author: HILLMAN, District Judge.

text:
    CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, Plaintiff, v. CAPITOL CITY LUMBER COMPANY, a Michigan corporation, Defendant.
    No. G83-361CA5.
    United States District Court, W.D. Michigan, S.D.
    Nov. 18, 1985.

      Russell N. Luplow by Charles J. Taunt, Bloomfield Hills, Mich., for plaintiff.
    Hubbard, Fox, Thomas, White & Bengt-son by Thomas A. Bengtson, Lansing, Mich., for defendant.
   OPINION RE MOTION FOR SUMMARY JUDGMENT

HILLMAN, District Judge.

On April 15, 1983, plaintiff, Central States, Southeast and Southwest Areas Pension Fund (“Central States”), filed this action to recover allegedly delinquent pension fund contributions. Plaintiff brings this action under section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a), section 502 of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132, and section 306 of the Multiemployer Pension Plan Amendments Act of 1980, 29 U.S.C. § 1145. Plaintiff alleges that defendant, Capitol City Lumber Company, is delinquent in its pension fund contributions on behalf of employees covered under a collective bargaining agreement between defendant and the Teamsters and Chauffeurs Local Union No. 580 (“Local 580”). This matter is now before the court on cross-motions for summary judgment.

Plaintiff moves for partial summary judgment pursuant to Fed.R.Civ.P. 56(a). Plaintiff seeks summary judgment on the following issues:

“1. That the defendant had and has a continuing obligation to contribute to Central States after expiration of the collective bargaining agreement;
2. That the defendant is obligated to make contributions on behalf of all members of the collective bargaining unit, whether or not they had joined the union;
3. That the defendant is obligated to pay interest on all delinquent contributions since May 1, 1980.”

Defendant moves for summary judgment pursuant to Fed.R.Civ.P. 56(b). In short, defendant asserts that its liability to plaintiff for pension fund contributions on behalf of its employees ended on April 30, 1982.

The following facts are pertinent to the resolution of the parties’ motions for summary judgment. Central States is a multi-employer-employee benefit plan. Capitol City Lumber, as an employer, entered into a collective bargaining agreement with Local 580 that became effective for one year beginning May 1, 1979. The agreement contained a provision of automatic renewal each successive year, absent written notice from one of the parties to the other of an intention to cancel or terminate the agreement sixty (60) days prior to the expiration date for a particular year. Under the terms of the collective bargaining agreement, defendant agreed to make pension contributions on behalf of its employees to plaintiff. Defendant also entered into a “Participation Agreement” with plaintiff pursuant to its agreement with Local 580.

Defendant originally contended that its liability to the pension fund ended on April 30, 1981, when, according to defendant, it effectively terminated the collective bargaining agreement with Local 580. Accordingly, defendant ceased making pension fund contributions on May 1, 1981. In response, Local 580 “filed an unfair labor practice charge, claiming that [Capitol City Lumber] had violated sections 8(a)(5) and (1) of the [National Labor Relations] Act by failing to make contributions to the [pension] funds as required by the [collective bargaining] agreement.” The National Labor Relations Board “found a violation and ordered [Capitol City Lumber] to remit to the [pension] funds all amounts required by Article XIX [of the collective bargaining agreement].” Capitol City Lumber Co. v. N.L.R.B., 721 F.2d 546, 548 (6th Cir.1983). The Court of Appeals for the Sixth Circuit enforced the order of the NLRB directing defendant to make pension fund contributions through April 30,1982, as required by Article XIX of the collective bargaining agreement. Id. Pursuant to the decision of the court of appeals, defendant paid plaintiff $5,701.71. On October 26, 1984, the Regional Director of the NLRB wrote defendant’s counsel to inform him that defendant had “satisfactorily complied” with the court order. Central States was not a party to the proceedings before the NLRB or the court of appeals.

In this action, plaintiff now asserts that defendant’s payment of $5,701.71 fails to include pension contributions for several employees and interest on the delinquent contributions. In addition, plaintiff claims that defendant has a continuing duty to make pension contributions on behalf of its employees beyond the expiration of its contractual duty to make such contributions. In reply, defendant argues that its payment of $5,701.71 completely satisfies its obligation to make pension contributions through April 30, 1982. Defendant contends that its obligation to make pension contributions ended with the termination of its contractual obligation to make such payments on May 1, 1982.

Summary Judgment Motions

On a motion for summary judgment, movant bears the burden of showing conclusively that no genuine issue of material fact exists. Smith v. Hudson, 600 F.2d 60 (6th Cir.); Tee-Pak, Inc. v. St. Regis Paper Co., 491 F.2d 1193 (6th Cir.1974); Fed.R. Civ.P. 56(a). In determining whether issues of fact exist, “the inferences to be drawn from the underlying facts contained in [the affidavits, attached exhibits and depositions] must be viewed in the light most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). A court may not resolve disputed questions of fact in a summary judgment decision, and if a disputed question of fact remains, the district court should deny the motion, and proceed to trial. United States v. Articles of Device, 527 F.2d 1008, 1011 (6th Cir.1976).

In this case, both parties assert that no genuine issue as to any material facts exists. Nonetheless, summary judgment may not be appropriate at this stage of the proceedings. See, e.g., Wermager v. Cormorant Township Board, 716 F.2d 1211, 1214 (8th Cir.1983); Begnaud v. White, 170 F.2d 323, 327 (6th Cir.1948). If a genuine issue of material fact exists concerning a question upon which both parties seek summary judgment, then both summary judgment motions will be denied. See ITCO Corp. v. Michelin Tire Corp., Commercial Division, 722 F.2d 42, 45 n. 3 (4th Cir.1983). In ruling upon the parties’ summary judgment motions, I will consider separately each issue raised by the parties.

A. Defendant’s Continuing Obligation to Pay Pension Contributions.

The parties agree that defendant’s contractual obligation to make pension contributions on behalf of its employees to plaintiff ended on April 30, 1982. Plaintiff, however, moves for “summary judgment on the issue that the defendant had and has a continuing obligation to contribute to Central States after expiration of the collective bargaining agreement.” Defendant moves for summary judgment on the ground that it has “no ... legal requirement to contribute to the pension fund subsequent to April 30, 1982,” and that “it has tendered all required pension fund contributions ... through April 30, 1982.” Both parties’ summary judgment motions, therefore, involve the question whether defendant has a continuing obligation to make pension fund contributions beyond the expiration of its contractual obligation.

Before instituting unilateral changes in mandatory subjects of bargaining, an employer must bargain in good faith to impasse. See, e.g., National Labor Relations Board v. Katz, et al., 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962). The expiration of a collective bargaining agreement does not allow an employer to change unilaterally the terms of mandatory subjects of bargaining without first bargaining to impasse. N.L.R.B. v. Carilli, 648 F.2d 1206, 1214 (9th Cir.1981). “[Contributions to an employee pension trust fund constitute a mandatory bargaining subject.” American Distributing Co., Inc. v. N.L.R.B., 715 F.2d 446, 449 (9th Cir.1983). Consequently, an employer must bargain to impasse after the expiration of a collective bargaining agreement before unilaterally changing its pension fund contributions. In this case, therefore, defendant’s continuing obligation to make pension contributions beyond April 30, 1982, depends upon whether Local 580 and defendant reached an impasse in their bargaining. 4

The existence of an impasse depends upon the particular facts of each case. See generally The Developing Labor Law 634-36 (C. Morris 2d ed. 1983). In short, an impasse exists “after good faith negotiations have exhausted the prospects of concluding an agreement.” Taft Broadcasting Co., 163 NLRB 475, 478 (1967). An impasse, however, does not exist where a party hinges further negotiations upon the resolution of a pending unfair labor practice charge or the other party’s withdrawal of an unfair labor practice charge. See, e.g., Stark Ceramics, Inc. v. N.L.R.B., 375 F.2d 202, 206 (6th Cir.1967); N.L.R.B. v. Taormina Co., 207 F.2d 252, 254 (5th Cir.1953).

In this case, the parties ceased bargaining from October, 1981, until June 20,1984. The plaintiff contends that “[bargaining was suspended because of the [defendant’s] refusal to reach agreement until the NLRB action was concluded or [Local 580] withdrew its [unfair labor practice] charge.” In reply, “[defendant maintains that the parties were unable to agree on the ‘dollars and cents,’ or the money package, hourly or otherwise, which would be required to achieve an agreement.” Both parties use the deposition testimony of bargaining participants to support their explanation of the suspension of bargaining between defendant and Local 580.

