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A. Introduction-Examples of Rights Protections not Contained in the Federal Constitution

As we have seen, many of the classic federal constitutional rights have analogues in the state constitutions. These state provisions may be interpreted by the states to provide a greater measure of rights than similar or identical federal provisions.

In addition, however, state constitutions contain many rights not even contemplated by the federal constitution. Examination of any state constitution will reveal numerous constitutional rights of an entirely different nature from those with which we are familiar.

Would decisions based on such provisions always provide an "adequate and independent state ground" for the decision, thus precluding United States Supreme Court review?

Kluger v. White

281 So. 2d 1(Fla. 1973)

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. sec. 627.738, F.S.A. We have jurisdiction pursuant to Fla. Const., art. V, sec. 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 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....

Fla.Stat. sec. 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.

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Appellant has raised numerous constitutional challenges to Fla.Stat sec. 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. sec. 627.738, F.S.A., fails to comply with a reasonable interpretation of Fla.Const., art. I, sec. 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, sec. 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 also prevents, in some jurisdictions, the total abolition of a common-law remedy.

16A C.J.S. Constitutional Law sec. 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. sec. 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. sec. 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 alterative 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 rule which we have promulgated.

Workmen's compensation abolished the right to sue one's employer in tort for a job-related injury, but provided adequate, sufficient, and even preferable safeguards for an employee who is injured on the job, thus satisfying one of the exceptions to the rule against abolition of the right to redress for an injury.

The Legislature in 1945 enacted Fla.Stat. Ch. 771, F.S.A., which abolishes the rights of action to sue for damages for alienation of affections, criminal conversation, seduction or breach of promise. This Court upheld the validity of the chapter in Rotwein v. Gersten, 160 Fla. 736, 36 So.2d 419 (1948). The Court opined:

The causes of action proscribed by the act under review were a part of the common law and have long been a part of the law of the country. They have no doubt served a good purpose, but when they become an instrument of extortion and blackmail, the legislature has the power to, and may, limit or abolish them. (Emphasis supplied) (p. 421)

Thus, in abolishing the right of action for alienation of affections, etc., the Legislature showed the public necessity required for the total abolition of a right to sue.

The Legislature has not presented such a case in relation to the abolition of the right to sue an automotive tortfeasor for property damage. Nor has alternative protection for the victim of the accident been provided, as evidenced by the facts here before the Court.

Had the Legislature chosen to require that appellant be insured against property damage loss-as is, in effect, required by Fla.Stat. sec. 627.733, F.S.A., with respect to other possible damages-the issues would de different. A reasonable alternative to an action in tort would have been provided and the issue would have been whether or not the requirement of insurance for all motorists was reasonable. That issue is not before us.

Retaining the right of action for damages over $550.00 (Fla.Stat. sec. 627.738(5), F.S.A.) does not correct the constitutional infirmity, but merely gives rise to another argument, that appellant has been deprived of the equal protection of the law solely on the basis of the value of her automobile in violation of Fla.Const., art. I, sec. 2, F.S.A., and U.S.Const., amend. XIV, sec. 1. It is unnecessary to reach the merits of this contention because the statute under consideration has already failed constitutional muster on other grounds.

BOYD, Justice (dissenting):

I dissent.

The judgment of the trial court should be affirmed for the following reasons:

The second reason we should affirm the judgment of the trial court reaches the Constitutional question involved. The question as to the constitutionality of the section of the statute denying plaintiff the opportunity to sue defendant White, on the ground that plaintiff had declined to purchase her own collision insurance, and was, therefore, her own insurer to the extent of $550.00, is one of great impor

tance.

Plaintiff claims that the statute, by denying her the opportunity to litigate against defendant White, violates sec. 21 of Article I of the Constitution of the State of Florida, by denying “redress for an injury.” This Court must determine whether the statute does indeed deny access to the courts in such a manner as to conflict with the foregoing constitutional provision. Obviously, a literal and dogmatic construction of said provision would deny both the legislature and the Court the power to impose reasonable and logical limitations on the constitutional right to use the courts of Florida. It, of course, is assumed that the citizens who adopted the 1968 Constitution intended that the language therein be given the same construction as similar language in the prior Constitution of 1885.

