360 Mass. 1 (1971) 271 N.E.2d 592

MILTON PINNICK
vs.
CARL CLEARY.

Supreme Judicial Court of Massachusetts, Suffolk.

May 6, 1971. June 29, 1971.

Present: TAURO, C.J., SPALDING, CUTTER, SPIEGEL, REARDON, QUIRICO, & BRAUCHER, JJ.

Frederick S. Pillsbury (Alexander J. Cella & Robert Cohen with him) for the plaintiff.

Herbert P. Wilkins (Donald H. Carvin, Jeffrey Swope & Acheson H. Callaghan, Jr., with him) for the defendant.

Walter H. Mayo, III, Assistant Attorney General (James P. Kiernan, Assistant Attorney General, with him) for the Attorney General.

John G. Ryan for The Massachusetts Association of Independent Insurance Agents & Brokers, Inc.; Richard K. Donahue & Richard N. Pearson for Massachusetts Bar Association; Richard M. Markus of Ohio, & William Schwartz for American Trial Lawyers Association; Paul A. Tamburello for American Trial Lawyers Association Massachusetts Chapter, Inc.; and Archibald Cox & Philip B. Heymann for American Mutual Insurance Alliance and American Insurance Association, amici curiae, submitted briefs.

REARDON, J.

This bill for declaratory relief comes to us on a reservation and report from the single justice. It presents a multifaceted attack on the constitutionality of St. 1970, c. 670, which amends in part chapters 90, 175, and 231 of the General Laws, and which establishes a modified system of compensation through their own insurers for victims *3 of automobile accidents regardless of fault.^[1] The plaintiff has raised and argued a number of issues which are not presented by what appears in the record. We realize that where questions of pressing public importance are involved we may in our discretion express our opinion on matters fully argued even though they are not essential to disposition of the exact controversy before the court. School Comm. of Boston v. Board of Educ. 352 Mass. 693, 697. However, such issues raised here by the plaintiff call for interpretation of terms and provisions of c. 670 which are not self-explanatory and which are not called into question at all by the record. It is inevitable that this first legislative attempt at a fundamental alteration and modernization of an important segment of the common law of torts will generate many problems arising out of such provisions. We cannot deal with these problems in the abstract and refrain therefore from dealing with c. 670 in its effects beyond the set of facts before us.

THE FACTS.

The facts of the case are not disputed. The plaintiff, a resident of Massachusetts, is the owner of a motor vehicle duly registered under the laws of the Commonwealth and insured under a policy which includes personal injury protection benefits as defined in St. 1970, c. 670. The policy was not subject to the optional deductible endorsement (deductible) provided in c. 670. While he was driving his car on a public way in Boston early on the morning of January 3, 1971, two days after the effective date of that statute, he was involved in an accident which was caused exclusively by the negligence of the defendant. The car the defendant was driving was owned by one Daniel Mack, and *4 was also covered by an insurance policy which included personal injury protection benefits as defined in c. 670.

As a result of the accident, the plaintiff suffered injuries which included a bone contusion of the left lower scapula, a contusion and sprain of lower scapula muscles on both sides, and a severe low back sprain with radiation of pain into the lower right extremity. He incurred $115 in reasonable and necessary medical expenses for treatment of these injuries. Although he had no medical insurance in his own name, he was covered by a policy issued to his wife which provided for reimbursement of his medical expenses over $100. The entire $115 would have been recoverable in a traditional common law tort action against the defendant, as well as $800 for his pain and suffering.

Due to the accident the plaintiff lost in addition seventy-three hours from his position with the United States Post Office. His salary in this position was $176.77 a week, a figure which also represents his average weekly wages for the year preceding the accident. He received his usual salary for the entire period of his absence, however, due to the paid sick leave and annual leave to which he was entitled. His accumulated paid sick leave of forty hours was exhausted in the process, and his paid annual leave was reduced by thirty-three hours.

