Appeal from the United States District Court for the Southern District of Indiana, Evansville Division - No. EV 73-C-105 CALE J. HOLDER, Judge
Fairchild, Chief Judge, Cummings and Sprecher, Circuit Judges. Fairchild, Chief Judge, concurring.
In December 1973, plaintiff, a citizen of North Carolina, filed this diversity action against defendant, an Indiana citizen. Plaintiff alleged that at 11:00 p.m. on November 18, 1972, she was an invited passenger in an Opel automobile being driven by defendant on Hart Street Road, three miles south of Vincennes, Indiana. According to court I of the complaint, the defendant negligently failed to keep his vehicle under control and therefore was unable to negotiate a sharp left curve and drove his car into a telephone pole, causing plaintiff severe injuries; she sought $65,000 in damages. Count II of the complaint alleged that defendant's behavior constituted wanton or wilful misconduct.
In May 1974, the district court entered findings of fact and conclusions of law holding that the 1929 Indiana guest statute, as amended (Ind. Code § 9-3-3-1 (Burns 1973)),*fn1 required that summary judgment be entered against plaintiff on Count I.*fn2 Count II, based on defendant's wanton or wilful misconduct, has not yet been tried.
Both in the district court and on appeal, plaintiff challenged the constitutionality of the Indiana Guest Act under Article 1, §§ 12 and 23 of the Indiana Constitution*fn3 and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Because the Indiana Supreme Court had not passed on the constitutionality of the statute under the Indiana Constitution, after hearing oral argument we certified the following questions to the Indiana Supreme Court in April 1975 pursuant to Rule 15N of the Indiana Rules of Appellate Procedure:
"1. Does the Indiana Guest Statute contravene Article 1, Section 12 of the Indiana Constitution?
"2. Does said Act contravene Article 1, Section 23 of the Indiana Constitution?"
In an opinion received by us on April 8, 1976, that court answered both certified questions in the negative. 264 Ind. 206, 341 N.E.2d 763. Consequently, we need only consider whether the Indiana guest statute violates the Equal Protection Clause of the Fourteenth Amendment.*fn4
The statute challenged here discriminates against guests by denying them the right to sue for negligently inflicted bodily injury while affording that right to all non-guest passengers. Because the statutory classification is not inherently suspect (cf. In re Griffiths, 413 U.S. 717, 37 L. Ed. 2d 910, 93 S. Ct. 2851) and does not impinge upon fundamental rights (cf. Memorial Hospital v. Maricopa County, 415 U.S. 250, 39 L. Ed. 2d 306, 94 S. Ct. 1076), we need not strictly scrutinize the state purposes sought to be served. In the realm of social and economic regulation, the states are free to experiment and are given great latitude in determining who shall benefit from a particular enactment. Levy v. Louisiana, 391 U.S. 68, 71, 20 L. Ed. 2d 436, 88 S. Ct. 1509; Dandridge v. Williams, 397 U.S. 471, 485, 25 L. Ed. 2d 491, 90 S. Ct. 1153. Nonetheless, statutory classifications violate the Equal Protection Clause if they are not rationally related to "some legitimate, articulated state purpose." McGinnis v. Royster, 410 U.S. 263, 270, 35 L. Ed. 2d 282, 93 S. Ct. 1055; Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 172, 31 L. Ed. 2d 768, 92 S. Ct. 1400.
In its opinion responding to our certification, the Indiana Supreme Court stated that the purpose of this statute was to foster "hospitality by insulating generous drivers from lawsuits instituted by ungrateful guests and the elimination of possibility of collusive lawsuits." 341 N.E.2d at 768. However, as noted in Brown v. Merlo, 8 Cal.3d 855, 506 P.2d 212, 106 Cal. Rptr. 388 (1973), where the California guest statute was held unconstitutional under the Fourteenth Amendment, widespread liability insurance has eliminated any notion of ingratitude that may have formerly adhered to a suit by a guest against his host. 106 Cal. Rptr. 388, 506 P.2d at 221-222. 80 to 85% of Indiana residents carry liability insurance (United States Department of Transportation, Driver Behavior and Accident Involvement: Implications for Tort Liability, at 205 (1970)), whereas only 20% of all Americans were insured at the time of the passage of most of the guest statutes. Ellsberre and Roberts, Compulsory Insurance Against Motor Vehicle Accidents, 76 U.Pa.L.Rev. 690, 691 (1928). Indiana automobile owners have also had the benefit of a compulsory Financial Responsibility Law since 1947 (Ind. Code § 9-2-1-15 (Burns 1973)).
Brown also punctured the so-called anti-collusion purpose of a guest statute, for the guest and host can escape the bar of the statute by colluding on the issue of whether the rider provided any compensation for the ride (506 P.2d at 226-227) or whether the host was guilty of wilful or wanton misconduct. Such odious perjury, often difficult to disprove, is encouraged by guest statutes. Nor is vexatious litigation avoided, for complaints are readily drafted to meet the statutory requirements. Thus we agree with the California Supreme Court in Brown (506 P.2d at 225-227) that the relationship between the legitimate goal, the prevention of fraudulent actions, and the remedy, denying guests the right to sue, is so attenuated that it is unreasonable to eliminate causes of action of an entire class of persons merely because an indefinite portion of a designated class may file fraudulent lawsuits. See Cleveland Board of Education v. LaFleur, 414 U.S. 632, 655-657, 94 S. Ct. 791, 39 L. Ed. 2d 52 (Powell, J. concurring).
One further reason the Indiana Supreme Court advanced in favor of the constitutionality of the guest statute was that otherwise there might be an escalation of automobile liability insurance premiums. But when the Guest Act was enacted in Connecticut in 1927, there was no reduction in automobile premiums, nor was there an increase in the premiums when that statute was repealed ten years later. Note, 42 U.Cinn.L.Rev. 709, 721 (1972). Defendant has not demonstrated that our invalidation of this statute would increase premiums for such insurance.*fn5
Although we consider the foregoing considerations to be persuasive that this guest statute contravenes the Equal Protection Clause, under decisions of the Supreme Court of the United ...