City of Little Rock v. Dayong Yang, 2017 Ark. 18

Background

On Jan. 14, 2013, a 911 call regarding a near-drowning (Le Yang) was handled by City employee Candace Middleton; Le Yang later died and Dayong Yang sued for various negligence claims.
Defendants: City of Little Rock, its employees, and Little Rock Ambulance Authority doing business as Metropolitan Emergency Medical Services (MEMS). MEMS is a City-created emergency medical board.
Defendants pleaded statutory immunity under Ark. Code Ann. § 21-9-301 (municipal immunity except to extent of liability insurance). Plaintiffs amended to a third amended complaint; pleadings and answers evolved.
The circuit court granted summary judgment on some claims but denied summary judgment as to negligence claims against the City and City employees (official capacity) and denied summary judgment on MEMS except as to claims covered by insurance. The denial as to immunity produced this interlocutory appeal.
Record facts: Yang submitted two insurance policies for MEMS (CGL $1M; umbrella $2M). The City did not introduce proof of (lack of) insurance in the record; earlier pleadings contained an admission about no City insurance but those were superseded by the third amended complaint/answer.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether City/City employees established entitlement to statutory immunity under Ark. Code Ann. § 21-9-301	Yang: immunity is limited by available insurance; defendants must plead/prove lack of coverage, and no proof of City insurance exists, so immunity not established	City: earlier pleadings admitted lack of City liability insurance; that admission supports immunity at summary judgment	Court: Denied immunity for City/employees — City did not plead/prove absence of liability insurance in the operative pleadings; summary judgment properly denied
Whether MEMS is entitled to immunity beyond its insurance coverage	Yang: MEMS had some insurance but record may lack evidence of other policies or full extent of coverage, creating factual issue	MEMS: MEMS is part of City and entitled to immunity except to extent of its liability insurance; Yang’s submitted policies show coverage limits	Court: Reversed denial as to MEMS beyond shown insurance — Yang’s submitted policies established MEMS’s coverage for purposes of the immunity question; summary judgment should have been granted as to liability beyond those policies
Whether appellate review may consider immunity issue now	Yang: (implicit) trial should resolve factual questions about coverage	Defendants: interlocutory appeal appropriate because denial of immunity from suit is immediately appealable	Court: Appealable under Ark. R. App. P. Civ. 2(a)(10); court reviews immunity de novo
Effect of superseded pleadings on proof of insurance	Yang: N/A	Defendants: earlier admission of no insurance controls	Court: Earlier pleadings superseded by third amended complaint; defendants cannot rely on superseded admission to meet burden of proving lack of insurance

Key Cases Cited

Repking v. Lokey, 377 S.W.3d 211 (Ark. 2010) (defendant pleading statutory immunity must plead and prove no liability coverage for summary judgment)
City of Malvern v. Jenkins, 425 S.W.3d 711 (Ark. 2013) (denial of immunity-based summary judgment is interlocutory and appealable)
City of Fayetteville v. Romine, 284 S.W.3d 10 (Ark. 2008) (immunity-from-suit is question of law reviewed de novo)
McMullen v. McHughes Law Firm, 454 S.W.3d 200 (Ark. 2015) (an amended complaint that does not incorporate prior pleadings supersedes them)
Rose v. Harbor E., Inc., 430 S.W.3d 773 (Ark. 2013) (undisputed evidentiary facts in the record can reduce dispute to statutory interpretation)
Carter v. Bush, 753 S.W.2d 534 (Ark. 1988) (municipal immunity is qualified and limited by liability insurance)
Vent v. Johnson, 303 S.W.3d 46 (Ark. 2009) (immunity is an affirmative defense that must be pled and proven)
Helena-West Helena Sch. Dist. v. Monday, 204 S.W.3d 514 (Ark. 2005) (moving party asserting immunity must make insurance policy part of the record)
Waive v. Joseph, 825 S.W.2d 594 (Ark. 1992) (record must demonstrate no liability insurance to establish immunity)
Harris v. City of Fort Smith, 197 S.W.3d 461 (Ark. 2004) (appellate review of summary judgment focuses on whether moving party’s evidentiary submissions leave a material fact unanswered)