The plaintiff also held a second job at the time of the accident which paid him at the rate of $96.25 a week. This amount was his average weekly wage for that job for the year preceding the accident. The accident caused him to miss twelve days from this work, for which he was not compensated. In a tort action at common law, on these facts the plaintiff could have recovered $650 from the defendant for loss of earning capacity. His total recovery in tort against the defendant, including general and special damages, would therefore have been $1,565 ($115 + $650 + $800).

The plaintiff made demand on the defendant for reasonable compensation in accordance with the recoverable elements of damage at common law as outlined above. The *5 defendant refused, raising as a defence c. 670 which, inter alia, exempts a tortfeasor from liability up to $2,000 to the extent the claimant is entitled to personal injury protection benefits from his own insurer. The defendant also noted that in the circumstances of his case the plaintiff was not entitled to any damages for pain and suffering under c. 670, although he retained his right to sue in tort for other elements of damage not covered by the personal injury protection benefits.

The plaintiff in this bill claims that this operation of c. 670 deprives him unconstitutionally of his right to full recovery in tort. He has supported this claim by an exceedingly prolix brief of 373 pages, the contentions of which are aided by amicus briefs filed with us by the American Trial Lawyers Association, the Massachusetts chapter of that organization, and the Massachusetts Bar Association. Supporting the law we have, in addition to the defendant's brief, arguments in behalf of the constitutionality of c. 670 submitted by the American Mutual Insurance Alliance and American Insurance Association, the Massachusetts Association of Independent Insurance Agents and Brokers, Inc., and the Attorney General acting pursuant to G.L.c. 231A, § 8.

SUMMARY OF CHAPTER 670.

The briefs before us, even those aligned on the same side of the case, reveal divergent views on how c. 670 operates. Accordingly, we believe it advisable to summarize the basic structure of the statute. In so doing we will not attempt a comprehensive description of its scope and operation, for much of that, as we have indicated, is irrelevant for our present purposes. We wish rather at this juncture to draw attention first to the difference in the legal position of the injured party under c. 670 from his position at common law, and, secondly, to the practical consequences of the statute on him, taking into consideration the interaction of various forms of compulsory and optional insurance with c. 670.

Those who challenge c. 670 have attributed to it not only *6 a drastic stripping of legal rights but also, in its practical effect, a substantial diminution of the damages which the average non-negligent accident victim may reasonably expect. Analysis demonstrates, on the contrary, that the Legislature has acted with extreme caution in altering prior legal rights, changing in only one respect the elements of damage which are recoverable by the victim. As to the practical effect of c. 670, it appears that the statute affords the citizen the security of prompt and certain recovery to a fixed amount of the most salient elements of his out-of-pocket expenses and an increased flexibility in avoiding duplicate coverage, at double premiums, for the same expenses. In return for this he surrenders the possibly minimal damages for pain and suffering recoverable in cases not marked by serious economic loss or objective indicia of grave injury and the outside chance that through a generous settlement or a liberal award by a judge or jury in such a case he may be able to reap a monetary windfall out of his misfortune.^[2]

The key concept embodied in c. 670 is that of personal injury protection insurance, which is required of all owners of motor vehicles registered in Massachusetts. Under this coverage, personal injury protection benefits are paid by the insurer, as the expenses they cover accrue, to the insured, members of his household, authorized operators or passengers of his motor vehicle including guest occupants, and any pedestrians struck by him, regardless of fault in the causation of the accident.^[3] Limited in amount to $2,000, the benefits cover largely the same items of medical expense *7 covered before by optional medical payments insurance, with the exception that expenses incurred within two years of the accident are included as opposed to the one year period generally covered in optional insurance. Personal injury protection covers in addition, however, two other types of out-of-pocket expenses. The first and less significant of these is "payments in fact made to others, not members of the injured person's household and reasonably incurred in obtaining from those others ordinary and necessary services in lieu of those that, had he not been injured, the injured person would have performed not for income but for the benefit of himself and/or members of his household." The second is seventy-five per cent of the actual lost wages of the injured party, calculated on the basis of his average weekly wage during the year preceding the accident. If the victim was unemployed, he is entitled to the same percentage of wages he can prove he would have received from work he would have had had he not been injured.

