*1 individually parents Huy Le, Le and and as Melissa appellee. Le, appellants, Lautrup, Thanh v. Thomas July Filed 2006. No. S-04-743. Chesire, Lamson, L.L.P.,
Daniel R & Dugan Murray, Walden, Office, E. of Walden Law Raymond appellants. *2 McGrath, Michael G. Mullin and Michaela A. Messenger, North, Kratz, PC., L.L.O., Mullin & for appellee. Hofmeister,
Maren Lynn Chaloupka, Holyoke, Chaloupka, & Snyder for amicus curiae Nebraska Association of Chaloupka, Trial Attorneys. Brummond,
Robert T. Grimit and M. Molly Egley Baylor, Evnen, Curtiss, Witt, L.L.P., Grimit & for amicus curiae Nebraska Insurance Information Service. C.J.,
Hendry, Wright, Connolly, Gerrard, Stephan, McCormack, Miller-Lerman, and JJ.
Miller-Lerman, J.
NATURE OF CASE Thanh Le was in a one-vehicle injured accident. The vehicle was driven Thanh’s by grandfather, Thomas Thanh’s Lautrup. Le, Le and Huy Melissa filed action parents, negligence in the against district court for In their Lautrup Douglas County. the Les challenged of Nebraska’s petition, constitutionality statute, 25-21,237 (Rеissue Neb. Rev. Stat. 1995), which § limited liability damage caused his Lautrup’s by gross negli- gence or intoxication. Intoxication was an issue not in this case.
The district court the Les’ rejected constitu- challenge 25-21,237 and, demurrer, tionality of in response Lautrup’s § dismissed the Les’ theories of based recovery on negli- simple The action went trial gence. on sole remaining theory of and the in gross negligence, jury found favor. The Les Lautrup’s We conclude that the district did not err in appeal. reject- 25-21,237, the Les’ ing challenge to and we affirm.
STATEMENTOF FACTS 20, 2001, Le, old, On June Thanh then 15 awas years passen- in the back seat of a vehicle driven ger and by Lautrup. Lautrup Nebraska, Omaha, from fish- family Thanh were returning Burwell, Lake near Nebraska. and Calamus ing camping trip Nebraska, Platte County, While on driving Highway 91 highway vehiclе drifted off the side of right Lautrup’s surface. wheels of the vehicle left the right paved Lautrup course, wheels hit the edge to correct his but right attempted the vehicle to lose control of causing pavement, Lautrup the vehicle Thanh was thrown from the vehi- to roll. causing cle and was Police determined injured. investigators Lautrup he had fallen and that he had not been drinking, asleep, accident, was not but that inat- momentary speeding prior the accident. At the time tention on contributed to Lautrup’s part accident, neither Thanh his lived with nor parents Lautrup were they financially nor supported Lautrup. 21,2002.
The Les filed an action against February Lautrup In an amended the Les set forth three theories of recov- petition, vehicle, (1) (2) in the ery: negligencе gross neg- operation 25-21,237, (3) within the ligence meaning negligence that Thanh to ensure secured seat- failing properly belt. The Les in their alleged liability petition Lautrup’s *3 be could without the need to predicated negligence prove 25-21,237 25-21,237 under gross because negligence § § unconstitutional to the extent it to pertained grandparent- grandchild relationship. 25-21,237,
Section as amended in controls this case. 25-21,237 Section provides:
The owner or of a motor vehicle shall be operator liable for or any damages any passenger person to such owner or as or within the second operator spouse or who is in such degree consanguinity affinity riding hire, motor vehicle as a invitation not for by such (1) unless is caused the driver of such damage by influence vеhicle under the motor being intoxicating liq- (2) uor or of the owner or gross negligence operator of such motor vehicle. operation section, For the the term is hereby defined as who a ride in being any motor person accepts vehicle but without therefor shall not giving compensation be construed include such in a to or apply passenger such as a vehicle demonstrated to being passenger
motor or af- by Relationship consanguinity prospective purchaser. within the second shall include finity grand- parents, children, and brothers and sisters. grandchildren, parents, Should the of the driver or owner be terminated marriage by dissolution, death with the blood relationship [affinal] kindred of his or her shall be deemed to continue. spouse demurred two theоries of based on recovery Lautrup that on such basis was negligence argued recovery simple 25-21,237. barred The Les to the demurrer by responded § 25-21,237 was unconstitutional. The district court arguing § 25-21,237 concluded was constitutional and that it pre- § vented recovery on basis of The court simple negligence. therefore dismissed those recovery theories of based on simple The case to trial negligence. solely on basis of proceeded found in gross negligence. jury favor of Les Lautrup. appeal.
