¶1concurring in the result.
¶2182 I concur in the remand for the purposes stated in the summary. I join in holding that section 63-80-34 is constitutional. In Payne v. Myers, 743 P.2d 186 (Utah 1987), we held that the 1978 amendment to section 63-80-4, which abrogated the right of an injured person to sue a state employee for negligence, did not violate article I, section 11 because the injured person was given the right to sue the state for the employee's negligence. Now, the plaintiffs in the instant case contend that that substitution is not an effective and reasonable alternative because the state's Hability is capped as provided in section 63-30-84 at $250,000 for any one plaintiff. Plaintiffs argue this despite McCorvey v. State Department of Transportation, 868 P.2d 41 (Utah 1993), where we held that the damage cap did not violate article I, section 11, nor the due process clause or the uniform operation of laws clause in the Utah Constitution.
¶3¶83 The Supreme Court of Oregon, in construing that state's open courts provision, which is almost identical to Utah's, held in Mattson v. Astoria, 39 Or. 577, 65 P. 1066 (1901), that the legislature may modify the remedy and former procedure and attach conditions precedent to the exercise of the right without violating the open courts provision. Thus the legislature should be accorded broad discretion in providing an alternative remedy. I believe that a $250,000 judgment against the state is an effective and reasonable substitution for a possibly greater judgment against a state employee. *639I say this because experience has shown that large judgments against state employees for their negligence are often uncollectible. Typically, the employees have no insurance coverage for such a risk, have few personal unexempt assets, and are forced to seek a discharge of the judgment against them in bankruptey. While the state currently indemnifies state employees, the legislature could repeal the statute providing for indemnification if large judgments against employees become burdensome to the state. A plaintiff who recovers a judgment against the state under our immunity act faces none of those problems of collecti-bility. In my opinion, the substitution of remedies is effective and reasonable.
¶4concurring in the result with Chief Justice HOWE and Justice RUSSON: >
¶5¶85 The other members of the court are equally divided on the merits of the central issue in this case. I am casting the deciding vote. I join Chief Justice Howe and Justice Russon in upholding the damage caps contained in section 68-30-34 of the Code. However, I do not join in their article I, section 11 rationale which purports to follow the two-step analysis of Berry v. Beech Aircraft, 717 P.2d 670 (Utah 1985). Before I explain my views on the merits of the constitutional challenge mounted under article I, section 11 of the Utah Constitution and Berry, 1 will recap the positions of the members of the court as a preface.
¶6¶86 On the one side, Associate Justice Durham has joined in an opinion authored by Justice Stewart that would employ the two-step analysis of Berry to strike down the $250,000 damage cap established by seetion 63-30-34 of the Code. Under the first prong of the Berry test, they would find that the cap does not provide a "reasonable alternative remedy" for the common law negligence special and general damage award that the plaintiffs would have been entitled to receive from a state employee absent the For them, any reduction in the dollar amount available at common law appears unacceptable under Berry's first prong. Proceeding to the second prong, they would hold that there is no "clear social or economic evil to be eliminated" and that the abrogation of the common law damage remedy is an "arbitrary or unreasonable means for achieving" the legislature's declared objective. See Berry, 717 P.2d at 680; Stewart op. at ¶¶ 55-67.
¶7¶87 On the other side, Justice Russon has joined in an opinion authored by Chief Justice Howe that would uphold the damage cap as satisfying the first prong of Berry. They reason that although the governmental liability is capped at $250,000, the plaintiffs receive something that they would not have had under the preexisting common law-a certain ability to collect any award up to the cap. Thus, by substituting a governmental entity for a governmental employee as the financially responsible party, the legislature has provided the plaintiffs with a "reasonable alternative remedy," albeit a potentially far smaller award of damages.
¶8¶88 I do.not join in either opinion on the article I, section 11 point. I would uphold the caps because I would overrule Berry and reject its two-step analytical. model. I acknowledge that as one calling for the overruling of a precedent of this court, I carry a heavy burden under the doctrine of stare decisis. See State v. Menzies, 889 P.2d 393, 398-99 (Utah 1994). However, I believe I have met that burden, as explained in my separate opinion in Craftsman Builder's Supply, Inc. v. Butler Manufacturing, Co., 1999 UT 18, ¶¶ 108-155, 974 P.2d 1194 (Zimmerman, J., concurring in the result).
