                                                                           F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                           SEP 24 1997
                                      TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 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                       No. 96-3063
 M. AVES, individually; and, DAN J.                   (D.C. No. 88-1669)
 AVES and FAYE E. AVES,                                   (D. Kan.)
 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.


                               ORDER AND JUDGMENT *


Before EBEL, LOGAN, and KELLY, Circuit Judges.




       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       After a jury verdict of over $21 million in a medical malpractice claim

against Dr. Nasreen Shah was upheld on appeal, Plaintiffs Darcy Aves and her

parents, Dan and Faye Aves, brought a garnishment action 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 relevant period, Dr. Shah carried

primary and excess medical malpractice insurance through the Fund. Pursuant to

the judgment, the Fund paid the Plaintiffs up to the 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 against Dr. Shah in good faith, and

for negligent failure to settle.

       The district court certified several questions of state 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 Kansas 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 which

       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 pursuant to any one judgment or
settlement against any one health care provider relating to any injury or death
arising out of the rendering of or the failure to render 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

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the Plaintiffs now seek relief. Following the State 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 relied 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 Federal Constitution to be

without merit, we do not reach the issue of whether the Eleventh Amendment bars

their claims. We may assume jurisdiction in case where 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 jurisdiction

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 Clause, 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




provided for herein for negligent failure to settle a claim or for failure to settle a
claim in good faith.”

                                          -3-
and the Fund can be construed as a contract, that contract 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 unavailing. A State may

abolish a common-law cause of action without violating the Constitution, even

though “otherwise settled expectations may be upset thereby.” 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 abolished the asserted causes of

action took effect. Absent a protected interest, the 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 violation of the Equal Protection Clause.

      AFFIRMED.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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