ASSIGNMENTS OF ERROR The Les assert that the district court erred in find failing to 25-21,237 unconstitutional and in their theo- dismissing § ries of based on recovery negligence. simple
STANDARD OF REVIEW law; Whether a statute is constitutional is question the Nebraska accordingly, Court is reach a Supreme obligated to conclusion of the decision reached the court independent Swanson, below. Ptak v. ante N.W.2d 337 p.
ANALYSIS 25-21,237 The Les assert that unconstitutional the district erred when it concluded that their theories of based on recovery must be dismissed and that simple negligence were they required gross prove negligence by Lautrup order to succeed on their conclude the Les have petition. failed to establish that is unconstitutional and that therefore, the district court did not err when it concluded that *4 25-21,237 was not and unconstitutional dismissed their § theo- ries of based recovery on simple negligence. statute, as amended guest 1981 found 25-21,237, controls this case. In v. Botsch Neb. Reisdorff,
§ 193
[935] 165, constitu- (1975), 121 rejected 226 N.W.2d which an of the statute earlier version challenge guest tional 1974). (Reissue at Neb. Rev. Stat. § was thеn codified 1981, of guest amendment Legislature’s Prior to Botsch and various invitations reconsider this court rejected See, v. Cushing statute unconstitutional. to declare v. Bernhardt, 272, Beebe (1981); N.W.2d 688 210 Neb. 313 Co., 559, N.W.2d 829 Neb. 308 Sorensen Sand & Gravel 209 491, Wurtele, 407 Neb. N.W.2d v. 206 293 (1981); Kreifels 704, (1975); Sisson, v. Neb. 229 N.W.2d (1980); Circo 371, N.W.2d Langemeier, Lubash Prior to amended the in 1981. The Legislature amendment, guests; the statute had nonpaying pertained suit is, bringing were from guests precluded nonpaying amendment, stat- After negligence. based on simple who were related to guests ute to only pertained nonpaying was de- second which consanguinity driver within the of children, and grand- include fined to parents grandparents 1998, children, rejected and brothers and sisters. this court of the guest version post-1981 constitutional challenge Reiser, statute. Coburn v. N.W.2d 289 Les is not because argue controlling ques- Coburn and was not nec- fully was not explored tion of Coburn, that case. We recognize essary disposition summarily concluded authority, relying pre-1981 was not without discussion guest statute unconstitutional had or the fact that the statute challenge bases for the in Coburn had the time that prior challenges been amended subsequent it would to con- been We therefore believe be rejected. helpful light statute is constitutional in sider whether current guest offered the Les. the arguments three the Les that the statute violates
*5 On argue appeal, the due the Nebraska Constitution: process provisions I, art. and the clauses Neb. Const. special § Ill, 18. of Neb. art. and immunities clause Const. § privileges I, art. “No shall provides: person deprived Neb. Const. law, due nor be life, prоcess without liberty, property, III, art. the laws.” Neb. Const. denied equal protection laws ... local “The shall not pass special provides: [936] association, or individual
[granting any corporation, or exclusive or whatever.” immunity, franchise special privileges, 25-21,237 consider the under Neb. § I, 3, III, art. art. Const. and 18. § § 25-21,237 1, Section Does Not ViolateNeb. Const. art. 3.§ Although the Les assert that the both the violates due and the clauses of the Nebraska process equal protection Constitution, their focus on the arguments mainly protec equal I, tion Const. Neb. art. we therefore focus aspects § analysis our on the clause. The protection equal party attacking a statute as violative of has the burden to equal protection prove that the violates classification Protection Clause. Equal Lincoln, Waste Connections Neb. v. City (2005). N.W.2d 256 We conclude that the Les have not proved 25-21,237 violates Nebraska’s clause. principle equal guarantees simi protection state, lar will be dealt with persons similarly by but does not foreclose state from classifying from differenti persons one class ating from another when enacting Waste legislation. Neb., Connections supra. sim equal protection guarantee ply keeps governmental decisionmakers from treating differently who are in relevant alike. Id. In an aspects equal pro a tection when challenge, fundamental right classi suspect involved, fication is not the act is a valid exercise of police power act if the is related to a legitimate governmental pur Id. pose. argument Les’ that we