¶9¶89 I will only summarize the main points from that lengthy opinion here: I concluded that Berry has proven unworkable and should be abandoned. The two step test it advances is without solid definition. In an effort to make sense of it, we have repeatedly shifted course over the fifteen years since Berry was decided. This had led us to effectively constitutionalize the common law, and, most recently, even legislative enactments, to put them beyond the reach of attempts by the legislature to reduce exposure to tort Kability. See id. at ¶ 123, 974 P.2d 1194; *640Day v. State ex rel. Dep't of Public Safety, 1999 UT 46, ¶ 54, 980 P.2d 1171 (Zimmerman, J., dissenting). As a result, Berry has distorted our constitutional relationship to the legislature and placed us in the position of having to review legislative policy judgments on a de novo basis and with a skepticism we employ nowhere else. See Craftsman, 1999 UT 18, ¶ 138, 974 P.2d 1194. These failures lead me to call for an abandonment of Berry's interpretation of article I, section 11.
¶10190 In my Craftsman opinion, I offered my alternative interpretation of the language of article I, section 11, as I felt duty bound to do, and to which I adhere today. I conelud-ed that article I, section 11 should be read as a procedural guarantee and that we should largely retreat from second-guessing the legislature on the substantive matters that we have brought within our reach through the use of Berry. I suggested that there were other provisions within the Utah Constitution that might act to constrain the legislature when it acts to severely limit rights to recover for damages, but I did not attempt to elaborate on how those might operate. See Id. at ¶ 152, 974 P.2d 1194. As a final note, I observed that a majority of the court seemed to have been drifting away from the Berry test and the results that it mandates. See id. at 1224 n. 2. In fact, I found the result reached in Craftsman itself to be inconsistent with Berry. See id.
¶1191 No member of this court joined any portion of my opinion in Craftsman. Yet again today, the result reached departs from what Berry requires. Chief Justice Howe's opinion, although seeming to apply the Berry test, is inconsistent with any meaningful application of Berry, as, for example, a simple comparison of his reasoning with that set forth in Berry or Sun Valley Water Beds, Inc. v. Herm Hughes & Son, Inc., 782 P.2d 188 (Utah 1989), or in Horton v. Goldminer's Daughter, 785 P.2d 1087 (Utah 1989), or in Justice Stewart's opinion today, will demonstrate. Today's decision, taken together with the result in Craftsman, plainly demonstrates that a majority of the court is no longer willing to use Berry as a standard by which to judge legislative limitations on civil damage remedies. Yet because of the apparent unwillingness of a majority to openly depart from Berry, no consensus has begun to emerge as to what, if anything, should take its place. In my Craftsman opinion, I suggested a purely procedural reading of article I, section 11 is appropriate and a retreat from intrusive oversight of the legislature, backstopped by possible reliance on other provisions of the constitution to check egregious abuses of legislative power. See Craftsman, 1999 UT 18 at ¶¶ 152-153, 974 P.2d 1194. But that approach seems to lack support among my colleagues, and they have proposed no other alternative. That being *641the case, it is time for us to at least go so far as to publicly acknowledge that one fifteen-year odyssey to find a way to prevent the legislature from riding roughshod over the rights of those civilly wronged, an odyssey that began with our response in Berry to the legislature's sweeping attempt at limiting tort actions against manufacturers in the Utah Product Liability Act, has gone awry. Berry cannot carry the freight we attempted to place on it, and we have not even looked seriously at another vehicle. It may be that a majority of the court will want to continue along the path it started in Berry, but in a different vehicle and with a less ambitious objective. Or it may decide to abandon the venture altogether. But in either event, attention needs to be turned to developing a different analytical model for addressing these issues.
