Thompson v. KFB Ins. Co.
| Decision Date | 16 April 1993 |
| Docket Number | No. 68452,68452 |
| Citation | 252 Kan. 1010,850 P.2d 773 |
| Parties | , 61 USLW 2650 Ivan THOMPSON, Jr., Appellee, v. KFB INSURANCE COMPANY, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The tests for determining whether a statute violates the equal protection of law guaranteed under the United States and Kansas Constitutions are stated and applied.
2. The "rational basis" test is the proper test for determining the validity of the classification of claimants as created under K.S.A.1992 Supp. 60-3802.
3. Under the "rational basis" test, a statutory classification does not violate the equal protection of law guaranties if the classification is rationally related to a legitimate legislative purpose. The classification, however, must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relationship to the object of the legislation so that persons similarly situated are treated alike.
4. Where the valid and invalid provisions of an act are not separate and independent of each other, but are so connected and intertwined that they cannot be severed without violating the intent of the legislature, the entire act must fail.
5. The provision of K.S.A.1992 Supp. 60-3802 which allows evidence of collateral source benefits where claimants demand judgment in excess of $150,000 is unconstitutional as a violation of the equal protection of law as guaranteed by the United States and Kansas Constitutions.
6. The provision of K.S.A.1992 Supp. 60-3802 which allows evidence of collateral source benefits where claimants demand judgment in excess of $150,000 is not severable from the balance of the Collateral Source Benefits Act, K.S.A.1992 Supp. 60-3801 et seq., under the provisions of K.S.A.1992 Supp. 60-3806; thus, the entire Act is unconstitutional and void.
7. The record on appeal is examined and it is held that the district court did not err in (1) holding the Collateral Source Benefits Act, K.S.A.1992 Supp. 60-3801 et seq., unconstitutional; (2) not allowing the defendant/appellant to introduce evidence of collateral source benefits; (3) not granting a mistrial; and (4) not granting a new trial.
Richmond M. Enochs of Wallace, Saunders, Austin, Brown and Enochs, Chartered, Overland Park, argued the cause, and Lee R. Hardee, III, of the same firm, was with him on the briefs for appellant.
Charles S. Fisher, Jr. of Fisher, Cavanaugh & Smith, P.A., Topeka, argued the cause, and Bryan W. Smith, of the same firm, was with him on the brief for appellee.
Timothy A. Short of Spigarelli, McLane & Short, Pittsburg, was on the brief for amicus curiae Kansas Trial Lawyers Ass'n.
Wayne T. Stratton of Goodell, Stratton, Edmonds & Palmer, Topeka, and John D. Ensley, of the same firm, were on the brief for amici curiae Kansas Hosp. Ass'n and Kansas Medical Soc.
Ivan Thompson, Jr., brought this action against his automobile insurance carrier, KFB Insurance Company (KFB), claiming underinsured motorist benefits. Thompson sought to recover for personal injuries and damages suffered as a result of an automobile accident. Before trial began, the district court ruled that K.S.A.1992 Supp. 60-3801 et seq., the current Collateral Source Benefits Act, is unconstitutional. Evidence of collateral source benefits was not admitted at trial. The jury awarded $377,000 to Thompson. The district court made several reductions in the award and entered judgment for him in the amount of $226,150. KFB appeals from the jury verdict and rulings of the district court. This appeal was transferred from the Court of Appeals by order of this court, pursuant to K.S.A. 20-3018(c).
With regard to the circumstances of the accident, there is no dispute. Ivan Thompson was a passenger in his automobile, which was being driven east on Interstate 70 by Joy Burgen. A westbound automobile driven by Verbal Russell crossed the median and struck Thompson's automobile head-on or nearly so. The accident occurred on May 26, 1990.
Thompson sustained injuries which required treatment and hospitalization in St. Louis, near the place of the accident. Among his attending physicians in St. Louis were a general surgeon, Dr. John Hoehn, and an orthopedic surgeon, Dr. Edwin Carter.
Thompson was treated for rib fractures, a "flail" chest, a collapsed lung, and a comminuted fracture of the left femur. He had five ribs on his left side which had more than one fracture in each. A comminuted fracture involves more than two fragments. X-rays of Thompson's left thigh showed at least eight pieces of bone as well as a V-shaped fracture which extended from just below the hip joint down into the knee joint. Repair is complicated when the knee joint is involved, and there is a greater chance of arthritis in the future.