Despite should higher apply standard of we determine that no scrutiny, fundamental right or therefore, classification is involved here suspect ra test, tional basis test Under the rational basis applies. Equal Protection Clause is satisfied as as there (1) is long plausible classification, reason for the policy (2) the legislative facts on which classification based have apparently may rationally decisionmaker, been considered to be true governmental (3) relationship classification to its is not goal so attenuated as to render distinction or irrational. See arbitrary Gourley Nebraska Methodist Sys., Health 265 Neb. standard, N.W.2d 43 The rational as the relationship under form of judicial scrutiny most relaxed and tolerant Clause, if a classifiсation rests is offended only Protection Equal the achievement of irrelevant to wholly which grounds State, Mason v. objectives. the government’s basis whether rational When determining N.W.2d classification, if any look to see exists for courts reasonably justify state of facts can be conceived disparate which Gourley, treatment results. supra. version the guest to the current these standards
Applying statute, not violate the we does conclude *6 In our cases clause of the Nebraska Constitution. protection the was guest that statute constitutional concluding to 1981 prior analysis, legitimate gov under an the primary the were identified as guest behind statute ernmental interests fraud and “the and the of prevention of promotion hospitality, 165, 170, 226 N.W.2d Reisdorff, collusion.” Botsch Botsch, this found rational relation In court and the statute betweеn interests guest these governmental ship it then existed. as case, Les’ the to the challenge, Lautrup
In present response be an no longer important acknowledges hospitality may Instead, relies the guest interest with statute. Lautrup respect the of fraud and collusion on of mainly objective prevention the ver- interests governmental justifying as legitimate present further subsidiary argu- the statute. makes guest Lautrup sion of ments, here, in the repeated support 25-21,237. based notes that because lawsuits also Lautrup under are still gross negligence permitted on intoxication or 25-21,237, between it cannot be said all suits grandparents this statute. under grandchildren and precluded of the amend- legislative history have reviewed the legislative history Our review the ment to statute. and that thе of fraud amendment indicates prevention interest, collusion, was the other rather than hospitality to retain the guest stated justification Legislature main it the stat- certain relatives when repealed with respect statute reviewed the current it related We have guests. ute as to other and legislative history statute the associated version of statute’s terms are related rationally and conclude that the As the stated interest of fraud collusion. noted preventing above, the statute former version upheld as to the inter- rationally legitimate governmental Botsch, See est of fraud collusion. The preventing supra. current version of the differs from earlier version in that instead of suits based on negligence by precluding simple it guests, now suits based nonpaying precludes simple if negligence brought by relatives within second nonpaying the current degree consanguinity. encompassed by group is a subset of group encompassed previous statute. Because universe of nonpaying guests gen- eral has been related to fraud rationally found preventing collusion, it follows that in the absence logically of compelling a rational subset that universe developments, remains ratio- nally related to interest. With respect legitimate gov- collusion, ernmental interest of fraud and the subset preventing within relatives nonpaying second of consanguin- a rational ity is subset of universe of nonpaying guests. could have concluded that close relatives were more other likely guests than collude with the driver in order to fraud. an perpetrate rejecting chal- protection ato lenge guest statute limited its similarly to close scope relatives, the Court of of Indiana noted that Appeals in so limit- ing scope, have legislature may greater risk of col- perceived
[t]he *7 members, lusive lawsuits among than mere family among Also, a acquaintances. jury may inclined to particularly in the “Robin indulge Hood” tactic of from the robbing “rich” insurance companies give victims “poor” where the are from the same parties family.
