Edwards v. Land, 90-CA-002391-MR

• Decision Date: 24 July 1992
• Docket Number: No. 90-CA-002391-MR,90-CA-002391-MR
• Parties: Wilbur A. EDWARDS; Johnetta Haselden; and Agway Insurance Company, Appellants, v. Kenneth LAND; Martha Land; and Kendra Land, Appellees.
• Court: Kentucky Court of Appeals

Page 484

851 S.W.2d 484

Wilbur A. EDWARDS; Johnetta Haselden; and Agway Insurance

Company, Appellants, v. Kenneth LAND; Martha Land; and Kendra Land, Appellees.

No. 90-CA-002391-MR.

Court of Appeals of Kentucky.

July 24, 1992.

Discretionary Review Denied by

Supreme Court May 21, 1993.

James G. Sheehan, Jr., Sheehan, Barnett & Hays, Danville, for appellant Edwards.

Pierce W. Hamblin, Jane Durkin Samuel, Landrum & Shouse, Lexington, for appellants Haselden and Agway Ins. Co.

Richard Clay, Clay & Clay, Danville, Robert L. Bertram, Bertram & Wilson, Jamestown, for appellees Land.

Before LESTER, C.J., and HUDDLESTON and WILHOIT, JJ.

HUDDLESTON, Judge.

This is an appeal from a Boyle Circuit Court order finding House Bill 551 of the 1988 General Assembly--and consequently KRS 411.188--unconstitutional. Because we believe the trial judge erred as a matter of law in reaching this determination, we reverse.

This litigation began when Kenneth, Martha and Kendra Land filed suit against Wilbur A. Edwards and Johnetta Haselden for damages resulting from personal injuries sustained in an automobile accident. Kentucky Farm Bureau Insurance Company thereafter intervened to recover no-fault benefits, naming Haselden's insurer, Agway Insurance Company, as a defendant.

The Lands subsequently filed a "Second Amended Complaint for Declaratory Relief," seeking to have KRS 411.188 ¹ and the House Bill from which it derived, HB 551--entitled "AN ACT relating to civil actions," declared unconstitutional. KRS 411.188 appeared as Sec. 4 of HB 551. The Lands offered a panoply of theories as grounds for the statute's demise.

Boyle Circuit Court responded by finding KRS 411.188 not to be an intrusion on the rule-making powers of Kentucky's Court of Justice, and therefore not violative of Ky. Const. Sec. 28 ² and not contrary to KRS 447.154. ³ The court found that the notice mandated by the statute vindicated the rights of notice and due process, substantive rights which the legislature may protect.

Section 54 of the Kentucky Constitution, which is entitled "No restriction on recovery for injury or death," provides that:

The General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property.

The court determined that KRS 411.188 was not violative of Ky. Const. Sec. 54, noting that the abrogation of the "collateral source rule" has been upheld in other states having constitutional provisions similar to Ky. Const. Sec. 54.

The court found that KRS 411.188 does not constitute special legislation, and was therefore in compliance with Ky. Const. Secs. 59 & 60.

The court determined that KRS 411.188 does not restrict the right of access to the courts by plaintiffs, citing the Florida case. Pinillos v. Cedars of Lebanon Hospital Corp., 403 So.2d 365 (Fla.1981). The court further found that the statute does not require attorneys to render unremunerated legal advice in its notification provisions, since general statements regarding legal requirements do not generally constitute the act of rendering legal advice.

The court determined that HB 551, entitled "AN ACT relating to civil actions," in fact addressed a plurality of subjects, only some of which relate to civil actions, in contravention of Ky. Const. Sec. 51 which declares, in pertinent part, that:

No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title....

Significantly, however, the court noted that KRS 411.188 "does fit within the title," yet found that HB 551's violation of Ky. Const. Sec. 51 rendered the Act unconstitutional in its entirety. KRS 411.188 as one component of HB 551 was consequently struck down, despite the fact, again, that the court conceded that the statute was in the legitimate ambit of HB 551's title.

In their appeal, Edwards, Haselden and Agway Insurance contend that every provision of HB 551 in fact relates to civil actions, and therefore that the bill is not violative of Ky. Const. Sec. 51. They further contend that even if HB 551 does contain a plurality of subjects, those sections of the Act which are germane to the title should be upheld as constitutional, and only those sections not conforming to the title declared void.

In their brief the Lands essentially repeat all the arguments relating to KRS 411.188's infirmity rejected by the circuit court, ⁴ in addition to supporting the court's determination of HB 551's unconstitutionality.

