*1 246
doubt as to which of two or more statutes of limitations to a applies action or will be resolved in favor of particular generally of the statute limitation. application containing longest Co., Matthews v. Travelers Ins. Indemnity S.W.2d court this settled law in majority ignores adopting harsh, restrictive of Act 997 to non- interpretation deny Jay’s obstetrical claim. The majority wrong. opinion Imber,
CORBIN this dissent. JJ., join Bob E. FEWELL and Inc. v. Mike Holdingsco, PICKENS, Commissioner, Insurance American Co., Life Investors Insurance Arkansas Life & Insurance
Disability Association Guaranty 01-339 Court of Arkansas
Supreme delivered October Opinion *4 Firm, Perroni & Law SamuelA. by: Perroniand Patrick R. James for James, appellants. Clark, & Friday, Eldredge Waddell, William A. by: for Jr., appellee. Jim Hannah, Bob E. Fewell and Appellants Holding Justice. sco, Inc., from the Pulaski appeal Circuit Court’s County
order American liquidating Investors Life Insurance Company (American as of Investors) the part action ongoing receivership addressed in a previously these See Fewellv. prior appeal by parties. Pickens, 39 S.W.3d 447 (2001) (“Fewell In the I). Fewell and prior appeal, the Pulaski Holdingsco appealed County Circuit Court’s Investors, orders a receiver for American appointing from enjoining business appellants for transacting company, receiver, motion to vacate the denying order appointing affi- their motion to strike an and granting injunction, denying Pickens, is the Arkansas service. The is Mike who davit of appellee and receiver. Insurance Commissioner appointed the first in this matter is A of facts summary leading appeal will not be restated here. How- contained in our ever, prior opinion occurred facts this leading appeal during present herein. of that are summarized On they pendency appeal, 26, 2001, Insurance filed an January Application Order of The trial for Order to Show Cause for Liquidation. a on motion for 2001. court scheduled this hearing February 5, 2001, filed a On Fewell and motion February Holdingsco dismiss, strike, or for a show- Commissioner’s stay application cause order and order of that such an liquidation arguing applica- tion was an “admission” that the was original receivership improper this was an the burden of from the and that transfer attempt proof Insurance to American Investors and the Department appellants. Fewell and also that the show-cause Holdingsco argued should be stayed pending receiver. Fewell and a document Holdingsco requested separate 7, 2001,
filed that the trial court the scheduled February postpone 23, 2001, on so that could be Feburary hearing discovery completed. court, to the addition filed circuit Fewell and pleadings the Arkansas Court for a Writ of
Holdingsco petitioned Supreme Prohibition to trial court from on the prohibit 15, 2001, and this court denied the writ on application, after oral February Fewell and then arguments. sought stay court, the trial and the trial court denied this denial stay. Upon court, the trial Fewell and renewed their Petition for by Writ of Prohibition, and this court denied the with- again petition 22, 2001, out on and indicated that the issue of prejudice February the trial court’s to hear the matter of could jurisdiction be raised on again appeal.
The trial court held the at February which the Commissioner evidence for ids presented petition the trial court entered its Order liquidation. Following hearing, receiver to Ameri- Liquidation requiring appointed liquidate *5 Fewell, can Investors and to and American prohibit Holdingsco, from Investors to diminish the value of American doing anything Investors or of its and assets. Fewell and holdings Holdingsco filed a notice of on March 2001.
251 5, 2001, this court issued its On opinion regarding April of of the trial court’s a receiver and initiation legality in I. In of 2000. See Fewell delinquency proceedings August found, this court that other among things, opinion, specifically Fewell and to Holdingsco bargained challenge away ability of Commissioner’s initiation and claim for delinquency proceedings in the detailed our Agreements receivership This court found that Fewell and prior opinion. waived
Holdingsco statutory under Ark. Code Ann. 23-68-104 1994), for requirements an (Repl. § Show Order to Cause Petition for The Court Receivership. Act, further that found the Arkansas Uniform Insurers Liquidation — Ark. Code Ann. 23-68-101 23-68-132 (Repl. Supp. §§ is a that 1999) (Uniform Act), special statutory proceeding usurps Procedure, of Rules Civil thus the trial court allowing conduct the outside the constraints of those rules.
