The opinion
On Petition For Rehearing
No judge in regular active service of the court having requested a vote on the suggestion for a rehearing en banc, the petition for rehearing filed herein by the defendants-appellees has been referred to the panel which heard the original appeal.
The petition for rehearing suggests that a recent decision of the Supreme Court of Kentucky in Fireman’s Fund Insurance Company v. Government Employee’s Insurance Company, 635 S.W.2d 475 (Ky.1982) provides a definitive answer to the question, tentatively answered in the affirmative in the original panel opinion, whether Kentucky courts would hold Kentucky’s “no action” statute unconstitutional. See Ky. Rev.Stat.Ann. § 413.135 (Baldwin). Upon consideration the court remains of the opinion that its original conclusion has not been rendered incorrect by the recent decision cited. Justice Palmore, writing for the court in Fireman’s Fund, determined that a statute limiting the right of a no-fault insurer to indemnity did not violate Sections 14 and 54 of the Kentucky Constitution because no such right existed at the time of the adoption of the Constitution. The court did not purport to overrule Saylor v. Hall, 497 S.W.2d 218 (Ky.1973), nor did it address the applicability of section 241 of the Kentucky Constitution, which was relied upon both in Saylor and in other decisions of Kentucky’s highest court. See Ludwig v. Johnson, 243 Ky. 533 , 49 S.W.2d 347 (1932); In Re: Beverly Hills Fire Litigation, 695 F.2d 207 , 226 n. 40 (6th Cir. 1982).
Even more important, Justice Palmore reaffirmed the validity of Saylor in Ball Homes, Inc. v. Volpert, 633 S.W.2d 63 (Ky. 1982), which concerned application of section 413.135 to a suit for breach of an implied warranty of fitness of a new home. He stated:
*228 In Saylor , we were concerned with a negligent tort, and were of the opinion “that there was an existing right of action in this state for the type of negligence claimed in the lawsuit when the questioned statutes were enacted." We held that by reason of Const. Sections 14, 54 and 241 the limitations statutes could not operate to destroy a cause of action before it came into legal existence.
Ball Homes, Inc. v. Volpert, supra, 633 S.W.2d at 64 (citations omitted) (emphasis added). He then found that section 413.135 was constitutional as applied to Volpert’s action because no cause of action similar to his existed when the statute was promulgated in 1966. The applicability of the cited provisions of Kentucky’s constitution, particularly section 241, as a bar to application here of section 413.135, is thus made increasingly clear as the existing right of action for the type of negligence claimed dates back at least to 1956 (see n. 37, original opinion), ten years before enactment of section 413.135.
While in our opinion Kentucky cases since Saylor v. Hall have reinforced our earlier expressed view, we again suggest that the question remains open for any further decision of Kentucky’s highest court which would authoritatively dictate a contrary result as a matter of state law. See particularly In Re: Beverly Hills Fire Litigation, supra, at 226-227.
The court finding no other issues presented by the petition which have not already been previously and adequately considered and decided,
IT IS ORDERED that the petition for rehearing en banc be and it is hereby denied.