commission of an independent tort in adjusting or settling a-claim for compensation just as it properly encompasses a claim that the employer, - its carrier, or its administrator has acted in bad faith or with lack of diligence.
Even if this court were to uphold the constitutionality of the bad faith statute as I advocate, it, does not follow that the Workers’ Compensation Board is- subject to judicial oversight as the majority advocates. Rather, proceeding through the Board is simply a pre-requisite, to an appeal through the court system. I would note that the circumstances here are somewhat analogous to the Medical Malpractice Review Board where aggrieved plaintiffs must initially submit their claims before entering the court house door. Ind.Code § 34-18-10-1 et seq.
My review of the Workers’ Compensation Act suggests deliberate policy choices and trade-offs which our government has supported since the Progressive Era. The remedies available to injured workers were limited under the Act in return for a system in which those aggrieved claimants did not have to show fault on the part of their employers. Such a goal was certain to create a swift and definitive system of compensation under more informal rules. I would note that this goal has been realized to a great extent.
Contrary to the majority’s view, I would find that the bad faith statute is not unconstitutional merely because it alters or restricts the manner of achieving a remedy in the court system. See Borgman v. State Farm, Ins. Co., 713 N.E.2d 851, 856 (Ind.Ct.App.1999), trans. denied. In Borg-man this court determined that .an- action against an employer’s workers’ compensation insurance carrier for lack of diligence, bad faith, or an independent tort, falls within the exclusive jurisdiction of the Worker’s Compensation Board. We also noted that, after applying the traditional deferential tests of constitutionality, the open courts provision of Article I, § 12 was not violated by the provision. Specifically, we reasoned that “the statute simply designates the proper forum for bringing enumerated claims against the worker’s compensation insurance carrier and does not operate to strip the [claimant] of an established right of recourse.” Id. at 856. In accordance with the reasoning set forth in Borgman, I see no viable reason to find otherwise here.
Our supreme court recently noted that “the legislature has the authority to modify or abrogate common law rights provided that such change does not interfere with constitutional rights.” Martin v. Richey, 711 N.E.2d 1273, 1283 (Ind.1999); see also McIntosh v. Melroe Co., 729 N.E.2d 972, 977-978 (Ind.2000), (“the General Assembly has the authority to modify the common law and ... there is no ‘fundamental right’ to bring a particular cause of action to remedy an asserted wrong”). Inasmuch as I believe that access to the courts as required in Art. I, § 12 has not been barred by the exclusionary provision at issue, I would find it constitutional. In addition, because the statute in question went into effect after the cases upon which the majority relies,3 review of the statute does not necessarily depend upon the outcome of the older cases. Indeed, the majority recognizes that the statute was possibly passed in reaction to the pri- or decisions. 729 N.E.2d at 975-976. Our courts’ traditional deference to the legislature should prevail over earlier case decisions which state that a worker had access to the courts to bring an action for particular injuries committed by an insurance carrier.
I am also unable to-agree with the majority’s view that the exclusivity provision of the bad faith statute violated Sims’ right to a trial by jury. 729 N.E.2d at 976-977. *239I recognize that under worker’s compensation, the plaintiff does not have the right to a trial by jury as does the medical malpractice plaintiff who prevails before the malpractice board. However, because a meaningful right to appeal an adverse decision is available, it is my belief that the lack of a jury trial to be merely one of the policy trade-offs involved in guaranteeing to workers a system of compensation superior to that which preceded it, a system which has been found constitutional in previous challenges. See Warren v. Indiana Telephone Co., 217 Ind. 93, 103, 26 N.E.2d 399, 403, (1940) (Workmen’s Compensation Act does not violate constitutional mandates that the courts shall be open or that the right to trial by jury shall remain inviolate in civil cases); Tribbett v. Tay Mor Industries, Inc., 471 N.E.2d 332, 335. (Ind.Ct.App.1984) (not unconstitutional for legislature to make Workmen’s Compensation Act the exclusive remedy of injured workers). Thus, I cannot agree with the majority’s view that the exclusivity provision of the bad faith statute is unconstitutional with regard to Sims’ claim that he was denied the right to a jury trial.
Lastly, while I vote to uphold the constitutionality of the statute, I am compelled to address the $20,000 limitation on recovery on a bad faith or independent tort claim brought against a worker’s compensation insurance carrier. I do so despite my agreement with my colleagues that the issue was not properly raised before the trial court.
In my view, the $20,000 limitation set forth in the statute may very well preclude meaningful recovery in some instances. Thus, I agree with Sims’ assertion that such a cap serves to bar a complete remedy for some claimants. Notwithstanding, I would defer to the legislature regarding what the proper limitation might be, but I perceive extreme danger in the present limit. In fact, the monetary cap set forth in the statute effectively invites some insurance carriers who are confronted with the case of a seriously injured employee to simply pay the limit and escape further liability.
Once again, the analogy to our medical malpractice statutes is helpful here. The legislative cap on recovery from a physician for malpractice has been repeatedly found constitutional. Johnson v. St. Vincent Hospital, Inc., 273 Ind. 374, 396, 404 N.E.2d 585, 599 (1980); Bova v. Roig, 604 N.E.2d 1, 3 (Ind.Ct.App.1992); St. Anthony Medical Center, Inc. v. Smith, 592 N.E.2d 732, 739 (Ind.Ct.App.1992), trans. denied. However, the legislature has periodically raised that cap, no doubt recognizing that a limitation which was too low might invite a finding of unconstitutionality. See Ind.Code § 16-9.5-2-2 (1975) (total recovery for malpractice limited to $500,000); Ind.Code § 27-12-14-1 (1993) (total recovery limited to $750,000 for act of malpractice after January 1, 1990); Ind. Code § 34-18-14-1 (1998) (total recovery limited to $1,250,000 for act of malpractice after June 30, 1999). Similarly, legislation has periodically raised the scheduled benefits for injuries, under the Worker’s Compensation Act and thus avoided the issue of constitutionality. See Ind.Code § 22-3-3-10. Rather than invalidate the route to judicial review , of a claim of this sort, I would find the- cap to be the much more urgent matter .for constitutional review.
For all of the above reasons, I would find that the bad faith statute is constitutional insofar as it brings independent torts by an employer, insurance carrier or administrator under the jurisdiction of the Workers Compensation Board. Moreover, it is my belief that the statute should not be deemed unconstitutional upon Sims’ claim that his right to a jury trial has been eviscerated. Finally, I would urge the legislature to consider raising the $20,000 limitation on recovery to avoid constitutional challenges in the future.
. Baker v. American States Ins. Co., 428 N.E.2d 1342 (Ind.Ct.App.1981); Stump v. Commercial Union, 601 N.E.2d 327 (Ind.1992).