In determining whether Local 580 and the defendant reached impasse in their negotiations, the intent, motive, and belief of the bargaining participants, such as James Olson, President of Capitol City Lumber, and James Cooper, business representative of Locals 580, will largely control. Where questions of intent and motivation are central, summary judgment is rarely appropriate. See, e.g., Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); Croley v. Matson Navigation Co., 434 F.2d 73, 77 (5th Cir.1970). The motive, belief, and credibility of Mr. Olson and Mr. Cooper present factual questions that this court cannot now conclusively answer. Genuine issues as to material facts exist concerning whether Local 580 and defendant bargained to impasse and, consequently, whether defendant has a continuing obligation to make pension contributions beyond April 30, 1982.

Accordingly, defendant’s motion for summary judgment is denied. In addition, plaintiff’s motion for summary judgment regarding defendant’s continuing obligation to make pension contributions is denied.

B. Defendant’s Obligation to Make Pension Contributions on Behalf of Union and Non-Union Employees.

Plaintiff also moves for summary judgment on the scope of Capitol City Lumber Company’s obligation to make pension contributions on behalf of its employees. Specifically, plaintiff moves for summary judgment “on the issue that the defendant is obligated to make contributions on behalf of all members of the collective bargaining unit, whether or not they had joined the union.”

Plaintiff argues' that the Participation Agreement between. the parties, read in conjunction with the NLRB’s order issued pursuant to the dispute between Local 580 and the defendant, requires the defendant to make pension contributions on behalf of all employees within the bargaining unit. In addition, plaintiff maintains that several recent cases support its interpretation of the parties’ agreement. In response, defendant contends that the collective bargaining agreement between Local 580 and the defendant mandates a union shop. Furthermore, defendant distinguishes the cases that plaintiff presents and insists that the collective bargaining agreement only requires contributions for employees on the regular seniority list, i.e., union employees. I find plaintiff’s position more persuasive.

In Teamster’s Local 348 Health and Welfare Fund, et al. v. Kohn Beverage Co., 749 F.2d 315 (6th Cir.1984), the Court of Appeals for the Sixth Circuit considered whether a collective bargaining agreement required the employer to contribute to the employee benefit plans for union members only. In Kohn, the collective bargaining agreement specified that the employer must contribute to the pension fund “for each regular employee covered by [the collective bargaining agreement.]” The collective bargaining agreement defined “employees” by listing various job classifications. The agreement also included a union shop clause and a recognition clause. Id. at 318. The Court of Appeals concluded that the collective bargaining agreement required the employer to make pension fund contributions on behalf of all employees within the bargaining unit rather than only union employees. The following factors guided the court’s opinion.

First, the court found that a collective bargaining agreement that defines employees by job classification requires coverage “of all employees within those classifications, regardless of union membership.” Id. Second, the presence of a recognition clause within a collective bargaining agreement demands an employer to make fringe benefit contributions on behalf of union and non-union employees. Third, “[t]he absence of language distinguishing union and non-union employees indicates that the agreement covers all employees.” Id. Finally, a union shop clause requires “only payment of union dues and not union membership.” Id.

The Court of Appeals for the Third Circuit has also considered whether an employer must make pension fund contributions on behalf of all employees within a bargaining unit or only union employees within the bargaining unit. In Byrnes v. DeBolt Transfer, Inc., 741 F.2d 620, 624 (3d Cir.1984), the court of appeals held that the employer was obligated to make pension contributions on behalf of all employees within the job classifications specified in the collective bargaining agreement. The court found that the definition of “employees” in the collective bargaining agreement by job classification compelled the employer to make pension contributions on behalf of those “employees.” Furthermore, the court, in dictum, stated that any distinctions in pension contributions on behalf of union and non-union employees would violate the National Labor Relations Act:

“The absence of any distinction in the agreements between union and non-union members can be easily explained: the law does not permit such a distinction. ' Section 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(3), provides as follows:
It shall be an unfair labor practice for an employer — by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization....
The Supreme Court made clear in Radio Officers’ Union v. NLRB, 347 U.S. 17, 39-42, 74 S.Ct. 323, 335-337, 98 L.Ed. 244 (1954), that section 8(a)(3) meant precisely what it said: an employer may not encourage or discourage union membership by means of discrimination. The district court found that DeBolt’s practice of making contributions to the Funds on behalf of union members only will encourage union membership. Not even DeBolt disputes this observation. Accordingly, section 8(a)(3) prohibits such a practice.”

Id. at 623.

Applying the factors outlined in Kohn, I find that the collective bargaining agreement requires defendant to make pension contributions on behalf of all employees within the collective bargaining unit regardless of union membership. Although the collective bargaining agreement refers to “classifications of employees covered by the agreement,” the agreement between defendant and Local 580 does not contain a standard employee definitional clause as in Kohn. Nonetheless, the NLRB has found that the collective bargaining agreement between the parties covers employees according to work classification. The Board held that the collective bargaining agreement “covers employees in the following unit:

All full-time and regular part-time truck drivers, and yard employees employed by Capitol City Lumber Company at or out of its facility located at 700 E. Kalamazoo St., Lansing, Michigan, but excluding all sales employees, office clerical employees, and casual employees, guards, and supervisors as defined in the Act.”

In re Capitol City Lumber Co. and Local 580, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 263 NLRB No. 102 at 10 (August 30, 1982) [hereinafter cited as NLRB Order \ The Participation Agreement between the parties specifies that “[t]he [defendant] shall contribute to the ... pension fund ... for each employee covered by the collective bargaining agreement, and only such employees.” Participation Agreement ¶ 5. Accordingly, Capitol City Lumber Co. should make pension contributions on behalf of all employees within the previously defined bargaining unit. Furthermore, the other factors that the court of appeals outlined in Kohn also affirm this result.

The collective bargaining agreement contained a recognition clause that established Local 580 as the employees’ exclusive representative. Collective Bargaining Agreement Art. I § 1. The collective bargaining agreement reveals no distinctions between union and non-union employees. Cf. Brynes v. DeBolt Transfer, Inc., 741 F.2d 620, 623 (3d Cir.1984). Although defendant relies on the presence of a union shop clause within the agreement, the court of appeals in Kohn. rejected the relevance of a union shop clause to the determination of the scope of an employer’s duty to make pension contributions. In fact, the presence of a union shop clause indicates that “ ‘employees covered by this agreement’ may exist prior to and apart from union-member employees.” See Kohn Beverage Co., 749 F.2d at 318 (6th Cir.1984).

Defendant contends that the following “verbiage [in the collective bargaining agreement] appears to distinguish between union and non-union employees.”

“[T]he Employer agrees to pay into the Central States Southeast and Southwest Areas Pension Fund for each employee covered by this Agreement who is on the regular seniority list ...”

[emphasis added]. Collective Bargaining Agreement Art. XIX. I agree with defendant; this language is verbiage. It adds no distinctions between union and non-union employees concerning defendant’s obligation to make pension contributions. Furthermore, the statement of the court of appeals in Byrnes v. DeBolt Transfer, Inc., 741 F.2d at 623, raises great doubt that such a distinction among workers in the same bargaining unit could lawfully exist. Therefore, no genuine issue as to any material fact exists concerning defendant’s obligation to make pension fund contributions under the collective bargaining agreement on behalf of all employees within the bargaining unit.

Accordingly, plaintiff’s motion for summary judgment is granted with respect to defendant’s obligation to make pension contributions on behalf of all members of the collective bargaining unit.

C. Defendant’s Obligation to Pay Interest for Delinquent Contributions.

Plaintiff also moves for summary judgment on the issue “that the defendant is obligated to pay interest on all delinquent contributions since May 1, 1980.” Under 29 U.S.C. § 1132(g)(2), if “a judgment in favor of the plan is awarded, the court shall award the [employee pension benefit] plan ... an amount equal to the greater of (i) interest on the unpaid contributions, or (ii) liquidated damages provided for under the plan in an amount not in excess of 20 percent ... of the” unpaid contributions. The Participation Agreement between defendant and Local 580 specifies that:

“The Union and the Employer agree to be bound by, and hereby assent to, all of the terms of the Trust Agreement creating [the] Central States, Southeast and Southwest Areas Pension Fund, all of the rules and regulations heretofore and hereafter adopted by the Trustees of said Trust Fund pursuant to said Trust Agreement, and all of the actions of the Trustees in administering such Trust Fund in accordance with the Trust Agreement and rules adopted.”