Benefits allocable to medical expenses are paid regardless of any other insurance covering the same costs. However, to avoid duplicate recovery and reduce the expense of insurance, c. 670 provides the option to elect a deductible, binding on the insured or on the members of the insured's household. These policies, for a reduced premium, provide that an amount from the first $250 up to the entire $2,000 otherwise recoverable as personal injury protection benefits shall not be paid by the insurer.

Benefits allocable to lost wages, on the other hand, are reduced by any amounts received under a wage continuation plan or its equivalent. The victim, however, may incur (within a year of the payment of the last benefit) a later injury for which he would be entitled to payments under the wage continuation plan. If the amount then available to the victim to meet lost wages caused by the later injury has been reduced by reason of the payments under the plan attributable to the earlier accident then the insurer shall be responsible to the extent of the reduction.

*8 Thus under c. 670 the accident victim, with a few minor exceptions, is entitled to immediate payment of his most pressing items of cost: medical expenses. In addition, he receives the major portion of his lost wages not covered by a wage continuation plan, and certain consequential expenses. These amounts, to a total of $2,000, are due from his own insurer, not from an adversary insurance company, and without the necessity for assignment of fault or the temptation on either side to bargain in the light of considerations which are often extraneous to the amount of expense incurred.

In exchange for the protection extended by c. 670, the accident victim loses his right to recover in tort to the extent he is eligible for personal injury protection benefits. Because the exemption of the tortfeasor is exactly matched to the availability of personal injury protection benefits to the plaintiff, the plaintiff loses nothing by it.^[4] With one restriction to be discussed below, the potential plaintiff retains in addition his common law action against the tortfeasor for any elements of damage not recovered as personal injury protection benefits. These would include any expenses in excess of $2,000 which would otherwise have been covered by personal injury protection and the difference between his diminished earning capacity, as measured at common law, and the substitute percentage of actual lost wages reduced by amounts received under any wage continuation plan recoverable under c. 670. Since the new law has retained the previous requirements of compulsory liability insurance under G.L.c. 90, § 34A, the victim who chooses to sue has the same assurance of at least limited recovery if he can prove negligence as he had before the passage of c. 670.

The plaintiff stresses that the residual tort action left after the payment of personal injury protection benefits is *9 reduced in value inasmuch as the potential plaintiff must consider the extent to which legal fees will reduce his net recovery. However, legal fees are not a new burden imposed by c. 670; they have long been a factor to be considered in prosecuting any claim, including a tort action for personal injury instituted before the passage of c. 670.

The only limitation imposed by c. 670 on the potential plaintiff's prior right of recovery at common law is the elimination of damages for "pain and suffering, including mental suffering associated with ... injury" except in certain specified categories of cases. Section 5 of c. 670 provides generally that the reasonable and necessary medical expenses incurred by a plaintiff in the treatment of his injuries must be over $500 to permit recovery for pain and suffering. However, recognizing that certain types of injuries could entail considerable pain and suffering which would warrant monetary compensation regardless of medical expense incurred, the Legislature provided by way of exception to the general rule that damages for pain and suffering could be sought in all cases involving five designated types of injuries. These are a fracture, injury causing death, injury consisting in whole or in part of loss of a body member, permanent and serious disfigurement, and injury resulting in loss of sight or hearing as elsewhere defined in the General Laws. The victim whose injury falls outside these categories and whose medical expenses are less than $500 cannot recover at all for pain and suffering.^[5] However, it is still possible for the person who desires to assure for himself recovery in excess of his out-of-pocket costs to do so. Just as he may elect a deductible if he has medical payments insurance to avoid duplicate recovery for medical expenses, so he may choose to keep both forms of insurance *10 in full precisely to allow himself double recovery of these expenses.^[6] Other forms of duplicate coverage are equally possible. It is true that the amount of excess he will receive thereby will bear no necessary relation to the value of his pain and suffering as arbitrarily set by a jury but, on the other hand, he is assured of some profit over out-of-pocket expenses in every motor vehicle accident. This certainty he was never afforded by his prior "right" to recovery for pain and suffering in a suitable case, which in order to be realized even in such a case had to be actively pursued at considerable expense.

