*1 Further, every supports the record that defense ined that came into contact lflwitness to not or call record, counsel’s decision interview with the vehicle. Based on the we the witnesses was based reasonable persuaded not that had defense coun- professional judgment. testimony sel interviewed and called Mitchell as a pursuant Zinger, was inadmissible as it car, regarding lights witness of the did no more than create an inference or outcome of the trial would have been dif- involvement, conjecture as to “Jason’s” ferent.
testimony
hearsay,
Stiggers
failed
Stiggers simply did not provide any sup
to demonstrate that
it was admissible. port for
conclusory
his
claims that counsel
Nor has
met the second
Stiggers
prong was ineffective and made no showing that
under Strickland because he has failed to
counsel committed
specific error that
prejudiced by
demonstrate that he was
.
prejudiced the defense See Johnson v.
defense counsel’s failure to interview the State,
233,
325 Ark.
Stiggers
witnesses.
must do more than
(1996) (“[T]he fact that
was a
there
witness
allege prejudice; he must demonstrate it
or witnesses that could have offered testi
State,
with facts. Walton v.
2018 Ark.
mony beneficial to the defense is not in
curiam). Here,
(per
provide testimony, testimony
establish that would have
been admissible into evidence. v. Moten
State, supra. objective reviewing
an assertion of ineffective assistance of
concerning
counsel
to call
failure
cer
2014 Ark.
App.
tain witnesses is to determine whether this
Joey
al., Appellants
HOOSIER et
prejudice
failure resulted in actual
v.
petitioner
Woody
denied the
a fair trial.
State,
tion and the out Appeals Court Arkansas. come of the trial would have been differ Feb. 2014. ent. Id. Rehearing April Denied 2014. Stiggers While claims that Mitchell’s testimony regarding the vehicle would testimony,
have discredited Newsome’s de-
fense counsel testified that he cross-exam- *2 Pfeifer,
Paul
appellants.
for
Firm, P.A., by:
Law
Laser
James M.
Duckett,
appellee.
for
PITTMAN, Judge.
JOHN MAUZY
case
involves motor-vehicle acci
TThis
September
dent
occurred on
in Arkansas.
were
Appellants
traveling on
they
Interstate 30 when
were struck head-
by
by Jerry
a vehicle driven
Adams.
Adams, who
Mr.
was determined
at
be
accident,
fault in that
had automobile in
$50,000.
with a
limit of
Ap
surance
Cyrena
pellant
Hoosier sustained severe
injuries
approximately
incurred
$200,000 in medical bills. Mrs. Hoosier
an insured
on an automobile-insurance
by
appellee
Interinsurance
(AAA)
$50,000
Exchange
with a limit of
for
caused
damages
by an
mo
underinsured
Appellants brought
torist.
an action
AAA
against
asserting that
were enti
tled to underinsured-motorist benefits un
policy.
granted
trial court
der
summary judgment
AAA,
appellee
appeal
followed.
affirm.
We
vehicle,
definition,
question
The crucial
this case is
insured motor
is a
vehicle insured for an
or that of
amount that
whether the law
California
less than the
applied
interpreting
Texas should
uninsured/underinsured
motorist
injured
limits carried
appel-
underinsured-motorist
Thus,
person.
if the tortfeasor
is in-
policy. The Arkansas
lants’ ^insurance
*3
sured for an
equal
greater
amount
to or
Supreme
long
has
held that matters
Court
than the
limits
uninsured/underinsured
bearing upon
interpretation
of a con-
injured person,
that person never
tract are to be determined
the law of
gets to
any
collect
underinsurance cover-
where it is made. Howcott v.
age.
Kilboum,
were residents California when their State Farm Mutual Automobile Insurance Messinger, Co. v. 232 Cal.App.3d automobile-insurance was Cal.Rptr. on March under AAA auspices of the Automobile Club of case, In the present the tortfeasor policy expiration Southern California. The (Adams) was liability bodily insured for for date was March 2010. Part IV of the injury $50,000 in the amount of per person. insurance contract sets out the terms of The lim- uninsured/underinsured-motorist the uninsured and underinsured-motorist its of the injured persons (appellants) were F). coverage (Coverage The definitions $50,000 likewise the amount of per per- Coverage provides F section that: being equal, son. The amounts appellants’ underinsured-motorist coverage under Underinsured motor vehicle—means a was, their AAA under California motor vehicle which at the time of the triggered, they never are not accident is either: entitled to collect underinsurance (a) insured under a motor vehicle liabili- amount from AAA. See id. ty policy liability or an automobile insur- this, Recognizing policy; appellants ance assert no Instead, claim under they California law. (b) self-insured; or argue of their insur- (c) deposit covered under a cash or bond governed ance by Texas law posted satisfy to a financial responsibili- because had moved to Texas three law; ty wreck, months before the as reflected on a but for an amount that less than the change to the page declarations of their limits shown the declarations for policy noting that residence had F. COVERAGE Houston, Texas, changed to effective June policy language mirrors defini- 4, 2009, change and that there would be no tion of underinsured motor vehicle set out premium. Appellant Joey Hoosier legislature the California in California appellee’s asserted when he went to § (Deering Insurance 11580.2(p)(2) Code office and notified their insurer of their 2009).1 The meaning provision of this un- move, he told that the policy “was der California law is clear: Policy.” converted to a Texas The location ap- does not employee of the branch office and the .^Underinsurance
ply unless the tortfeasor’s vehicle is an whom Mr. spoke Hoosier were not identi- An Appellants argue presented underinsured motor vehicle. under- fied. that this "1. 'Underinsured motor vehicle’ means a uninsured motorist limits carried on the mo- motor vehicle that is an insured motor vehicle injured person.” tor vehicle of the but insured for amount is less than |fiThe change pri- a only reference to precluded fact that of material question
