McIntosh v. Melroe Co.

ON PETITION TO TRANSFER

This case deals with the validity of the provision in the Product Liability Act that bars product liability claims for injuries sustained more than ten years after the product is delivered to its “initial user or consumer.” The plaintiffs argue that this provision violates their constitutional right under Article I, Section 12 of the Indiana Constitution to a remedy by due course of law. They also contend that it violates Article I, Section 23 which prohibits the grant of privileges and immunities not equally applicable to all. We hold that the provision is a permissible legislative decision to limit the liability of manufacturers of goods over ten years old and does not violate either constitutional guarantee.

Factual and Procedural Background

The facts of this case are not in dispute. On June 9, 1993, James McIntosh was injured in an accident involving a Clark Bobcat skid steer loader manufactured by Melroe. McIntosh and his wife filed suit alleging that his injuries and her resulting loss of companionship were caused by a defect in the loader. Melroe responded with a motion for summary judgment based on the ten-year statute of repose, codified at Indiana Code § 34 — 20—3—1(b).1 *974That section provides that “a product liability action must be commenced ... within ten (10) years after the delivery of the product to the initial user or consumer.” Melroe designated evidence establishing that the loader had been delivered to its initial user on September 9, 1980, almost thirteen years before the accident. The Mclntoshes did not dispute this evidence, but replied that the statute of repose violated their rights under Article I, Sections 12 and 23 of the Indiana Constitution. The trial court granted Melroe’s motion and the Court of Appeals affirmed. Because the material facts are not in dispute, the appeal presents only an issue of law. We granted the Mclntoshes’ petition to transfer and now hold that the statute of repose is constitutional.

I. Article I, Section 12

Article I, Section 12 of the Indiana Constitution provides, in relevant part: “All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law.” The Mclntoshes argue that the statute of repose violates Section 12 because it “abrogates all of the tort protections provided by common law,” and these are claimed to be guaranteed by the “due course of law” provision of Section 12.

Melroe contends that this case is governed by our decision in Dague v. Piper Aircraft Corp., 275 Ind. 520, 530, 418 N.E.2d 207, 213 (1981), which held that the statute of repose does not violate Article I, Section 12. The Mclntoshes assert that Dague addressed only the provision in Section 12 that “all courts shall be open” and did not deal with the provision that “every person, for injury done to him in his person ... shall have remedy by due course of law.” Although Dague itself did not explicitly limit its holding to the “open courts” provision, at least two members of this Court suggested a decade ago that Dague did not fully address the constitutionality of the statute of repose under Section 12. See Covalt v. Carey Canada, Inc., 543 N.E.2d 382, 387-90 (Ind.1989) (dissenting opinions of Shepard, C.J., and Dickson, J., stating that the statute of repose “is still susceptible to challenges under Article 1, Sections 12 and 23”). The Mclntoshes now squarely raise this issue.

A. Methodology

We agree with the dissent that the various frequently invoked constitutional talismans — constitutional text, history of the times, intent of the framers, etc.' — are proper keys to the interpretation of Article I, Section 12. See Ajabu v. State, 693 N.E.2d 921, 928-29 (Ind.1998) (“In construing the Indiana Constitution ... [we] look to ‘the language of the text in the context of the history surrounding its drafting and ratification, the purpose and structure of our constitution, and case law interpreting the specific provisions.’ ”) (quoting Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind.1996)); Collins v. Day, 644 N.E.2d 72, 75-76 (Ind.1994). But apart from the text itself, precedents of this Court, and precedents from other states with similar provisions, we find no relevant guideposts on this point. In particular, there appears to be no unique Indiana history surrounding the adoption of this Clause in 1816 or its redrafting in 1851. See Journal-Gazette Co. v. Bandido’s, Inc., 712 N.E.2d 446, 484 (Ind.1999) (Dickson, J., dissenting).

