Egbert v. NISSAN MOTOR CO., LTD.

Decision Date19 February 2010
Docket NumberNo. 20080993.,20080993.
Citation2010 UT 8,228 P.3d 737
PartiesJerad EGBERT and Emily Egbert, individually and as guardians for Janessa Egbert, Plaintiffs and Appellants, v. NISSAN MOTOR CO., LTD., Defendant and Appellee.
CourtUtah Supreme Court

David C. Biggs, Kenneth D. Lougee, Salt Lake City, for appellants.

Tracy H. Fowler, Michael D. Zimmerman, Kamie F. Brown, Troy L. Booher, Salt Lake City, for appellee.

DURHAM, Chief Justice:

INTRODUCTION

¶ 1 We have accepted certification of two questions from the United States District Court for the District of Utah: (1) is Utah Code section 78-15-6(3)1 constitutional; and (2) does Utah recognize section 16(b)-(d) of the Restatement (Third) of Torts: Products Liability? We answer the first question in the affirmative and the second question in the negative.

BACKGROUND

¶ 2 Because we previously answered two other certified questions in this case, we recite only those facts relevant to the questions now at issue. See Egbert v. Nissan N. Am., Inc., 2007 UT 64, ¶¶ 2-6, 167 P.3d 1058 (Egbert I).

¶ 3 Jerad and Emily Egbert were involved in a car accident. Trying to avoid another vehicle, Mr. Egbert lost control of his 1998 Nissan Altima, and the car rolled. During the accident, the front passenger window shattered. Mrs. Egbert, eight months pregnant at the time, was ejected through the window. She suffered serious injuries and had an emergency C-section. The couple's daughter, J.E., was born with a serious brain injury.

¶ 4 The Egberts brought products liability claims against Nissan. Specifically, they assert that the passenger window was defectively designed because it was made with tempered glass, which shatters on impact, and not laminated glass, which remains intact and acts as a secondary restraint mechanism. The Egberts argue that had the Altima's window been made of laminated glass, Mrs. Egbert would have remained in the car, her injuries would have been less severe, and J.E. would not have suffered a brain injury.

¶ 5 Nissan argues that the Altima was not defective because at the time the car was manufactured, the tempered glass window met the applicable federal safety standards. Nissan further claims that the glass was not the proximate cause of Mrs. Egbert's or J.E.'s injuries and that Mrs. Egbert would have been ejected from the Altima even if the window had been made of laminated glass.

¶ 6 In Egbert I, this court answered two other certified questions. First, we held that "the jury should be instructed that the presumption of nondefectiveness established by Utah Code section 78-15-6(3) has arisen and that a preponderance of the evidence is sufficient to rebut it." Id. ¶ 1. Second, the court held that Utah recognizes the "`enhanced injury' theory of liability as outlined in section 16(a) of the Restatement (Third) of Torts." Id.

¶ 7 The federal district court subsequently determined that this court had not yet addressed the issues now before us, which are controlling in the case. Under Utah Rule of Appellate Procedure 41, the federal district court certified the two questions to us, and we accepted the certification. We have original jurisdiction over this matter pursuant to Utah Code section 78A-3-102(1) (2008).

STANDARD OF REVIEW

¶ 8 A certified question presents a question of law, which we review for correctness "without `resolving the underlying dispute.'" Egbert I, 2007 UT 64, ¶ 7, 167 P.3d 1058 (quoting In re Kunz, 2004 UT 71, ¶ 6, 99 P.3d 793).

ANALYSIS
I. UTAH CODE SECTION 78-15-6(3) IS CONSTITUTIONAL

¶ 9 The first question certified to us is whether Utah Code section 78-15-6(3) is constitutional. This question stems from a decision made by this court in 1985 and the legislature's subsequent response. In Egbert I, we raised a concern as to the constitutionality of section 78-15-6(3), but we did not address the issue as it fell outside the scope of the question certified to us. 2007 UT 64, ¶ 8 n. 3, 167 P.3d 1058.

¶ 10 The Egberts assert that section 78-15-6 is unconstitutional and that to hold otherwise would be a violation of the Utah Constitution's provisions regarding enactment of legislation. They reference Berry v. Beech Aircraft Corp., 717 P.2d 670 (Utah 1985), where we addressed the constitutionality of the Utah Product Liability Act. Specifically, we examined Utah Code section 78-15-3. Id. at 672. We held that section 78-15-3 was unconstitutional under the open courts provision of article I, section 11 of the Utah Constitution because it was a statute of repose which barred claims before the cause of action arose. See id. at 681-83. We also determined that because the legislature would not have enacted sections 78-15-4 to -6 without section 78-15-3, the Act was nonseverable. Id. at 686. We therefore held that sections 78-15-4 to -6 were also unconstitutional. Id. at 685-86.