The preceding discussion is not intended as a holding or ruling on any part of the statute, but only to permit a better understanding of that which follows.

NATURE OF RIGHTS AFFECTED.

In approaching the numerous issues before us, it is advisable to dispose first of a contention which the plaintiff has argued vigorously and at some length, for if we accepted it, it would require a somewhat different approach to the attacks leveled at the statute than that we feel appropriate. The plaintiff claims that c. 670 has impaired a cause of action which is on a higher, more sacrosanct level than the "ordinary" common law cause of action. Two alternative reasons are advanced in support of this contention: first, that the tort action has the status of a "vested property right," and, second, that the function of the cause of action is to safeguard the fundamental "right of personal security and bodily integrity" which, although not mentioned in the Bill of Rights of the United States Constitution, is nonetheless protected by it. We find both grounds unpersuasive.

In arguing that the cause of action affected by c. 670 constitutes a vested property right, the plaintiff seems to ignore the distinction between a cause of action which has accrued and the expectation which every citizen has if a *11 legal wrong should occur to find redress according to the rules of statutory and common law applicable at that time. The Legislature is admittedly restricted in the extent to which it can retroactively affect common law rights of redress which have already accrued. However, there is authority in abundance for the proposition that "[n]o person has a vested interest in any rule of law entitling him to insist that it shall remain unchanged for his benefit." New York Cent. R.R. v. White, 243 U.S. 188, 198. Munn v. Illinois, 94 U.S. 113, 134. And, as we shall demonstrate in more detail below, legislative actions based on this principle, prospectively modifying or abrogating common law causes of action, have been judicially upheld both in this Commonwealth and elsewhere on numerous occasions. The citizen may find that events occurring after passage of such a statute place him in a different position legally from that which he would have occupied had they occurred before passage of the statute. He has no cause, however, to complain solely because his rights are not now what they would have been before.

The applicability of this principle to the rights affected by c. 670 is not in any way changed by Part II, c. 6, art. 6, of the Constitution of Massachusetts, or by art. 11 of its Declaration of Rights, on both of which the plaintiff seems to rely. Article 6 provides for the continuation in the Commonwealth of the great body of the common law as amended by statute prior to the colonial immigration. Commonwealth v. Churchill, 2 Met. 118, 123. Crocker v. Justices of the Superior Court, 208 Mass. 162, 171. It explicitly contemplates the "... [alteration] or ... [repeal] by the legislature" of such prior existing law, as indeed it would have to in order to avoid freezing outmoded rules of law into our jurisprudence by placing them beyond the reach of the Legislature. See Holden v. Pioneer Bdcst. Co. 228 Ore. 405, 411-412.

Article 11 of the Declaration of Rights guarantees "a certain remedy, by having recourse to the laws, for all injuries or wrongs which ... [one] may receive...." The *12 article is clearly directed toward the preservation of procedural rights and has been so construed. See, e.g., Cressey v. Erie R.R. 278 Mass. 284, 291; Universal Adjustment Corp. v. Midland Bank, Ltd. 281 Mass. 303, 320; Commonwealth v. Hanley, 337 Mass. 384, 387. The only intimation which has been cited to us that it might have ramifications in the area of substantive rights is a dictum in Commonwealth v. Boston Transcript Co. 249 Mass. 477, 482, that the Legislature might be precluded under art. 11 from abolishing an action for libel in certain circumstances as it had purported to do.^[7] However, changes in prior law are necessary in any ordered society, and to argue that art. 11 prohibits alterations of common law rights as such, especially in the face of the specific provision to the contrary in art. 6, flies in the face of all reason and precedent. To the extent that the dictum in the Boston Transcript case is to the contrary we decline to follow it.