B. The Branches of Federal Due Process and State Article I, Section 12 ■ Doctrine

By 1986, this Court could correctly observe that there was a “substantial line of cases treating the ‘due process’ clause of the federal constitution and the ‘due course’ clause of the Indiana Constitution as interchangeable.” White v. State, 497 N.E.2d 893, 897 n. 4 (Ind.1986). White addressed claims of violation of state and federal constitutional rights in accepting a guilty plea to a criminal charge. For the quoted proposition, White cited three cases that addressed federal due process and state Article I, Section 12 claims as if there were no difference between them. The *975first was a case striking down a zoning restriction against gasoline stations in areas that permitted other commercial uses on the ground that the restriction constituted a taking that was not justified by safety concerns and therefore violated both constitutions. See Board of Zoning Appeals v. La Dow, 238 Ind. 673, 676-78, 153 N.E.2d 599, 601 (1958). The second, Dean v. State ex rel. Board of Medical Registration & Examination, 233 Ind. 25, 30-31, 116 N.E.2d 503, 506 (1954), dealt with a claim that legislative regulation of the medical profession was “unconstitutional” and held that the regulatory program in question “did not violate the Due Process Clause of either the federal or state constitutions.” The third, Paul v. Walkerton Woodlawn Cemetery Ass’n, 204 Ind. 693, 699-701, 184 N.E. 537, 540 (1933), upheld assessments by the managers of a cemetery association as justified by the articles and bylaws, and therefore not a violation of the due process rights of the member lot holders. Consistent with this precedent, this Court recently noted that, “[t]he same analysis is applicable to both” the federal Due Process Clause and the state Due Course of Law Clause. Indiana High Sch. Athletic Ass’n v. Carlberg, 694 N.E.2d 222, 241 (Ind.1997) (considering claims that the IHSAA’s procedures for addressing student-athlete eligibility were constitutionally defective).

The two constitutional provisions do share certain commonalities. Both prohibit state action that deprives a person of a protectable interest without a fair proceeding. See id. Both also require, as a threshold matter, that the claimant have a “protectable interest.” See id. (citing Board of Regents v. Roth, 408 U.S. 564, 570-71, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)); see also Sidle v. Majors, 264 Ind. 206, 223, 341 N.E.2d 763, 773-74 (1976) (“ ‘The inquiry, in every case, must be directed to the nature of the right alleged to have been infringed upon.’ ”).

This is not to say, however, that the “open courts” or “remedies” clause of Article I, Section 12 is in all applications to be equated with the due process provisions of the Fifth and Fourteenth Amendments. In broad brush, the federal provisions guarantee procedural and substantive due process rights. Procedural rights ensure, for example, that a party will be given “the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Procedural rights are found in both the civil context, where due process imposes requirements of notice, a right to a hearing, etc., as well as the criminal context, where it is the source of an array of criminal procedural rights, either directly through the Due Process Clause of the Fifth Amendment or via the Due Process Clause of the Fourteenth Amendment.

The “substantive” due process strain declares some actions so outlandish that they cannot be accomplished by any procedure. In earlier times, this took the form of preservation of property and contractual rights. See, e.g., Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798). It reached a highwater mark in cases invalidating progressive era and New Deal legislation, most notably the now discredited Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905), which struck down a state law limiting the work week to sixty hours. This doctrine remains today as a constitutional bar to actions that “shock the conscience,” see County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), despite the recognition that “guideposts for responsible de-cisionmaking in this uncharted area are scarce and open-ended,” Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992).

Article I, Section 12 of our State Constitution also has multiple strains, but they are not the same as the federal pair. The first sentence of Article I, Section 12, the remedies clause of our State Constitution, prescribes procedural fairness. It guarantees a “remedy by due course of law” for injuries to “person, property, or reputa*976tion.” By its terms, this provision applies only in the civil context.2 It omits any reference to deprivation of “life, liberty, or property,” which is the trigger of due process requirements in the criminal context. Article I, Section 12 also differs from the due process clauses by providing that the courts “shall be open,” a requirement that seems meaningful only to civil litigants.

