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Craftsman Builder's Supply Inc. v. Butler Manufacturing Co.3/5/1999
urance rates are inextricably tied to the existence of the architects and builders statute of repose." 782 P.2d at 193. In the instant case, the majority relies on the fact that less than one percent of claims are brought after ten years from completion to justify upholding the statute. As Sun Valley noted, this fact cuts against the statute because it undercuts the stated legislative purpose of reducing insurance costs, since one percent of claims is much less than the 2.1 percent discussed in Sun Valley as "insignificant." Furthermore, with respect to difficulties in defending old claims, we stated in Sun Valley that " hile the passage of time causes inherent difficulty in defending any lawsuit, it also causes equal, if not greater, difficulty in initiating just legal action." Id. In reaching the instant result, therefore, the majority may be reciting the Berry rubric, but it is departing from the result that rubric requires without explicitly saying so. The fact that the majority can reach this result while purporting to follow Berry and its progeny, including Sun Valley, shows one of Berry's many weaknesses. I would explicitly overrule Berry's easily manipulable test and propose a new rule that more properly accords with article I, section 11.
First, a little history. Prior to Berry, this court had addressed article I, section 11 on occasion, but had never set out a definitive test to be used to determine the limits it set on the legislature's power to modify existing legal rights or remedies. In Berry, we broke new ground and read article I, section 11, also known as the "open courts" provision, as imposing a strong substantive limitation on the legislature's ability to limit or eliminate a cause of action for, or the remedies available for, "injury . . . to . . . person, property, or reputation." Having concluded that article I, section 11 contains such a substantive limitation, we set out an analytical model for determining whether a statute had improperly deprived an individual of a "remedy by due course of law" for an "injury done to him in his person, property, or reputation." I do not agree either with the scope of the substantive limitation Berry found in article I, section 11 or with the analytical model founded upon it.
To explain this position, I start with a more detailed recapitulation of the Berry decision. There, we considered the constitutionality of a pair of six- and ten-year statutes of repose. To determine whether these statutes violated the open courts provision, we began with an analysis of article I, section 11's plain language. This interpretation did not involve a systematic examination of the language of the entire open courts provision, but instead merely fixed on the phrases "remedy by due course of law" and "injury done to him in his person, property or reputation." The result was a superficial interpretation of the provisions. See Berry at 674-75.
Without parsing the provision for the meaning of key words and phrases, we found that article I, section 11 was designed to accomplish three primary purposes. First, it "guarantees access to the courts and a judicial procedure that is based on fairness and equality." Id. at 675 (citations omitted). Second, "section 11 also establishes that the framers of the Constitution intended that an individual could not be arbitrarily deprived of effective remedies designed to protect basic individual rights." Id. Finally, and most critically, we found that the "guarantee of access to the courthouse was not intended by the founders to be an empty gesture; individuals are also entitled to a remedy by `due course of law' for injuries to `person, property or reputation.'" Id.
After declaring the genera
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