*1 516 ( was made 461, one mention 5). Only 683S.W.2d898
Ark. 198 threat, instruc gave cautionary judge and the trial alleged to determine the best position The trial was in the judge tion. the jury. effect of the remark on grant was error to claims it Finally, The appellant Tools. Snap-On in favor summary judgment agent, as an acting Hamilton alleged appellee occurred. when the accident servant and employee Snap-On liable in the Hamilton was not Since the determined jury even if it accident, to Snap-On, there was no impute affirming the jury’s in the lawsuit. Since we had remained verdict, issue. we do not address this
Affirmed. v. OLIVE’S INDEMNITY COMPANY The TRAVELERS GOODS, INC., et al. SPORTING S.W.2d 596 88-165 764 Court of Arkansas Supreme delivered Opinion January *2 McMillan, McCorkle, Turner & for appellant. Firm, P.A.,
The McMath Law Warwick and appellees Worthen Bank and Trust Company. Sutton, Clark,
Friday, & William H. Freder- Eldredge by: Baker, Jr., ick S. Ursery, and C. James Olive’s appellees Goods, Inc., R. Olive as Sporting individually Tommie Olive, administratrix of the estate of J. deceased. Robert Com- Indemnity The Travelers I. Justice. Purtle, John insured, in favor of its from a pany appeals Goods, adjudged gunshot Olive’s Inc. The circuit Sporting within the occurrences to several persons reversal, to Olive’s. For issued Travelers meaning policy was finding the court erred argues (1) that: appellant (2) the court litigation; more one involved in the than occurrence (3) holding ambiguous; erred in the contract of insurance hazard” and finding “completed court erred in that the “products were not applicable. hazard” limits of operations one “occurrence” agree with the that there that the aggregate to the of insurance and respect which Travelers be liable stated is the total sum for *3 under the of this case. circumstances inflicted a injury by gunman
The trial court held that each amounted to a under the insurance policy occurrence separate no with Olive’s. The Court held that there was of Appeals Travelers In and dismissed the action. justiciable controversy Goods, Inc., 81, 753 dem. Co. v. Olive’s 25 Ark. App. Sporting S.W.2d 284 review from the (1988). granted opinion Court of Appeals.
The sold a Colt .45 and a Smith and appellee 12-gauge pistol shotgun Wesson to a These were Wayne Crossley. weapons in a bizarre incident in allegedly Crossley used subsequently by which he a shot killed and wounded several other policeman, and then committed suicide. persons, Several lawsuits of have been filed Olive’s on behalf alleging victims in the sale of the In a negligence guns. action Olive’s sued Travelers in a declaratory to determine proceeding the amount of under the terms of this of insurance. reversal,
Before we reaching arguments appellant’s will discuss of a action. The specifics of this action and was the propriety argued was before basis of the by the Court of Our opinion Appeals. declaratory judgments statutes are found in Arkansas Code Annotated title 16, 111, 101-111 of the declara- chapter purpose The §§ law tory judgments is to “settle and to afford relief from status, and and uncertainty insecurity rights, respect it is to be legal other relations.” The law further provides gives 3 of liberally construed and administered. Section the act the courts of record within their respective jurisdictions power status, or not declare the other whether rights, legal relations a further relief is or could claimed. to obtain right be The judgment is in 104 reads as follows: contained § will, contract, deed, interested under a written Any person or writings rights, other a contract or whose constituting status, statute, or other legal relations are affected aby ordinance, contract, have or franchise municipal construction, determined or aris- any validity question instrument, statute, ordinance, contract, ing under or status, franchise and obtain a or rights, declaration legal other relations thereunder. sought
Olive’s rights determination of its under the contract of insurance with The Travelers Indemnity Company. questions to determined in this Olive’s whether appeal had coverage for each of the and the amount of multiple injuries the aggregate coverage for liability, regardless the number occurrences. 1953, declaratory judgment statute first enacted in 274,
Act and amended 35 of early Act 1957. One of the cases interpreting Downs, this statute & G is USF Co. v. 230 Ark. *4 320 S.W.2d (1959). 765 That case was to similar the factually case with the present that were exception two insurance companies involved. involved Downs an automobile insurance An injured suit policy. party against filed alleging Downs that driver of a truck that caused an automobile accident was an employee of Downs. a Subsequently dispute arose between Maryland and Casualty United States and Company Fidelity Guaranty Company as which to afforded company’s policy primary coverage on the truck involved in the accident. The insurance then filed a companies declaratory judgment action order to determine the of the two insurance obligations companies under their liability policies, and to determine which company was obligated to defend the Downs was on Although suit. reversed appeal and was be cross-appeal, it held to for a appropriate declaratory judgment both trial proceeding by court and court. judgments of declaratory
We considered again the matter Mutual Equity policies to insurance respect 41, 334 232 Ark. v. Ice Company, Insurance Southern Company determine brought S.W.2d This proceeding policy. under terms his insurance rights of an insured as follows: That contained opinion language judgment many declaratory There are cases in which Law) invoked (under have been proceedings the Uniform analogous insurers in similar or situations. [Citations had to use The a Equity right Company omitted.] to have in this case declaratory judgment proceedings was done in just as duty defend, determined its pay ¡or alleged, The Equity Company cases cited. previously him that made (1) boy inter alia: of Arnold status that the (2) an of The and Company; Borden employee insurance here involved specifically automobile determi- excluded factual issues employees. required nation; the facts was entitled to have Equity Company judgment determined in the declaratory proceedings. [Emphasis added.] Mayer v. Priddy
