author: Donald L. Corbin, Justice.

text:
    Cartrell Lewan McCOY v. STATE of Arkansas
    CR 01-762
    74 S.W.3d 599
    Supreme Court of Arkansas
    Original opinion delivered March 14, 2002

    [Supplemental opinion on denial of rehearing delivered April 18, 2002.]

      William R. Simpson, Jr., Public Defender; Brett Qualls and Steve Abed, Deputy Public Defenders, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.

        Reporter’s note: McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002).

        Reporter’s note: The supplemental opinion was issued after the printing contract had been awarded to a new vendor; hence, the text appears separately, in a different volume.

   Donald L. Corbin, Justice.

Our decision reversing the judgment of conviction was delivered on March 14, 2002. McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002). The State filed a petition for rehearing on April 1, 2002. In the petition, the State asserts that we erred as a matter of law by refusing to reach the merits of its alternative argument for affirmance. Particularly, the State argued that this court could have affirmed Appellant’s conviction, even though he was wrongly denied the right to have the jury consider his guilt on a lesser-included offense, on the ground that the instruction proffered by Appellant for the lesser offense did not accurately state the law. The State contends that our decision on this issue effectively abolishes the affirmance rule, wherein an appellate court may affirm the trial court’s ruling if it was the right result, though it announced the wrong reason. We deny rehearing in this case, but we issue this supplemental opinion to clarify this issue for future cases.

Contrary to the State’s urging, our opinion in this case did not hold that the State must raise every possible alternative ground for affirmance in the trial court, before it may be considered on appeal. Rather, our holding was that, based on the particular facts of this case and the specific issue raised by the State, the affirmance rule was not applicable. As we pointed out in the opinion, this court has consistently recognized that a trial court is required to give a model instruction unless it finds that the instruction does not accurately state the law. See In Re: Arkansas Model Criminal Instructions, 264 Ark. Appx. 967 (1979) (per curiam). Thus, our holdings have created a presumption that the model instruction is a correct statement of the law. As such, any party who wishes to challenge the accuracy of a model instruction, be it the State or a defendant, must rebut the presumption of correctness. Undeniably, a party cannot rebut the presumption if the issue is not even raised in the trial court.

In the present case, the trial court’s ruling was such that Appellant was not entitled to have the jury consider any. instruction on the lesser-included offense of attempted second-degree murder. We concluded that this ruling was erroneous. Notwithstanding, the State invited us to affirm Appellant’s conviction on the ground that the model instruction proffered by him was not a correct statement of the law. The State did not, however, challenge the instruction in the trial court. Because a presumption of accuracy attends all model jury instructions, the burden was on the State to convince the trial court otherwise, in order to rebut the presumption. Thus, under the circumstances, the State was required to raise this particular issue below if it intended to rely upon it on appeal. Because it did not, we properly declined to address the argument.

Rehearing denied.


source: Caselaw Access Project

license: Public Domain

text:
    Denise SMITH, Individually, and as Natural Mother and Guardian of Jessica Moody, a Minor, and Deidre Moody, a Minor; Jo Ann Cross, Individually, and as Administratrix of the Estate of Cauley Shane Coffey, Deceased; Jeannie Bright Love, Individually, and as Administratrix of the Estates of Amy M. Bright, Deceased, and Emile Bright, Deceased; Stacey Jackson Montgomery, Individually, and as Administratrix of the Estate of Michael Jackson, Deceased, and as Natural Mother and Guardian of Erica Jackson, a Minor; and Tom M. Young, Administrator of the Estate of Vira A. Young, Deceased v. ROGERS GROUP, INC., John Doe 1 through 5; Hartford Fire Insurance Company; and National Union Fire Insurance Company and James Evans v. Rogers Group, Inc.; John Doe 1 through 5; Marilyn K. Loftin, Administratrix of the Estate of Heath Loftin, Deceased; Hartford Fire Insurance Company; and National Union Fire Insurance Company
    01-1028
    72 S.W.3d 450
    Supreme Court of Arkansas
    Opinion delivered April 18, 2002

      Gary Eubanks & Associates, by: William Gary Holt and Robert S. Tschiemer, for appellants.

      Laser Law Firm, by: Sam Laser and Brian A. Brown, for appellee Hartford Fire Insurance Company.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Bruce Munson and Julia L. Busfield, for appellee National Union Fire Insurance Company.
   Donald L. Corbin, Justice.