Davidson, Davidson, v. Floyd (Ind. 558 N.E.2d 851 App. We 1990). conclude that the 1981 amendment of the stat- ute limit the relatives within the scope nonpaying second was related consanguinity to the stated rationally legit- imate fraud and collusion. preventing note that after reviewing legislative history amendment, the dissent 1981 in this case concludes reason” the “only was retained as to close relatives was “because of a because of political compromise any —not a that is related to legiti asserted classification recognized Printing The dissent then cites Distinctive mate state interest.” Cox, 846, 443 (1989), v. 232 Neb. N.W.2d & Co. Packaging a as justifica “[political compromise proposition tion, itself, that the classifi not establish in and of does simply a legitimate governmental pur cation is rationally Co., we & Packaging rejected In Distinctive Printing pose.” argument “necessary political compromise party’s basis classification.” itself rational for legislative provides However, at we further noted that Neb. at 443 N.W.2d 571. “in whether a rational basis exists for determining legislative classification, if facts can be con courts look to see state of treatment which ceived to reasonably justify disparate 852, 443 at recognized results.” Id. N.W.2d 571. We therefore the result of classifications often political and determined that although political compromise compromise classification, a leg itself is not a rational basis for legislative that is the result of islative classification political compromise an basis. As stated still be rational may justified by independent above, we conclude that the amendment to related to a legitimate governmental rationally purpose, evidence that the amendment was in result of part political alter that does not conclusion. compromise The Les mаke various to the effect that arguments statute is unconstitutional because it does not cover all sit in which a driver and and it uations collude passenger might does vehicles involving to other situations not motor apply in which collude to defraud insurance might compa However, nies. in the context when the of equal protection, seeks to reforms in the area of econom inaugurate welfare, it need between ics or social not choose attacking every of the or not at all. attacking Bergan aspect problem problem Haven, Health 620 N.W.2d Mercy Sys. Instead, it if the taken is sufficient action Hahn, based and free from invidious discrimination. Otto v. We find no indication that decision to minimize for fraud and Legislature’s opportunity collusion statute to сertain by limiting application relatives was result of invidious discrimination.
Further, welfare, in economics and social a statute does not violate the Protection Clause because the clas Equal merely sifications made its laws are Gourley v. Nebraska imperfect. Health Sys., Methodist
The fact that other classification schemes have could been selected does not mean that the scheme is chosen constitu infirm. Id. As as the tionally classification scheme long chosen Legislature advances reasonable and identi rationally fiable governmental objective, court must disregard exis tence of other methods that other individuals have might pre ferred. Id. We do not view the Legislature’s actions with respect statute as amended in 1981 to irrele wholly we, therefore, vant or unrelated stated objectives, can conclude actions violated Legislature’s Nebraska’s clause. The Les also make various to the effect that arguments is not good In public policy. every constitu tional there attaches the challenge, that all presumption acts of constitutional, with all reasonable doubts re Otto, solved in favor of constitutionality. supra. reviewing statute, we do not judgment on wisdom or the pass necessity legislation or whether the statute is based upon assump tions which are substantiated. scientifically Even misguided laws may Therefore, nevertheless be constitutional. Id. our inquiry under equal protection analysis is not whether we with the agree law, wisdom or necessity of but whether the law is rationally ato legitimаte governmental interest. We conclude that the current version of the related to the legitimate governmental interest of pre- fraud and venting collusion. Such interest the statute supports against Les’ equal protection challenge. therefore con- Const, 25-21,237 clude that I, does not violate Neb. § art. 3.§ 25-21,237 III, Section Does Not Violate Neb. art. Const. §18. The Les also challenge as § special legislation violation of the special privileges immunities clause of Neb. III, art. 25-21,237, Const. 18. We conclude that as amended does not constitute special legislation. We have described the of the constitutional safe guard against legislation as follows: special *9 definition, act a is and not