In the context of a procedural right to “remedy by due course of law” in a civil proceeding, as IHSAA held, the Indiana Constitution has developed a body of law essentially identical to federal due process doctrine. The same is not true in the criminal context. To be sure, we find occasional references to the nonexistent “due process clause of the state constitution,” and some broad statements such as the quoted footnote from White, supra. It is nevertheless very clear that Indiana constitutional law dealing with criminal procedural guarantees varies from the federal constitutional law embodied in the Bill of Rights and now for the most part “incorporated” by the Fourteenth Amendment Due Process Clause.3 Indeed, state criminal procedural doctrines have almost uniformly developed, not by reference to Article I, Section 12, but rather under the various other more specific provisions that make up our state Constitution’s counterpart to the Bill of Rights. Finally, there is a strain of Article I, Section 12 doctrine that is analogous to federal substantive due process. As elaborated below, in general this doctrine imposes the requirement that legislation interfering with a right bear a rational relationship to a legitimate legislative goal, but does not preserve any particular remedy from legislative repeal.

To presage and capsulize our conclusions under these differing lines of Section 12 doctrine, the Product Liability Act statute of repose is consistent with each. In terms of pure civil procedural due process analysis, there is no issue. The bar of the statute of repose in the Product Liability Act does not purport to regulate the procedure in the courts. Nor is the open courts requirement violated because, as Dague held, it remains the province of the General Assembly to identify legally cognizable claims for relief. If the law provides no remedy, denying a remedy is consistent with due course of law. Finally, there is no state constitutional “substantive” due course of law violation because this legislation has been held to be, and we again hold it to be, rationally related to a legitimate legislative objective. It is debatable whether the Product Liability Act eliminated a common law remedy, but even if it did, there is no substantive constitutional requirement that bars a statute from accomplishing that.

C. The Constitution Did Not Freeze the Common Law

The Mclntoshes argue that they have a constitutional right to a remedy for their injuries because the framers of the 1851 Constitution “decided not to give the *977General Assembly broad powers to abolish the common law.” From this they suggest that they have a protectable constitutional right to the remedy provided by the common law for product liability injuries. This amounts to a claim that common law remedies may not be abolished. It is fundamentally a claim that these remedies constitute a protected species similar to the rights thought embedded in the constitution by substantive due process. Although Dague did not address this contention in the context of upholding the Product Liability Act’s statute of repose, precedent strongly rejects it. This Court has long recognized the ability of the General Assembly to modify or abrogate the common law. See Martin v. Richey, 711 N.E.2d 1273, 1282-83 (Ind.1999); Dague, 275 Ind. at 529, 418 N.E.2d at 213; Sidle, 264 Ind. at 226, 341 N.E.2d at 775; Pennington v. Stewart, 212 Ind. 553, 559, 10 N.E.2d 619, 622 (1937) (abolishing the common law tort of alienation of affections); cf. May v. State, 133 Ind. 567, 570, 33 N.E. 352, 353-54 (1893) (“We think it quite clear that there may be a claim or demand without any right to sue for its recovery.”).4 “Indiana courts have uniformly held that in cases involving injury to person or property, Article I, § 12 does not prevent the legislature from modifying or restricting common law rights and remedies.” State v. Rendleman, 603 N.E.2d 1333, 1336 (Ind.1992) (upholding the Tort Claims Act); accord Jamerson v. Anderson Newspapers, Inc., 469 N.E.2d 1243, 1249-50 (Ind.Ct.App.1984) (upholding shield law protecting news media from revealing their sources), overruled on other grounds by Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). In sum, the courts of this State, like those of most others, “generally agree that the constitutional assurance of a remedy for injury does not create any new substantive rights to recover for particular harms. Rather, the clause promises that, for injuries recognized elsewhere in the law, the courts will be open for meaningful redress.” Jennifer Friesen, State Constitutional Law § 6-2(c) (2d ed.1996).