The central issue in this case is whether the acquired-immunity doctrine is still a viable defense in this state. The Faulkner County Circuit Court concluded that it is and granted summary judgment to Appellee Rogers Group, Inc., and its insurers, Appellees Hartford Fire Insurance Company and National Union Fire Insurance Company. This case stems from three automobile accidents that occurred on U.S. Highway 65 North, between Conway and Greenbrier. Appellants and their decedents brought suit against Rogers, as the contractor for the Arkansas Highway and Transportation Department (AHTD), alleging that Rogers was negligent in applying Type 3 asphalt to the highway, knowing that it should not be used on such a high-volume highway. The trial court found that Rogers was not negligent because it followed AHTD’s specifications exactly. Thus, because AHTD, as a state agency, enjoys sovereign immunity, the trial court found that Rogers acquired immunity from any liability occurring as a result of its performance of the contract with AHTD. Appellants raise four points for reversal. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1-2(b)(4), as it involves issues of substantial public interest. We find no error and affirm the grant of summary judgment.

In the spring of 1996, AHTD took bids on a job project to overlay a 6.28 mile stretch of U.S. Highway 65 North, between Conway and Greenbrier. The job called for the use of Type 3 asphalt. Rogers presented a bid, and it was accepted by AHTD, on the condition that Rogers would first submit a sample of the proposed Type 3 asphalt mixture for approval by AHTD’s engineers. Rogers employed the engineering company of Grubbs, Garner, and Hoskyn, Inc., to prepare the asphalt mixture. The sample was prepared by engineer Steven Garrett. Rogers forwarded the sample to AHTD, and its engineers approved the sample for use on the project.

Rogers began work on the project in July 1996. Every day during the project, AHTD had an engineer and other employees on sight, to inspect and oversee the work on the project. AHTD also had personnel at the asphalt plant, who monitored the asphalt and took samples of the mixture to make sure that it continued to meet AHTD’s specifications. The job was substantially completed in the middle of September 1996 and was finally inspected by AHTD on September 29. The final inspection revealed that the job had been done according to AHTD’s specifications and was thus accepted by AHTD. Rogers had no further contact with the work site after the final inspection.

Approximately two months later, on November 24, 1996, Michael Jackson was driving his car on that stretch of Highway 65 when his vehicle hydroplaned and crossed the center line, striking a car driven by Vira Young. Both Jackson and Young were killed in the accident. Jackson’s wife, Stacey, and his infant daughter, Erica, were injured. Although Erica’s injuries were relatively minor, Stacey suffered severe injuries requiring weeks of intensive-care hospitalization.

On March 2, 1997, another accident occurred on the same stretch of highway. This time, a car driven by Amy Bright hydroplaned during heavy rain, causing the car to cross the center line and strike a car driven by Denise Smith. Bright and her two passengers, Cauley Coffey and Emile Bright, were fatally injured. Smith and her two minor daughters, Jessica and Deidre Moody, suffered severe injuries.

Finally, on August 2, 1998, James Evans was driving his truck on that same stretch of Highway 65 when he was struck by a truck driven by Heath Loftin. The accident occurred when Loftin’s vehicle hydroplaned and crossed the center line, striking Evans’s truck. As a result, Loftin was killed and Evans was injured.

Appellants in this case are the victims of the foregoing accidents and their survivors. They sued Rogers, its two insurers, and a number of Rogers’s employees, alleging negligence in applying Type 3 asphalt to that 6.28 mile stretch of highway. Appellants assert that Rogers knew that Type 3 asphalt should not have been used on such a high-volume highway, because its use increased the potential for accidents caused by hydroplaning. Additionally, Appellant Evans alleged that Loftin was concurrently negligent with Rogers.

The basis of Appellants’ claim against Rogers is an affidavit filed by Steven Garrett, the engineer who prepared the Type 3 mixture used on the project. His affidavit reflects that he spoke with a quality-control employee of Rogers and warned the employee about using Type 3 asphalt on the project. Garrett stated that using Type 3 asphalt on a highway of such high volume was imminently dangerous. He stated that the problems with the mix would cause hydroplaning, due to the sheeting action of water runoff during heavy rains. His affidavit reflects in pertinent part:

At the time that Rogers Group, Inc., was awarded the high volume overlay project on Highway 65 North, it was aware of each of the above mentioned problems with using the design asphalt mix on a highway application, and that it was using Type 3 design mix improperly in the wrong application. I spoke with a quality control materials employee of Rogers Group, Inc., who told me that he was using Type 3 design asphalt mix for the highway overlay application, and that he was aware that it was never designed for that type of application. I told him that the mix design should never be used for an overlay project on this highway.