By legislative general, spe- cial, a class or on if it alike on all of persons pеr- operates within the relations and circum- brought sons who by stances for and if the classification so adopted provided arbi- the has a basis in reason and is not Legislature purely a with ... General laws embrace the whole of trary. subject, the state. their matter of common interest to whole subject is in order to to Uniformity prevent granting required the immunities or class of privileges person, persons, ... It is because the leg- which do not to all belong persons. islative lacks the due and the of process safeguards process which restrain the courts using tradition of from impartiality their to favors such constitu- powers dispense special enacted. tional were prohibitions against legislation special Marsh, 699, 709, Haman v. 237 Neb. 467 N.W.2d 844-45 (1991). The focus of the is against legislatiоn prohibition special which benefits or prevention legislation arbitrarily grants a favors” to class. A act constitutes “special specific (1) if it an and legislation creates unreasonable special arbitrary (2) method of classification or it creates a closed permanently Gourley class. v.Nebraska Methodist Health 265 Neb. Sys., is similar an legislation analysis Special equal protection because, and often the two are discussed at analysis, together times, can both issues be decided on the same facts. Gourley, result, As a to an supra. language normally applied equal pro- tection is sometimes used to analysis help explain reasoning under a Id. But the focus employed special legislation analysis. each test is different. The under analysis legislation special focuses Legislature’s on class inquiry purpose creating and asks if there is a substantial difference of circumstances to of diverse This is different suggest legislation. expediency from an under which the state analysis interest is means selected legislation compared statutory by Id. Legislature accomplish purpose.
When confers on class arbitrarily privileges selected from a number in the same standing large relation to without reasonable distinction or sub- privileges, difference, stantial then the statute in has resulted in question the kind the Nebraska by discrimination improper prohibited Haven, Mercy Sys. Constitution. Health Bergan 620 N.W.2d Classifications for the of leg- purpose illusive; islation must be real and be based on they cannot distinctiоns without substantial difference. Id. test of with general respect prohibi-
tions is reasonableness of classifica- against special legislation and tion Classification is if the uniformity operation. proper class issue has some reasonable distinction from other sub- character, aof like which bears jects general distinction some reasonable relation to legitimate objectives purposes whether the legislation. always question things per- sons classified the act form themselves legit- proper imate class with reference the act. Id.
The Les make no created a argument closed class, therefore, our focuses special legislation analysis *10 whether the statute created an guest and unreasonable arbitrary 25-21,237 method оf classification. We concluded above that § was related to a interest and legitimate governmental therefore did not violate the clause of the equal protection Nebraska Constitution. Similar considerations lead analysis us to conclude that the create guest does not an arbitrary and unreasonable method of in classification violation of the Nebraska ban Constitution’s on legislation. special above,
As noted this court rejected constitutional challenges to the version of statute. That made a pre-1981 guest version classification of based whether were passengers on they paying concluded, alia, and we passengers guests, inter nonpaying that the statute as it related guest nonpaying con- persons 165, stitutionаl. See Botsch v. Neb. 226 Reisdorff, 193 N.W.2d The current version of statute narrows the clas- sification of to certain relatives nonpaying guests nonpaying to more inclined to with thought collude drivers. As discussed above, the of the statute is fraud and collu- prevent sion, and we believe that there is a substantial difference in cir- cumstances surrounding relatives as nonpaying distinguished from other such that nonpaying creation of classifica- 25-21,237 limited tion relatives identified in nonpaying § is not arbitrary or unreasonable. spe- law prohibited statute is not type
The guest benefit grant “spe- not arbitrarily clause. It does cial legislation as to uniformly class it operates to specific cial favors” consanguinity. within second relatives nonpaying statute, 25-21,237, does § therefore conclude Neb. undеr on special legislation the prohibition not violate Const, Ill, art. 18. §
CONCLUSION the current failed establish that that the Les We conclude statute, 25-21,237, violates the Nebraska the guest § version did
Constitution, that the district court therefore conclude we 25-21,237 was it constitutional. when concluded not err theories err when dismissed Les’ court did not it The district we affirm. negligence. Accordingly, based recovery simple
Affirmed. Gerrard, L, dissenting. that the Nebraska with determination
I disagree majority’s statute, (Reissue 1995), does Neb. Rev. Stat. Nebraska clause of the protection violate statute, in ratio- as amended is not The guest Constitution. as governmental purpose, required related to legitimate nally and is therefore unconstitu- under principles, dissent. I Accordingly, respectfully tional. notes that this court has рreviously
The majority correctly
statute,
Nebraska
addressed
i.e.,
See,
clause.
