Kluger v. White, No. 42799

• Court: United States State Supreme Court of Florida
• Writing for the Court: ADKINS; BOYD; CARLTON, C.J., and DEKLE, J., dissent and concur with BOYD; BOYD; CARLTON, C.J., and DEKLE
• Citation: 281 So.2d 1
• Parties: Clara H. KLUGER, Appellant, v. Bernadette WHITE and Manchester Insurance and Indemnity Company, Appellees.
• Docket Number: No. 42799
• Decision Date: 11 July 1973

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281 So.2d 1 Clara H. KLUGER, Appellant,
v.
Bernadette WHITE and Manchester Insurance and Indemnity Company, Appellees. No. 42799. Supreme Court of Florida.
July 11, 1973.

Michael E. Cox, Marathon, and Jeffrey M. Fenster, Miami, for appellant.

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Richard J. Thornton and John H. Wahl, Jr. of Walton, Lantaff, Schroeder, Carson & Wahl, Miami, for appellee White.

R. Fred Lewis of Kuvin, Klingensmith & Coon, Coconut Grove, for appellee Manchester Ins. and Indem. Co.

Frederick B. Karl of Raymond, Wilson, Karl, Conway & Barr, Daytona Beach, for amicus curiae, American Ins. Assn.

Robert L. Shevin, Atty. Gen., and Barry Scott Richard, Asst. Atty. Gen., for amicus curiae, State of Florida.

ADKINS, Justice.

This is an appeal from an order of dismissal entered for defendants and against plaintiff in this property damage action by the Dade County Circuit Court, specifically passing upon the constitutionality of Fla.Stat. § 627.738, F.S.A. We have jurisdiction pursuant to Fla.Const., art. V, § 3(b)(1), F.S.A.

The cause of action arose from an automobile collision between a car owned by appellant, and driven by her son, and one owned by appellee, and driven by another person. The amended complaint filed by appellant alleged that the driver of appellee's car was negligent and had been formally charged with failure to yield the right of way; that there were no personal injuries; that there were damages to appellant's car to the extent of $774.95; and that the fair market value of the car was $250.00.

Appellant was insured with appellee, Manchester Insurance and Indemnity Company, but the policy did not provide for 'basic or full' property damage coverage. Appellant alleged that the Manchester agent had not specifically explained to her the possible results of failing to include property damage coverage.

Fla.Stat. § 627.738, F.S.A., provides, in effect, that the traditional right of action in tort for property damage arising from an automobile accident is abolished, and one must look to property damage with one's own insurer, unless the plaintiff is one who

(1) has chosen not to purchase property damage insurance, and

(2) has suffered property damage in excess of $550.00.

In total, Fla.Stat. § 627.738, F.S.A., provides:

'(1) The owner of a motor vehicle as defined in § 627.732 is not required to maintain security with respect to property damage to his motor vehicle, but may elect to purchase either full or basic coverage for accidental property damage to his motor vehicle.

'(2) Every insurer providing security under §§ 627.730--627.741 shall offer the owner either full or basic coverage for accidental property damage to the insured motor vehicle, as follows:

'(a) Full coverage shall provide insurance without regard to fault for accidents occurring within the United States or its territories or possessions or Canada.

'(b) Basic coverage shall be limited to insurance against damage caused by the fault of another resulting from contact between the insured vehicle and a vehicle with respect to which security is required under §§ 627.730--627.741.

'(3) The insurer may include within the terms and conditions applicable to full or basic coverage such other provisions as it customarily applies to collision coverage for private passenger automobiles in other states, including deductibles without limitation.

'(4) Every owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by §§ 627.730--627.741, and every other person or organization legally responsible for the acts or omissions

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of such an owner, registrant, operator, or occupant, is hereby exempted from tort liability for damages because of accidental property damage to motor vehicles arising out of the ownership, operation, maintenance, or use of such motor vehicle in this state. However, a person shall not be exempt from such liability if he was operating the motor vehicle without the express or implied consent of its owner or an insured under the owner's policy or if his willful and wanton misconduct was the proximate cause of the accident. This exemption applies only with respect to property damage to motor vehicles subject to §§ 627.730--627.741 but shall not be applicable as to a motor vehicle damaging a parked vehicle.