Appellants alleged that based on Garrett’s warning, Rogers was negligent in (1) using the Type 3 asphalt mix on the overlay project, and (2) failing to warn AHTD and the public of the dangers of using such a mix on that particular stretch of highway. As for the latter allegation, Appellants claim that Rogers’s failure to warn amounted to a negligent performance of the contract with AHTD.

Rogers filed a motion for summary judgment, claiming that any negligence in the use of Type 3 asphalt was the result of the contract specifications set out by AHTD, and that, accordingly, it was shielded from liability by virtue of the sovereign immunity enjoyed by AHTD. Rogers asserted that all the decisions were made by AHTD, including the specific requirement for the use of Type 3 asphalt. It further asserted that it performed the contract exactly as specified by AHTD, and that, as a result, it was not liable for any injuries caused by the use of Type 3 asphalt on the highway.

In support of its motion, Rogers submitted an affidavit from AHTD’s resident engineer, C.W. McMillian, who oversaw the project on this highway. McMillian’s affidavit reflected that AHTD specified the type and composition of asphalt to be used in the job, as well as the procedures to be used in applying the asphalt and preparing the surface for the asphalt. McMillian stated that AHTD had selected Type 3 asphalt for use on the project on the basis that it was suitable and appropriate for the project. He stated further that since its application, the asphalt mixture had performed satisfactorily on Highway 65. Most significantly, McMillian’s affidavit reflected that AHTD would have used Type 3 asphalt on the project regardless of whether Rogers had notified AHTD that Type 3 was not suitable for the job.

The trial court granted summary judgment to Rogers on the basis of acquired immunity. The trial court based its conclusion on the fact that Rogers merely implemented the plans and specifications laid down by AHTD, and that AHTD had completely approved the work done by Rogers. The trial court also dismissed the claims against the two insurers, concluding that because Rogers was not negligent in the performance of its contract with AHTD, there was no cause of action against the insurers.

For reversal, Appellants argue that the trial court erred in granting summary judgment on the basis of the doctrine of acquired immunity. They claim that this defense is no longer viable under Arkansas law, following the holding in Suneson v. Holloway Constr. Co., 337 Ark. 571, 992 S.W.2d 79 (1999). Alternatively, they assert that Rogers’s conduct falls within an exception to the acquired-immunity doctrine, because Rogers negligently performed the contract with AHTD. Appellants also argue that there was a material issue of fact on the issue of Rogers’s duty to warn AHTD. They argue further that if Rogers is immune, they should be allowed to proceed directly against the two insurers. Lastly, they argue that the trial court erred in striking some exhibits and an affidavit filed by Appellants the day before the summary-judgment hearing. None of these arguments has any merit, and we affirm the trial court’s judgment.

At the outset, we note our standard of review. Summary judgment is no longer viewed by this court as a drastic remedy; rather, it is viewed simply as one of the tools in a trial court’s efficiency arsenal. Foreman Sch. Dist. No. 25 v. Steele, 347 Ark. 193, 61 S.W.3d 801 (2001). That being said, summary judgment should be granted only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Id. All proof must be viewed in the light most favorable to the nonmoving party, and any doubts must be resolved against the moving party. Short v. Westark Community College, 347 Ark. 497, 59 S.W.3d 432 (2002). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id.

I. Acquired Immunity

For their first point for reversal, Appellants argue that the acquired-immunity doctrine is no longer a viable defense in Arkansas following this court’s decision in Suneson, 337 Ark. 571, 992 S.W.2d 79. Rogers argues that Suneson only abolished the accepted-work doctrine and did not affect the viability of the acquired-immunity doctrine. To support its argument, Rogers relies on two recent appellate decisions stemming from the same factual allegations involved in this case: Barker v. Rogers Group, Inc., 74 Ark. App. 18, 45 S.W.3d 389 (2001), and Engelhardt v. Rogers Group, Inc., 132 F. Supp. 2d 757 (E.D. Ark. 2001). In Barker, the court of appeals specifically rejected the argument that Suneson had effectively abolished the acquired-immunity doctrine. Instead, it concluded that there were different rationales and public-policy considerations behind the two doctrines. The Engelhardt decision did not actually consider the holding in Suneson, but it nonetheless concluded that Arkansas law supported application of the acquired-immunity doctrine in that case. We agree with both of these cases on this point.