of the equal
no violation
finding
protection
Bernhardt,
(1981);
N.W.2d
v.
210 Neb.
Cushing
Wurtele,
(1980);
N.W.2d 407
Kreifels
Botsch
v. Reisdorff,
However,
had the
this court has
occasion
which
only
examine
since its amendment
opportunity
*11
Reiser,
ernmental WasteConnections Neb. v. purpose. City The a attacking party statute as violative of has the burden to prove that the classification violates the Clause. Equal Protection Id. have met Les their burden in this case. made
Among arguments Les argue appeal, court should follow the reasoning Bynum, of Whitworth v. (Tex. 1985), S.W.2d 194 which Texas Supreme Court determined its limited guest statute —also in application to related within the degree of consanguinity second the state affinity because clause protection —violated classifications drawn the statute were not rationally Whitworth, a state interest. In legitimate court acknowledged that the behind the statute was guest to pre- vent Thus, collusion between an insured and a Id. party guest. stated, a court “creates that all presumption automobile a passengers suing driver who is within second affinity or do so Id. at consanguinity collusively.” 197. stated: refuse in the indulge that close assumption relatives
will so as prevaricate lawsuit. promote . . . spurious Dishonest individuals will always to circumvent attempt of the statute intent while by lying, honest citizens are when the truth them penalized brings within statutory scoрe them cause denying negligence of action. Id. The court concluded that the drawn classifications statute were not related to state legitimate inter- that, thus, est and state statute was unconstitutional. Id. I with the agree only reasoning of the Texas Supreme Court, with but the rationale of a host other states that have found their state statutes unconstitutional because of lack *12 and collusion statutes between such relationship rational inad- simply rationale is “collusion prevention” The prevention. terms, all the elimination of in equal protection to justify, equate of consan- (related within the second guests’ automobile Although recover negligence. affinity) rights guinity suits connived those rare collusive may prevent statute guest defraud their “related” passengers drivers and automobile by insurers, is far gross too classification scheme Nebraska’s end, bars the the statute this since to be justified overinclusive claim. rare valid with the fraudulent along suits majority great 388, Merlo, 855, 106 Cal. P.2d 3d Rptr. In Brown v. 8 Cal. that the Court concluded (1973), the Supreme California in finding violated protection principles, state guest not rationally drawn the statute was that the distinction part The stat collusive lawsuits. to its of eliminating Nebraska ute at issue in Merlo was similar pre-1981 statute, damages brought by nonpaying pas actions for limiting willful misconduct of intoxication or alleging to those sengers Merlo, at 3d at 106 Cal. Cal. Rptr. the driver. at the court
P.2d
explained:
classification
behind this
theory
ap-
“compensation”
to a
driver
free ride
to be
who gives
pas-
pears
with his
does so bеcause of a close relationship
senger
closeness of
relation-
because of
guest;
presumed
his guest
liability
the driver
admit
so
may falsely
ship,
To
driver’s insurance
com-
from the
may
company.
collect
fraud,
eliminates
bat
this risk of potential
guests.
all
for automobile
negligence
causes of action
to eliminate causes
that “it is unreasonable
concluded
because
an entire class of
some
persons simply
of action of
fraudulent
of the
class
file
designated
may
undefined portion
875, 106
402, 506
at 226. The
Cal.