Although there is a significant split in other states5 as to whether provisions similar to our “remedy by due course” provision permit the legislature to impose a statute of repose in product liability cases, we agree with the Supreme Court of Oregon that “[t]he legislature has the authority to determine what constitutes a legally cognizable injury.” Sealey v. Hicks, 309 Or. 387, 788 P.2d 435, 439 (1990). Indeed, we believe that there is a very powerful reason that the General Assembly must have the authority to determine what injuries are legally cognizable, i.e., which injuries are wrongs for which there is a legal remedy. A contrary view implies a static common law that is inconsistent with the evolution of legal doctrine before and after 1851. Perhaps equally important, if we are to find some remedies chiseled in constitutional stone, we wander into the area of “scarce and open-ended” guideposts for identifying which remedies are of constitutional dimension, and which are not.

Presumably for these reasons, we have long held that the General Assembly has the authority to modify the common *978law and that there is no “fundamental right” to bring a particular cause of action to remedy an asserted wrong. Rohrabaugh v. Wagoner, 274 Ind. 661, 664-65, 413 N.E.2d 891, 893 (1980). Rather, because individuals have “no vested or property right in any rule of common law,” the General Assembly can make substantial changes to the existing law without infringing on citizen rights. Dague, 275 Ind. at 529, 418 N.E.2d at 213; accord Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 386, 404 N.E.2d 585, 593-94 (1980); Lamb v. Wedgewood South Corp., 308 N.C. 419, 302 S.E.2d 868, 880 (1983) (“ ‘The Legislature is entirely at liberty to create new rights or abolish old ones as long as no vested right is disturbed.’ ”); Freezer Storage, Inc. v. Armstrong Cork Co., 476 Pa. 270, 382 A.2d 715, 720 (1978) (“[N]o one ‘has a vested right in the continued existence of an immutable body of negligence law.’ ”); Gibson v. West Virginia Dep’t of Highways, 185 W.Va. 214, 406 S.E.2d 440, 451 (1991) (statute of repose does not violate the remedy by due course of law provision because no cause of action had accrued, and therefore no right had vested at time the statute of repose ended). Because no citizen has a protectable interest in the state of product liability law as it existed before the Product Liability Act, the General Assembly’s abrogation of the common law of product liability through the statute of repose does not run afoul of the “substantive” due course of law provision of Article I, Section 12.

D. If “Due Course of Law” Provides No Remedy, None Is Required by the Constitution

In this case, the General Assembly has determined that injuries occurring ten years after the product was delivered to a user are not legally cognizable claims for relief. Accordingly, the Mclntoshes are not entitled to a “remedy” under Section 12. See Shook Heavy & Envtl. Constr. Group v. Kokomo, 632 N.E.2d 355, 362 (Ind.1994) (“Because [plaintiff] does not have a property interest in the award of the contract ... article I, section 12, of our constitution does not provide plaintiff with a cause of action.... ”). Thus, the statute of repose “ ‘does not bar a cause of action; its effect, rather, is to prevent what might otherwise be a cause of action from ever arising.... The injured party literally has no cause of action. The harm that has been done is damnum absque injuria — a wrong for which the law affords no redress.’ ” Lamb, 302 S.E.2d at 880 (quoting Rosenberg v. Town of North Bergen, 61 N.J. 190, 293 A.2d 662, 667 (1972)); accord Sealey, 788 P.2d at 439; Freezer Storage, Inc., 382 A.2d at 720; Gibson, 406 S.E.2d at 451.

Martin v. Richey, decided last year by this Court, does not affect this analysis. See 711 N.E.2d at 1273. In that case, the plaintiff had a cause of action that accrued before the applicable statutory period had run but did not discover that she had it, and in the exercise of reasonable care could not have discovered it. We held that the application of the statute of limitations to cut off her accrued claim before it reasonably could be brought was an unreasonable and unconstitutional impairment of an existing and recognized remedy. See id. at 1284-85. Here, however, the statute extinguished any cause of action before the plaintiffs’ claim accrued. Unlike the Medical Malpractice Act as applied in Martin, under the Product Liability Act as applied here, no one with an accrued claim is in the position of having the claim but no practical means of asserting it. The legislature has provided that after the product is in use for ten years, no further claims accrue. That is not an unreasonable exercise of legislative power. It is further ameliorated by the provision that claims accruing in the last two years of the ten-year period may be brought within two years after accrual.6

*979Procedure must be according to “due course of law” and courts must be open to entertain claims based on rules of law. Those rules of law, in turn, can be derived either from the common law or prescribed by statute. Thus, although the state constitution requires courts to be open to provide remedy by due course of law, legislation by rational classification to abolish a remedy is consonant with due course of law. If the law provides no remedy, Section 12 does not require that there be one.