The doctrine of acquired immunity provides that a contractor who performs in accordance with the terms of its contract with a governmental agency and under the direct supervision of the governmental agency is not hable for damages resulting from that performance. See Muskogee Bridge Co. v. Stansell, 311 Ark. 113, 842 S.W.2d 15 (1992); Southeast Constr. Co., Inc. v. Ellis, 233 Ark. 72, 342 S.W.2d 485 (1961); Barker, 74 Ark. App. 18, 45 S.W.3d 389; Jordan v. Jerry D. Sweetser, Inc., 64 Ark. App. 58, 977 S.W.2d 244 (1998); Guerin Contractors, Inc. v. Reaves Food Center, 270 Ark. 710, 606 S.W.2d 143 (Ark. App. 1980). Under this theory, “a contractor for a public agency shares the sovereign immunity of the public body from liability for incidental damages necessarily involved in the performance of the contract.” Id. at 713, 606 S.W.2d at 144-45 (citing 64 Am. Jur. 2d Public Works and Contracts § 135). However, this doctrine does not protect a contractor who performs the contract in a negligent manner resulting in damages to others. Id.

In Ellis, this court held that “where a contractor performs his work in accordance with the plans and specifications and is guilty of neither a negligent nor a willful tort, he is not liable for any damages that might result.” 233 Ark. at 77, 342 S.W.2d at 488 (citing 40 C.J.S. Highways § 212) (quoting Ference v. Booth & Flinn Co., 370 Pa. 400, 403, 88 A.2d 413, 414 (1952)). The clear purpose of this immunity is to protect the contractor who performs the work as specified from bearing the brunt of liability based on the actions or decisions made solely by the governmental agency, which is immune from suit in tort. There are also practical reasons underlying the doctrine:

If the contractor was required, at its peril, to check and double check all plans given it and required to keep an engineering force for the purpose of interpreting these plans, and was not permitted to follow the orders of the engineering force of its superior, then the cost of public improvement would be so increased as to make them almost prohibitive.

Id. (quoting Wood v. Foster & Creighton Co., 191 Tenn. 478, 482-83, 235 S.W.2d 1, 3 (1950)).

In contrast, the accepted-work doctrine, which this court abolished in Suneson, 337 Ark. 571, 992 S.W.2d 79, provided that after the contractor completed the work and turned it over to, and it was accepted by, the contracting party, the contractor incurred no further liability to third parties by reason of the condition of the work. Id. Upon acceptance, the responsibility for any defects in the work shifted to the contracting party. Id. Thus, unlike the acquired-immunity doctrine, which is designed to protect innocent contractors from liability based on decisions made and instructions given by the sovereign, the accepted-work doctrine had the effect of shielding negligent contractors from liability once they had finished construction and their work had been accepted by the contracting party. This court abolished the doctrine of accepted work for a number of reasons, namely that it was antiquated, it provided harsh results, and the exceptions to the doctrine had virtually swallowed up the rule. Id.

This court’s decision to abolish the accepted-work doctrine hardly supports the conclusion that it has likewise abandoned the defense of acquired immunity. To the contrary, the reasons and considerations behind acquired immunity are just as valid today as they have ever been. A contractor who performs in accordance with the terms of its contract with a governmental agency and under the direct supervision of the governmental agency should not be held liable for damages resulting from that performance. The only exception is where the contractor is negligent in the performance of the contract. Unlike the accepted-work doctrine, acquired immunity serves the legitimate purpose of extending the government’s immunity to shield an innocent contractor who has completely performed the work to the government’s plans and specifications. Moreover, were acquired immunity not available, the costs of public improvements would be greatly increased to the public’s detriment. Accordingly, we conclude that the acquired-immunity doctrine is still a viable defense in this state. That being said, we now consider the doctrine’s applicability in this case.