We are baffled by the plaintiff's further attempt to find in c. 670, in so far as it affects the tort action for bodily injury, an impairment of some fundamental right protected by the first ten amendments to the Federal Constitution. The plaintiff lays emphasis on Mr. Justice Goldberg's concurring opinion in Griswold v. Connecticut, 381 U.S. 479, 486. In that case a Connecticut law banning the use of contraceptives was held to violate the right of privacy as contained in the first ten amendments. Any supposed analogy of the present case to the Griswold case is inapposite and does nothing to advance the plaintiff's argument. Whatever may be the fundamental "right of personal security and bodily integrity" to which the plaintiff refers, it is not affected by c. 670. That chapter merely limits the common law right in the automobile accident situation to obtain money damages on account of unintentionally inflicted pain *13 and suffering and modifies the procedure for obtaining damages according to the common law measure for all other elements of recovery. See Dandridge v. Williams, 397 U.S. 471, 484.

We thus perceive no basis for treating a legislative alteration of the tort action for personal injuries differently from an alteration of any other preexisting rule of the common law. Hence we may summarily dispose of several of the plaintiff's arguments which are founded on the contrary premise. There is no cause here for application of the "compelling state interest" test, which is employed where a statute impairs fundamental rights protected by the Constitution. Nor, for the same reason, can the statute be struck down on the ground that it sweeps unnecessarily broadly in the face of a less restrictive alternative which would achieve the same ends. See National Assoc. for the Advancement of Colored People v. Alabama ex rel. Flowers, 377 U.S. 288, 307-308; Aptheker v. Secretary of State, 378 U.S. 500, 514. With respect to this latter test, we have noted that it has been applied in the past not only to "constitutionally sheltered activity" but also to "regulations affecting interstate commerce... and economic regulation." Commonwealth v. Leis, 355 Mass. 189, 195-196. However, no argument has been presented to us to show that c. 670 either in purpose or effect is discriminatory against interstate commerce; therefore, the less restrictive alternative test is not applicable to it as a regulation affecting interstate commerce. Dean Milk Co. v. Madison, 340 U.S. 349, 354. Nor is c. 670 a total prohibition of a hitherto lawful economic activity of the sort to which the less restrictive alternative test has been applied in the economic sphere. Weaver v. Palmer Bros. Co. 270 U.S. 402, 414-415. Furthermore, even this limited use of the test in this context is doubtful in the light of subsequent decisions according wide discretion to the Legislature in setting social and economic regulations according to its perception of the public interest. Olsen v. Nebraska ex rel. Western Reference & Bond Assn. Inc. 313 U.S. 236, 246-247. Staten Island Loaders v. Waterfront *14 Commn. of New York Harbor, 117 F. Supp. 308, 310-311 (S.D.N.Y.).

We conclude that the principles by which c. 670 should be judged are those generally applied when economic and social regulations enacted under the police power are attacked as a violation of due process and equal protection of the laws. The two grounds of attack although similar are sufficiently distinct to warrant separate treatment, to which we now proceed.

DUE PROCESS ISSUES.

A. Applicable Principles. We will deal first with the propriety of c. 670 under the due process clause. The overall test under this clause is whether the statute bears a reasonable relation to a permissible legislative objective.^[8]Howes Bros. Co. v. Unemployment Compensation Commn. 296 Mass. 275, 283-284. Merit Oil Co. v. Director of the Div. on the Necessaries of Life, 319 Mass. 301, 306. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391. In the application of this test, the statute is accorded a presumption of constitutionality (Howes Bros. Co. v. Unemployment Compensation Commn., supra, at 284; Merit Oil Co. v. Director of the Div. on the Necessaries of Life, supra, at 305; Commonwealth v. Finnigan, 326 Mass. 378, 379), a corollary of which is that if a state of facts could exist which would justify the legislation, it must be presumed to have existed when the statute was passed. Munn v. Illinois, 94 U.S. 113, 132. United States v. Carolene Prods. Co. 304 U.S. 144, 152-153. McGowan v. Maryland, 366 U.S. 420, 426-427.

