FSM SUPREME COURT
TRIAL DIVISION
Cite as Tosie v. Healy-Tibbits Builders, Inc.,
5 FSM Intrm. 358 (Kos. 1992)

[5 FSM Intrm. 358]

CARMINA TOSIE and ALEX TOSIE
Individually and as personal representatives
of the ESTATE OF RULY TOSIE,
Plaintiffs,

v.

HEALY-TIBBITS BUILDERS, INC., and
KOSRAE STATE GOVERNMENT,
DOE DEFENDANTS 1-10,
Defendants.

FSM CIV. 1991-2004

OPINION
 
Before Martin Yinug
Associate Justice
October 1, 1992

APPEARANCES:
For the Plaintiffs:          Daniel J. Berman, Esq.
                                       Rush, Moore, Craven, Sutton,  Morry & Beh
                                       P.O. Box 1491
                                        Kolonia, Pohnpei  FM 96941

For the Defendants:     R. Barrie Michelsen
                                       Attorney at Law
                                       P.O. Box 1450
                                       Kolonia, Pohnpei  FM 96941

HEADNOTES
Civil Procedure - Summary Judgment
     A motion for summary judgment must be denied unless the Court finds there is no genuine dispute as to material facts, viewing the facts in the light most favorable to the nonmoving party, and that the moving party is entitled to judgment as a matter of law.  Tosie v. Healy-Tibbits Builders, Inc., 5 FSM Intrm. 358, 360 (Kos. 1992).

Custom and Tradition; Torts - Damages; Torts - Wrongful Death
     A statutory cap on the amount and scope of recovery in a wrongful death action, lawfully enacted by the Kosrae legislature, does not interfere with traditional Kosraen or Micronesian compensation of a victim's family by the tortfeasor.  Tosie v. Healy-Tibbits Builders, Inc., 5 FSM Intrm. 358, 361 (Kos. 1992).

[5 FSM Intrm. 359]

Constitutional Law - Judicial Guidance Clause
     State and national legislation may be useful as a means of ascertaining Micronesian values in rendering decisions pursuant to the Judicial Guidance Clause, particularly when more than one legislative body in the FSM has independently adopted similar law.  Tosie v. Healy-Tibbits Builders, Inc., 5 FSM Intrm. 358, 361 (Kos. 1992).

Constitutional Law - Equal Protection; Torts - Wrongful Death
     Families of wrongful death victims do not constitute a suspect class for purposes of equal protection analysis. Tosie v. Healy-Tibbits Builders, Inc., 5 FSM Intrm. 358, 362 (Kos. 1992).

Constitutional Law - Fundamental Rights; Torts - Wrongful Death
     There is no fundamental interest in unbounded wrongful death recovery requiring strict scrutiny of a state law imposing a recovery cap.  Tosie v. Healy-Tibbits Builders, Inc., 5 FSM Intrm. 358, 362 (Kos. 1992).

Constitutional Law - Due Process
     Under FSM law there is no property right to particular levels of tort compensation triggering due process protections.  Tosie v. Healy-Tibbits Builders, Inc., 5 FSM Intrm. 358, 362-63 (Kos. 1992).

Constitutional Law - Equal Protection; Torts - Wrongful Death
     Among the rational bases supporting the constitutionality of a state statute capping wrongful death recovery are a desire to create foreseeable limits on government liability; to promote insurance; to encourage settlement of claims; and to ease the burden on courts and families of valuing losses incurred through the death of a family member.  Tosie v. Healy-Tibbits Builders, Inc., 5 FSM Intrm. 358, 363 (Kos. 1992).

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COURT'S OPINION
MARTIN YINUG, Associate Justice:
     On September 23, 1992 this Court issued an order denying plaintiffs Alex and Carmina Tosie's motion for partial summary judgment on the validity of Kosrae State's wrongful death statute, codified at K.C. 6.2901-.2903.  This memorandum is issued to explain the bases of that decision and address the points raised by plaintiffs in their motion.

     Plaintiffs have instituted this civil action charging the defendants with negligence in the death of their five-year-old son, Ruly Tosie.  Subsequent to the filing of pleadings, plaintiffs filed a motion for partial summary judgment concerning the scope and amount of damages recoverable in a wrongful death action.  Plaintiffs urged this Court to preclude defendants from asserting the application of a cap of $100,000 in recoverable damages pursuant to K.C. 6.2901-.2903 on the basis that the statute violates the FSM Constitution.  In the alternative, plaintiffs asked the Court to narrowly construe the statutory cap.

[5 FSM Intrm. 360]

     In ruling on a motion for summary judgment, the Court must first consider whether on the basis of the pleadings, affidavits and other filings there is any genuine dispute as to material facts.  FSM Civ. R.56(c).  If there is none, the court must then decide whether plaintiffs are entitled to judgment as a matter of law.  Id. Facts are to be construed by the Court in the light most favorable to the party opposing the motion. FSM v. Ponape Builders Constr., Inc., 2 FSM Intrm. 48, 52 (Pon. 1985).  Unless these prerequisites are satisfied, the motion for summary judgment must be denied.

