Prior v. GTE North Inc.

KIRSCH, Judge,

dissenting.

I respectfully dissent.

Provisions which immunize or limit the liability of those who commit wrongs causing injury to person, property or reputation should be strictly scrutinized because such provisions limit not only the liability of the tortfeasor, they limit also the guaranties of the Indiana Bill of Rights. Article 1, Section 12 of the Indiana Constitution provides that every person who suffers injury to “person, property, or reputation, shall have remedy by due course of law.” This provision has been frequently cited, see op. at 775, but rarely found to provide the citizens of this state with any protections beyond that provided by our federal constitution.7 The majority’s decision is the latest in this string.

Here, the majority adopts an economic analysis to uphold the limitation contained' in the tariff here at issue and concluded that the IURC had the power to impose such a restriction “as a rational means of keeping GTE’s costs to a minimum so that GTE is able to operate without charging its customers an unreasonable rate. This balance benefits all of GTE’s customers, including those who have been harmed by GTE’s negligent behavior.” Op. at 775. Carried to its conclusion, this analysis would uphold every grant of immunity and every limitation on a tort-feasor’s liability since, as acknowledged by the majority, exposure to liability for one’s *777negligence necessarily affects the expense of operation. See op. at 773. In this case, the majority upholds a limitation on damages resulting from GTE’s negligence in failing to provide the directory advertising for which it had contracted because holding the utility hable for the damages which it caused would lead to increased rates. This same analysis would uphold a limitation on the utility liability for an employee’s negligence in driving a repair truck resulting in serious injury or for an installer’s negligence in wiring a customer’s house resulting in a deadly fire.

Immunities and limitations on liability may make good economies, but good economics do not necessarily make good law. The Bill of Rights in our Constitution exists to protect the rights of the individual, not to provide for the greatest good for the greatest number. Economic factors must certainly be considered, but they should not control judicial decision.

Moreover, there is no showing that the limitation here as issue is good economics. The majority states that “it is reasonable to presume that the IURC concluded that subjecting GTE to unlimited liability would be an expense which could not easily be offset by its revenues ...” and that “the IURC presumably believed that a substantial rate increase would not have resulted in a similar rise in service levels.” Op. at 8 (emphases added). We should not uphold limitation on constitutionally guaranteed rights on the basis of what we presume an administrative agency concluded, but we should subject every such limitation to strict scrutiny.

I would reverse the grant of summary judgment and remand for further proceedings.

. But see Martin v. Richey, 674 N.E.2d 1015 (Ind.Ct.App.1997).