While in the hospital in St. Louis from May 26 to May 28, Thompson was in the intensive care unit. He was transferred to "the floor" on May 28, and on June 1 he was moved by ambulance to Topeka for surgical fixation of his fracture by Dr. Kurt Knappenberger.
The orthopedic surgery involved stabilizing the alignment and configuration of the femur and knee joint with screws and inserting a rod down the length of the femur. Thompson was released from the hospital within a week after the surgery, which occurred on June 5. On August 24 Thompson was allowed to start placing some weight on his left leg. At the time of trial, November 1991, the rod had not yet been removed from Thompson's leg. Its removal will require surgery, will result in two to three more weeks on crutches, and will cost approximately $3,000.
Thompson owns and drives a dump truck in which he hauls asphalt for a construction company. At the time of trial he was 53 years old. After the accident he modified his truck so that he could operate the clutch with a hand lever which allowed him to return to work sooner than otherwise. He was away from work about 10 weeks. Some mechanical work he previously would have done on his truck he now pays someone else to do. He plans to have the rod removed from his leg during the slow winter months to avoid missing more work. Additional facts will be stated as relevant to determination of the issues.
We first consider if the current collateral source benefits statutes, K.S.A.1992 Supp. 60-3801 through 60-3807, are constitutional. Article 38 of Chapter 60 of the Kansas Statutes Annotated is entitled "Collateral Source Benefits." The Act became effective July 1, 1988. K.S.A.1992 Supp. 60-3801 is the definition section of the Act. K.S.A.1992 Supp. 60-3806 provides for severability of any invalid clause or provision; K.S.A.1992 Supp. 60-3807 provides for application of the Act to causes of action which accrue on or after the effective date.
K.S.A.1992 Supp. 60-3802 through 60-3805 are the operative sections and provide:
"In any action for personal injury or death, in which the claimant demands judgment for damages in excess of $150,000, evidence of collateral source benefits received or evidence of collateral source benefits which are reasonably expected to be received in the future shall be admissible." K.S.A.1992 Supp. 60-3802.
"When evidence of collateral source benefits is admitted into evidence pursuant to K.S.A.1992 Supp. 60-3802, evidence of the cost of the collateral source benefit shall be admissible." K.S.A.1992 Supp. 60-3803.
"(a) The amount of the judgment shall be reduced by the court by the amount of net collateral source benefits received, or reasonably expected to be received in the future but only to the extent that such benefits exceed the aggregate amount by which:
(1) Such judgment was reduced pursuant to subsection (a) of K.S.A. 60-258a and amendments thereto;
(2) the claimant's ability to recover such judgment was limited by the application of subsections (c) and (d) of K.S.A. 60-258a and amendments thereto, other than by virtue of claimant's settlement with or decision not to assert a legally enforceable claim against a named or an unnamed party;
(3) the amount to which the claimant's ability to recover such judgment was limited by the insolvency or bankruptcy of a person; and
(4) the award of damages has been reduced because of a statutory limit upon the recovery of damages.
"(b) If there is no amount falling within subsections (a)(1) through (a)(4) then the court shall reduce the judgment by the full amount of the net collateral source benefits." K.S.A.1992 Supp. 60-3805.
At common law, the collateral source rule prevented the jury from hearing evidence of payments made to an injured person by a source independent of the tortfeasor as a result of the occurrence upon which the personal injury action is based. The court has stated the rule as follows: "Under the 'collateral source rule,' benefits received by the plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer." Farley v. Engelken, 241 Kan. 663, Syl. p 1, 740 P.2d 1058 (1987).
Three times in recent memory the Kansas Legislature has enacted statutes which were intended to override or limit the common-law rule. K.S.A. 60-471(a), enacted in 1976, provided in pertinent part:
"In any action for damages for personal injuries or death arising out of the rendering of or the failure to render professional services by any health care provider, evidence of any reimbursement or indemnification received by a party for damages sustained from such injury or death, excluding payments from insurance paid for in whole or...
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