¶1dissenting.
¶2I 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.
¶3I 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.
¶4*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).
¶5The 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).