I. Ark. Code Ann. Applicationof 23-68-104
$ In their first Fewell and argument appeal, Holdingsco argue that the trial court erred to follow the failing statutory proce- dures in Ark. Code Ann. the Commissioner requiring § for an order to show cause and the apply trial court to conduct a “full on that hearing” The Commissioner that application. argues Ark. Code Ann. 23-68-104 does not and that Fewell and apply did not that show failure Holdingsco of trial court proceed under that was error. provision doWe not reach this issue because our holds prior opinion that Fewell and waived their to a show-cause right order and a under hearing In our Agreements. opinion 5, 2001, issued on we stated that: April
In light of the contained in language Agreements between the parties, we conclude that requirements statutory 23-68-104 do It not control this case. is true that 23-68-104 the commissioner’s contemplates for an petition order show cause and a full before granting But petition. Fewell those waived requirements under the Uniform Act to an immediate by consenting in the event breach without prior notice. standard definition of waiver abandonment or voluntary surrender aby capable exist, of a known him to person right with the intent that he Henrickson, will forever be of its benefits. Pearson v. deprived *6 252 12, Ins. Cos. v. (1999) 419 Continental (citing
Ark.
983 S.W.2d
Smith v. Walt
(1978));
Ark.
Fewell
Such a waiver extends to this case because we hold that Ark. Code to the Ann. “commencement” of delin- only applies which means that it to the proceedings, necessarily applies quency initiation proceedings place issue, insurance into The statute at company receivership. 23-68-104, Code Ann. states: Commencement delinquencyproceedings.
The commissioner shall commence such the court for an order the insurer to show application directing cause why commissioner should not have the relief for. prayed cause, On the return of such order to show and after a full hearing, the court shall either deny grant application application, with such other together relief as the nature of the case and the creditors, stockholders, members, interests of the policyholders, *7 subscribers, or the public may require.
The term is defined in Ark. “delinquency proceeding” Code Ann. as: 23-68-102(3) §
(3) “Delinquency means proceeding” com- any proceeding menced an insurer against to this pursuant for the chapter purpose of liquidating, rehabilitating, or reorganizing, such conserving insurer.
These sections indicate that statutory the initial of delin- filing quency Commissioner must proceedings by involve an applica- tion for an order to show cause and a full on that initial However, institute application subse- delinquency proceedings. which are not quent proceedings, “commencement” proceedings, do not fall under the of Ark. Code Ann. requirements 23-68-104. The Uniform Act a that the trial supports court finding not to enter a required show-cause order and hold a “full hearing” after the “commencement” of the action. In Ark. Code Ann. 23- 68-107, the statute for a provides procedure Commis allowing sioner to for apply statute liquidation. states:
23-68-107. Grounds liquidation. for The commissioner may to the court apply for an order receiver, him as appointing if his appointment as receiver shall not effect, be then in and directing him to liquidate business of a domestic insurer or of the United States branch anof alien insurer state, trusted assetsin having this regardless whether or not there has been a order prior insurer, him directing to rehabilitate such upon 23-68-106, of the any grounds specified or if the insurer: (1) Has ceased business for a transacting of one period (1) year; or
(2) Is an insolvent insurer and has commenced voluntary liqui-
dation or dissolution or
to commence
attempts
or prosecute any
action or
its
liquidate
business or affairs or to dissolve
receiver,
charter or to
of a
procure
its corporate
trustee, custodian,
under
code.
or
law
this
sequestrator
any
except
statute
does not
for a
This
hearing upon
obviously
provide
Instead,
the Commissioner for an order to
liquidate.
application
it
least,
at the
the Commissioner
merely
application by
requires,
that one of these two
indicating
provisions
grounds
Ann.
have been met.
Code
This court reviews issues of
construction de
novo,as it is for this court to decide what a statute means.
v.
Stephens
Blind,
Arkansas
341 Ark.
School
S.W.3d 397 (2000);
Huckabee,
v.