In dealing with an alteration of the preexisting common law, we are guided also by cases which have dealt specifically *15 ally with due process attacks on this kind of statute. Here we do not need to reach the difficult question of when the Legislature may abrogate a common law right of recovery without providing a substitute remedy. Such actions in other contexts have been sustained because it was felt that the Legislature was acting "to attain a permissible legislative object." Silver v. Silver, 280 U.S. 117, 122 ("guest statute," taking away right of gratuitous passenger in automobile to sue driver on account of mere negligence). Hanfgarn v. Mark, 274 N.Y. 22, appeal dismissed 302 U.S. 641 (abolition of actions for breach of promise, seduction, alienation of affections, and criminal conversation — no substantial Federal question presented on appeal to Supreme Court). We have never had the occasion to pass on comparable statutes enacted by our Legislature, although we have noted their existence and effect (Thibault v. Lalumiere, 318 Mass. 72, 75), and recognized generally the power of the Legislature to act in this regard. Opinion of the Justices, 309 Mass. 571, 598.

In the instant case, however, the Legislature has not attempted to abolish the preexisting right of tort recovery and leave the automobile accident victim without redress. On the contrary, as was pointed out above, the statute has affected his substantive rights of recovery only in one respect and has simply altered his method of enforcing them in all others. Therefore, c. 670 may be judged by the stricter test which the plaintiff urges upon us and for which there is considerable authority in workmen's compensation cases: whether the statute provides an adequate and reasonable substitute for preexisting rights. New York Cent. R.R. v. White, 243 U.S. 188, 201 (New York workmen's compensation statute). See Mountain Timber Co. v. Washington, 243 U.S. 219, 240-241 (Washington workmen's compensation statute). The similarity between c. 670 and the workmen's compensation statutes, in the nature of their purposes and the means chosen to achieve them, also leads us to conclude that the reasonable and adequate substitute test is appropriate to apply here even if its application is not constitutionally *16 required.^[9] We will, therefore, consider c. 670 in the light of a twofold test: the general test required by the due process clause of whether it bears a rational relation to a legitimate legislative objective, and the more particularized test for which the plaintiff argues — whether it provides a reasonable substitute for preexisting rights.

B. Does c. 670 bear a rational relation to a legitimate legislative objective? The ills against which c. 670 is aimed are obvious. One of the most prominent of these will be found in a brief consideration of the impact of the automobile on the burden of litigation carried by courts in general and Massachusetts courts in particular. No one who has for any time been in charge of a trial court system (as was the author of this opinion for a number of years) can be unfamiliar with the devastating effect upon the administration of justice which the automobile has produced. For years, in the face of countless experiments, the trial calendars of this country, particularly in metropolitan areas, have become increasingly clogged with motor vehicle tort litigation. No one as yet, notwithstanding heroic efforts in this regard, has found a satisfactory method of disentangling this morass. Indeed, the problem intensifies as American courts are increasingly called upon to deal with complexities of our society not evident when the motor vehicle first appeared on the national scene and to broaden the scope of their activities into areas not traditionally subject to judicial cognizance. The courts with their scarce resource of time simply cannot respond to new challenges or meet the new requirements imposed on them in criminal matters as long as their time continues to be consumed to the extent it has been by motor vehicle accident cases. The problems of society to which the courts have been called no longer permit the luxury of using them as a forum for resolving the ever increasing numbers of automobile accident claims to the extent that has obtained hitherto.

*17 These observations are nowhere more applicable than in Massachusetts. We have lived with compulsory liability insurance since January 1, 1927. In that period certain events have occurred which might well have commended themselves to the Legislature as indicia pointing toward the wisdom of change. Eleven years ago, for instance, a special commission found that on the basis of bodily injury claim frequency per one hundred cars insured, the average in Massachusetts in the years 1954-1956 was 6.4% as against 2% for Maine, 3.1% for Rhode Island, 2% for Vermont, and 3.3% for Connecticut. In 1959, the year the report was filed, the claim frequency in Boston on a local basis exceeded that in New York City by more than 50%.^[10] The seriousness of the problem in so far as it relates to current Massachusetts civil trial dockets can be seen in the following figures related to the Superior Court.

