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Craftsman Builder's Supply Inc. v. Butler Manufacturing Co.3/5/1999
from lipstick to dynamite, to aircraft, and to automobiles. Given the falsity of the stated factual basis for the Legislature's actions and the arbitrariness of the means used, the Court held that the statute of repose was "arbitrary unreasonable, and [would] not achieve the statutory objective." Id.
Justice Zimmerman's contention that the Berry test is "unworkable, . . . [,] subject to manipulation, . . . leads to absurd results, and . . . distorts our relationship with the legislature," 108, is simply factually wrong. The Berry two-part test allows the Legislature considerable latitude to modify and even eliminate judicial remedies where appropriate. Under the first part of the test, the so-called quid pro quo part, the Legislature may establish statutory remedies in the place of common law remedies, as the Legislature has done in enacting the Workers' Compensation Act and the Occupational Disease Act. See also Utah No-Fault Automobile Insurance Act, Utah Code Ann. ยงยง 31A-22-301 to -310 (1998); Berry, 717 P.2d at 677; Masich, 191 P.2d at 612. Each Act totally abrogates common law remedies and substitutes therefor statutory remedies administered by an administrative agency in the case of the first two Acts and, in the case of the No-Fault Act, an insurance contract remedy.
Justice Zimmerman's assertion that the Berry test is unworkable and leads to absurd results is also wholly detached from an objective appraisal of Utah case law. Responding point by point is unnecessary. A reading of our cases demonstrates the error of the assertion. Suffice to say, the Berry test is the same test that the United States Supreme Court has applied under the Due Process Clause of the Fourteenth Amendment in deciding whether one has been denied life, liberty, or property. See, e.g., Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S. 673, 680-82 (1930); Crane v. Hahlo, 258 U.S. 142 (1922); see also Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 94 (1980) (Marshall, J., Concurring) (stating that reasonable alternative remedy must be provided when core common law rights are abolished); Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59 (1978); Condemarin, 775 P.2d at 366-69 (Zimmerman, J., Concurring) (explaining due process approach); Mineer v. Industrial Comm'n, 572 P.2d 1364, 1366 (Utah 1977); State v. Mason, 78 P.2d 920, 925-26 (Utah 1938).
Justice Zimmerman's further assertion that Berry is "inconsistent with our pre-Berry case law," 144, is unequivocally incorrect. Forty years before Berry was decided, this Court held in Masich that the remedy clause in section 11 was a substantive limitation on the Legislature's power to abolish remedies. Nevertheless, the Court held that the statute at issue, the Occupational Disease Act, which barred all common law tort actions for partial disability caused by an occupational disease, did not violate the limitation that Article I, section 11 imposed on legislative power. See 191 P.2d at 624-25.
The issue in Masich was whether the exclusive remedy provision of the Act could constitutionally abrogate common law negligence actions against an employer by a worker who was partially disabled by silicosis. The Act provided compensation for total disability only. The worker argued that the Act was unconstitutional under Article I, section 11 because the exclusive remedy provision abrogated his common law remedy for damages against the employer and because he was accorded no substitute statutory remedy under the Act. The Court stated:
"The contention is made that if a partially disabled employee is not granted compensation and, further, is denied his common law right of action then he has been deprived of his
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