In this
Hodges
decision; however,
we are not bound
the trial court’s
respect,
erred,
that the
absence of
trial court
its
showing
interpretation
will be
as correct on
Id. In
the mean
accepted
determining
appeal.
statute,
reads,
of a
rule is
first
to construe it
as it
ing
just
giving
the words their
in common
ordinary
usually accepted meaning
*8
Id. The statute must be construed so that no word is left
language.
void or
and in such a
that
and effect is
superfluous
way
meaning
therein,
to
word
if
Id. If the
of a
given
every
possible.
language
statute
clear and
and
is
a clear and definite
unambiguous
conveys
there is no occasion for
rules of
to
meaning,
resorting
statutory
clear,
Id. Where the
is not
we look to the
interpretation.
meaning
statute,
matter,
to be accom
language
subject
object
served,
to be
plished,
purpose
remedy provided,
legisla
tive
and other
means that shed
on the
history,
appropriate
light
McLeod,
Id.
State v.
Ark.
S.W.2d 20 (1999). whole, scheme as a and reading statutory taking into consideration the fact that Fewell and waived their Holdingsco to and a show-cause order under Ark. Code Ann. right hearing 23-68-104, we hold that the trial court did err not in failing 23, 2001, issue the show-cause order before holding February hold, addition, We that it is not to address hearing. Fewell’s and necessary that the
Holdingsco’s argument judi from with the order of cially estopped because of made its We also hold misrepresentations by attorney. 23, 2001, that the did not violate due February hearing process a where the because was held even
requirements
hearing
for one.
and
were
does not
Fewell
provide
scheme
due
to be heard and
was not
process
provided
violated.
opportunity
II. Discovery
Fewell and
next
the trial court
that
erred in
argue
them the
to conduct
denying
the issues before the court.
discovery
investigate
opportunity
the court did
that
not
They argue
at
that
their
the Commissioner
postpone
failed to
hearing
request
with
thus ham-
comply
outstanding discovery requests,
at the
pering
present
ability
proper challenge
23, 2001.
February
we
on our first
and hold
Again,
rely
that the
opinion
Procedure,
Arkansas Rules of
contain
Civil
which
guidelines
rules for the
do not
discovery process,
apply
receivership pro
We
stated in
ceedings.
establishes a
FeivellI
“the Uniform
specifically
Act
matters
special statutory proceeding
and,
and associated
as a
injunctions
consequence,
involved in this matter which are fixed
are
statute
not controlled
the Arkansas Rules of Civil
Procedure. SeeArk.R.Civ.P. 81(a).”
I,
Fewell
III. Subject-matterJurisdiction In their final on Fewell and Holdingsco appeal, argue point the trial court did not have to hear that subject-matter jurisdiction for order of and decide the Commissioner’s petition because the case was on to this court on issue of appeal of the of receiver. validity hear the that the trial court did have argues tion issue because jurisdiction liquida- it matter not is a collateral on appeal. consideration, that As an initial it should be noted when this court denied the motion for writ of on appellants’s prohibition 22, 2001, it did so without to allow them to February raise prejudice On the issue subject-matter jurisdiction appeal. merits, that it that the General various appears Assembly anticipated be without orders would affecting jurisdiction appealed court, as in Ark. Code Ann. which 23-68-103(d), trial noted states: An lie to the from an order (d) shall Court appeal Supreme rehabilitation, conservation, or granting refusing liquidation, and from other order every delinquency proceedings having character of a final order as to the particularportion embracedtherein. at this we believe that the added.) looking provision, (Emphasis would arise General Assembly piecemeal anticipated appeals such, the trial we find that the
from orders issued court. As here were collateral and that the trial court retained matters juris- hear while the in FewellI diction to the liquidation petition appeal was here. pending in the trial occurs
Divestiture of court only jurisdiction the issue on relates to the matter under review when directly
257 the court. We noted in v. & Cas. & by Fidelity appellate Vanderpool Co., 407, Ins. 327 that: (1997), that an the trial
The rule divests court of appeal jurisdiction applies matters matter under directly or involved the only necessarily It review. does not further stay respect with proceedings on or from not affected or decree which passed by judgment of, is taken. are or collateral Matters which appeal independent are control left within of the supplemental, jurisdiction trial court. 153,