Total law entries of which there were Total Motor Vehicle entries

  1967     34,730                                  23,279
  1968     33,558                                  22,289
  1969     34,381                                  22,598
  1970     35,155                                  22,690[11]

When it is recognized that many of these automobile entries represent multiple party suits, the weight which this type of litigation places on Massachusetts courts is evident.

Less obvious is the burden on the clerks' offices, lawyers and litigants which follows this proliferation of entries of motor cases, currently at the rate of almost 2,000 a month in the Superior Court and more than 3,200 a month in the District Courts. Every paper submitted must be filed and docketed, and each entry prompts an avalanche of them. In addition to the writ, declaration, answer and appearance slips; interrogatories by parties on both sides, applications to nonsuit or default for failure to answer interrogatories, motions to extend time for answering or to remove nonsuit *18 or default for not answering interrogatories, motions to strike answers to interrogatories and to answer over or further, motions for specifications, and demands to admit facts are only a few of the papers that follow as of course in almost every motor tort case entered. Court personnel are additionally burdened by the need to give notice to counsel or parties of every order of the court entered during these lengthy pre-trial proceedings. The time of the court consumed in this preliminary war of nerves between counsel, or between claimant and insurer, is almost impossible to estimate, but probably far exceeds that spent in the trial of the small percentage of all entries which must be tried.

Both in the pre-trial and later stages, claims for small amounts possess, of course, the same capability of clogging the judicial system as their larger brothers. They must be dealt with either on the Superior Court level where they do not belong or in the District Courts, from which removal or retransfer to the Superior Court will often occur. And, unfortunately, it cannot be concluded that the bulk of automobile accident claims in the Superior Court represents causes of great value. For many years the secretary of the Judicial Council maintained a record of the amount of jury verdicts.^[12] This tabular count was discontinued in 1956. In the year immediately prior to its discontinuance the following interesting statistics were compiled.

Amount of Jury Verdict              Percentage of Cases Which Were
    for Plaintiff                     Automobile Accident Claims
Less than      $200                   80.3% (53 out of 66)
$  200 — $500                   61.4% (70 out of 114)
$  500 — $1,000                 59.3% (92 out of 155)
$1,000 — $2,000                 59.8% (100 out of 167)
$2,000 — $3,000                 39.4% (28 out of 71)
$3,000 — $4,000                 56.2% (27 out of 48)
$4,000 — $5,000                 56.7% (21 out of 37)
$5,000 — $10,000                53.7% (57 out of 106)
over $10,000                          47.8% (44 out of 92)

*19 We recognize these statistics are dated and in any event not determinative. The percentages indicate in general, however, that with the increase in size of the verdict the likelihood that it was rendered in an automobile accident case steadily decreased. In addition it should be noted that in absolute numbers there were far more verdicts in automobile accident cases in the 0 to $2,000 range (315) than in the $2,000 and up range (177). Even accounting for the decrease in the value of money since 1956, this statistic still indicates that a great many, if not the majority of, claims which before were taken to court could be handled under c. 670 with approximately the same monetary return to the claimant, since personal injury protection benefits provide for compensation up to $2,000 of all elements of damage for which tort recovery was before possible except pain and suffering and twenty-five per cent of lost wages. Finally, these statistics should be considered in light of two further facts. First, at the time they were compiled, the minimum cost of a jury trial was estimated at $750 a day, a figure which has since undergone a great increase, and, secondly, the figures do not reflect at all those cases in which a verdict for the defendant was returned.^[13]

Other nonAmerican court systems, heirs with ourselves of the common law, have managed to solve this problem of the superabundance of motor vehicle tort claims in one way or another. It remains, however, a cancer to be rooted out in American courts. Presumably the Legislature had this in mind. Chapter 670, in providing for limited recovery without the necessity for adversary proceedings in automobile accident cases, was an appropriate step to alleviate this problem which defied more conservative solutions.^[14]

*20 Nor was court congestion the only problem at which c. 670 might have been aimed. The high cost of automobile insurance in Massachusetts was a present fact of which the Legislature did not need to be reminded. It might have suspected that there was a correlation between this high cost and the inefficiencies and administrative expense involved in running the traditional system, contributed to heavily by the prevalence of the elaborate pre-trial proceedings detailed above. That any such suspicion would have been well founded was confirmed by a report of the United States Department of Transportation released in March of this year entitled, "Motor Vehicle Crash Losses and their Compensation in the United States; a Report to the Congress and the President." The report concluded on this subject that "[t]he automobile accident tort liability insurance system would appear to possess the highly dubious distinction of having probably the highest cost/benefit ration of any major compensation system currently in operation in this country. As has been shown, for every dollar of net benefits that it provides to victims, it consumes about a dollar." P. 95.