Finally, the dissent concludes that Article I, Section 12 guarantees to each citizen “a substantive right to remedy for injuries suffered.” 729 N.E.2d at 988. We think this confuses “injury” with “wrong.” There is not and never has been a right to redress for every injury, as victims of natural disasters or faultless accidents can attest. Nor is there any constitutional right to any particular remedy. Indeed, as we have pointed out, some forms of “wrong” recognized at common law have long since been abolished by the legislature without conflict with the Indiana Constitution. See, e.g., Sidle, 264 Ind. at 206, 341 N.E.2d at 763 (upholding guest statute). Ironically, the wrong the dissent contends in this case to be preserved by the constitution against legislative interference, strict liability for product flaws, did not exist in 1851; it was adopted as part of the Product Liability Act in 1978. See Hoffman v. E.W. Bliss Co., 448 N.E.2d 277, 281 (Ind.1983) (noting that “the Indiana Legislature has codified the basic principles of § 402A products liability into law,” including strict liability). It is true, as the dissent notes, that the concept of strict liability did not originate with the Product Liability Act. Although strict liability did not exist in 1851, by the 1970s, it had become a recognized theory of recovery. See Ayr-Way Stores, Inc. v. Chitwood, 261 Ind. 86, 92-93, 300 N.E.2d 335, 339-40 (1973); Galbreath v. Engineering Construction Corp., 149 Ind.App. 347, 356-57, 273 N.E.2d 121, 126-27 (1971) (recognizing Indiana’s adoption of absolute liability for manufacturers and adoption of § 402A of the Restatement of Torts). This further underscores the point that the common law was not frozen in 1851 and is not chiseled in stone today. The dissent would imply that any judicially created tort remedy, even if non-existent until over 100 years after the adoption of the Indiana Constitution, cannot be abolished. Under this view, the door swings only one way: causes of action may be created at common law and by statute, but no cause of action, once it is created, may be eliminated.

As we observed in another context, the power to create is the power to destroy. See State v. Monfort, 723 N.E.2d 407, 410 (Ind.2000). There is a fundamental difference between finding in the Indiana Constitution a requirement to preserve a specific substantive rule of law (which is the net effect of the dissent’s position), and requiring that our courts be open to entertain claims based on established rules of law. The holding in Martin v. Richey is that a claim that exists cannot be barred before it is knowable. Here, we are dealing with a rule of law that says, in effect, that products that produce no injury for ten years are no longer subject to claims under the Product Liability Act. Whatever the wisdom of such a rule, in our view it is a matter well within the legislature’s ability to regulate.

E. The Statute Is A Rational Means of Achieving a Legitimate Legislative Goal

Although we reject the Melntoshes’ argument that the constitution precludes the General Assembly from modifying or eliminating a common law tort, the legislature’s authority is not without limits. Section 12 requires that legislation that deprives a person of a complete tort remedy must be a rational means to achieve a legitimate legislative goal. As elaborated in Johnson, 273 Ind. at 396, 404 N.E.2d at 599, “[T]he limitation upon patient recoveries is not arbitrary and irrational, but furthers the public purposes of the Act....” *980In Martin, we also found a requirement that, as applied to the individual case, the limitation must not be an unreasonable impediment to the exercise of an otherwise valid claim. This requirement is a variation on the substantive due process theme and imposes an overall test of rationality very similar to the requirement of a rational relationship under Section 23 discussed below.