The undisputed evidence submitted below demonstrates that Rogers performed its contract with AHTD exactly as specified. According to the affidavits filed by Rogers’s employee, Eddie Reidmueller, and AHTD’s resident engineer, McMillian, Rogers completed the project in full compliance with the specifications set out by AHTD. There was an AHTD engineer on sight at the project every day, directing and inspecting the contractor’s work. There was also an engineer on sight at the asphalt plant every day, checking the asphalt mixture to make sure that it met with AHTD’s specifications. Reidmueller stated in his affidavit that Rogers fully complied with the specifications provided by AHTD, and that neither Rogers nor any subcontractors deviated in any way from the instructions and specifications provided by AHTD.

In his affidavit, McMillian stated that it was his responsibility, and that of other on-site AHTD employees, to oversee the project and inspect the type, placement, composition, and application of the surfacing materials to assure compliance with the job’s specifications. McMillian stated that if it had been determined that Rogers’s work was not in compliance with AHTD’s specifications, he would have promptly brought it to the attention of Rogers and would have required the matter to be corrected promptly. McMillian stated that the final inspection of the project was done on September 29, 1996, and that AHTD determined that the work and the asphalt were in compliance with the contract specifications. This proof demonstrates that Rogers performed the contract in full compliance with the specifications mandated by AHTD and under the direct and constant supervision of AHTD. Accordingly, we affirm the trial court’s ruling that Rogers was entitled to rely on the defense of acquired immunity.

II. Negligent Performance of Contract

Appellants next argue that the trial court erred in refusing to find that Rogers’s actions fell within an exception to the doctrine of acquired immunity, because it was negligent in the performance of the contract. Specifically, Appellants claim that Rogers was contractually obligated to warn AHTD and the public of any errors in the specifications, and it failed to fulfill this duty. As such, Appellants assert that Rogers negligently performed the contract. We disagree.

Appellants’ argument on this point is based entirely on the affidavit of Garrett, the engineer who prepared the particular mix of Type 3 asphalt that was used on this project. According to Garrett’s affidavit, which we must view in a light most favorable to Appellants, Garrett spoke with a quality-control employee of Rogers and warned that Type 3 asphalt should never be used on an overlay project on such a high-volume highway. Garrett also stated that the employee indicated to him that he was aware that Type 3 asphalt was never designed for that type of application. Based on this information, Appellants argue that Rogers had a duty to warn AHTD of the danger in using Type 3 asphalt on this project.

Appellants argue further that Rogers’s duty to warn arose out of its contract with AHTD. They specifically rely on section 105.05 of the AHTD’s 1993 edition of its Standard Specifications for Highway Construction, which provides:

The Contractor shall take no advantage of any apparent error or omission in the plans or specifications, and shall immediately notify the Engineer of any such errors or omissions discovered. The Engineer will then make such corrections and interpretations as may be deemed necessary for fulfilling the intent of the plans and specifications.

Appellants contend that the information conveyed by Garrett fell within the category of an error or omission in the plans or specifications for the job. Appellants argue that by failing to convey the information received from Garrett, Rogers was negligent in its contractual duties to AHTD. Appellants argue further that the trial court erred in placing so much emphasis on McMillian’s affidavit regarding the effect that any warning would have had on AHTD.

Appellants rely on this court’s holding in Bushong v. Garman Co., 311 Ark. 228, 843 S.W.2d 807 (1992), to support their argument that had a warning been given by Rogers to AHTD, there is a presumption that such warning would have been heeded. Appellants also argue that Bushong supports their claim that an issue of fact remains for the jury as to whether Rogers sufficiently rebutted the presumption. In Bushong, this court held:

Once a plaintiff proves the lack of an adequate warning or instruction, a presumption arises that the user would have read and heeded adequate warnings or instructions. This presumption may be rebutted by evidence “which persuades the trier of fact that an adequate warning or instruction would have been futile under the circumstances.” Safeco Ins. Co. [v. Baker], 515 So.2d 655, 657 (La. Ct. App. 1987); See also Johnson v. Niagra, 666 F.2d 1223 (8th Cir. 1981). In this case, appellant himself admitted that he had never read a label on a cleaning product during the three years he worked at Stewart Electric. Given this, we cannot say the trial court erred in finding appellant’s failure to read the label precluded his claim as any warning or instruction would have been futile since appellant would not have read it.

Id. at 234, 843 S.W.2d at 811.

