Arkansas Supreme Court Applies “Fireman’s Rule” to Bar Recovery for Roadside Assistance Worker

In a decision released today, the Arkansas Supreme Court applied the “fireman’s rule” to bar recovery for an individual employed by the Tennessee Department of Transportation’s HELP (roadside assistance) program when he was killed in a highway crash while attempting to assist a truck driver who had run out of fuel.  The decision is Nowicki v Pigue, 2013 Ark. 499.  Justice Hart wrote the majority opinion.  Justice Danielson and Chief Justice Hannah dissented.

Speeding Is Intentional Act that Voids Automobile Insurance Coverage

In Safeco v. Southern Farm Bureau, 2013 Ark. App. 696, the Court of Appeals today issued an opinion affirming a jury verdict finding that a teenager driving over the speed limit qualified as an intentional act under the intentional acts exclusion in a Farm Bureau auto liability policy; and therefore Farm Bureau had no duty to defend or indemnify.  The facts are recited at length in the opinion, and the analysis turns on the facts and the standard of review from the jury verdict.  The decision discusses Southern Farm Bureau v. Easter, and purports to distinguish Nationwide v. Lobov.  Also of interest was the fact that “intentional act” was not defined in the jury instructions, and the jurors resorted to a google search for a definition, yet the court found no jury misconduct on appeal.

The implications of this case are staggering.  Facts that were previously evidence of negligence may now trigger an intentional acts exclusion to void coverage altogether.  I expect the Arkansas Supreme Court will be asked to review this decision because of its sweeping impact.

The text of the decision is here:

Appeal Dismissed — Post Trial Motion was NOT in Substance a Motion for New Trial

This decision today from the Arkansas Court of Appeals (Virgil v. Morgan, 2013 Ark. App. 675)

purports to distinguish Muccio v. Hunt, 2012 Ark. 416, holding that a Rule 59 motion for new trial raised no valid Rule 59 grounds, and was really a motion to reconsider a prior grant of partial summary judgment.  Therefore, the post-verdict motion did not extend the deadline to file a notice of appeal, the notice was untimely, the appellate court lacked jurisdiction, and the appeal was dismissed.

In Muccio, the appellees argued that a “motion for reconsideration” was not a valid motion to extend the notice of appeal time, and that there could be no motion for new trial from a grant of summary judgment (citing New Holland Credit Co., LLC v. Hill, 362 Ark. 329, 336, 208 S.W.3d 191, 196 (2005) (which was overruled by Muccio).  In Muccio, the appellees also argued the “motion for reconsideration” did not raise any valid grounds for relief under Rule 59.   The decision in Muccio:

Muccio and Virgil agree on one point — “Courts should not be guided blindly by titles but should look to the substance of motions to ascertain what they seek.”  Muccio at 3, citing Cornett, 293 Ark. At 111, 737 S.W.2d at 160, Virgil at 6.(Contra Breeden v. Nebraska Methodist Hospital, 257 Neb. 371 (1999) holding a motion to reconsider grant of summary judgment was not a motion for new trial and did not extend notice of appeal, reasoning that mislabeling the pleading caused confusion and it is not the duty of the court to decipher from ambiguous pleadings the relief requested).

But other than the point of agreement about substance over form, the decisions in Muccio and Virgil are irreconcilable. In Muccio, the Arkansas Supreme Court refused to dismiss the appeal based on the timing of the notice of appeal extended by an improper post-trial motion.  But in Virgil, the Arkansas Court of Appeals dismissed the appeal based on the same argument.

Based on these conflicting decisions, the safest course is to:

1) Avoid post-trial motions.  They are rarely granted, and they will not preserve any issue that was not already preserved.  (It is well settled that our appellate courts will not consider an argument made for the first time in a post-trial motion. Quattlebaum v. McCarver, et al., 2013 Ark. App. 376.)

2) If you must file a post-trial motion, make certain it specifically tracks the grounds for relief in Rule 59.  And call it a Rule 59 (or Rule 60) motion — not a “motion for reconsideration.”

3) Consider filing a notice of appeal within 30 days of the judgment, even if you file a Rule 59 motion.  Then when the Rule 59 motion is denied, or deemed denied, file a second notice of appeal.  If your opponent contends the first notice of appeal denies the trial court jurisdiction to entertain the Rule 59 motion, remind them that jurisdiction does not transfer to the appellate court until the record is lodged.  Vanderpool v. Fidelity & Cas. Ins. Co., 327 Ark. 407 (1997).

If you represent an appellee in a case where there are any post-trial motions and the notice of appeal is filed more than 30 days after the judgment, consider whether the post-trial motion in substance validly extends the notice of appeal time, and whether a motion to dismiss is proper.




Summary judgment based on proximate cause affirmed in malpractice case

The Arkansas Court of Appeals affirmed summary judgment granted in favor a surgeon.  Black v. Rowen, 2013 Ark. App. 349.  (Here is the link: )

The plaintiff alleged the surgeon lacked the skill to deal with an intraoperative complication, and was negligent in failing to promptly call for assistance.   The opinion recites the standard of review for summary judgment, and the elements that must be proven in a medical negligence case, including the element of proximate cause:

Proximate causation is an essential element for a cause of action in negligence. “Proximate cause” is defined, for negligence purposes, as that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. Although proximate causation is usually a question of fact for a jury, where reasonable minds cannot differ, a question of law is presented for determination by the court.

But in spite of the admonition that proximate cause is usually a question of fact for a jury, the Court of Appeals in this decision affirmed summary judgment, holding there was a lack of proof on how the injury was sustained and that calling a qualified surgeon sooner would have prevented the damages.

Commentary:  Juries are the arbiters of disputed facts.  Here, there seems to be ample proof to submit the case to a jury.  Proximate cause is a unique element.   It is rarely susceptible to direct proof.   It is often inferred as the essential link between the proven negligence and damages.

“Our case law is replete with the proposition that causation is almost always a question of fact for the jury and not appropriate for summary judgment.” Green v. Alpharma, 373 Ark. 378, 395, 284 S.W.3d 29, 42 (2008), citing Southeastern Distributing Co. v. Miller Brewing Co., 366 Ark. 560, 237 S.W.3d 63 (2006); Miller Brewing Co. v. Roleson Inc., 365 Ark. 38, 223 S.W.3d 806 (2006); Coca-Cola Bottling Co. v. Gill, 352 Ark. 240, 100 S.W.3d 715 (2003); and Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002).    

Without the benefit of the expert affidavits and deposition testimony, it is impossible to fully evaluate exactly what proof was submitted.  However, the excerpt from the plaintiff’s affidavit at page 3 of the opinion seems to address the proximate cause issue directly:    “. . . followed procedure required by the standard of care and called for assistance from one of the on-call surgeons for that day, it is more likely than not Mr. Black would not have suffered the injuries he did.”

This decision is likely to confound trial courts and litigants grappling with the legal standard for proximate cause at the summary judgment stage.  Perhaps the Arkansas Supreme Court will review the decision and clarify this point.

Tim Cullen

Court of Appeals affirms defense verdict in case involving admitted liability for a retained six-inch clamp after abdominal surgery.

This case (Thomas v. Sharon, 2013 Ark. App. 305) handed down by the Arkansas Court of Appeals this week is an example of the deference appellate courts give to jury verdicts, and that malpractice cases can be successfully defended on causation and damages, even when liability is admitted.