Finally, and not to be discounted among the evils associated with automobiles which c. 670 might have been designed to cure, are the inequities which have been visited upon claimants. In this regard the Legislature might have felt, as expressed in the Department of Transportation Report, that "[t]he present tort liability reparations system allocates benefits very unevenly among the limited number of victims that it purports to serve." P. 94.^[15] The Legislature was also presumably aware of the long delays in getting financial aid to the injured person, confronted with medical and subsistence bills during a period of no employment for him and want for his family. The time spent in investigation, the time required for proof of negligence, the *21 exaggerated claims, the all too common suspicion of perjured testimony, the horse and buggy approach to a twentieth century dilemma — all of this might well have influenced the Legislature, recognizing the right and need of all accident victims to simple and speedy justice, toward reform.

It cannot be seriously argued that it was beyond legislative competence to assess this situation and to effect the necessary statutory repair. What we have discussed are evils which it was within the province of the Legislature to consider and which it endeavored to correct or eliminate. We do not intimate that the legislative determination which is c. 670 was the only answer or solution to the problem, but it cannot be successfully maintained that its salient provisions, as outlined above, are not a rational approach to the solution of these patent inefficiencies and inequities.

C. Does c. 670 provide a reasonable substitution for prior rights? We are urged to apply a test derived largely from the suggestion in New York Cent. R.R. v. White, 243 U.S. 188, 201, that a State might not have the power under the due process clause "suddenly [to] set aside all common-law rules respecting liability as between employer and employee, without providing a reasonably just substitute.... [I]t perhaps may be doubted whether the State could abolish all rights of action on the one hand, or all defenses on the other, without setting up something adequate in their stead." The proposed test may best be considered and understood, therefore, in the light of the facts before the court in that case.^[16]

The Workmen's Compensation Act dealt with in the White case substituted an administrative system of compensation for the common law rights of employees engaged in hazardous employments. The new system was compulsory on both employers and employees. The employee injured or killed in the course of his employment was entitled to a fixed compensation according to a prescribed schedule without *22 regard to fault in almost every case. At common law the employee's rights against his employer were considerably circumscribed in fact by certain defences available to the employer. Where he could succeed in making out a case, however, the employee stood to gain a great deal more from a jury than he would receive under workmen's compensation. Viewing the overall operation and effect of the statute on both parties affected by it, the court indicated that the exchange of rights was adequate. With respect to the statute's effect on employees, it gave the following reasons: "If the employee is no longer able to recover as much as before in case of being injured through the employer's negligence, he is entitled to moderate compensation in all cases of injury, and has a certain and speedy remedy without the difficulty and expense of establishing negligence or proving the amount of the damages." P. 201.

It is immediately apparent that c. 670 alters prior legal rights to a much less drastic extent than did the act involved in the White case. However, the overall difference in status quo effected by c. 670 may be described in part in much the same terms as those used by the court in the White case.

In considering the effect of c. 670, we cannot view it from the point of view of plaintiffs and defendants, for these are not preexisting categories as are the employers and employees affected by a workmen's compensation act. Every driver is a potential plaintiff and, equally, a potential defendant. The desired effect of c. 670 on all motorists alike is initially to make available to them compulsory insurance at lower rates due to the savings to insurance companies in administrative expenses and total payments which are expected to follow from c. 670. If injury occurs on the road, motorists are assured of the probability of quick and efficient payment of the first $2,000 of defined losses incurred. In cases of accidents in which the motorist was not negligent, he avoids the uncertainty, delay and