A
case on
subject
more recent
that of
Aviation, Inc.,
another
260 Ark.
In the we show clearly believe facts present there exists a is justiciable in which the holder controversy concerned the number of “occurrences” and amount vitally of his aggregate The insuror’s and insured’s interests coverage. adverse, extent, to some under circumstances. present Certainly Olive’shas a interest in the in as much legal controversy as its own to will if exposure many be increased times ais of “single occurrence” limitation to facts applied this case. matter is obviously judicial determination ripe Olive’s, since several tort actions have been filed already and it seeks to determine the extent itsof exposure beyond Therefore, limits of action proper. do not consider the of negligence issue Olive’s making sale. Neither we do consider the merits of the claims any claimants. The first argument for reversal is that trial court erred finding that there were than occurrences rather multiple single occurrence. Obviously from the victims standpoint Crossley’s occurrence; there was more than one viewed from Olive’s per- — spective there is one occurrence the sale of the to weapons Crossley.
In considering contract, the different clauses of a we must read the whole together document and determine whether all are in parts If to harmony. give we effect the overall possible meaning the contract. It is error to give effect to one clause over another on the same if subject the two clauses are reconcilable. Davidson, 35, 463 Continential Casualty Co. v. 250 Ark. S.W.2d The contract between the an parties define attempted “occurrence.” The part states:
If a single limit of . liability stated . .the limit stated in the declarations as to “each occurrence” is applicable total limit of ... . damages all . . out arising of bodily . . sustained one or . . injury. more persons. as a result one any Subject occurrence. the above *6 522 occurrence, liability total of the each respecting
provisions . . injury. bodily because of damages the Travelers all shall not below of any subparagraphs described in the declarations as stated in the limit of liability exceed the “aggregate.” states:
The also policy continuance including “Occurrence” means an accident which result in to conditions exposure or repeated [of] nor from the intended bodily neither injury expected the of insured standpoint ..... of of the number persons that regardless declares policy on account brought of or suits
injured or the number claims made is as stated the The Travelers’ limited bodily injury, limit of above. single liability quoted we no decision
Although
by
have found
in an insurance
construing
policy,
such an “occurrence” provision
reaching contrasting
jurisdictions
there are decisions from other
jurisdictions adopting
results. We
those
that
persuaded
hold the better
(rather
“cause”
than the “effect”
theory
theory)
view. To
each
decide that
of the
required
effect
a no-limit
into
put
policy
under the
would in
policy
Mercury Indemnity Company
St. Paul
effect. We find the case of
Rutland,
In that
(5th
1955),
v.
The second is finding ambiguous. erred the contract When contract is clear the insurance read in its it entirety, $300,000 agreed to be for a under the conditions bound total clear that covered make it terms of $300,000 causes limit is to one or several either applicable v. Casualty Company which the insured is See Continental liable. Davidson, do be ambiguous. not find supra.
The final reversal is that the trial court argument for erred in the finding “completed hazard” and “products hazard” operations application. sections of the contract had no the fit the Although exactly terms used the not contract resulting of the “occurrences” stereotypical conception action, the words be cannot construed otherwise. “products section, hazard” according to the covers policy, bodily injury arising out the insured’s if injury away the occurs products from premises. the includes “Completed operations hazard” bodily injury out of if arising the occurs after operations injury the operations have been the from insured’s completed away and premises. if the insured Obviously responsible is for under circumstances, these isit covered one of these of the by provisions It is policy. also clear that The Travelers intended to insure Olive’s for under some It no circumstances. makes difference whether the intent was to cover them for claims from resulting “products hazards” operations “completed hazards,” or on operations the such as the sale aof premises product. The aggregate limit is stated the both on declaration and in page hazards and products operations completed hazards clauses of the is declaration sheet partially reproduced below:
To hold with the trial this case would cause to $300,000 be responsible up every on claim which Olive’s may liable. eventually eligible found Each heir of those killed could have a claim with a limit of $300,000. The limits cannot be under calculated policy these if circumstances. Even we were decide that “products is still the declaration not
hazards” does provision apply, total limit where the sheet beginning policy at $300,000. as Therefore is stated under the stated on amount limit aggregate — $300,000. sheet declaration with directions to and remanded The case is reversed with the in accordance trial court to enter of this provisions opinion. JJ., concur. Newbern,
Hickman Justice, The court of concurring. ap- Hickman, Darrell i.e., party, not raised either ground decided this on peals con- Judge Corbin’s that declaratory premature. another matter nonjoinder concerned curring opinion parties, did not 29(6) not Ark. Ct. R. addressed in the briefs. Since Sup. review, we were allow us to briefs on accept supplemental *8 were, dealing with these somewhat as the handicapped, parties January a Per Curiam dated changed by issues. That rule 1989.
I write to address agree with the result concurring Judge Corbin indicated appeals’ opinion. that but had join the failure to those who had sustained not to the action. yet filed suit the insured was fatal is between the insurer and controversy in this case insured over effect a coverage. Any the amount on on subject plaintiffs would have these potential necessary is so they indirect that should not considered parties on my There is not a consensus of whether opinion. opinion those See who have filed suit are actually necessary parties. — Annotation, Parties,! A.L.R.2d 12 Declaratory Judgment I § (1960); Declaratory 26 C.J.S. Judgments § J.,
Newbern, joins the concurrence.