at
P.2d
Rptr.
lawsuits.” Id.
that the
stat
adding
Court agreed,
New Mexico Supreme
collusion,
can lie about
parties
ute does little to
since
prevent
bar
thereby
whether
avoid
paid
compensation
statute,
about
negli
as
could
themselves
just
they
perjure
statute did not exist. McGeehan
if
gence issue
Further,
Bunch,
[i]n cross-examination, efficacy perjury, availability discovery, good sense of to detect pretrial juries it testimony false if should occur. We do not withdraw the remedy from all a rare injured order avoid recovery based false testimony. upon *13 Hassett, 771, v. N.W.2d (N.D. 1974). Johnson The Merlo the that an explained imposed overinclusive classification scheme:
Instead of its confining disability to those actually who suits, institute collusive the reaches beyond out provision such great burdens the number of persons honest auto- . guests. mobile . . We believe in barring by suits guests automobile protect insurance simply companies lawsuits, from some the collusive statute exceeds the bounds of rationality and constitutes denial of equal protection. 877, 403-04,
8 Cal. 3d at
Cal.
Although cases above address statutes more akin to statute, the earlier version of Nebraska’s the same logic extends the current statute. language of Section bars related to the nonpaying passengers driver within the sec- ond degree consanguinity or from affinity filing lawsuits for damages the driver against unless are damages alleged to have been caused intoxication or of the gross negligence driver. The classification all drivers and presumes passen- related within the second gers or affin- consanguinity will in ity collude negligence actions for damages caused by However, drivers. such broad the vast presumption penalizes majority who do not passengers in such fraudulent engage behavior and disregards procedural safeguards our justice system to determine the truth designed damage claims.
Furthermore, who are of mindset col- engage lusion will not deterred the statute but are to instead likely ride; offer that the passenger for the provided compensation vehicle; while operating driver was intoxicated vehicle, any in operating negligent driver was grossly statute. In the scope them outside which would place effect of words, punishing statute has perverse other are who honest, those nothing while doing stop who are those a rational Thus, hardly lie. “collusion prevention” willing from barring passengers a blanket provision basis for applying they drivers to whom against claims general negligence bringing related. basis for a rational did itself not present The Legislature current guest Nebraska’s at issue in the classification adopting reading with the majority’s I disagree In that regard, statute. discussing amendment. In history the legislative amended Laws, that ultimately the bill L.B. mem- statute, to family its limiting application Nebraska’s the bill bers, introducing explained the senator responsible the stat- narrowing was a that the bill essentially compromise, of insur- the interests accommodating but also ute’s application a com- not to propose The senator promised ance companies. statute, would industry if the insurance of the guest repeal plete claims the class of limited narrowing limited repeal, accept *14 “relatives” of that were by guest to thosе brought passengers industry the insurance the vehicle. If of the owner operator seek a vowed to the the senator compromise, refused accept be and stated that it would the statute complete repeal contest, and however long this next year barred year, “a no holds Sess. L.B. 87th Hearing, takes.” Committee Judiciary it a of collu- history discussion of 1981). There was no (Jan. effect, the if any, in Nebraska or “relatives” amongst sive claims in the insurance rates claims on automobile these types the Legislature when There was no pretense of Nebraska. State statute— amendment to Nebraska’s the considered at its finest. was the amendment pure politics process senator debate L.B. the sponsoring the floor During stated: alleged of say, еven the vestige possibility remove [T]o whatever, I
collusion, or daughter a father and between sell the insur- necessary that as the compromise accepted I utilized in elements many one of ance or companies the insurance with because that was dealing companies final necessary piece, very simply. Committee, (Feb. 24,1981). 87th Sess. 1144