Participation Agreement ¶ 1. Article XIV, Section 4 of the Trust Agreement provides that:

“In addition to any other remedies to which the parties may be entitled, an Employer shall be obligated to pay interest on the moneys due to the Trustees from the date when the payment was due to the date when the payment is made, ... The interest payable by an Employer, in accordance with the preceding sentence, shall be computed and charged to the Employer at the prime interest rate established by Chase Manhattan Bank (New York, New York) for the fifteenth (15th) day of the month for which the interest is charged.”

In response to plaintiff’s motion for summary judgment concerning defendant’s obligation to pay interest for late contributions, defendant does not contest its duty to pay interest on delinquent contributions. Instead, “[defendant maintains that it has previously tendered, in full, any and all interest which had been due, with the specific sanction and approval of the NLRB.”

Pursuant to the NLRB Order in the dispute between Local 580 and defendant, defendant, in August of 1984, paid plaintiff $5,701.71 for unpaid pension contributions through April 30, 1982. After defendant’s payment, the Regional Director of the NLRB for Region 7 wrote to inform defendant and Local 580 that the NLRB procedings were closed. The Regional Director wrote that: “[Capitol City Lumber Co.] having satisfactorily complied with the affirmative requirements of the [NLRB Order ], and the undersigned having determined that [Capitol City Lumber Co.] is also in compliance with the negative provision of the order, the case is hereby closed.” Building upon this letter, defendant makes three specific assertions in response to plaintiff’s motion for partial summary judgment concerning defendant’s duty to pay interest charges on delinquent contributions.

First, defendant asserts that the prior NLRB proceedings and its compliance with the NLRB Order as demonstrated by the Regional Director’s letter, bar this court’s consideration of whether defendant owes plaintiff further interest charges. Second, defendant asserts that its payment of $5,701.71 included interest charges for delinquent contributions through April 30, 1982. Finally, defendant asserts that it has no obligation to pay interest charges on pension contributions from May 1, 1982, to the present because it does not have an obligation to make pension contributions to plaintiff beyond April 30, 1982. I will consider those assertions in reverse order.

Defendant’s third assertion turns on the resolution of the issue whether defendant had and has a continuing obligation to make pension contributions beyond April 30, 1982. As previously determined in this opinion, that issue is not appropriate for summary judgment. Consequently, summary judgment on defendant’s obligation to pay interest charges on pension contributions allegedly due after April 30, 1982, is not appropriate. Accordingly, plaintiff’s motion for summary judgment with respect to defendant’s obligation to pay interest on “delinquent” pension contributions for the period of May 1, 1982, through the present is denied.

Defendant’s second and first assertions involve the principles of res judicata and collateral estoppel. Plaintiff contends that the NLRB proceeding between defendant and Local 580 does not bar this court’s consideration of whether defendant has fully paid plaintiff the interest charges on delinquent pension contributions for the period from May 1, 1981, to May 1, 1982. In short, plaintiff argues that defendant’s payment of $5,701.71 may be insufficient and that this court may consider its sufficiency. I agree with plaintiffs position. The letter of the Regional Director, or the completion of the NLRB proceeding between defendant and Local 580 does not preclude this court from considering whether defendant has sufficiently paid interest charges on delinquent pension contributions through April 30, 1982. Several recent cases support this conclusion.

In O’Hare v. General Marine Transport Corp., 740 F.2d 160 (2d Cir.1984), the Court of Appeals for the Second Circuit considered whether its prior decision in the context of an unfair labor practice charge acted as a res judicata bar to a section 301 action by the trustees of a pension fund. The two actions involved the same core of operative facts. Additionally, “a ruling in [the union’s] favor in the first action would have resulted in the trustees’ recovering at least some of the damages they sought in the [second] action.” Id. at 167. Nonetheless, the court of appeals found that res judicata did not apply to bar the trustees’ section 301 action. Id. The court reasoned that “[t]he trustees, plaintiffs in this suit, were not a party to the earlier action, nor could they be considered privies to [the union] as a matter of law by virtue of the divergent responsibilities of pension or insurance fund trustees and union officials and lack of any showing of an agency relation. Cf. NLRB v. Amax Coal Co., 453 U.S. 322, 101 S.Ct. 2789, 69 L.Ed.2d 672 (1981) (employer-selected trustees of trust fund are not ‘representatives’ of the employer for purposes of the National Labor Relations Act).” Id. In Board of Trustees v. Universal Enterprises, Inc., 751 F.2d 1177 (11th Cir.1985), the Court of Appeals for the Eleventh Circuit followed the same reasoning.

in Universal Enterprises, as in this case, at the time that the Board of Trustees of the pension fund brought suit under ERISA to recover delinquent pension contributions from the employer, the union was bringing an unfair labor practice charge against the employer for, inter alia, unilaterally terminating its contributions to the pension fund. The court of appeals found that the trustees and the union had distinctive interests and, consequently, that they were not in privity for purposes of res judicata. In conclusion, the court of appeals held that the district court could consider an issue presumably determined by the unfair labor practice proceedings in the trustees’ section 301 action. Universal Enterprises, 751 F.2d at 1183. Similarly, the unfair labor practice proceedings between Local 580 and Capitol City Lumber Co. do not in any manner bar the current action between the pension fund and Capitol City Lumber Co.

The plaintiff in this action was not a party to the unfair labor practice proceedings involving defendant and Local 580. Furthermore, plaintiff and Local 580 have distinctive interests. Employer and union trustees operate the pension fund. The pension fund has an obligation under ERISA to pay benefits due to participants and their beneficiaries independent of employers’ fulfillment of their contractual obligations. See Central States, Southeast and Southwest Areas Pension Fund v. Hitchings Trucking, 472 F.Supp. 1243 (E.D.Mi.1979). In addition, Local 580 owes no duty of fair representation to the trustees of the pension fund. See Robbins v. Prosser’s Moving & Storage Co., 466 U.S. 364, 104 S.Ct. 1844, 1851 n. 22, 80 L.Ed.2d 366 (1984). Plaintiff and Local 580, therefore, are not in privity for purposes of res judicata. No prior decision in the unfair labor practice charge proceedings involving Local 580 and defendant bars plaintiff’s full recovery of any delinquent pension contributions and interest charges. In any event, there has been no adjudication of the parties’ dispute concerning the amount of delinquent pension contributions and interest charges that defendant allegedly owes.

Accordingly, the NLRB proceedings between defendant and Local 580, the NLRB Regional Director’s closing of the NLRB proceedings, and defendant’s payment of $5,701.71 do not bar this court’s consideration of the amount of pension contributions and interest charges that defendant allegedly owes plaintiff. Nonetheless, summary judgment regarding the amount of interest charges due for delinquent pension contributions through April 30, 1982, is inappropriate. A dispute of material fact exists concerning the amount of delinquent contributions that defendant owes through April 30, 1982. Consequently, a dispute of material fact exists concerning the amount of interest charges that defendant owes through April 30, 1982.

In addition, to the extent that plaintiff simply seeks summary judgment on the issue whether defendant must pay interest charges on delinquent pension contributions from May 1, 1980 to May 1, 1982, plaintiff’s summary judgment motion is moot. Defendant recognizes that it owes interest charges for delinquent pension contributions through April 30, 1982. But defendant “maintains that it has previously tendered, in full, any and all interest which had been due.”

SUMMARY

Defendant’s motion for summary judgment is denied. Plaintiff’s motion for summary judgment regarding defendant’s continuing obligation to make pension contributions beyond April 30, 1982, is denied. Plaintiff’s motion for summary judgment is granted, however, with respect to defendant’s obligation to make pension contributions on behalf of all employees within the collective bargaining unit. Finally, regarding plaintiff’s motion on the issue that “the defendant is obligated to pay interest on all delinquent contributions since May 1, 1980,” several rulings apply. First, plaintiff’s motion with respect to defendant’s obligation to pay interest on “delinquent”

pension contributions for the period of May 1, 1982, through the present is denied. Second, plaintiff’s motion for summary judgment with respect to defendant’s obligation to pay interest on delinquent pension contributions through April 30, 1982, is moot. Third, to the extent that plaintiff moves for summary judgment with respect to the amount of interest charges due for delinquent contributions through April 30, 1982, summary judgment is denied. Nonetheless, neither the prior NLRB proceedings between defendant and Local 580 nor defendant’s payment of $5,701.71 to plaintiff bars this court’s further consideration of the amount of pension contributions and interest charges that defendant allegedly owes plaintiff.

IT IS SO ORDERED.