¶12192 I call upon the bar and the members of this court to drop the fixation on Berry and to creatively address the problem of how, in a post-Berry world, this court can remain within its appropriate sphere, while giving meaning to the constitutional provisions that speak of the importance of remedies for civil wrongs. What understandable standards can be fashioned that are practically capable of predictable application? There are plenty of ideas in various opinions written by members of this court over the years addressing, inter alia, article I, section 7 (due process clause); article I, section 24 (uniform operation of laws); article I, section 22 (takings clause); and article XVI, section 5 (wrongful death actions), that could be useful. The various opinions in Condemarin, for example, contain a number of veins of thought that could be profitably mined. But wherever the ideas are found, the fact remains that this court needs creative and capable advocates to advance new approaches and to help the court find its way.
¶132000 UT 55
¶14. In his two-judge opinion, Justice Stewart spends considerable time attacking my failure to adhere to Berry. This appears to be a continuation of the diatribe he launched in response to my separate opinion in Craftsman. See Craftsman, 1999 UT 18 at ¶ 108, 974 P.2d 1194 (Zimmerman, J., concurring), 1203 (Stewart, J., concurring). Given the fulsomeness of our opinions in Craftsman, I am not sure what his effort today is intended to accomplish, other than to vent his frustration with the obvious erosion of Berry. See id. at ¶ 108, 974 P.2d 1194. I make only two points in response.
¶15First, Justice Stewart atiempts to portray me as a one-time strong supporter of his Berry analytical model by selectively quoting certain portions of my opinion in Condemarin. But the truth is that my Condemarin opinion did not rely on his two-step Berry analytical model. See Condemarin v. University Hosp., 775 P.2d 348, 366-69 (Utah 1989) (Zimmerman, J., concurring). I proposed a substantive due process approach, a position that Justice Durham also took and which Justice Stewart vigorously criticized in his own Condemarin opinion. See id.,775 P.2d at 369 (Stewart J., writing separately). I find it passingly strange that today Justice Stewart finds comfort for his Berry analytical model in my Condemarin opinion. But I suppose that for one piloting a sinking Berry ship, any port will do in a storm.
¶16Second, I agree with Justice Stewart that the opinions in Condemarin are instructive, but I draw a different lesson from them than does he. Considered as a whole, I think those opinions show that as long as ten years ago, some members of this court were not fully comfortable with the rather rigid Berry analytical model Justice Stewart has championed and continued to write into the law with such persistence over the past fifteen years and were searching for other more useable models.
¶17This debate between Justice Stewart and me is at an end. I trust that in the future, new solutions will be found to the real and knotty problem with which we have struggled for so long and with such vigor.
¶18On Petition for Rehearing
¶19T1 Both plaintiffs and defendants have asked this court to reconsider various portions of its opinion in this case, issued on January 19, 2000. A majority of the court is unwilling to rehear any of the issues raised by plaintiffs' petition. However, defendants have identified an inconsistency between the "Summary" portion of our earlier opinion and the actual holding of the majority regarding the constitutionality of section 638-80-10(15) of the Utah Code and its implications for the trial court's decision on prejudgment interest.
¶20T2 The court's Summary noted, in subsection (i) of paragraph one, that all members of the court agreed with Justice Stewart's holding "that the trial court erred in denying plaintiffs prejudgment interest." Lyon v. Burton, 2000 UT 19, T1, 887 Utah Adv. Rep. 27 [hereinafter "Lyon I"]. That portion of Justice Stewart's opinion, however, was predicated on his view that the damages cap was unconstitutional and that the trial court therefore erred in holding that prejudgment interest was subject to the cap. Because a majority of the court declared the cap constitutional, it becomes necessary to consider whether prejudgment interest is properly classified as "damages" under seetion 63-30-34 and therefore subject to the $250,000 cap.
¶21T3 Although I shared Justice Stewart's views on the constitutional question, I agree with defendants that, given the majority holding, prejudgment interest must, in fact, be considered part of the "judgment" the statute intended to limit. I therefore write for a reconstituted majority of the court
¶22*642[ 4 We therefore vacate subsection (i) of paragraph one in Lyon I, and affirm the ruling of the trial court denying plaintiffs prejudgment interest.
¶2316 Chief Justice HOWE and Associate Chief Justice RUSSON concur in Justice DURHAM's opinion.
¶24. Justice Stewart retired and Justice Zimmerman resigned from the court shortly after the opinion in the case was handed down, leaving only myself, Chief Justice Howe, and Associate Chief Justice Russon with authority to consider the petition for rehearing.