The Product Liability Act meets both tests. The statute of repose represents a determination by the General Assembly that an injury occurring ten years after the product has been in use is not a legally cognizable “injury” that is to be remedied by the courts. This decision was based on its apparent conclusion that after a decade of use, product failures are “due to reasons not fairly laid at the manufacturer’s door.” Estate of Shebel v. Yaskawa Elec. Am., Inc., 713 N.E.2d 275, 278 (Ind.1999). The statute also serves the public policy concerns of reliability and availability of evidence after long periods of time, and the ability of manufacturers to plan their affairs without the potential for unknown liability. Id. The statute of repose is rationally related to meeting these legitimate legislative goals. It provides certainty and finality with a bright line bar to liability ten years after a product’s first use. It is also rationally related to the General Assembly’s reasonable determination that, in the vast majority of cases, failure of products over ten years old is due to wear and tear or other causes not the fault of the manufacturer, and the substantial interests already identified warrant establishing a bright line after which no claim is created.

In sum, the Mclntoshes do not have a vested interest in the state of the common law as it existed before the Product Liability Act was passed. The General Assembly has made the permissible legislative choice to limit product liability actions to the first ten years of a product’s use. Accordingly, the Mclntoshes’ injuries, which occurred after the ten-year statute of repose ended, were not legally cognizable injuries for which a remedy exists and the statute of repose does not violate Section 12.

II. Article I, Section 23

Article I, Section 23 provides: “The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.” The Mclntoshes argue that the statute creates an impermissible distinction between tort victims injured by products more than ten years old and those injured by products less than ten years old. They also argue that the statute impermissibly grants a privilege to manufacturers of durable goods that is not available to manufacturers of non-durable goods.7 These two classifications are based on the same distinction: injury by a product in use for more than ten years.

It is worth observing at the outset that some forms of legislative “classification” by their terms identify the class of persons to whom the legislation applies, and impose burdens upon or grant benefits to those persons. The hypothetical statute the dissent describes, limiting educational opportunities to persons under thirty years of age, is of that sort. All citizens are either over thirty or they are not. Age is an inherent characteristic in the sense of “innate,’’and no one over thirty will ever again fall into the class of persons under thirty. The differentiation of persons based on innate characteristics such as age raises a host of issues not relevant here, most obviously federal equal protection considerations. Most “classifications,” however, do not define a group of persons *981by some innate characteristic. Rather, they attach consequences to specified sequences of events that could touch anyone. The Product Liability Act statute of repose is of that ilk.

In Collins v. Day, 644 N.E.2d 72, 80 (Ind.1994), this Court announced a two-part test for determining a statute’s validity under Section 23. First, the disparate treatment must be reasonably related to inherent characteristics that distinguish the unequally treated classes and second, preferential treatment must be uniformly applicable and equally available to all similarly situated persons. Id.; see also Martin v. Richey, 711 N.E.2d 1273, 1280 (Ind.1999) (quoting Collins). As explained in Martin, even if the statute is valid under the first prong of Collins, it may be invalid under the second prong if, as applied to .a subset of a facially homogeneous class, it confers a different privilege or harm. 711 N.E.2d at 1281-82. Although Collins itself uses the word “inherent” to describe the characteristic that defines the class, this cannot be equated with “innate” characteristics of members of the class. The worker’s compensation scheme, like the Product Liability Act, turns on the characteristics of the employers, not the injured workers. Similarly, under the Product Liability Act, everyone may potentially recover for an injury from a product not yet ten years old, and everyone injured from an older product is barred. It is the claim, not any innate characteristic of the person, that defines the class.

The first inquiry under Article I, Section 23 is whether the statute of repose is reasonably related to the inherent characteristics that define the distinction. In this case the distinction is the age of the product that allegedly injured the claimant. Contrary to the suggestion of the dissent, there is no statutory classification of claimants. Anyone can present a claim and anyone can be barred by the statute, depending on what product is the source of the claim. As explained in Part I, the statute of repose reflects the legislative determination that product failures occurring more than ten years after delivery to the first user are not fairly laid at the door of the manufacturer. It also promotes certainty and finality by limiting the exposure of manufacturers to ten years after a product is first used. The distinction that follows between persons injured by products less than ten years old and those injured by products more than ten years old is rationally related to serving these legislative goals and is a permissible balancing of the competing interests involved. See Collins, 644 N.E.2d at 79-80 (citing Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 404-05