dissenting.
I dissent not because the majority opinion is wrong, but because a misleading application of the law will result. I dissent in the spirit of Mitchell v. Hadl, 816 S.W.2d 183, 185 (1991):
When the facts reveal a fundamental basis for decision not presented by the parties, it is our duty to address the issue to avoid a misleading application of the law.
I dissent because, in my opinion, KRS 411.188(3) is unconstitutional, and it has been declared so in at least two circuits of the Commonwealth thus far. The statute is a rule of evidence passed by the legislature which unwarrantedly intrudes into the judicial function of conducting a fair trial. Collateral sources are not the concern of a jury, and matters addressing such payments should be handled by the trial court by post-trial motions. The statute is confusing and nonsensical, and is a source of disorder in our jury trial courts.
*784The Supreme Court of Georgia has declared its collateral source payments statute unconstitutional on equal protection grounds. See Denton v. Con-Way Southern Express, Inc., 261 Ga. 41, 402 S.E.2d 269 (1991).
The trial court erred in applying KRS 411.188(3), and a new trial should be granted. Regardless, the Supreme Court should come to grips with the constitutionality of KRS 411.188(3).