Here, the presumption was rebutted by McMillian’s affidavit, which demonstrates that such a warning would have fallen on deaf ears and would not have altered the contract specifications. McMillian’s affidavit reflects:

8. The Department selected Type III asphalt. The selection of Type III asphalt was made based upon a determination that it was suitable and appropriate for Job R80087. Since its application, Type III asphalt has performed satisfactorily on Highway 65.
9. Had Rogers Group employees advised the Department that they were supposedly informed that Type III was not suitable for this job, we would have informed them that Type III was suitable and ivould have directed that ivork continue using Type III asphalt. [Emphasis added.]

Appellants have provided no proof to the contrary. Thus, there is no issue of fact for the jury to decide. Arkansas Rule of Civil Procedure 56(e) requires the nonmoving party to meet proof with proof when summary judgment is sought. That rule provides in pertinent part:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. [Emphasis added.]

Appellants have offered no proof, through affidavits or otherwise, to contradict McMillian’s affidavit. We disagree with Appellants that this is an issue of credibility for the jury. This is merely an issue of proof, with the undisputed proof showing that AHTD would not have heeded any warning Rogers could have made regarding the use of Type 3 asphalt on the project in question. Accordingly, we affirm the trial court’s conclusion that Rogers was not negligent in the performance of its contract with AHTD by failing to warn the agency about using Type 3 asphalt on the overlay project.

We likewise affirm the trial court’s conclusion that Rogers was not negligent in failing to warn the public of the dangers of Type 3 asphalt. Appellants’ reliance on section 107.01(b) of AHTD’s Standard Specifications is misplaced. That section merely places a burden on the contractor to take steps to ensure the public’s safety while the contract work is being performed. That section provides in pertinent part:

The Contractor shall comply with applicable Federal, State, and local laws governing safety, health, and sanitation. The Contractor shall provide safeguards, safety devices, and protective equipment and take any other needed action necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the Contract. [Emphasis added.]

We agree with Rogers that this provision pertains to the contractor’s safety obligations while the work is being performed. We do not view this section as creating a generalized duty to warn the public of dangers that may arise out of the sovereign’s plans or specifications for the job. Accordingly, the trial court was correct in granting summary judgment to Rogers, as it was not negligent in the performance of its contract with AHTD.

III. Direct Action Against the Insurers

For their third point on appeal, Appellants argue that the trial court erred in dismissing their claims against Rogers’s two insurers. They assert that if Rogers is entitled to acquired immunity, they should be allowed to proceed directly against its insurers, pursuant to Ark. Code Ann. § 23-79-210 (Repl. 1999). Subsection (a)(1) provides in pertinent part:

When liability insurance is carried by any cooperative nonprofit corporation, association, or organization, or by any municipality, agency, or subdivision of a municipality or of the state, or by any improvement district or school district, or by any other organization or association of any kind or character and not subject to suit for tort, and if any person, firm, or corporation suffers injury or damage to person or property on account of the negligence or wrongful conduct of the organization, association, municipality or subdivision, its servants, agents, . . . then the person, firm, or corporation so injured or damaged shall have a direct cause of action against the insurer with which the liability insurance is carried to the extent of the amounts provided for in the insurance policy as would ordinarily be paid under the terms of the policy. [Emphasis added.]

This court has heretofore only applied this provision to the insurers of charitable or nonprofit organizations, governmental entities, and county-owned hospitals. See Cherry v. Tanda, Inc., 327 Ark. 600, 940 S.W.2d 457 (1997); Rogers v. Tudor Ins. Co., 325 Ark. 226, 925 S.W.2d 395 (1996); Berry v. Saline Memorial Hosp., 322 Ark. 182, 907 S.W.2d 736 (1995); Jarboe v. Shelter Ins. Co., 317 Ark. 395, 877 S.W.2d 930 (1994).

Section 23-79-210 is not applicable in this case for two reasons. First, it only provides for direct actions against an insurer in the event that the organization at fault is immune from suit in tort. Immunity from suit is the entitlement not to stand trial, while immunity from liability is a mere defense to a suit. See Robinson v. Beaumont, 291 Ark. 477, 725 S.W.2d 839 (1987). Acquired immunity is not immunity from suit; rather, it is immunity from liability. This court explained in Ellis, 233 Ark. 72, 342 S.W.2d 485:

It is hornbook law that the immunity from suit of the sovereign state does not extend to independent contractors doing work for the state. But it is equally true that where a contractor performs his work in accordance with the plans and specifications and is guilty of neither a negligent nor a willful tort, he is not liable for any damages that might result.