It has long been the rule in Kentucky that when a subject foreign to the title of an act is introduced into the act's body, that subject or those subjects may be omitted from the act, and the subjects conforming to the title retained, thereby rendering the act, thus distilled, constitutional. Farris v. Shopper's Village Liquors, Inc., Ky., 669 S.W.2d 213, 214 (1984); Carrigan v. Fiscal Court of Fulton County, 289 Ky. 562, 159 S.W.2d 420, 421 (1942); State Board of Health v. Willman, 241 Ky. 835, 45 S.W.2d 458, 459 (1932); Thompson v. Commonwealth, 159 Ky. 8, 166 S.W. 623, 624 (1914); Wiemer v. Commissioners of Sinking Fund of City of Louisville, 124 Ky. 377, 99 S.W. 242, 245 (1907). This principle was elaborated early on in State Board of Charities and Corrections v. Hays, 190 Ky. 147, 227 S.W. 282, 284 (1920):

[O]ne part of the body of the act cannot be saved rather than the other where both are covered alike by the title, as may be done where a portion of the body of the act alone is violative of this section of the Constitution. In the former case to hold one portion of the act rather than the other valid would require of the judiciary the selection of the subject-matter of the act upon a mere guess and without legislative guide to determine which, if either, of the two subjects would have been considered alone by the Legislature. Upon the other hand, where the body of the act contains a departure from a valid title, such portion of the act may be declared void, and all that is pertinent to the title selected by the Legislature may be enforced by the judiciary as a legitimate exercise of legislative authority under its own selection of the subject-matter of the enactment.

The court below cites 73 Am.Jur.2d Statutes Sec. 126 (1974) as authority for holding HB 551 unconstitutional in its entirety, due to the multiplicity of subjects supposedly encompassed by the act. The utilization of this authority is clearly inappropriate, however, when much Kentucky case law directly addresses the issue of severing non-conforming sections from acts which are otherwise constitutionally sound.

Kentucky recognizes the general principle of jurisprudence that a court should refrain from addressing issues not before it. In the context of Ky. Const. Sec. 51, consequently, we have demonstrated an unwillingness to excise sections from acts which do not appear to conform to the title, when the court is being called upon to adjudge the constitutionality of only a certain section or certain sections within the act. Owsley v. Commonwealth, Ky.App., 743 S.W.2d 408, 410 (1988).

The foregoing considered, we hold that the trial judge erred as a matter of law in determining HB 551 to be unconstitutional in its entirety. We further hold that the trial court should have limited its analysis under Ky. Const. Sec. 51 to addressing the conformity of KRS 411.188 to the title of HB 551. The trial court was clearly correct in noting that KRS 411.188 conforms to the title of HB 551, and we so hold. The determination of whether or not other sections of HB 551 conform to the act's title, we "leave to be considered another day." Owsley at 410.

Kentucky's Supreme Court has the authority to promulgate rules of practice and procedure in the courts of this Commonwealth. Ky. Const. Sec. 116. However, this is by no means an inflexibly exclusive authority. The Supreme Court in fact states in Ex Parte Farley, Ky., 570 S.W.2d 617, 624 (1978):

It is not our disposition to be jealous or hypertechnical over the boundaries that separate our domain from that of the legislature. Where statutes do not interfere or threaten to interfere with the orderly administration of justice, what boots it to quibble over which branch of government has rightful authority? We respect the legislative branch, and in the name of comity and common sense are glad to accept without cavil the application of its statutes pertaining to judicial matters....

The Court later states in Ex parte Auditor of Public Accounts, Ky., 609 S.W.2d 682, 688 (1980):

The correct principle, as we view it, is that the legislative function cannot be so exercised as to interfere unreasonably with the functioning of the courts, and that any unconstitutional intrusion is per se unreasonable, unless it be determined by the court that it can and should be tolerated in a spirit of comity....

Inevitably, there is and always will be a gray area in which a line between the legislative prerogatives of the General Assembly and the rule-making authority of the courts is not easy to draw. The policy of this court is not to contest the propriety of legislation in this area to which we can accede through a wholesome comity....

More recently, the court in Commonwealth v. Reneer, Ky., 734 S.W.2d 794, 797 (1987), observes:

[Although a statute may manifestly constitute] an encroachment by the General Assembly upon the prerogatives of the Judiciary, it is, nevertheless, not an unreasonable encroachment if it can be accepted under the principles of comity.

And see generally the discussion of this issue in Reneer at 796-797.

Considered in this light, we agree with the trial court that a legislative attempt to modify in some measure the procedure to be followed and to specify the notice to be given those holding subrogation rights in actions for damages, whether in contract or tort, falls within that body's reasonable purview, although it may encroach somewhat upon the prerogatives...