      . “The fact that the court reliefs] on federal labor law principles derived from NLRB adjudications in order so to categorize the dispute and subsequently in order to rule on the substantive issues raised does not deprive the court of jurisdiction under section 301. See Smith v. Evening News Association, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). Evening News makes clear that courts in section 301 suits are entitled to consider facts that may also make out an unfair labor practice within the competence of the NLRB.” O'Hare v. General Marine Transport Corp., 740 F.2d 160, 166 (2d Cir.1984).

      . In effect, the National Labor Relations Board made the same finding when ruling upon the unfair labor practice charge against defendant. The Board ordered defendant to "[m]ake the contributions which it failed to remit to the Michigan Conference of Teamsters Welfare Fund and the Central States Southeast and Southwest Areas Pension Fund ... for the employees in the above-described unit.” NLRB Order, 263 NLRB No. 102 at 11.

      . If defendant has a continuing obligation to make pension contributions beyond April 30, 1982, then 29 U.S.C. § 1132(g)(2) and the Trust Agreement would require defendant to pay interest charges on pension contributions delinquent from May 1, 1982, to the present.

      . Plaintiff, of course, had no standing to bring the unfair labor practice charge. Universal Enterprises, 751 F.2d at 1183.


source: Caselaw Access Project

author: THEIS, District Judge.

license: Public Domain

text:
    Christopher COBURN, a minor, By and Through Royce COBURN and Leslie Coburn, his father and mother, natural guardians and next friends, Plaintiff, v. Conrado AGUSTIN, M.D., Defendant.
    Civ. A. No. 80-1520.
    United States District Court, D. Kansas.
    Nov. 25, 1985.

      Andrew W. Hutton, Michaud, Cordry & Michaud, Hutton & Hutton, Wichita, Kan., for plaintiff.
    Darrell D. Kellogg, Wichita, Kan., for defendant. •
   OPINION

THEIS, District Judge.

This is an action for medical malpractice in which the minor plaintiff claims he sustained permanent brain damage and other serious injuries as a result of the defendant doctor’s negligence. Defendant’s requested instruction number 59 would have informed the jury that it could consider collateral source payments to the plaintiff in mitigation of the plaintiff’s damages. The proposed instruction tracked the language of the Kansas Medical Malpractice Statute, effective July 1, 1985, which abrogates the collateral source rule in medical malpractice actions. 1985 Kan.Sess.Laws 197. On September 26, 1985, the Court denied the requested instruction and held the new Kansas statute unconstitutional as viola-tive of equal protection. In the following opinion, the Court explains the reasons for its bench ruling.

I. THE COLLATERAL SOURCE RULE IN KANSAS

The collateral source rule generally provides that damages recoverable by a plaintiff for personal injuries may not be reduced by the amount of payments or services received from sources independent of the tortfeasor. See J. Dobbs, Handbook on the Law of Damages § 8.10 (1973). Kansas has long applied this doctrine. Southard v. Lira, 212 Kan. 763, 512 P.2d 409 (1973); Rexroad v. Kansas Power & Light Co., 192 Kan. 343, 388 P.2d 832 (1963); Lewark v. Parkinson, 73 Kan. 553, 85 P. 601 (1906).

In 1976, as a part of its response to what was perceived to be a crisis in medical malpractice, the Kansas Legislature enacted K.S.A. § 60-471, which modified the collateral source rule as follows:

(a) In any action for damages for personal injuries or death arising out of the rendering of or the failure to render professional services by any health care provider, evidence of any reimbursement or indemnification received by a party for damages sustained from such injury or death, excluding payments from insurance paid for in whole or in part by such party or his or her employer, and services provided by a health maintenance organization to treat any such injury, excluding services paid for in whole or in part by such party or his or her employer, shall be admissible for consideration by the trier of fact subject to the provisions of subsection (b). Such evidence shall be accorded such weight as the trier of fact shall choose to ascribe to that evidence in determining the amount of damages to be awarded to such party.

Judge Richard Rogers upheld this statute in the face of equal protection challenges in Holman v. The Menninger Foundation, No. 79-4090 (D.Kan., unpublished, July 13, 1982), and Marlatt v. Hutton, No. 76-46-C5 (D.Kan., unpublished, April 3, 1979). In Doran v. Priddy, 534 F.Supp. 30 (D.Kan.1981), this Court declared K.S.A. § 60-471 unconstitutional, reasoning that the abolition of the collateral source rule for a single class of tort defendants— health care providers — violated the equal protection clauses of the United States and Kansas Constitutions. In addition, this Court determined that the statute fostered inequitable results by discriminating between patients whose collateral source was insurance and those whose collateral source was services rendered gratuitously. Id. at 38. On June 21, 1985, the Kansas Supreme Court evaluated an equal protection challenge to K.S.A. § 60-471, agreed with this Court’s analysis and conclusion and struck down the statute as unconstitutional. Wentling v. Medical Anesthesia Services, 237 Kan. 503, 701 P.2d 939 (1985).

Effective July 1, 1985, the Kansas Legislature repealed K.S.A. § 60-471 and enacted the following statute in its place:

(3)(a) In any medical malpractice action, evidence of the amount of reimbursement or indemnification paid or to be paid or for the benefit of a claimant under the following shall be admissible: (1) Medical, disability or other insurance coverage except life insurance coverage; or (2) worker’s compensation, military service benefit plan, employment wage continuation plan, social welfare benefit program or other benefit plan or program provided by law.
(b) When evidence of reimbursement or indemnification of a claimant is admitted pursuant to subsection (a), the claimant may present evidence of any amounts paid to secure the right to such reimbursement or indemnification and the extent to which the right to recovery is subject to a lien or subrogation right.
(c) In determining damages in a medical malpractice action, the trier of fact shall consider: (1) The extent to which damages awarded will duplicate reimbursement or indemnification specified in subsection (a); and (2) the extent to which such reimbursement or indemnification is offset by amounts or rights specified in subsection (b).

1985 Kan.Sess.Laws 197. While the Kansas state courts have not addressed the validity of this provision, in an opinion filed August 2, 1985, Judge Patrick Kelly upheld the new collateral source rule statute in the face of an equal protection challenge. Crowe v. Wigglesworth, 623 F.Supp. 699 (D.Kan.1985). Judge Kelly noted that “[i]n legislation of the type here at issue, out of the similarly situated group of persons injured by the tortious acts of others, the state has isolated for different treatment those persons injured by the negligent acts or omissions of health care providers.” Id. at 702. Yet Judge Kelly sustained the legislation under the rational basis test because he determined the legislature could reasonably have concluded that “insofar as the size of medical malpractice verdicts allegedly affects the so-called crisis, an effort to more closely relate those verdicts to the actual loss suffered by plaintiffs would offer the malpractice insurance companies some relief.” Id. at 705. Although he observed that “blind adherence to this most permissive constitutional standard and the consequent over-indulgence of state legislatures in these matters have been properly criticized as an abdication of judicial responsibility,” id. at 703, Judge Kelly felt constrained to apply the rational basis test because he viewed the statute in question as “merely a procedural enactment, a rule of evidence_” Id. at 704. Because of the substantive operation of the collateral source rule, this Court believes a more searching equal protection inquiry is warranted.

II. EQUAL PROTECTION — AN EMERGING STANDARD OF REVIEW

The Fourteenth Amendment to the United States Constitution declares that no state shall deny a person equal protection of the law. The Kansas Constitution’s counterpart of the Fourteenth Amendment is section 1 of the Kansas Bill of Rights: “All men are possessed of equal and inalienable rights, among which are life, liberty, and the pursuit of happiness.” Kansas cases appear to construe the Kansas constitutional provision as being substantially the equivalent of the parallel provision in the United States Constitution. See, e.g., State ex rel. Schneider v. Liggett, 223 Kan. 610, 616, 576 P.2d 221 (1978).

The equal protection clause has evolved from what was once considered the “last resort” of constitutional argument, Buck v. Bell, 274 U.S. 200, 208, 47 S.Ct. 584, 585, 71 L.Ed. 1000 (1927), into a vital tool for effecting social change. A review of the historical development of the various models and trends of equal protection analysis is crucial to an understanding of this evolution and of the Supreme Court’s current treatment of the concept.