Id. at 77, 342 S.W.2d at 488 (citation omitted) (emphasis added) (quoting Ference, 370 Pa. 400, 403, 88 A.2d 413, 414). Unlike AHTD, Rogers is not an entity that enjoys immunity from suit in tort. This conclusion is clearly illustrated by the fact that Appellants were able to sue the contractor directly in the circuit court. Because Rogers is not immune from suit, the direct-action statute is not applicable.

The second reason that section 23-79-210 is not applicable in this case is because its protections are only triggered where a person is injured “on account of the negligence or wrongful conduct of the organization[.] ” We have already concluded in the previous two points that Rogers was entitled to rely on the defense of acquired immunity because it was not negligent in the performance of its contract with AHTD. Because Rogers was not negligent, its insurers may not be held responsible under the direct-action statute. The trial court was thus correct in dismissing the claims against the insurers.

IV. Additional Materials in Opposition to Summary Judgment

For their last point on appeal, Appellants argue that the trial court erred in refusing to allow them to supplement the record with certain materials in opposition to the motion for summary judgment. The materials in question include an affidavit from an expert witness and copies of parts of AHTD’s Standard Specifica tions for Highway Construction. There is no merit to Appellants’ argument on this point.

During the hearing below, Rogers asked the court not to admit the materials because their last-minute submission would prejudice it. The trial court granted the motion, finding that the motion for summary judgment had been pending for over a year and one-half and that Appellants had ample time to get these materials filed, instead of waiting until the day before the hearing. Notwithstanding that ruling, the trial court did consider the materials in determining that Rogers was entitled to summary judgment. The trial court’s order reflects:

However, the Court did review this material, and heard oral arguments about the content of this material. The Court finds they would not have created a factual dispute in light of the uncontroverted affidavit of C.W. McMillian that Rogers Group performed the contract to the Department’s specifications and under the Department’s direction.

Thus, because the trial court actually considered the materials in granting summary judgment, Appellants suffered no prejudice from the original ruling striking the materials. We will not reverse a trial court’s decision to disallow evidence absent a showing of prejudice. See Columbia Nat’l Ins. Co. v. Freeman, 347 Ark. 423, 59 S.W.3d 432 (2002); Madden v. Aldrich, 346 Ark. 405, 58 S.W.3d 342 (2001). We thus affirm the trial court’s judgment.

Affirmed.

Glaze, J., not participating.

       No judgment has been entered as yet against the individual Rogers’s employees, John Does 1 through 5, or Loftin’s Estate, Marilyn K. Loftin, Administratrix; hence, they are not parties to this appeal. We review the summary-judgment order pursuant to Ark. R. Civ. P. 54(b), as the trial court certified the immediate appeal of this order.


author: Ray Thornton, Justice.

text:
    John DOE, Jane Doe, and Mary Doe v. Clyde BAUM, Fountain Lake School District, Arkansas School Boards Association, and Arkansas Department of Education
    01-1159
    72 S.W.3d 476
    Supreme Court of Arkansas
    Opinion delivered April 18, 2002

      Bachelor & Newell, by: Angela R. Echols and C. Burt Newell, for appellants.

      Laser Law Firm, by: Dan F. Bufford and Brian A. Brown, for appellees.
   Ray Thornton, Justice.

Appellants, John Doe, Jane Doe, and Mary Doe appeal the July 17, 2001, order of the Garland County Circuit Court, granting summary judgment to appellee, Arkansas Department of Education, (“ADE”), granting partial summary judgment to appellees, Clyde Baum, and Fountain Lake School District (“FLSD”), and certifying the case for appeal pursuant to Ark. R. Civ. P. 54(b). Appellants raise four points for reversal: (1) the trial court erred in ruling that Ark. Code Ann. § 6-17-1113 (Repl. 1999) did not provide coverage in this case; (2) the trial court erred in ruling that Ark. Code Ann. § 6-19-105 (Repl. 1999) had been repealed by implication; (3) the trial court erred in not allowing appellants to proceed under Ark. Code Ann. § 6-19-118 (Repl. 1999); and (4) the trial court erred in granting summary judgment on the issues of gross negligence and/or reckless indifference and in its failure to submit such issues to the jury. We affirm.

