Jоdine CARTER, Individually and as Executrix of the Estate of J. C. CARTER, deceased v. Eddie BUSH, Ernest COLLARD and COMMERCIAL UNION INSURANCE CO.
84-16
Supreme Court of Arkansas
June 11, 1984
Substituted Opinion on Denial of Rehearing October 8, 1984
677 S.W.2d 837
P. A. HOLLINGSWORTH, Justice
Gail O. Matthews, Ted Goodloe, and Chester Lowe, for appellee.
P. A. HOLLINGSWORTH, Justice. The petition for rehearing is denied. This substitute opinion is issued to replace the opinion of June 11, 1984, for clarification of issues raised by the Attorney General and appellees.
The appellees, Eddie Bush and Ernest Collard, in the course of their jobs as patrolmen for the Arkansas Highway Police, stopped a tractor-trailer truck at night on Highway 1 near DeWitt, Arkansas, to weigh the vehicle. As they finished weighing the truck, a second tractor-trailer stopped in the opposite lane to be weighed. The trucks completely blocked the travel portion of the highway. While the trucks were so stopped, the decedent, J. C. Carter, ran into the back of one of thе trailers and received injuries which ultimately resulted in his death. The decedent‘s executrix, the appellant Jodine Carter, brought a suit for wrongful death against Bush and Collard and against Commercial Union Insurance Co. The suit asked for the proceeds from the insurance policies both Bush and Collard had in force covering their own personal vehicles. In the alternative, the appellant sought the procеeds from the uninsured motorist insurance coverage provided to the decedent by Commercial Union.
The appellees argue that the issue raised by the appellant was not raised before the trial court and is being presented for the first time on appeal. However, the appellant made substantially the same argument in a memorandum brief submitted to the trial court. Therefore, the argument is properly presented.
The aрpellant is also attempting to collect on an insurance policy issued to the decedent by Commercial Union. In the trial judge‘s order dismissing the appellant‘s complaint, no mention was made of thе status of the suit as to Commercial Union. Since there is no final, appealable order in the record, that portion of the appellant‘s argument which is directed to Commercial Union is not proрerly before us and will not be discussed.
The appellant‘s principal contention, and the only one we will consider, is whether
The appellant would be unable to maintain an action against the officers if she was actually attempting to sue the Stаte of Arkansas under
The difficulty in this case arises because of
Officers and employees of the State of Arkansas are immune from civil liability for acts or omissions, other than malicious acts or omission, occurring within the course and scope of their еmployment.
The trial court held that this provision precluded a lawsuit against the appellees, since they were acting in their official capacity when they stopped the two tractor-trailеrs. We are holding that an employee of the State of Arkansas who had liability insurance to cover negligence in the operation of a motor vehicle can be sued directly and the insurancе company held liable for damages caused by the employee‘s negligent acts, even though the employee at the time is in the performance of duties as a state employee. While this is сonsistent with our decision in Grimmett, the Legislature has enacted a statute pertinent to this case. The title of Act 586 of 1981 reads:
An Act to Require the Arkansas State Claims Commission to Hear All Claims Regardless of Insurance Cоverage; to Provide That a Claimant Must Exhaust All Remedies Against Insurers Before Filing a Claim with the Claims Commission; to Prohibit the Claims Commission from Hearing Subrogation Claims; to Grant Civil Immunity to State Employees for Non-Malicious Acts Occurring within thе Course and Scope of Their Employment; to Require the Claims Commission to Refuse Consideration of a Claim if the Subject Matter of That Claim Has Been Before Any Court of Law or Equity and That Court Has Rendered a Final Judgment or Order; and for Other Purposes.
SECTION 3. If the Arkansas State Claims Commission awards damages to a claimant who has received benefits under any policy of insurance, the premium of which has not been paid by or on behalf of the claimant, the Commission shall reduce its award by the amount of insurance benefits received by the claimant. The Arkansas Claims Commission shall not reduce awards for damages to a claimant who has received benefits under a policy of insurance the premium of which has been paid by or on behalf of the claimant.
SECTION 5. Officers and employees of the State of Arkansas are immune from civil liability for acts or omissions, other than malicious acts or omissions, occurring within the course and scope of their employment.
SECTION 8. Emergency. It is hereby found and determined by the General Assembly that the State Claims Commission does not now hear claims when the injured party has received partial compensation from an insurer; that such policy is inequitable and that this Act is immediately necessary to provide such еquitable treatment.
This Act is codified as
There is another pertinent Act applicable to this case, Act 543 of 1977. The title reads:
An Act Authorizing the State of Arkansas to Pay Actual Damages Adjudged Under Certain Circumstances Against Officers or Employees of Arkansas State Government, or Against the Estate of Such an Officer or Employee; Defining the Extent of Applicability of the Act; and for Other Purposes.
The relevant sections applicable to this case are:
SECTION 1. The State of Arkansas shall pay aсtual, but not punitive, damages adjudged by a state or federal court, or entered by such a court as a result of a compromise settlement approved and recommended by the Attorney General, against officers or employees of the State of Arkansas, or against the estate of such an officer or employee while acting without malice and in good faith within the course and scoрe of his employment and in the performance of his official duties.
SECTION 3. Damages payable under this Act shall be reduced to the extent that the officer or employee has been indemnified or is entitlеd to indemnification under any contract of insurance.
This Act is codified as
Statutes enabling the public to seek redress against government officials, as both these statutes do; are enacted to benefit the public. We have held that such statutes are to be interpreted most favorably to the public. Laman v. McCord, 245 Ark. 401, 432 S. W.2d 753 (1968). We have also held that any interpretation of a statute which avoids opportunities to evade the act is favored in the law. Sturdivant, Adm‘x v. City of Farmington, 255 Ark. 415, 500 S.W.2d 769 (1973). We can observe both of these rules if we hold that
These Acts recognize the reality that state employees are
The trial сourt in this case held that the two state employees in question were immune from suit under
DARRELL HICKMAN, Justice, concurring upon rehearing. Essentially, I agree with the substituted opinion which I conclude holds a state employee that has liability insurance may be sued, that is, named a party defеndant, but may not be held personally liable for negligent acts that occur in the course of his employment.
This is not consistent with our decision in Grimmett v. Digby, 267 Ark. 192, 589 S.W.2d 579 (1979), which held a state employee could be found liable personally for negligent acts which viоlate a duty imposed on him in common with all other people.
After our decision in Grimmett, the General Assembly in 1981 passed Act 586 which contains a section that unequivocally is contrary to Grimmett. It reads: “Officers and employees of thе State of Arkansas are immune from civil liability for acts or omissions, other than malicious acts or omissions, occurring within the course and scope of their employment.”