Lasky v. State Farm Ins. Co.

• Decision Date: 17 April 1974
• Docket Number: No. 42856,42856
• Citation: 296 So.2d 9
• Parties: Robert W. LASKY and Ann D. Lasky, hie wife, Appellants, v. STATE FARM INSURANCE COMPANY et al., Appellees.
• Court: Florida Supreme Court

Page 9

296 So.2d 9

Robert W. LASKY and Ann D. Lasky, hie wife, Appellants, v. STATE FARM INSURANCE COMPANY et al., Appellees.

No. 42856.

Supreme Court of Florida.

April 17, 1974.

As Revised on Denial of Rehearing May 28, 1974.

Norman Klein, of Schwartz & Klein, North Miami Beach, and Robert Orseck, of Podhurst, Orseck & Parks, Miami, for appellants.

John H. Wahl, Jr., and Edward J. Atkins, of Walton, Lantaff, Schroeder, Carson & Wahl, and Carey, Dwyer, Austin, Cole & Selwood, Miami, for appellees.

Frederick B. Karl and William M. Barr, of Raymond, Wilson, Karl, Conway & Barr, Daytona Beach, for amicus curiae, American Ins. Ass'n.

Roy T. Rhodes, of Rhodes, Stephens, Bryant & Durrance, Tallahassee, for amicus curiae, American Mutual Ins. Alliance and National Ass'n of Independent Insurers.

Bill Wagner, Tampa for amicus curiae--Academy of Florida Trial Lawyers.

Robert L. Shevin, Atty. Gen., and Barry Scott Richard, Deputy Atty. Gen., for intervenor.

DEKLE, Justice.

This appeal comes to us directly from the Circuit Court in and for Broward County and involves the constitutional validity of F.S. §§ 627.737 and 627.738, F.S.A., these being the portions of the 1972 Florida Automobile Reparations Reform Act (hereinafter referred to as the 'no-fault' insurance act) providing for tort immunity in certain specified circumstances. Inasmuch as the trial court, in dismissing the action, expressly held the statutes in question to be constitutionally valid in the face of appellants' challenge, our jurisdiction has properly been invoked under Article V, § 3(b)(1), F.S.A., of our state constitution.

The pleadings ¹ reflect that Appellant Ann Lasky sustained personal injuries when driving her husband's car on February 18, 1972. The Lasky car was struck by a vehicle operated by Respondent May, and was subsequently determined to be a total loss. Because the Lasky car was a 1958 Ford, its replacement value did not meet the $550.00 'threshold' requirement of our no-fault insurance law as to property damage. Mrs. Lasky's injuries did not include any compound fracture or other injury which would bring her within the provisions of § 627.737(2) allowing her to recover damages for pain and suffering, etc., in the traditional tort action; if she comes within these provisions at all, it must be by virtue of the one thousand dollar medical expense 'threshold' provision of F.S. § 627.737(2), F.S.A. ² The Laskys filed suit

specifically seeking recovery for pain and suffering and property damage. Appellees moved to dismiss the complaint on the basis that the aforementioned statutes barred recovery; this motion was granted, the trial court specifically finding the statutes in question to be constitutionally valid in the face of appellant's challenge; this direct appeal ensued.

CONSTITUTIONALITY

Appellants here present a many-faceted attack upon the constitutional validity of both F.S. § 627.737, F.S.A. (limiting damages recoverable in a tort action for personal injury by denying recovery for pain and suffering and similar intangible items of damage unless certain conditions are met) and F.S. § 627.738, F.S.A. (providing an exemption from tort liability for property damage). These statutes, it is asserted, violate appellants' rights of access to the courts ³ and to trial by jury, ⁴ deny them due process of law and equal protection of the laws, ⁵ and impose unconstitutional restraints on the right of non-residents to travel. ⁶

Although the appellants' challenge is directed at both sections cited above, we need not tarry over the resolution of the challenge to § 627.738 (property damage), inasmuch as we have recently held this section invalid on grounds that it unconstitutionally denied the right of access to the courts under Art. I, § 21, Fla.Const. Kluger v. White, 281 So.2d 1 (Fla.1973).

We now hold, however, that, with one exception, the personal injury aspects of F.S. § 627.737, F.S.A., are valid and constitutional.

The provisions for tort immunity in personal injury cases present questions differing from those present in Kluger. As we noted in Kluger:

'Had the Legislature chosen to require that appellant be insured against property damage loss--as is, in effect, required by Fla.Stat. § 627.733, F.S.A., with respect to other possible damages--the issues would be different. A reasonable alternative to an action in tort would have been provided . . ..' 281 So.2d at 5.