     Plaintiffs allege three constitutional bases for invalidating K.C. 6.2901-.2903. First, according to plaintiffs, the Judicial Guidance Clause, FSM Const. art. XI, 11 authorizes the Court to scrutinize the constitutional validity of state as well as national laws in the context of FSM sources of law, and under this analysis the Kosrae statutory cap will be seen as contrary to custom and tradition.  Second, plaintiffs allege that the statute violates the Equal Protection Clause, FSM Const. art. IV, 4. Third, the statute allegedly violates constitutional due process.  I find that there are issues of material fact in relation to plaintiffs' first claim that defeat their motion for summary judgment, and that as a matter of law all three constitutional claims must fail.  Each of the constitutional arguments will be addressed in turn.

The Judicial Guidance Clause
     Article XI, 11 instructs the Court to "consult and apply sources of the Federated States of Micronesia" in rendering decisions.  FSM Const. art. XI, 11 (as amended 1991).  These sources include "not only court decisions, constitutional history, and other legal writings from the Federated States of Micronesia, but also the customs and traditions of our nation."  SCREP No. 27-90, J. FSM Con. Con. 50, 51. Although the Constitution does not place these sources in any ordered hierarchy, the Committee on Governmental Structure and Functions to the 1990 Constitutional Convention endorsed "the general approach of the Supreme Court set forth in Semens v. Continental Air Lines, Inc., 2 FSM Intrm. 131 (1985) . . . that in deciding a case [the court] must look first to the Constitution, then to custom and tradition, and finally to foreign precedent only if the first two sources do not decide the case . . . ." Id. at 51.

     The Court at this time does not decide the issue raised by the parties whether the Judicial Guidance Clause includes an independent basis for overturning state law on customary grounds.  However, I am in agreement with the defendant's point that the court should be extremely wary of assuming the role of chief interpreter of custom to invalidate acts of the state legislatures.  The Court also refrains from opinioning whether state legislatures are free to enact laws contradicting or modifying custom when not explicitly prohibited by state codes or constitutions, since it is not clear that this issue is in fact before the Court in this case.

     Given the above reservations, I will proceed to plaintiffs' first claim.  The Court reads plaintiffs' argument as being the following:

[5 FSM Intrm. 361]

(1)  The Kosrae legislature passed K.C. 6.2901-.2903 without any review for constitutional or customary validity.

                        (2)  The law violates Kosraean and FSM custom.

(3)  The Court is thus bound by the Judicial Guidance Clause to strike down the law.

     The Court is unable to accept these arguments for the reasons which follow.

     (1)  There is no evidence before the Court that the Kosrae legislature acted unlawfully in enacting K.C. 6.2901-.2903.  Plaintiffs contend that there is no legislative history regarding the statute and that the legislature never formally processed the provision as a bill for an act, while defendants point to the Introduction of the Kosrae Code stating that all existing statutes had been reviewed by standing legislative committees and that "every line of remaining law was reviewed and rewritten for style."  Thus there is a significant disagreement between the parties over the factual issue of the degree of oversight accorded by the Kosrae legislature regarding K.C. 6.2901-2903.  Considering the facts as viewed most favorably toward the defendants, the Court cannot ignore the statement of the Kosrae legislature in the Introduction to the Kosrae Code. Likewise, despite plaintiff's assertion of benign neglect and overreliance on American lawyers, the Court must assume that state legislators like everyone else are responsible for their words as well as their actions.
 
     (2)  Also as a factual matter, it is not clear based on the record before the Court what Kosraean custom holds regarding recovery for wrongful death of a family member.  However, even assuming arguendo plaintiff's position that Pohnpeian and Kosraean custom are similar, I do not find that a statutory limitation of the beneficiaries and amount recoverable contradicts traditional notions of wrongful death compensation as referred to in Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 70-71 (Pon. 1986).

     The Court notes that in terms of defining Micronesian values in rendering decisions pursuant to the Judicial Guidance Clause, legislation may be used as a guide.  Etscheit v. Santos, 5 FSM Intrm. 35, 39 (App. 1991).  Where, as here, however, legislation itself is challenged as violative of custom, it may be useful to see whether any other independent legislative bodies in the nation have arrived at similar legislation.  This inquiry reveals that the FSM Code includes the same recovery limitation in its wrongful death statute as the Kosrae Code.  See 6 F.S.M.C. 503.  This Court has, in fact, referred to this statute "including the $100,000 statutory ceiling on wrongful death claims [as] part of the law of Pohnpei and other states." Edward v. Pohnpei, 3 FSM Intrm. 350, 359 (Pon. 1988).  I find this persuasive authority in the absence of evidence to the contrary that the cap on recovery for wrongful death as found in K.C. 6.2903 does not offend Kosraean or Micronesian custom and cannot be ruled unconstitutional on that basis.