A. Historic Development of Equal Protection Analysis

Traditionally, equal protection issues have been decided within a two-tiered analytic framework. United States v. Carotene Products Co., 304 U.S. 144, 152-53 n. 4, 58 S.Ct. 778, 783-84, 82 L.Ed. 1234 (1938). The first tier involves a strict scrutiny test by which courts evaluate statutes that discriminate against suspect classes, see, e.g., Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (race); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954) (national origin), or that encroach on fundamental rights, see, e.g., Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) (right to marry); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (right to travel); Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) (right of political association); Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (right to vote); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (right to free exercise of religion); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) (right to criminal appeals). Under the strict scrutiny standard, the Supreme Court has required the state to show that the statutory scheme in question was “necessary to promote a compelling governmental interest.” Shapiro, 394 U.S. at 638, 89 S.Ct. at 1333 (emphasis in original). In addition, if the legislation affects fundamental rights, the Court has required the state to have chosen the least restrictive means of achieving the governmental objective. Dunn v. Blumstein, 405 U.S. 330, 343, 92 S.Ct. 995, 1003-04, 31 L.Ed.2d 274 (1972).

The second tier involves a “rational basis” test under which legislation that does not involve a fundamental right or a suspect class is evaluated. Under the rational basis standard, “[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961). The legislative classification must be sustained “unless it is ‘patently arbitrary’. ...” Frontiero v. Richardson, 411 U.S. 677, 683, 93 S.Ct. 1764, 1768-69, 36 L.Ed.2d 583 (1973) (citations omitted).

In the 1970s, the two-tiered system came under criticism for the rigidity inherent in its two widely variant levels of scrutiny. As Professor Gerald Gunther remarked, strict scrutiny was “ ‘strict’ in theory and fatal in fact,” whereas the rational basis test afforded “minimum scrutiny in theory and virtually none in fact.” Gunther, The Supreme Court, 1971 Term—Foreward: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1, 8, 17 (1972) [hereinafter cited as Gunther, In Search of Evolving Doctrine ]. Not only was the choice of test outcome-determinative, but the model offered no gradations for rights of intermediate importance. The inflexibility in the two-tiered system led the Supreme Court to develop a heightened level of scrutiny for cases involving discrimination against certain kinds of groups. Thus, the Supreme Court extended an intermediate level of scrutiny to legislative classifications based on alienage, Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982), illegitimacy, Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), and gender, Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976).

In formulating this intermediate level of scrutiny, the Supreme Court looked for guidance to older precedents. Prior to the era of two-tiered equal protection analysis, the Supreme Court had employed a second, more stringent rational basis test in some instances. In F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 562, 64 L.Ed. 989 (1920), the Court required that a classification “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Although the McGowan formulation eventually became the traditional rational basis test and the Royster “fair and substantial relation” standard fell into disuse, the Royster test reemerged in the 1970s as the basis for the intermediate standard of review. Note, Refining the Methods of Middle-Tier Scrutiny: A New Proposal for Equal Protection, 61 Tex.L.Rev. 1501, 1507 (1983).

The intermediate level of scrutiny has been subject to various formulations. In Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), the Supreme Court addressed a statute which gave preference to men over women in the appointment of intestate administrators. The Court enunciated the standard for gender cases that the legislative classification “must rest upon some ground of difference having a fair and substantial relation to the object of the legislation_” Id. at 76, 92 S.Ct. at 254. In Craig, 429 U.S. at 197, 97 S.Ct. at 457, the Court stated that a gender based classification “must serve important governmental objectives and must be substantially related to the achievement of those objectives.” Classifications based on illegitimacy “will survive equal protection scrutiny to the extent they are substantially related to a legitimate state interest.” Mills v. Habluetzel, 456 U.S. 91, 99, 102 S.Ct. 1549, 1554-55, 71 L.Ed.2d 770 (1982). Some commentators suggest that the differences in the standards applied to those categories in the intermediate scrutiny realm are more than adjectival. See, e.g., Note, Alternative Models of Equal Protection Analysis: Plyler v. Doe, 24 B.C.L. Rev. 1863, 1390 (1983) [hereinafter cited as Alternative Models ]. Indeed, Justice Marshall has contended that the Supreme Court is moving toward a spectrum or sliding-scale of standards which “comprehends variations in the degree of care with which the Court will scrutinize particular classifications, depending ... on the constitutional and societal importance of the interest adversely affected and the recognized invid-

iousness of the basis upon which the particular classification is drawn.” San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 99, 93 S.Ct. 1278, 1330, 36 L.Ed.2d 16 (1973) (Marshall, J., dissenting). See also Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 318, 96 S.Ct. 2562, 2569, 49 L.Ed.2d 520 (1976) (Marshall, J., dissenting); Marshall v. United States, 414 U.S. 417, 432-33, 94 S.Ct. 700, 709, 38 L.Ed.2d 618 (1974) (Marshall, J., dissenting); Dandridge v. Williams, 397 U.S. 471, 519-21, 90 S.Ct. 1153, 1179, 25 L.Ed.2d 491 (1970) (Marshall, J., dissenting). Compare Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (denial of education to children of aliens reviewed under intermediate scrutiny), with Cabell v. Chavez-Salido, 454 U.S. 432, 102 S.Ct. 735, 70 L.Ed.2d 677 (1981) (category premised on alienage judged by rational basis test when a “public function” is involved).

While perhaps the Supreme Court will ultimately arrive at a continuum of equal protection standards, it currently appears to have set itself firmly against the expansion of the intermediate and upper tiers of scrutiny. For example, in Rodriguez, 411 U.S. at 33-34, 93 S.Ct. at 1296-97, the Court held that education was not a fundamental interest and stated that before an interest could be deemed fundamental for equal protection purposes, it must be explicitly or implicitly guaranteed in a provision of the Constitution. The Supreme Court has also refused to enlarge the number of suspect classes. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) (poverty is not a suspect class).. In City of Cleburne v. Cleburne Living Center, — U.S. -, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), the Supreme Court held that mental retardation was not a “quasi-suspect” classification calling for an intermediate level of scrutiny, although it is unclear whether the Court was rejecting the notion of “quasi-suspect” classes or simply rejecting mental retardation as a status deserving of intermediate scrutiny.

B. Recent Trends in Equal Protection Analysis

Although the Supreme Court has made no moves to broaden the intermediate or strict scrutiny tiers, the most recent equal protection decisions indicate an alteration of the rational basis test. In Cleburne, the operator of a group home for the mentally retarded challenged a zoning ordinance that required a special use permit for the proposed home for the retarded. The Court, which concurred unanimously in the result, held the ordinance invalid because “the record does not reveal any rational basis for believing that the [proposed] home would pose any special threat to the city’s legitimate interests....” Id. at 3259. While the Court disavowed that it was applying any heightened form of scrutiny, Justice Marshall, concurring in part and dissenting in part, observed:

To be sure, the Court does not label its handiwork heightened scrutiny, and perhaps the method employed must hereafter be called “second order” rational basis review rather than "heightened scrutiny.” But however labelled, the rational basis test invoked today is most assuredly not the rational basis test of Williamson v. Lee Optical, 848 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955), Allied Stores v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959), and their progeny.

Id. at 3264.

Justice Marshall’s concurrence and dissent, in which Justices Brennan and Black-mun joined, delineates the differences between the traditional rational basis test and the test fashioned by the majority. First, the Court stated that the “record” did not support the ordinance’s classifications. In his opinion, Justice Marshall points out that “under the traditional standard we do not sift through the record to determine whether policy decisions are squarely supported by a firm factual foundation.” Id. Second, the Court concluded that the stated legitimate concerns for fire hazards and the serenity of the neighborhood “fail rationally to justify singling out a home such as [the proposed home] for the special use permit, yet imposing no such restrictions on the many other uses freely permitted in the neighborhood.” Id. at 3260. Yet, under the mere rational basis test, courts do not evaluate the propriety of burdening a particular class, because “reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.” Williamson v. Lee Optical, 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed.2d 563 (1955). Third, the Court evaluated the closeness of the fit between the legislative goals and means. Justice Marshall again remarked on the majority’s divergence from the traditional rational basis test:

Finally, the Court further finds it “difficult to believe” that the retarded present different or special hazards than other groups. In normal circumstances, the burden is not on the legislature to convince the Court that the lines it has drawn are sensible; legislation is presumptively constitutional, and a State “is not required to resort to close distinctions or to maintain a precise, scientific uniformity with reference” to its goals. Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 527, 79 S.Ct. 437, 441, 3 L.Ed.2d 480 (1959)....

Cleburne, 105 S.Ct. at 3265.