This Court has held that the right to maintain litigation is not absolute but, rather, is subject to reasonable restraints. We have repeatedly upheld statutes of limitation, which prevented aggrieved persons from

litigating for redress of injury, unless the suits were filed within a time specified by Statute.

In some instances, we have followed the principles of the Common Law to bar certain actions where, admittedly, wrongs have occurred. In Orefice v. Albert, we noted that:

It is an established policy, evidenced by many decisions, that suits will not be allowed in this state among members of a family for tort. Spouses may not sue each other, nor children their parents. The purpose of this policy is to protect family harmony and re

sources....

In other instances, the law of Florida contains many decisions which have upheld the constitutional validity of legislation modifying Common Law causes of action. In most of those decisions, the party presenting a constitutional challenge presented arguments similar to those of plaintiff in the present case. For example, in Rotwein v. Gersten, legislation which completely abolished the causes of action for alienation of affections, criminal conversation, seduction, and breach of contract to marry was held to be proper and not prohibited by constitutional limitation. In Rotwein, this Court clearly stated that an individual does not have a vested interest or property right in a Common Law cause of action, and further noted that when a Common Law cause of action becomes an instrument of abuse, the legislature can enact the necessary modifications.

The Florida "Guest Statute" was also upheld in the face of constitutional attacks prior to its recent repeal by the Legislature. Prior to the enactment of the "Guest Statute," an individual could maintain a Common Law cause of action for the negligence of a driver of the vehicle in which he was riding. The "Guest Statute" modified such cause of action by relieving the driver from tort liability for ordinary negligence. In McMillan v. Nelson, constitutional challenges were presented, urging, among other things, that the legislation deprived individuals of remedy under law, and violated equal protection and due process requirements. This Court rejected such arguments, and upheld the validity of the statute.

Finally, another instance of the latter type is the Workmen's Compensation Act. Under that Act, an injured workman is provided a schedule of benefits from his employer without reference to the cause of injuries arising out of the course of his employment. The concept of “fault” has been eliminated. Despite the fact that they modify Common Law causes of action, such laws have universally been held to be a legitimate and constitutional exercise of legislative power.

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Saylor v. Hall 497 S.W.2d 218 (Ky. 1973)

REED, Justice.

The operative facts are: In May 1955, the defendant, E.H. Hall, a builder, completed construction of a house on a lot he owned. Shortly thereafter, he sold the house and lot to the defendants, Thomas and Kathlyn Johnson, who thereafter owned and controlled the property. The house was originally occupied in June 1955, when the improvements had been substantially completed. In July 1969, James Saylor and his wife rented the property from the Johnsons and moved in. The Saylors had two children, Jimmy, then age 6, and Marvin, then age 4. Four mouths later, while the Saylor children were sitting on the floor watching television, a stone fireplace and mantel located in the room collapsed; Jimmy was crushed to death, and Marvin was severely injured.

In July 1970, within one year of the date of the accident, James Saylor as personal representative of his dead son, Jimmy, and Marvin, through his father, James, as next friend, instituted this lawsuit against the Johnsons and Hall. The suit alleged that Jimmy's death and Marvin's personal injuries were caused by the negligence of Hall, the builder, and by the negligence of the Johnsons who had leased the property to the Saylors. The defendants filed motions for summary judgment. The evidentiary material produced demonstrated that the plaintiffs had evidence that Hall installed the braces on the mantel in a negligent

and unworkmanlike manner, and that the Johnsons knew or should have known of the dangerous but hidden condition created, and yet did not correct it or warn the Saylors of its existence. The trial judge did not reach the merits concerning the triability of the lawsuit. He decided that action against Hall, the builder, was barred by limitations because of the provisions of KRS 413.120(14) and KRS 413.135. From this order of dismissal of the builder, the plaintiffs appealed, after meeting the procedural requisites for such action.