Id., State, 158, at 327 Ark. 412 v. Sherman 326 Ark. (quoting 417, Inc., 931 421 S.W.2d Bleidt v. 253 Ark. (quoting 350-51, 485 S.W.2d also (1972) see Marsh & (per curiam)); McLennan Arkansas v. S.W.2d 195 Herget, First, it should be noted while that Fewell and Holdingsco here that issues in the argue the with liquidation proceeding dealing focus of that rehabilitation to change (from the same are issues that were on review of our liquidation) appeal, indicates that the interveners were previous not appeal litigating issue, but rehabilitation rather the issue of the of the appointment receiver and of the This summarized entry court injunction. their in the as: arguments prior appeal case, in this Bob appellants E. Fewell and Holdingsco, Inc., from an order appeal Pulaski Circuit Court County a receiver for American appointing Investors Life Insurance Com- (American pany Investors) from enjoining trans- appellants business for the acting further from an company. They order their motion to vacate the denying of the receiver and from an injunction order denying motion strike an affidavit of service. I, Fewell Ark. at 371. addition, In we with the agree Commissioner’s argument
these are similar and analogous proceed- bankruptcy ings. the federal bank- bankruptcy proceedings, example, court retains over collateral ruptcy jurisdiction matters bank- issues and ruptcy pending orders with appeals piecemeal dealing Associates, details of InSee Re bankruptcy. StrawberrySquare situation, (Bankr. B.R. 699 E.D.N.Y. 1993). This like a bank- situation, involves not ruptcy affected business or only person directly the divestment of control over or business personal *11 matters, creditors and claimants who on but it also affects depend fact, in order to be of the paid. viability company person an insur- in this of involving type liquidation proceeding particular the trial court to ance necessity allowing perhaps company, is where claim- with collateral issues particularly important proceed to be If an is ants are for bills paid. appellant permitted waiting on for each stall by receiving stay appeal separate and, order, claimants are could before years paid during pass time, the of the could be either assets company depleted by pay- of the business or other matters ment of costs of operation the financial of the business. adversely affecting aspects is to relate to any “interlocutory” appeal going Certainly, — however, and the entire pending receivership be whether the trial court to forward should allowing go question with the affects the example, pending liquidation proceeding, of the of the receiver. We challenge appeal determine that it after the evidence in this does not case. reviewing
Affirmed. Imber, concur.
Glaze JJ., I concur Justice, concurring. Imber, Annabelle Clinton in the result reached but I write majority, sepa- out that the first can be decided rately argument point without The inter- resorting interpretation. majority’s of Ark. Code Ann. 23-68-104 1994) (Repl. simply pretation because Fewell and waived their unnecessary under the Floldingsco when entered into the 1999
statute they Agreements with Commissioner. takes notice of these majority Agreements properly in those concludes that the waiver found “extends to agreements However,
this case.” fails to the full extent majority recognize of that waiver. The as Agreements part provided pertinent follows:
However, covenants, breach of one of the aforesaid upon the Parent and Fewell and consent to the hereby agree Company, immediate commencement an order granting entry against Companyby Department under Ark. Code Ann. 23- and waive notice of of an prior entry 68-101 through order of permanent receivership. The consent added.) to a (Emphasis receivership by permanent Fewell and was tantamount to an that the agreement had to be receiver without authority appointed Pickens, notice or seeFewellv. hearing, and more that the (2001)(“Fewell I"), significantly, they agreed receiver all of the had tools Uniform Insurers Act Liquidation at his disposal. the 1999 Fewell and By executing Agreements, *12 “an order . . . under Ark. agreed Code granting receivership 23-68-102, Ann. 23-68-101 23-68-132.” Section enti- through § “ “Definitions,” receiver, tled ‘Receiver’ means provides liqui- dator, rehabilitator, or conservator as context may require.” Thus, Ark. Code Ann. 1999). as (Repl. Supp. I, we stated in Fewell Fewell and waived their under 23-68-104 and consented to immediate if a entry order for as as well rehabilitation. It clear therefore that our decision on the first should point and end with the waiver begin contained the 1999 Agreements. J., this joins concurrence. Glaze, STORES, WAL-MART INC. v. Earnestine TAYLOR 00-220 Court of Arkansas
Supreme delivered Opinion October denied rehearing November [Petition 2001.*] [*] Glaze, Corbin, Imber, JJ., would grant.