In setting forth these modifications to the rational basis test, the Cleburne decision is neither aberrational nor unheralded. A companion case shows that Cleburne is not exceptional. In Metropolitan Life Insurance Co. v. Ward, — U.S. -, 105 S.Ct. 1676, 84 L.Ed.2d 757 (1985), the Supreme Court also used the rational basis test to strike down economic or social welfare legislation. The Ward Court held that an Alabama statute that imposed a substantially lower gross premiums tax rate on domestic insurance companies than on out-of-state insurance companies violated the equal protection clause. The Court focused on the relation between the ends of the legislation — promoting a domestic insurance industry — and the means — discriminatory taxation. Moreover, the Court examined the legitimacy of the asserted state purpose. Id. at 1684. In tandem, Cleburne and Ward convincingly demonstrate the Supreme Court’s implementation of a more exacting rational basis test.

Earlier cases show that Cleburne is not unanticipated. Decisions from several past terms indicate that the Supreme Court has applied some form of elevated scrutiny to cases involving important but not fundamental rights, albeit under the rubric of the rational basis test. For example, in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), the Supreme Court invalidated a law forbidding distribution of contraceptives to unmarried persons for the purpose of preventing pregnancy. Although one conceivable purpose of the statute was the prevention of premarital, as opposed to extramarital, sexual relations, see id. at 448, 92 S.Ct. at 1035-36, the Court determined that this was not in fact the legislative intent. Id. The statute was struck down as underinclusive, overbroad, and without a rational basis. As Professor John Nowak commented, “The Court exceeded the conceivable basis standard by scrutinizing the state's asserted interests, the means selected to advance those interests, and the factual connection between the state’s classification and the end.” No-wak, Realigning the Standards of Review Under the Equal Protection Guarantee— Prohibited, Neutral and Permissive Classifications, 62 Geo.L.J. 1071, 1101 (1974) [hereinafter cited as Nowak, Realigning the Standards of Review ].

Likewise, in United States Department of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973), the Supreme Court purported to apply rational basis scrutiny to a law that denied food stamps to any household that contained a person not related to the other members of the household. Although the government asserted that the rule helped prevent fraud and abuse of the food stamp program, the Court looked at the “practical operation” of the statute and held that the “classification here in issue is not only ‘imprecise,’ it is wholly without any rational basis.” Id. at 539, 93 S.Ct. at 2828.

Thus, despite avowals that it was applying the traditional rational basis test, in a number of instances the Court has exercised apparently heightened scrutiny. The Cleburne and Ward decisions of the past term announce a distinct departure from the traditional rational basis test. The rational basis test is now being applied in a manner that is not outcome-determinative. Apparently, the Supreme Court is recognizing that not all cases involving economic and social welfare legislation can be made to fit into the traditional rational basis test and still comport with fundamental fairness under the equal protection clause. While it is true that the Supreme Court has not officially articulated a new test, and while it is unclear whether the old rational basis test has been supplemented or supplanted, the resolution of these issues is unimportant to the question before this Court in the instant case. What is important is to determine, through careful application of a principled analytical framework, which level of scrutiny is to be applied to the statutory scheme presently before the Court.

C. Rational Basis and Heightened Rational Basis Scrutiny

The traditional rational basis test that was applied to most economic and social welfare legislation upheld a statutory classification if it rested on grounds not “wholly irrelevant” to the achievement of the state’s objective. McGowan, 366 U.S. at 426, 81 S.Ct. at 1105. Legislation was presumed to be valid and would be sustained if “any set of facts reasonably may be conceived to justify” the statutory discrimination. Id. Courts would honor legislative judgments on the question of classification as long as those judgments were not “patently arbitrary.” Frontiero, 411 U.S. at 683, 93 S.Ct. at 1768-69.

The Supreme Court is now applying the rational basis test more stringently than in the past. Under the Cleburne formulation of the rational basis test, there is no place for judicial imagination or hypothesizing about possible legislative purposes. See also Weinberger v. Wiesenfeld, 420 U.S. 636, 648, 95 S.Ct. 1225, 1233, 43 L.Ed.2d 514 (1975) (“[T]he mere recitation of a benign ... [statutory] purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme.”). The question is whether the legislative classification is in fact related to the object of the statute. See Cleburne, 105 S.Ct. at 3259-60; James v. Strange, 407 U.S. 128, 140-41, 92 S.Ct. 2027, 2023-24, 32 L.Ed.2d 600 (1972); Eisenstadt, 405 U.S. at 446-55, 92 S.Ct. at 1034-39. Furthermore, a court’s genuine inquiry may test the rationality of the classification. In their concurrence in Cleburne, 105 S.Ct. at 3261, Justices Stevens and Burger suggested that the boundaries of “rational” behavior may be circumscribed by an evaluation that measures the benefits and burdens of the legislation:

The term “rational,” of course, includes a requirement that an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class. Thus, the word “rational” ... includes elements of legitimacy and neutrality that must always characterize the performance of the sovereign’s duty to govern impartially.

To determine whether a statute is rational, a court must consider the law’s logical tendency to promote its stated goals as against its tendency to impair other, more important, goals. See Bell v. Hongisto, 501 F.2d 346, 355 n. 12 (9th Cir.1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 (1975). The evaluation of rationality necessarily involves some inquiry into the correspondence between the legislative goals and means. Heightened scrutiny within the framework of the rational basis test therefore requires a balancing of state interests and personal rights. See Cleburne, 105 S.Ct. at 3260. A court must examine the nature of the class burdened, the importance of the rights affected, and the extent to which they are impaired, and must balance these considerations against the significance of the governmental interest. See Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 173, 92 S.Ct. 1400, 1405-06, 31 L.Ed.2d 768 (1972). While it may be suggested that balancing provokes an exercise in visceral jurisprudence, it should be recognized that courts must always make substantive value choices in the area of equal protection.

In circumstances where a right is particularly important or a class is particularly in need of protection, heightened scrutiny under the rational basis test appears to be required. While a majority of the Supreme Court has not explicitly recognized the existence of “sensitive” classes, the decision to apply a heightened form of scrutiny to classifications based on alienage, gender and illegitimacy is sensible only if the goals of equal protection are conceived to be targeted toward classes displaying certain distinguishing characteristics. A number of commentators have advocated recognition of “sensitive” classifications which trigger some heightened form of scrutiny. See, e.g., G. Gunther, Constitutional Law 862 (10th ed. 1980). Professor Lawrence Tribe has suggested that “[wjhether or not the groups in question might qualify for treatment as ‘discrete and insular’ minorities, they bear enough resemblance to such minorities to warrant more than a casual judicial response when they are injured by law.” L. Tribe, American Constitutional Law 1090 (1978). From the recent decision in Cleburne, it is apparent that the rational basis test will be used to safeguard those prized rights not deemed fundamental and to protect those disadvantaged and powerless classes not deemed suspect.

While it is clear that the level of scrutiny increases with the importance of the rights involved and the sensitivity of the classifications invoked, Plyler, 457 U.S. at 221-22, 102 S.Ct. at 2397, it would be injudicious for this Court to attempt to predict precisely when heightened scrutiny under the rational basis test is triggered. Determining the standard of review according to the nature of the classifications and the rights involved does not require courts to make fantastic or unprincipled leaps of logic. The ingredients of analysis are much the same as those employed in the race, sex, alienage or right to travel cases. The application of heightened scrutiny under the rational basis test will need to evolve on a case-by-case basis, as courts delineate important rights and sensitive classes. The task before this Court is to determine whether heightened scrutiny under the rational basis test must be employed in assessing the legislation involved in this case.