¶ 11 In 1989, the legislature enacted a new section 78-15-3. In doing so, it changed the statute of repose to a statute of limitations. Act of Feb. 20, 1989, ch. 119, § 1, 1989 Utah Laws 268; Utah Code Ann. § 78-15-3 (Supp. 1990). This change resolved the constitutional problems dealt with in Berry. See Egbert I, 2007 UT 64, ¶ 8 n. 3, 167 P.3d 1058. The legislature, however, took no action regarding section 78-15-6. See id. Because it did not, the Egberts argue that section 78-15-6 remains void. Although this would generally be the consequence of the legislature's failure to reenact the nonseverable parts of the statute, subsequent actions by the legislature and this court require a different conclusion.

¶ 12 When a court declares a statute unconstitutional, the statute becomes void. "An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed." Norton v. Shelby County, 118 U.S. 425, 442, 6 S.Ct. 1121, 30 L.Ed. 178 (1886); see also Rossborough Mfg. Co. v. Trimble, 301 F.3d 482, 491 (6th Cir.2002) ("When a statute is held to have been unconstitutional as of its enactment, that statute is void ab initio."); In the Interest of R.A.S., 249 Ga. 236, 290 S.E.2d 34, 35 (1982) ("Once a statute is declared unconstitutional and void, it cannot be saved by a subsequent statutory amendment, as there is, in legal contemplation, nothing to amend."); Reyes v. Texas, 753 S.W.2d 382, 383 (Tex.Crim.App.1988) ("It is the general rule that an unconstitutional statute, even though having the form and name of law, in reality is no law and in legal contemplation is as inoperative as if it had never undergone the formalities of enactment. Such a statute leaves the question that it purports to settle just as it was prior to its ineffectual enactment." (internal quotation marks omitted)). Hence, "a statute once held void cannot be revived by repeal and reenactment." 82 C.J.S. Statutes § 300 (1999). And "where a statute is unconstitutional and void when enacted, the subsequent removal of the constitutional objections thereto does not, by operation of law, give it force and effect." Id.

¶ 13 Undoubtedly, this court's ruling in Berry declared section 78-15-6 to be unconstitutional. With that declaration, section 78-15-6 became void. Nissan, however, argues that by curing the constitutional defect of section 78-15-3 and reenacting section 78-15-3, the legislature made the nonseverable sections of the statutory scheme valid once more.2 While this theory of implied validation has been adopted elsewhere, we reject its application in this context.

¶ 14 Under the theory of implied validation, "the legislature, by repeatedly recognizing a law that is invalid for failure to comply with certain constitutional requirements as to form and procedure, may ratify it and make it valid." 82 C.J.S. Statutes § 8 (1999). Implied validation, however, is generally used to "validate an invalid statute by passing a constitutional amendment" that cures the constitutional infirmity. Id.; see also Beck v. Beck, 814 S.W.2d 745, 747 (Tex. 1991) (explaining the doctrine of implied validation). This occurs in one of three ways. The first is by a specific provision in the amendment that shows "expressly or by necessary implication that the amendment was intended to operate retrospectively by validating antecedent unconstitutional legislation." 16 C.J.S. Constitutional Law § 87 (2005); see, e.g., Bonds v. State Dep't of Revenue, 254 Ala. 553, 49 So.2d 280, 281-82 (1950) (ruling a void act was validated by a subsequent constitutional amendment, which expressly validated and confirmed the void act). The second occurs where a legislature enacts a statute in anticipation of an amendment and the legislature "prescribes the manner of giving effect to the amendment." 16 C.J.S. Constitutional Law § 88 (2005); see also Burrell v. Miss. State Tax Comm'n, 536 So.2d 848, 860 (Miss.1988). The third happens when a statute is enacted in anticipation of a constitutional amendment and the statute and amendment are "debated and considered together in the same session of the legislature." Ex parte S. Ry. Co., 556 So.2d 1082, 1090 (Ala.1989).

¶ 15 Although the situation here is arguably analogous, it does not involve a constitutional amendment. Moreover, even if it were advisable to extend the theory of implied validation in a purely statutory context, the theory would not work here. We recognize that Senate Bill 25, the bill leading to the enactment of section 78-15-3, referred to section 78-15-5, which was one of the sections we found unconstitutional in Berry. Yet, neither the bill nor the statute mentioned section 78-15-6. Also, we have not been directed toward anything that shows the legislature passed section 78-15-3 to cure section 78-15-6. Moreover, we are not convinced that validation should be permitted by implication. As the problem before us illustrates, reliance on implication in law-making causes confusion. When the question arises whether a law is a law, we think it...

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