[5 FSM Intrm. 362]

Equal Protection and Due Process
     Both the FSM and Kosraen Constitutions guarantee that equal protection of the laws may not be denied on the basis of race, sex, ancestry, national origin, language or social status.  FSM Const. art. IV, 4; Kos. Const. art. II, 1(c).  No person, regardless of classification, may be "deprived of life, liberty or property without due process of law . . . ." FSM Const. art. IV, 3; Kos. Const. art. II, 1(b).  The Committee on Civil Liberties to the Constitutional Convention identified two kinds of tests for determining the validity under the equal protection and due process clauses of the Constitution of an otherwise lawful government statute: (1) If the statute infringes on a fundamental right, the government must show that the infringement is necessary to a compelling governmental interest; and (2) if the statute infringes on other than a fundamental interest, the party challenging the law must show the absence of a rational relation between the law and a legitimate governmental goal. SCREP No. 23, II J. of Micro. Con. Con. 793, 796.

     Plaintiffs' equal protection claim is based on defining themselves as members of a special class consisting of family of wrongful death victims, which is treated differently as a result of the complained of statute than other classes of tort victims and their relatives to which no statutory cap applies.  Plaintiffs also argue that deprivation of their customary right to receive compensation without any predetermined limitation is a fundamental interest (also cast as the fundamental interest to protect the family from interference).
 
     First, membership in the class identified, wrongful death victims and their families, does not fall within the ambit of suspect categories delineated in the Constitution.  The classification in this case is not based upon "sex, race, ancestry, national origin, language, or social status" but upon type of tort.  Thus the Kosrae statute does not unconstitutionally discriminate on the basis of a suspect class in violation of FSM Const. art. IV, 4.

     Second, I do not find the right to be free from statutory limitations of wrongful death recovery to be a fundamental interest necessitating strict scrutiny of the state law.  While the integrity of the family is not enumerated as a fundamental right under either the equal protection clause or due process clause of the Constitution, it is certainly a central value in Micronesian society.  It may well be viewed, if more precisely defined, as a fundamental interest reflecting "core values and interests, which the Court is confident would be seen as such by all the peoples of the Federated States of Micronesia."  Samuel v. Pryor, 5 FSM Intrm. 91, 102-03 (Pon. 1991).  However, the Court believes the present case does not present the proper issues and facts around which to formulate a fundamental family right.  Moreover, I find that even under a broadly construed notion of such a right, the Kosrae statutory cap on wrongful death recovery does not interfere with the normal conduct of family life in the FSM.

     Plaintiffs' due process claim rests on classifying this same notion of the right of the families under custom to unlimited compensation for wrongful death as a protected property right.  This claim is rejected as I find no

[5 FSM Intrm. 363]

precedent in FSM law and no persuasive authority under U.S. law for finding a property interest in particular levels of tort recovery.

     Having found that no suspect class and no fundamental or property interest is at stake, all that remains of the constitutional analysis is assessment of the rationality of the state statute in relation to a legitimate governmental purpose. Both plaintiffs and defendants have put forth various conjectures as to the intent, or lack thereof, of K.C. 6.2901-2903.  The fact is that we do not know from the record what the actual legislative intent was.  However, the Court takes notice that limitations on recovery in general and against the government specifically have been legislated several times in the FSM, and that such action is within the legislature's  regulatory power.  Also, there are currently other jurisdictions outside of the FSM that contain statutory recovery limits in wrongful death actions.

     Among the plausible and legitimate reasons for such limits are a desire to contain government liability within foreseeable bounds; to provide incentives for and enhance the availability of affordable insurance; and to promote settlement of claims by removing incentives for holding out for ever escalating damage amounts. Wrongful death actions are by nature very different than personal injury claims and justify legislative attempts to ease the burden on both the courts and families of difficult and endless speculation concerning pecuniary and other loss endured as a result of the death of the victim.  While it is true that many potential defendants in these types of cases are large corporations that can presumably afford to compensate above the level of $100,000 on a claim, it is equally as likely that defendants will be ordinary FSM citizens for whom large damage judgments would be crippling.  The law cannot classify on the basis of rich and poor defendants.  The otherwise lawful statutory cap cannot be put aside simply because plaintiffs could possibly recover more from certain defendants than others.

     For the above reasons I conclude that plaintiffs have not met the burden of showing that no rational basis exists in connection with a legitimate government objective in regard to the Kosrae wrongful death statute.

Statutory Construction
     In the alternative to invalidating K.C. 6.2901-2903, plaintiffs requested that the Court construe the statute in a particular manner to allow for the cap to be applied per plaintiff; to adjust the $100,000 limit to account for inflation since 1967; and to enlarge the statute to include survivorship claims.  The Court does not deem it proper at this point in the proceedings to declare a particular construction of the statute applicable.  If and when liability is determined in this matter and it becomes necessary to apply the statute, the Court will then turn its attention to interpretation of particular provisions and certify relevant questions to Kosrae State Court for decision.

    Based on the foregoing reasons, the motion for summary judgment is denied.

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