* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 24 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DARCY M. AVES, a minor, by and through Dan J. Aves and Faye E. Aves, her mother and father, natural guardians and next friends; DARCY M. AVES, individually; and, DAN J. AVES and FAYE E. AVES, individually, Plaintiffs - Appellants, vs. NASREEN B. SHAH, M.D., Defendant - Appellant, and RON TODD, Commissioner of Insurance of the State of Kansas, as Administrator of the Health Care Stabilization Fund, Garnishee - Appellee. No. 96-3063 (D.C. No. 88-1669) (D. Kan.)

ORDER AND JUDGMENT *

Before EBEL, LOGAN, and KELLY, Circuit Judges.1 Kan. Stat. Ann. § 40-3403(e) (1996) provides: “In no event shall the

fund be liable to pay in excess of $3,000,000 pursu ant to any one judgment or settlement against any one health care provider rel ating to any injury or death arising out of the rendering of or the failure to r ender professional services on and after July 1, 1984, and before July 1, 1989 . . . . ”

2 Kan. Stat. Ann. § 40-3412(c) (1993) provides: “Nothing herein shall be construed to impose any liability in the fund in excess of that specifically - 2 - After a jury verdict of over $21 million in a medic al malpractice claim against Dr. Nasreen Shah was upheld on appeal, Plai ntiffs Darcy Aves and her parents, Dan and Faye Aves, brought a garnishment a ction to collect on the judgment against Defendant Ron Todd, in his capacity as the Commissioner of Insurance of the State of Kansas and Administrator of the Kansas Health Care Stabilization Fund (the Fund). During the relevantperiod, Dr. Shah carried primary and excess medical malpractice insurance th rough the Fund. Pursuant to the judgment, the Fund paid the Plaintiffs up to th e statutory limit established for primary and excess coverage. The Plaintiffs claim that the Fund is liable to them for bad faith, for failure to settle their claim ag ainst Dr. Shah in good faith, and for negligent failure to settle. The district court certified several questions of s tate law to the Supreme Court of Kansas, which ruled that the Fund was not liable for bad faith claims. Aves v. Shah , 906 P.2d 642 (Kan. 1995). The Supreme Court of K ansas held that Kan. Stat. Ann. § 40-3403(e), 1 which took effect on July 1, 1984, and § 40- 3412(c), 2 which was enacted in 1976, abolished the causes of action under whichprovided for herein for negligent failure to settle a claim or for failure to settle a

claim in good faith.” - 3 - the Plaintiffs now seek relief. Following the Stat e Supreme Court’s ruling, the district court granted the Fund’s motion to dismiss . The Plaintiffs appeal from that judgment, and argue that the Kansas statutes r elied upon by the Supreme Court of Kansas violate the Contract, Due Process, and Equal Protection Clauses of the United States Constitution. Because we find the Plaintiffs’ claims under the Fe deral Constitution to be without merit, we do not reach the issue of whetherthe Eleventh Amendment bars their claims. We may assume jurisdiction in case w here the jurisdictional issues are difficult and the merits clearly and obviously run against the party seeking jurisdiction. Norton v. Matthews , 427 U.S. 524, 532 (1976); Secretary of the Navy v. Avrech , 418 U.S. 676, 677-78 (1974). Thus, we assume ju risdiction under 28 U.S.C. § 1291, and affirm. Our review of a dismissal for failure to state a claim is de novo. Kidd v. Taos Ski Valley , 88 F.3d 848, 854 (10th Cir. 1996). In order to establish a violation of the Contract C lause, the Plaintiffs must demonstrate as an initial matter that a contractual relationship existed at the time of the challenged enactment. General Motors Corp. v. Romein , 503 U.S. 181, 186 (1992); see National R.R. Passenger Corp. v. Atchison, Topeka & Santa Fe Ry. Co. , 470 U.S. 451, 472 (1985). Assuming that the relationship between Dr. Shah- 4 -

and the Fund can be construed as a contract, that c ontract was not in existence at the time the statutes at issue were enacted. As a result, the Plaintiffs cannot establish a violation of the Contract Clause. The Plaintiffs’ Due Process challenge is also unava iling. A State may abolish a common-law cause of action without violat ing the Constitution, even though “otherwise settled expectations may be upsetthereby.” Duke Power Co. v. Carolina Envtl. Study Group , 438 U.S. 59, 88 n.32 (1978) (quotations omitted);

see Munn v. Illinois , 94 U.S. 113, 134 (1877) (“A person has no property, no vested interest, in any rule of the common law.”); see also Silver v. Silver , 280 U.S. 117, 122 (1929), and cases cited therein. The underlying lawsuit was filed in November 1988, long after the statutes which abolis hed the asserted causes of action took effect. Absent a protected interest, t he Plaintiffs had no entitlement to any sort of process. Board of Regents v. Roth , 408 U.S. 564, 569 (1972). The Plaintiffs have also failed to establish a violatio n of the Equal Protection Clause. AFFIRMED. Entered for the Court Paul J. Kelly, Jr. Circuit Judge