LOYAL AMERICAN LIFE INS. v. MATTIACE5/24/1996
d the state through the legislative, judicial, or executive department — one or all — from ever burdening, disturbing, qualifying, or tampering with this right to the prejudice of the people.' Id. at 271, 292 So.2d at 655. Section 11 'freezes' the right to trial by jury as that right existed in 1901, the date of the ratification of our present Constitution. Id. at 269, 292 So.2d at 652; see also J. Hoffman, Alabama's Right to Trial by Jury in Civil Cases Since the Merger of Law and Equity — What Has Changed and What Has Not, 32 Ala.L.Rev. 465, 488-89 (1981).
"It is undisputed that juries were employed in Alabama in 1901 to assess 'quality of life' damages — damages for pain, suffering, and other non economic loss in actions alleging negligent personal injury . See, e.g., Ensley Ry. v. Chewning, 93 Ala. 24, 9 So. 458 (1891); South & North Alabama R.R. v. McLendon, 63 Ala. 266 (1879); Barbour County v. Horn, 48 Ala. 566 (1872)."
If I am reading that statement in Moore correctly, it is bottomed on a statement made in Gilbreath v. Wallace, that statement in Gilbreath v. Wallace cannot, as the majority contends, be classified as "dictum."
The majority quickly and decisively dismisses Loyal American's federal constitutional claims of a denial of equal protection of the law, on the ground that Loyal American cites no authority in support of those claims. Although I note that Loyal American does not devote a significant portion of its argument to its constitutional claims, it does make this argument in its brief:
"Plaintiff's bad faith claim violates Loyal American's right to a jury trial as guaranteed by the Alabama Constitution. This Court's tort reform cases have established that the right to jury trial clause of the Alabama Constitution, Ala. Const. art. I, § 11 (1901), prevents the legislative, executive, and judicial departments from burdening the right as it existed in 1901.
" 'The clause "forbid the state through the legislative, judicial, or executive department — one or all — from ever burdening, disturbing, qualifying, or tampering with this right to the prejudice of the people. . . ." Section 11 "freezes" the right to trial by jury as that right existed in 1901, the date of the ratification of our present Constitution.'
Moore v. Mobile Infirmary Association, 592 So.2d 156, 159 (Ala. 1991) (emphasis added). This Court's rationale is based upon the proposition that the adoption of the 1901 Constitution froze the rights as they existed at that time. See, Smith v. Schulte, 671 So.2d 1334 (Ala. 1995); Henderson v. Alabama Power Co., 627 So.2d 878 (Ala. 1993); Moore, 592 So.2d 156; and Gilbreath v. Wallace, 292 Ala. 267, 292 So.2d 651 (1974).
"This Court has relied upon this proposition to declare certain tort reform statutes unconstitutional. See, Smith v. Schulte (declaring $1,000,000 cap on jury awards in medical malpractice cases unconstitutional); Henderson, 627 So.2d 878 (declaring $250,000 cap on punitive damages unconstitutional); and Moore, 592 So.2d 156 (declaring $400,000 cap on non-economic damages in medical malpractice cases unconstitutional). As this Court recognized in Moore, § 11's prohibition on interference with the right of jury trial is not limited to the legislative and executive departments of the State. Moore, 592 So.2d at 159. The same prohibition prevents this Court from 'ever burdening, disturbing, qualifying, or tampering with this right to the prejudice of the people.' Id."
Loyal American's argument is correct. Before 1981, claimants such as this plaintiff could not recover damages for personal injury, inconvenience, annoyance, mental anguish or suffering, and/or punitive damages aris
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