III. APPLICATION OF HEIGHTENED SCRUTINY UNDER THE RATIONAL BASIS TEST

While only the collateral source rule provisions of the new medical malpractice legislation are properly before the Court, the following analysis applies with equal force to the remainder of the statute. Defendant’s trial brief regarding the collateral source statute urges this Court to apply the mere rational basis test in the instant case. The Court recognizes that in many jurisdictions various types of medical malpractice enactments have been upheld under the traditional rational basis test. Hoffman v. United States, 767 F.2d 1431 (9th Cir.1985) (recovery limitations); Fitz v. Dolyak, 712 F.2d 330 (8th Cir.1983) (statute of limitations); Seoane v. Pharmaceuticals, Inc., 660 F.2d 146 (5th Cir.1981) (medical review panels); DiAntonio v. Northampton-Accomack Memorial Hospital, 628 F.2d 287 (4th Cir.1980) (mediation panel); Baker v. Vanderbilt University, 616 F.Supp. 330 (D.Tenn.1985) (collateral source rule); Houk v. Furman, 613 F.Supp. 1022 (D.Me.1985) (prelitigation notice requirement); Reese v. Rankin Fite Memorial Hospital, 403 So.2d 158 (Ala.1981); Eastin v. Broomfield, 116 Ariz. 576, 570 P.2d 744 (1977); Simpson v. Fuller, 281 Ark. 471, 665 S.W.2d 269 (1984); American Bank and Trust Co. v. Community Hospital of Los Gatos-Saratoga, Inc., 36 Cal.3d 359, 204 Cal.Rptr. 671, 683 P.2d 670 (1984); Lacy v. Green, 428 A.2d 1171 (Del.Super.1981); Pinillos v. Cedars of Lebanon Hospital Corp., 403 So.2d 365 (Fla.1981); LePelley v. Grefenson, 101 Idaho 422, 614 P.2d 962 (1980); Anderson v. Wagner, 79 Ill.2d 295, 37 Ill.Dec. 558, 402 N.E.2d 560 (1979); Johnson v. St. Vincent Hospital, Inc., 273 Ind. 374, 404 N.E.2d 585 (1980); Rudolph v. Iowa Methodist Medical Center, 293 N.W.2d 550 (Iowa 1980); Stephens v. Snyder Clinic Association, 230 Kan. 115, 631 P.2d 222 (1981); Sibley v. Board of Supervisors of Louisiana State University, 462 So.2d 149 (La.1985); Attorney General v. Johnson, 282 Md. 274, 385 A.2d 57 (1978), app. dismissed, 439 U.S. 805, 99 S.Ct. 60, 58 L.Ed.2d 97 (1979); Paro v. Longwood Hospital, 373 Mass. 645, 369 N.E.2d 985 (1977); Linder v. Smith, 629 P.2d 1187 (Mont.1981); Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977); Suchit v. Baxt, 176 N.J.Super. 407, 423 A.2d 670 (1980); Otero v. Zouhar, 102 N.M. 493, 697 P.2d 493 (1984); Comiskey v. Arlen, 55 A.D.2d 304, 390 N.Y.S.2d 122 (1976); Beatty v. Akron City Hospital, 67 Ohio St.2d 483, 424 N.E.2d 586 (1981); State ex rel. Strykowski v. Wilkie, 81 Wis.2d 491, 261 N.W.2d 434 (1978). While most of these cases are inapplicable because they do not concern the specific provisions or constitutional issues currently before this Court, all are unhelpful because they applied the mere rational basis test without any consideration of whether heightened scrutiny was required. Since the above courts applied the rigid tripartite test of equal protection while giving little or no thought to its propriety, the Court finds the opinions of scant assistance in evaluating the nature of the interests in the present case.

The decisions are by no means unanimous. In a growing number of cases courts have struck down different types of medical malpractice legislation, some under various heightened forms of scrutiny. Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961 (1984); Austin v. Litvak, 682 P.2d 41 (Colo.1984); Aldana v. Holub, 381 So.2d 231 (Fla.1980); Jones v. State Board of Medicine, 97 Idaho 859, 555 P.2d 399 (1976); Wright v. Du Page Hospital Association, 63 Ill.2d 313, 347 N.E.2d 736 (1976); McCoy v. Western Baptist Hospital, 628 S.W.2d 634 (Ky.App.1981); Sabatini v. Marcuz, 122 Mich.App. 494, 332 N.W.2d 512 (1983); Cardinal Glennon Memorial Hospital v. Gaertner, 583 S.W.2d 107 (Mo.1979); Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980); Hartford Accident & Indemnity Co. v. Ingram, 290 N.C. 457, 226 S.E.2d 498 (1976); Ameson v. Olson, 270 N.W.2d 125 (N.D.1978); Graley v. Satayatham, 343 N.E.2d 832 (Ohio Ct.Comm.Pleas 1976); Mattas v. Thompson, 491 Pa. 385, 421 A.2d 190 (1980); Goucher v. Sayeed, 459 A.2d 87 (R.I.1983); Sax v. Votteler, 648 S.W.2d 661 (Tex.1983). Moreover, state statutes abolishing the collateral source rule for health care providers have been variously upheld and struck down as unconstitutional. Compare Eastin v. Broomfield, 116 Ariz. 576, 570 P.2d 744 (1977), with Graley v. Satayatham, 343 N.E.2d 832 (Ohio Ct.Comm.Pleas 1976).

Finally, the Court does note that an appeal of a California Supreme Court’s rejection of equal protection challenges to a California statute imposing a limitation on damages recoverable for pain, suffering and other non-pecuniary losses in medical malpractice cases was recently dismissed by the United States Supreme Court. Fein v. Permanente Medical Group, 38 Cal.3d 137, 211 Cal.Rptr. 368, 695 P.2d 665 (1985), app. dismissed, — U.S. -, 106 S.Ct. 214, 88 L.Ed.2d 215 (1985). Apart from the obvious differences between a legislative cap on noneconomic damages and an evi-dentiary rule which operates to limit actual damages, this Court discerns a number of distinctions between California and Kansas law, see, e.g., Kansas Bill of Rights § 18, as well as significant factual dissimilarities between Fein and the present case. Moreover, the precedential effect of a summary affirmance is open to serious question. The weight of judicial authority suggests that a summary affirmance represents an approval of the judgment below by the Supreme Court but should not be taken as an endorsement of the lower court’s reasoning. Fusari v. Steinberg, 419 U.S. 379, 95 S.Ct. 533, 42 L.Ed.2d 521 (1975); Hardwick v. Bowers, 760 F.2d 1202 (11th Cir.1985).

Against this rather inharmonious background, this Court must select and apply the appropriate equal protection test. With respect to the specific provisions before this Court, the first step is to determine the proper standard of review. The medical malpractice statute establishes several classifications. It confers certain benefits on tortfeasors who are health care providers that are not afforded to other tortfeasors. Conversely, the statute distinguishes between those tort claimants whose injuries were caused by medical malpractice and all other tort claimants, and restricts the means and amounts that the former may recover as damages for injuries. Furthermore, the statute makes a number of internal distinctions between medical malpractice tort claimants on the basis of the types of indemnification or reimbursement to which they are entitled. Finally, doctors are being treated differently than other professional who might also be subject to malpractice actions.

None of these statutory demarcations involves the type of suspect classification, such as race, nationality or alienage, that the United States Supreme Court has held requires strict scrutiny. The rights classified as “fundamental” by the Supreme Court have been few in number. See supra p. 986. While the Supreme Court has offered little guidance as to the characteristics of a fundamental right, see San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 33-34, 93 S.Ct. 1278, 1296-97, 36 L.Ed.2d 16 (1973) (fundamental rights are those rights “explicitly or implicitly guaranteed in the Constitution”), it has not expanded the list of fundamental rights beyond privacy, marriage, travel, voting, political association, criminal appeals and religion. Alternative Models, supra, at 1372. See, e.g., Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972) (right to housing not fundamental); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) (right to welfare payments not fundamental). The rights here at issue — to be free from unconsented assaults and to recover damages for personal injuries — are unquestionably important, but they are not fundamental. Cf. Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978). Therefore, the Court determines that strict scrutiny is not appropriate in the instant case.

Intermediate review is also inappropriate. The Supreme Court has used intermediate scrutiny haltingly, and has not extended it to any categories other than gender, Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), alienage, Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982), or illegitimacy, Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977).

To ascertain whether the mere rational basis test or a heightened form of rational basis scrutiny should apply, the Court must examine the nature of the rights involved and the sensitivity of the classifications. The United States Supreme Court has long exhibited an attentiveness to intimate personal liberties and rights regarding bodily integrity. See Winston v. Lee, — U.S. -, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). The right to be free from assaults, while not fundamental, is nonetheless .vitally important and commanding of special protection:

The Framers may have considered interests in free speech and expression and freedom of association as particularly susceptible to legislative derogation, and, therefore, in need of explicit Constitutional protection. However, the Framers may have quite reasonably assumed that legislatures would never undervalue or act adversely towards the natural rights of personal security and bodily integri-ty_ A static Constitution would protect freedom of association against hostile or impulsive laws, but not protect personal autonomy. The Supreme Court logically reformed this incongruity by ac-comodating rights central to personal control and bodily autonomy. Rights of procreation and privacy were deemed to be implicitly protected in the Constitution. The rights to personal security and bodily integrity, and corresponding rights to relief from invasions thereof, are logically encompassed by this constitutional interpolation.

Learner, Restrictive Medical Malpractice Compensation Schemes: A Constitutional “Quid Pro Quo" Analysis To Safeguard Individual Liberties, 18 Harv.J. on Legis. 143, 190-91 (1981) [hereinafter cited as Learner, “Quid Pro Quo”]. Victims of medical malpractice — unconsented assaults by health care providers — have long relied on a tort action “as a sufficient safeguard against this invasion of bodily integrity.” Id. at 192. Therefore, limitations on tort remedies take on added significance in light of their effect on the underlying right of bodily integrity.