Sub judice, we have exactly that situation. F.S. § 627.733(1), F.S.A., requires that:

'Every owner or registrant of a motor vehicle required to be registered and licensed in this state shall maintain security as required by subsection (3) of this section in effect continuously throughout the registration or licensing period.'

F.S. § 627.733(3), F.S.A., requires that security be provided either by insurance for the benefits contained in the no-fault law or by such other method approved by the department of insurance as providing equivalent security. Additionally, F.S. § 627.733(4), F.S.A., provides that an owner of a motor vehicle as to which security is required and who does not have such security in effect at the time of an accident has no tort immunity, but is personally liable for payment of the benefits under F.S. § 627.736, F.S.A., for personal injury and has all the obligations of an insurer under the no-fault insurance act. Thus, the owner of a motor vehicle is Required to maintain security (either by insurance or otherwise) for payment of the no-fault benefits Protections are afforded the accident victim by this Act in the speedy payment by his own insurer of medical costs, lost wages, etc., while foregoing the right to recover in tort for these same benefits and (in a limited category of cases) the right to recover for intangible damages to the extent covered by the required insurance (F.S. § 627.737(1), F.S.A.); furthermore, the accident victim is assured of some recovery even where he Himself is at fault. In exchange for his former right to damages for pain and suffering in the limited category of cases where such items are preempted by the act, he receives not only a prompt recovery of his major, salient out-of-pocket losses--even where he is at fault--but also an immunity from being held liable for the pain and suffering of the other parties to the accident if they should fall within this limited class where such items are not recoverable.

and has no tort immunity if he fails to meet this requirement. This provides a reasonable alternative to the traditional action in tort. In exchange for his previous right to damages for pain and suffering (in the limited class of cases where recovery of these elements of damage is barred by § 627.737), with recovery limited to those situations where he can prove that the other party was at fault, the injured party is assured of recovery of his major and salient economic losses from his own insurer.

In Kluger, we held that the provisions of F.S. § 627.738, F.S.A., invalidly deprived persons of their right of access to the courts ⁷ where the statute deprived a person of any and all means by which he could be made whole for property damage less than five hundred and fifty dollars in amount, resulting from a vehicular accident, unless he voluntarily elected to purchase insurance for property damage to his own vehicle. Thus a person who elected not to insure his own vehicle against property damage, and who sustained damage to his car in the amount of five hundred and forty dollars as the result of the fault of another would be without recourse against anyone under § 627.738, despite a clear loss to him and even where evidence of fault of the other party was overwhelming.

The provisions of F.S. § 627.737, F.S.A., present a totally different picture. As we have noted above, insurance coverage ⁸ as to the personal injury benefits provided by the no-fault insurance law is compulsory. F.S. § 627.733, F.S.A. In contrast to the property damage tort immunity section, all right of recovery is not denied, but only recovery for particular intangible elements of damage in a few situations; there is no immunity from tort liability for tangible damages resulting from injury except where the benefits provided in F.S. § 627.736(1), F.S.A., are payable to the injured party by his insurer or would be so payable but for an authorized deduction or exclusion. F.S. § 627.737(1), F.S.A. Thus the injured party will receive such benefits as payment of his medical expenses and compensation for any loss of income and loss of earning capacity under the insurance policy he is required by law to maintain, up to applicable policy limits, and may bring suit to recover such of these damages as are in excess of his applicable policy limits.

The exemption from tort liability for intangible damages (pain and suffering, mental anguish and inconvenience) is applicable only to a limited class of cases in which the benefits for medical expenses are less than one thousand dollars. ⁹ In computing the one thousand dollar figure, a person entitled to receive free medical Unlike the arbitrary dollar limitation involved in Kluger, the provisions here involved create a reasonable classification. By providing that suit can be brought to recover for pain and suffering in situations where the 'threshold' amount of Reasonable and Necessary medical expenses has been reached, the Legislature has made a reasonable classification, a point later discussed more fully. It is also provided that even where these conditions are not present as a basis for suit by the injured party against the tortfeasor, the injured party is still entitled to receive the benefits provided by § 627.736(1) (medical bills, loss of income, etc.) from his own insurer, which benefits are payable regardless of fault.

and surgical benefits is credited with the equivalent value of the services so provided him, as a part of the $1,000. § 627.737(2). We also deem worthy of note that § 627.736...