In 1964, the General Assembly carved out for different treatment from other actions for personal injuries, those where the claim was against "the builder of a home or other improvements." KRS 413.120(14). This statute provides that such an action must be commenced with five years after the cause of action accrues, and [the] "cause of action shall be deemed to accrue at the time of original occupancy of the improvements which the builder caused to be erected." Ibid.

The builder's potential liability was again the subject of legislative concern in 1966 when a more expansive statute, KRS 413.135, was enacted. It provided in part that no tort action for personal injuries or for wrongful death arising out of “deficiency" in construction of any improvement to real property could be brought against the builder after the expiration of five years following the "substantial completion of such improvement." Both of these statutes were expressed as parts of the general chapter on limitations of actions.

The plaintiffs argue that the application of these two statutes to bar their claims violates the Constitution of the United States and particularly the Due Process and Equal Protection Clauses of the Four

teenth Amendment. They also assert application of the questioned statutes to their causes of action is prohibited by numerous sections of the Constitution of Kentucky. We find it necessary, however, to consider only the effect of sections 14, 54, and 241 of the Kentucky Constitution as they have been judicially construed.

The defendant points out that substantially similar statutes have been adopted in 31 other states, and have been held valid by each state court of last resort that has considered them except in one instance. The defendant's arguments are: that the legislature may abolish old common law rights of action or create new ones; that it may enact statutes of "ultimate repose"; and that it may reasonably and rationally classify legal areas to be protected in order to achieve a permissible legislative objective in the manner provided by the concerned statutes. Nevertheless, the defendant concedes, tacitly if not explicitly, the Kentucky legislature has no constitutional power to extinguish common-law rights of action for negligence, but counters with the assertion that no such right of action for negligence against a builder existed at the time the questioned statutes were enacted, and, therefore, the legislature was free to act. Here, in our judgment, lies the heart of the issue to be decided. If the defendant is wrong in his assertion of the nonexistence of a right of action for negligence against the builder under the circumstances present when the statutes were passed, then the application of these statutes to the plaintiff's claim is constitutionally impermissible in this state.

Section 14 of the Constitution of Kentucky

states:

All courts shall be open and every person, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.

(italics supplied).

This section was held to apply to the legislative branch of government as well as to the judicial in Commonwealth v. Werner, Ky., 280 S.W.2d 214 (1955). Section 54 of the same Constitution states:

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. (italics supplied).

The Kentucky Constitution in Section 241 states:

Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death from the corporations and persons so causing the same. Until otherwise provided by law, the action to recover such damages shall in all cases be prosecuted by the personal representative of the deceased person. The General Assembly may provide how the recovery shall go and to whom it belongs; and until such provision is made the same shall form part of the personal estate of the deceased person.

(italics supplied).

This court construed section 241 in 1911 to mean that "... it is not within the power of the legislature to deny this right of action. The section is as comprehensive as language can make it. The words 'negligence' and 'wrongful act' are sufficiently broad to embrace every degree of tort that can be committed against the person...." Britton's Adm'r v. Samuels, 143 Ky. 129, 136 S.W. 143.

Kentucky has no guest-passenger automobile statute, not because of legislative inaction, but because such a statute was voided as violative of our state Constitution. In the decision, section 54 played a prominent part. In Ludwig v. Johnson et al. 243 Ky. 533, 49 S.W.2d 347 (1932), this court struck down a statute that prohibited recovery by a guest passenger in an automobile against the owner or host driver for personal injuries or death resulting from the driver's negligence. Recovery was permitted by the statute only in the instance of intentional conduct. The court's holding was: "The [automobile guest-passenger] statute under consideration violates the spirit of our Constitution as well as its letter as found in sections 14, 54 and 241. It was the manifest of purpose the framers of that instrument to preserve and perpetuate the common law right of a citizen injured by the negligent act of another to sue to recover damages for his injury."

The defendant builder concedes that our legislature cannot abolish a common-law right of action for negligence. It is his contention, however, that at the time the questioned statutes were enacted, there was no existing right of action for negligence in this state where the plaintiff was a third party and the defendant was a builder whose work had been completed and accepted by the owner with whom he had contracted.

Returning now to the principle that we discussed in the opening of this opinion, we conclude that it is unnecessary in this case to delineate or define the

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