Although the right to recover for personal injuries is not a fundamental right, it is nevertheless an important substantive right. Carson v. Maurer, 120 N.H. 925, 424 A.2d 825, 830 (1980). Indeed, section 18 of the Kansas Bill of Rights provides: “All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.” The Kansas Supreme Court has employed section 18 to invalidate doctrines that unjustly deny remedies. See, e.g., Gorrell v. City of Parsons, 223 Kan. 645, 576 P.2d 616 (1978).

While the rights involved in this case are significant, that alone is not enough to trigger heightened scrutiny. The Court must also examine the sensitivity of the class embraced by the legislation. The traditional indicia of a suspect class are that the class is “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” Rodriguez, 411 U.S. at 28, 93 S.Ct. at 1296. A number of similar characteristics indicate the existence of a sensitive class: a group that has suffered a history of prejudice, although in a milder form such that the class itself does not qualify as suspect; or a group that has inadequate representation from significant socio-political barriers to interest group formation, see Note, Intermediate Equal Protection Scrutiny of Welfare Laws That Deny Subsistence, 132 U.Pa.L.Rev. 1547, 1554 (1984); Learner, “Quid Pro Quo ”, supra, at 185; or a classification based on an inherent trait over which the class members have no control, which trait is the subject of the legislation, see Plyler, 457 U.S. at 222, 102 S.Ct. at 2397.

Medical malpractice victims generally have no control over the inception of their afflictions or illnesses and even less choice concerning the medical mis-, mal- or nonfeasance practiced on them. Moreover, victims of medical malpractice are relegated to a position of political powerlessness:

[I]t seems highly unlikely that many individuals actively contemplate the relatively remote risk that they may become malpractice victims. The number of actual victims is not large enough to generate widespread public concern for personal safety, nor is notice of the restrictive legislation sufficiently prominent to draw the attention of individuals who may rationally assume that they continue to possess an effective judicial remedy. There is no apparent impetus to trigger the intense concerns that galvanize individuals to coalesce into political organizations that participate actively in the legislative process.

Learner, “Quid Pro Quo”, supra, at 186. Moreover, once injured, medical malpractice victims may very well lack the physical faculties and financial resources to mount a successful challenge to laws curtailing their rights. Thus, the Court concludes that the classifications involved in this case are sensitive, and that the rights at issue are sufficiently important to require that the restrictions on those rights be subjected to a more exacting form of scrutiny than the mere rational basis test. The Court, therefore, will apply a heightened scrutiny test, requiring an examination of the purposes of the legislation and the rationality of the link between those purposes and the legislation actually enacted, as well as a balancing of the interests served and the interests burdened.

A. Purposes of the Legislation

Defendant asserts that the purpose of the new collateral source rule is identical to the purpose for which previous medical malpractice statutes were enacted. Defendant points to State ex rel. Schneider v. Liggett, 223 Kan. 610, 616, 576 P.2d 221 (1978), in which the Kansas Supreme Court found that the purpose of a mandatory medical malpractice insurance statute was the assurance of the availability of insurance for health care providers, which in turn would make certain an adequate supply of health care providers, which thereby would assure the continued availability of quality health care for Kansas. Application of this logic to the collateral source rule statute requires the addition of an extra link in the chain of reasoning: that the reduction in damage awards against health care providers will assure the availability of low cost insurance for those providers.

While the Court is willing to follow the somewhat torturous tautology of asserted purpose, the Court must examine the factual nexus between the goal of quality health care and the means of allowing the tort-feasor to have the benefit of insurance privately purchased by or for the tort victim. Numerous courts and commentators have sagely observed that the extending of special litigation benefits to the medical profession will do little to protect the public health. “On the contrary, the quality of health care may actually decline. To the extent that in tort actions of the malpractice type if the medical profession is less accountable than formerly, relaxation of medical standards may occur with the public the victim.” Graley v. Satayatham, 343 N.E.2d 832, 838 (Ohio Ct.Comm.Pleas 1976). See also Comment, California’s Medical Injury Compensation Reform Act: An Equal Protection Challenge, 52 S.Cal.L.Rev. 829, 854 n. 143 (1979). Indeed, although reaching a different result than this Court, Judge Kelly commented in strong language on the legislation at issue here:

On a more fundamental level, this Court is not at all persuaded that this discriminatory legislation is needed or that it will achieve its stated goals. Regarding need, defendants cavalierly refer to the “obvious” medical malpractice crisis justifying this legislation. What is apparently so clear to the medical profession, the insurance industry, their respective lobbyists, and the Legislature is a matter of deep and growing concern to this Court as well as a number of commentators and other courts across the country. In the Legislature’s haste to remedy the situation, it has overlooked or, more likely, ignored the fundamental cause of the so-called crisis: it is the unmistakable result not of excessive verdicts, but of excessive malpractice by health care providers.

Crowe v. Wigglesworth, 623 F.Supp. 699 at 706 (D.Kan.1985).

B. Rationality

Next, the Court must examine the rationality of the classifications involved. While various internal discriminations remain in the new collateral source statute, see Doran v. Priddy, 534 F.Supp. 30, 36 (D.Kan.\1981), the Court will target its inquiry on the more invidious divergence of treatment between victims of medical malpractice and all other tort victims. “ ‘Equal protection’ ... emphasizes disparity in treatment by a state between classes of individuals whose situations are arguably indistinguishable.” Ross v. Moffitt, 417 U.S. 600, 609, 94 S.Ct. 2437, 2443, 41 L.Ed.2d 341 (1974). With respect to the collateral source rule, there is no rational difference between the groups of victims, except that the people disadvantaged by the new legislation were harmed by health care providers — which simply begs the question of the demarcation.

The special consideration given to the medical profession by this statute raises questions about strong class interests. In his dissent in Stephens v. Snyder Clinic Association, 230 Kan. 115, 133, 631 P.2d 222 (1981), Justice Herd recognized that “the propaganda campaign mounted to obtain the [medical malpractice] legislation was overstated.” While legislation is usually the result of assertions of interests within the political arena, if left unchecked the process would legitimate tyranny by the majority. Equal protection provides the safeguard against pure majoritarianism, since the Constitution may require more than the political process will supply. Other courts have castigated precisely the sort of special interest legislation at work here:

[T]he state has neither a compelling nor legitimate interest in providing economic relief to one segment of society by depriving those who have been wronged of access to, and remedy by, the judicial system. If such a hypothesis were once approved, any profession, business or industry experiencing difficulty could be made the beneficiary of special legislation designed to ameliorate its economic adversity by limiting access to the courts by those whom they have damaged. Under such a system, our constitutional guarantees would be gradually eroded, until this state became no more than a playground for the privileged and influential.

Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961, 976 (1984).

C. Balancing

Finally, the Court must balance the societal interests against the class interests served by the legislation and measure the benefits and burdens of the law. The state goal of lowering malpractice insurance costs must be weighed against the interests of the victims of medical malpractice. While health care provider defendants receive a direct economic benefit, medical malpractice victims lose the ability to obtain full recovery for their injuries, whereas any benefit to the victims and indeed society in terms of improved quality of care is significantly attenuated. A fair reading of a long history of precedents suggests that the constitutional balance should favor the victims. For example, a state can confer benefits upon opthalmologists and optometrists at the expense of an equally organized group, opticians. Williamson v. Lee Optical, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). However, a state cannot benefit homedwellers at the expense of the mentally retarded. City of Cleburne v. Cleburne Living Center, — U.S. -, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). In this case, a privilege is being created on behalf of doctors and insurance companies, while the class that pays the price is comprised of injured and powerless medical malpractice victims. The restriction of important rights of a disadvantaged class significantly outweighs the benefits sought to be conferred upon the privileged class.

IV. CONCLUSION

An equal protection review of the medical malpractice statute currently before this Court demonstrates that the statute significantly impinges upon the important rights of a class without the resources or capacity to protect itself. Moreover, the legislative classifications inure to the benefit of a limited few. Because this Court believes that groups other than those entitled to strict scrutiny merit constitutional protection, the Court applied a heightened form of rational basis scrutiny. The application of heightened rational basis scrutiny convinces the Court that the legislative means of affording health care providers a method of reducing their liability for damages is not sufficiently related to the legislative goal of better health care. > Therefore, the Court holds that the new collateral source rule statute violates the equal protection clauses of the United States and Kansas Constitutions.