Cooper v. Bray

RICHARDSON, J.

I respectfully dissent. Only two years ago, a substantial majority of the justices of this court upheld the constitutionality of section 17158 of the Vehicle Code to the extent that it precluded recovery by an owner-passenger against the driver on account of personal injuries to, or death of, the owner proximately resulting from the negligence of the driver. (Schwalbe v. Jones (1976) 16 Cal.3d 514 [128 Cal.Rptr. 321, 546 P.2d 1033].)

No new legal developments have occurred which would alter, or challenge, our Schwalbe analysis. Nevertheless, the present majority readily adopts the dissenting opinion in Schwalbe, without any substantial additional discussion. The issues and the arguments remain identical. Only the faces have changed.

*857The majority concludes that section 17158 lacks any rational justification, a conclusion directly contrary to our holding in Schwalbe. As we carefully explained (Schwalbe, supra, pp. 521-522), California courts had upheld the validity of liability insurance policies which excluded from coverage the insured or members of his family. Legislation permitted such exclusion as well as uninsured motorist recovery under the terms of the owner’s policy. When in 1973 the Legislature considered the reenactment of the owner portion of former section 17158 “it did so in the context of its own prior enactments, whose practical effect was to preclude the owner from any recourse to his own policy.” (P. 522.) The Legislature rationally might have concluded that, to use Justice Sullivan’s language, it “was simply not fair” (ibid.) to allow the owner-passenger to sue his own driver, a person whom he selected, and over whom he retained some power of supervision and control and to “seek his recovery from the insurance or personal assets of the driver.” (Ibid.) Indeed, imposition of such liability reasonably may have been deemed a trap for a particular class of persons—uninsured, nonowner drivers. Surely there are many persons who are able to drive, but who do not own a vehicle and accordingly are uninsured. Such persons may consent to drive an owner-passenger to his destination only because they assume that the owner possesses liability coverage which extends to permissive users. Thus, in the absence of a provision such as section 17158, the uninsured driver would face unlimited personal liability when his negligence results in injury or death to the owner-passenger.

Although the present majority does not find it plausible that section 17158 was enacted to protect uninsured motorists, I think it very probable that the Legislature weighed the conflicting interests of driver and owner and concluded that the driver should be protected, given the owner’s selection of, and supervision over, the driver. While it may disagree with the legislative reasoning as a matter of policy, surely the majority cannot characterize the legislative conclusion as irrational or inconceivable.

The issues in the matter before us were stated with characteristic succinctness by Justice Sullivan in Schwalbe: “Plaintiffs, in order to sustain their position that section 17158 denies them equal protection of the laws, must not be content to argue that the above reasoning was unwise, or that the purpose of the Legislature could have been better furthered by another means. Nor is it enough for them to show that the lawmakers, in addressing similar problems' in similar areas, have made dissimilar judgments. The burden cast upon them is that of demonstrat*858ing that the means chosen by the Legislature were irrational, or that the purpose which they furthered was not a legitimate legislative concern. This they have not done. As the foregoing analysis indicates, the Legislature, pursuing the clearly legitimate goal of achieving a fair distribution of liability for damage caused by unreasonable conduct, concluded that the owner of a motor vehicle, whether he drives it himself pr selects another to act as his chauffeur, should not recover for injuries sustained by him due to the negligent operation of that vehicle—especially in light of the fact that in the case of the surrogate driver any such recovery would be at the expense of that driver. We may disagree with this conclusion, but we cannot brand it as beyond the pale of reason. To do so would be to seriously erode our constitutional function. We conclude therefore that the motion for nonsuit on the negligence count was properly granted.” (Schwalbe v. Jones, supra, 16 Cal.3d at pp. 522-523, fns. omitted.)

Just two years ago, five justices of this court concluded that the foregoing analysis disclosed a rational basis supporting the challenged provision. The fact that the present majority holds to the contrary emphasizes only that reasonable minds may differ on the matter. In such a case we have said consistently that we must resolve any doubts in favor of the constitutionality of the challenged legislation. (E.g., In re Ricky H. (1970) 2 Cal.3d 513, 519 [86 Cal.Rptr. 76, 468 P.2d 204]; In re Dennis M. (1969) 70 Cal.2d 444, 453 [75 Cal.Rptr. 1, 450 P.2d 296]; State of California v. Ind. Acc. Com. (1957) 48 Cal.2d 365, 371 [310 P.2d 7].)

I would reverse the judgment in favor of plaintiff and against defendants Bray and Colonial Oil.

Clark, J., concurred.