Judiciary Thus, 1981, the Nebraska limited claims prior brought an owner by any nonpaying against or passenger oper- ator aof motor vehicle. The legislative history reveals that was favorable language automobile insurance industry because with liability guests was limited to respect nonpaying those could guests that caused prove damages negli- gross gence or intoxication. In an avoid effort to opрosition by insurance industry, 1981 amendment pro- a limited posed the class of limited claims to repeal, narrowing those brought related to the by guest passengers owner or oper- ator as within the or second spouse or consanguinity words, affinity. other the insurance exchange industry’s the law was acquiescence, only eliminating partially repealed, some but not all itsof irrational application. In that regard, Indiana majority quotes Court “
Appeals for assertions that the have Legislature ‘may per- ” ceived’ a members, risk of greater among collusion or a family risk that juries unfairly would injured mem- compensate family bers of insurance I expense find these asser- companies. First, tions unpersuasive. record is inconsistent with the claim that greater risk of col- perceived Further, lusion among family members. it is hard to conclude rational, such in the absence perception evidence before the Legislature facts which a providing any upon percep- based, tion could have been or which the upon Legislature could have concluded the statute would actually effective at pre- venting collusion fraud. I see no basis Finally, for any unsup- claim that a ported jury’s inclination to attack the “deep pockets” aof “rich” insurance be more company may when pronounced plaintiffs related to one Nebraska another. law does allow evidence of insurance liability limits to be admit- policy ted Co., into evidence. See Kvamme v. State Farm.Mut. Auto. Ins. *15 703, 267 short, Neb. N.W.2d (2004). 677 122 the majority’s hypоtheses about what have Legislature might been thinking are not compelling.
949 standard, is offended protection Under the rational basis equal irrelevant to the wholly if rests on grounds the classification only Garber, v. State See 249 of the State’s objective. achievement on a review of thorough 545 75 Based Neb. N.W.2d of L.B. the classification accomplished the legislative history compro- the amendment was result through pure political members remain subject reason certain only family mise. The a com- statute is because of political limitations of or asserted classifica- because of any recognized promise —not a Political compro- that is related to state interest. legitimate tion itself, establish a in and of does not simply mise as justificatiоn, to a legitimate govern- that the classification is related rationally Co. v. See Distinctive & Printing Packaging mental purpose. Cox, Neb. N.W.2d reason, contention
For that I also with disagree majority’s that we pre-1981 because approved Reisdorff, statute in Botsch 226 N.W.2d (1975), we of the classifi- are somehow required approve contends majority cation created the 1981 amendment. that because the Botsch a be- found rational relationship court collusion, fraud and guests preventing tween all nonpaying “it follows absence logically compelling develop- ments, rationally a of that universe remains rational subset is true if the “subset” of nonpaying interest.” That only that bears rational at issue is based guests upon classification all, to a After “non- legitimate governmental relationship purpose. be a last names with a vowel” would guests begin whose paying we hardly subset the “universe” of would nonpaying guests, yet the classifica- of such an classification. Since arbitrary approve in the amendment was based on little more tion set forth than raw I find it to be equally capricious. political compromise, deference
While I recognize necessary appropriate when given should performs claim, at basis on an some protection point, rational analysis that the legis- draw the line and truly must judiciary require lative classification is somehow related to a legitimate has The current crossed governmental purpose. fraud and collusion line. wholesale Certainly, prevention however, the governmental objective; legitimate *16 does not reflect that this was the the classifi- objective record all fam- event, cation created limiting recovery 1981. members is not related to that as it ily rationally objective, rests unreasonable members will family presumption collude, and does not serve to actual collusion. prevent reasons,
For the I conclude that the foregoing classifications drawn are not legitimate related to state interest and are thus violative clause protection of the Nebraska Constitution. I would reverse the Consequently, district judgment court’s Les’ theories dismissing of recovery based on and remand the cause negligence for a new trial simple toas those issues.
Hendry, C.J., McCormack, L, in this join dissent. Hendry, C.J., dissenting. Reiser,
I was not a Coburn member of court when v. decided; 577 N.W.2d (1998), with that excep- noted, tion I join Justice Gerrard’s dissent. Jerry Pachunka, appellant,
Rogers appellee. Construction, Inc.,
Filed 2006. No. S-04-1470. July