'(5) Notwithstanding subsection (4), an owner who has elected not to purchase insurance with respect to property damage to his motor vehicle may maintain an action of tort therefor against the owner, registrant, operator or occupant of a motor vehicle causing such damage if such damage exceeds five hundred and fifty dollars, and the insurer of an owner who has elected to purchase full or basic collision coverage for his motor vehicle shall have right, if the damage to such motor vehicle exceeds the above amount, to recover the amount of the benefits it has paid and, on behalf of its insured, any deductible amount from the insurer of the owner, registrant, operator, or occupant of a motor vehicle causing such damage. The issues of liability in such a case and the amount of recovery shall be decided on the basis of tort law, and shall be determined by agreement between the insurers involved or, if they fail to agree, by arbitration.'

The appellant in the case Sub judice falls into that class of accident victims with no recourse against any person or insurer for loss caused by the fault of another, taking her allegations as true. She did not choose to purchase either 'full or basic coverage for accidental property damage' to her automobile, and her damages were the fair market value of her automobile since repair costs cannot be recovered where they exceed the fair market value of the automobile before the collision. Blashfield, Automobile Law, Vol. 15, § 480.1, and 25 C.J.S. Damages § 82.

Appellant has raised numerous constitutional challenges to Fla.Stat. § 627.738, F.S.A. As appellant points out in her brief, the issues are limited to the single statute dealing with property damage, and the remainder of the Florida Automobile Reparations Act is not under consideration in the case Sub judice.

It is likewise unnecessary for this Court to consider but one of the constitutional issues raised by appellant, for we find, as explained below, that Fla.Stat. § 627.738, F.S.A., fails to comply with a reasonable interpretation of Fla.Const., art. I, § 21, F.S.A., which reads as follows:

'The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.'

This Court has never before specifically spoken to the issue of whether or not the constitutional guarantee of a 'redress of any injury' (Fla.Const., art. I, § 21, F.S.A.) bars the statutory abolition of an existing remedy without providing an alternative protection to the injured party.

Corpus Juris Secundum provides:

'A constitutional provision insuring a certain remedy for all injuries or wrongs does not command continuation of a specific statutory remedy. However, in a jurisdiction wherein the constitutional guaranty applies to the legislature as well as to the judiciary, . . . it has been held that the guaranty precludes the repeal of a statute allowing a remedy where the statute was in force at the time of the adoption of the Constitution. Furthermore, . . . the guaranty

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also prevents, in some jurisdictions, the total abolition of a common-law remedy.' 16A C.J.S. Constitutional Law § 710, pp. 1218--1219.

This Court has held that the Declaration of Rights of the Constitution of the State of Florida does apply to State government and to the Legislature. Spafford v. Brevard County, 92 Fla. 617, 110 So. 451 (1926). The right to a cause of action in tort for negligent causation of damage to an automobile in a collision was recognized by statute prior to the adoption of the 1968 Constitution of the State of Florida, as evidenced by the fact that Fla.Stat. § 627.738, F.S.A., the statute under attack, specifically exempts owners and drivers of automobiles from tort liability for such damages. In addition, the cause of action for damage to property by force or violence--trespass Vi et armis--was one of the earliest causes of action recognized at English Common Law.

It is essential, therefore, that this Court consider whether or not the Legislature is, in fact, empowered to abolish a common law and statutory right of action without providing an adequate alternative.

Upon careful consideration of the requirements of society, and the ever-evolving character of the law, we cannot adopt a complete prohibition against such legislative change. Nor can we adopt a view which would allow the Legislature to destroy a traditional and long-standing cause of action upon mere legislative whim, or when an alternative approach is available.

We hold, therefore, that where a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla.Stat. § 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.

It is urged that this Court has previously approved action by the Legislature which violated the rule which we have laid down. We disagree.

In McMillan v. Nelson, 149 Fla. 334, 5 So.2d 867 (1942), this Court approved the so-called 'Guest Statute' which merely changed the degree of negligence necessary for a passenger in an automobile to maintain a tort action against the driver. It did not abolish the right to sue, and does not come under the...