Henry v. Continental Casualty Co., 381 S.W.3d 802

Appellant sought direct action against the hospital's insurer, Continental, under Ark. Code Ann. § 23-79-210, while the hospital enjoyed charitable immunity.
Nurses De La Cruz and Hefner were employed by Washington Regional and allegedly negligent within the scope of employment.
The circuit court dismissed claims against the nurses with prejudice for failure to serve timely and for expiration of the medical-negligence statute of limitations, and dismissed Washington Regional and Continental consistent with vicarious-liability principles.
Appellant attempted to proceed solely against Continental under the direct-action statute, arguing joinder of the immune hospital or its nurses was unnecessary.
On appeal, the supreme court reversed and remanded, holding the direct-action statute does not require joinder and that vicarious-liability principles do not negate the remedial direct action against the insurer.
Statutory construction was undertaken for Ark. Code Ann. § 23-79-210, treating the direct-action remedy as remedial and not creating a new substantive right.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Direct action against insurer without joinder?</nbr>	Henry: direct action allowed; no need to join immune hospital or nurses.	Continental: vicarious-liability doctrine requires joinder and dismissal of nurses extinguishes insurer liability.	Yes; direct-action carrier is subject to direct action without mandatory joinder.
Do vicarious-liability principles foreclose insurer liability when employees are dismissed?	Henry: dismissal of nurses does not bar insurer liability under the direct action statute.	Continental: once employees are released, employer’s vicarious liability is extinguished.	No; direct action remains viable and does not rely on continued joinder of immune employees.
Effect of the nurses' dismissal on circuit court’s order	Remand for further proceedings against Continental under direct action.	Dismissal with prejudice was proper under vicarious-liability rules.	Reverse and remand for further proceedings.

Low v. Insurance Co. of North America, 364 Ark. 427 (2005) (direct-action statute applicable to insurer in immunized charitable context)
Archer v. Sisters of Mercy Health Sys., 375 Ark. 523 (2009) (remedies in direct-action statute are remedial, not new substantive rights)
Sowders v. St. Joseph’s Mercy Health Ctr., 368 Ark. 466 (2007) (direct-action statute does not require joinder of immune organization)
Helton v. Sisters of Mercy, 234 Ark. 76 (1961) (negligent employees vs. immune charitable organization; direct-action rights against insurer)
Mullinax v. Hartford Ins. Co. of the Midwest, 336 Ark. 335 (1999) (when employee dismissed, employer’s vicarious liability eliminated)
Thomas v. Sessions, 307 Ark. 203 (1991) (physician liability/charitable organization doctrine limits on vicarious liability)
Rogers v. Tudor Ins. Co., 325 Ark. 226 (1996) (legislative remedial statutes and construction principles)