a affecting policy provi- a mary residence as and that summary judgment, grant Renewal “Guaranteed appears sion by granting erred therefore the trial court agreed the insurer in which Endorsement” it. policy, to renew the cancel or refuse not to l4Summary may granted judgment agreement which stated that but issues of genuine there are no only when the occurrence of upon become void the mov- litigated and fact to be material events, including enumerated specific as a is entitled ing party outside the residence is “[y]our primary Mutual Fire of law. Nationwide matter agree- Plainly, the state of California.” Bank & Trust v.Co. Citizens upon void such ment that would become Co., 292. Once Ark. agreement change residence was *4 prima established a party has moving the renewal; to the respect with guarantee judgment, summary facie entitlement se, En- Renewal per the Guaranteed policy with proof meet opposing party must the expressly provides “[a]ll dorsement existence of a the proof and demonstrate not affected your policy of Bonding Holt Co. v. material issue of fact. unchanged.” endorsement remain this Bank, 110 Ark.App. First Federal appeal On from the S.W.3d material any of the absence we determine summary judgment, grant of provisions upon appel change policy to the material fact issues of genuine if there are residence, only the re change lants’ of the evidence in the by viewing in dispute change the of maining question is whether party resisting light most favorable to Texas had the residence from California and resolving doubts the motion and in which changing the state legal effect of moving party. Na- the against inferences insurance was issued. Under Co., su- Mutual Fire Insurance tionwide law, not. The law of the Arkansas it did presented, the issues of law pra. As to pre was made place where the contract novo. Id. our review is de vails. Lincoln National Life Reed, 353 S.W.2d Co. move caused appellants’ Whether to be their California-issued obli- validity, interpretation and Policy” is a matter “converted to a Texas for, execut- gation policy applied under fact, and therefore afford not of we to the insured one ed and delivered hearsay state weight no to the asserted by the law governed state has been held branch-office em ment of an unidentified state, though the insured subse- of that determining whether ployee elsewhere. The laws of quently moved Instead, we look to proper. apply only remedy place the latter Although the insurance contract itself. procedure. and page did re policy-change declarations by appellants, it change flect a of residence at 523. Id. at “[tjhese declarations, expressly stated Affirmed. the contract and the en together with effect, your complete poli dorsements in conclusion to be
cy.” only reasonable C.J., GLADWIN, and WALMSLEY language origi from is that the drawn WOOD, JJ., agree. in effect nal remained California BROWN, JJ., HIXSON and dissent. change. residence
despite appellants’ HIXSON, Judge, required KENNETH S. than that under Arkansas law. dissenting. The trial court apply declined to Colorado law, and we affirmed.
On the facts of this case I believe the
applying
trial court erred in
law
California
Craven,
|7In
we acknowledged that
to the Hoosiers’ underinsured-motorist
questions
choice-of-law
regarding insur-
against |
appellee.
claim
Because Tex-
fithe
ance
have traditionally been re-
have been
I
applied,
as law should
dissent
by applying
solved
the lex loci rule. How-
majority’s
from the
re-
holding and would
ever,
we also observed
in addition to
verse and remand.
easy applicability
rule,
of the lex loci
parties agree
In this case the
consider,
courts sometimes
in addition to
applies,
law
the Hoosiers are
California
made,
the place where the contract was
eligible
not
to receive UIM benefits. which state has the
“significant
most
However, if
applies,
Texas law
the Hoo-
tacts” with the issue at hand. The con-
siers are entitled to UIM benefits assum-
(1)
tacts
taken into account include
ing
damages
exceed the limits of the
(2)
place
of contracting;
place
tortfeasor’s
claim.
(3)
contract;
negotiation
(4)
deciding
performance;
whether
or Texas
California
the sub-
(5)
apply,
ject
contract;
law should
there are two
matter of the
*5
domicile, residence,
In reaching
Arkansas cases.
its conclusion
nationality, place of
case,
applies
that California law
to this
the
incorporation
and
of business of the
Reed,
majority
Craven,
relies on Lincoln
parties.
supra. We noted in
Life
(1962).
Ark.
Texas loci SMITH, Appellant Charles approach significant or the contractus approach. though tacts Even the contract California, made in it originally was HUDGINS, Appellee. Christina effectively reissued the state of Texas No. CV-13-475. after the Hoosiers moved there and IEAC policy change issued a written for a change Appeals Court of of Arkansas. residence, policy-change with a effective Feb. 2014. loci, date of June 2009. Even under lex Rehearing April Denied 2014. important one of the most underlying ra- Here, is the tionales risk. primary
the location of the risk was in
Texas, fully and IEAC was aware of that
location. relationship Under the all the
approach, Texas. ^contacts only relationship with California is probably pre- California is where the
miums were sent.
Therefore, my view the trial court in applying
erred California law and there-
by entering summary judgment for IEAC.
Because Texas law should have been ap-
plied, parties agree and the that under may
Texas law the Hoosiers make a claim
for underinsured-motorist benefits in ex- limits,
cess of the tortfeasor’s
summary judgment I should be reversed. reverse
remand for a trial for the Hoosiers to
present evidence of their damages.
BROWN, J., joins.