Mary Doe, a third-grade girl, was allegedly raped by an eighth-grade boy named James Roe while returning home from school one day in the fall of 1998 on a school bus owned by FLSD and driven by Baum. As a result of this incident, on April 21, 1999, Mary’s grandparents and adoptive parents, Mr. and Mrs. Doe, filed the instant action against Baum, alleging torts of common negligence, gross negligence, reckless indifference, and outrage. FLSD was included as a defendant under the theory of vicarious liability. ADE was also included as a defendant for coverage under its “School Worker Defense Program.” Finally, the Arkansas School Boards Association (“ASBA”) was included as a defendant for coverage under its school motor vehicle liability program.

Mary testified in her deposition that on the day the rape in question occurred, James had commanded all the other students to move up to the front of the bus. Mary further testified that James made her lay down, and he then pulled her pants down. Mary testified that she did not try to call out to or try to run to her brother, did not call out to or try to run to the bus driver, did nothing to try to get away from James, and did nothing to try to bring the incident to the attention to the other students on the bus. Mary also testified that she did not tell anyone about the incident after she got off the bus and that the first person she told about the incident several months later was Sharon Kyle, one of her teachers, who told her to speak about the incident with Linda Woodson, the school’s guidance counselor. Mary told Ms. Woodson that she had been raped on the bus and at two other locations, and Ms. Woodson notified the police. Mary related in her deposition that James had put his hand down her pants another time on the bus and then in the woods and the field next to her home.

Mary also related in her deposition that James had instigated another student, Kenny, to put his hand down her pants while she was on the school bus driven by Baum the previous year. Mary testified that she tried to scream so that the bus driver could hear her, but that she was unable to scream because Kenny had put his arm over her mouth so that she could not scream. Mary testified that as she left the bus, she notified Baum of the incident, but that Baum told her that he could not do anything about it because Kenny had already disembarked from the bus. Mary testified that she did not know whether Baum had reported the incident with Kenny to school officials. Mary also testified that she and her grandmother had gone up to the school, where they told Ms. Cox, the K-2 principal about the incident involving Kenny, and Kenny’s bus-riding privileges were suspended. Mary stated in her affidavit that she told Ms. Cox that James had been involved in the incident with Kenny. Mary further stated in her affidavit that her grandmother had told Charles Clark, the Superintendent of FLSD, and Ronnie Schroeder, Baum’s supervisor, what had happened.

Kory Doe, Mary’s brother, who was one of the students on the bus at the time of the incident with James, testified in his deposition that on the day of the incident, he bent down to pick up a pencil he had dropped on the floor of the bus, noticed Mary’s foot down on the floor, and then saw that James had his hand down her pants. Kory testified that no noises were made by either Mary or James during the incident and that no one told him, nor did he hear, that anyone saw the incident. Kory further testified that neither he nor Mary notified the driver about the incident at that time and that Mary told him not to tell anyone. Jane Doe testified in her deposition that she was not made aware of the incident until Mary complained of a problem some days or weeks later.

Baum testified in his deposition that Mary had told him of the incident involving Kenny putting his hands down her pants, but that Kenny had disembarked the bus by the time he learned of the incident. Baum also testified that he immediately told Mary’s grandmother, who met Mary at the bus stop that night, of the incident. Baum testified that he did not fill out a pink slip to report the incident because he reported it to Mr. Schroeder, his supervisor, in person as soon as he got finished with his bus route. Baum further testified that he never got any report that James was involved in the incident.

Baum testified that the first he learned of the incident with James was when Mr. Schroeder mentioned to him that he needed to talk to a police officer. Baum testified that neither Mary nor Kory ever reported the incident to him, nor were there any reports from other students. Baum also testified that he.never noticed Mary getting off the bus crying, looking disheveled, or looking as though she were hurt in any way in the fall of 1998.

Mr. Schroeder testified in his deposition that James had been a problem student on several prior occasions. Specifically, Schroeder testified that James had been kicked off the bus for using profanity with Baum and Schroeder, had been arrested on at least one occasion while at school, and had been truant, among other things. Schroeder further testified that he did not remember receiving a report involving the incident between Mary and Kenny, but that he would not dispute Baum’s memory if Baum said that he had reported such an incident between Mary and Kenny. Schroeder further testified that Baum had been involved in an accident one time where some students were misbehaving in the back of the bus while he was driving on a wet road, and he got onto the edge of the dirt, slid, and hit a tree. Schroeder testified that he counseled Baum after the accident that he needed to watch the road instead of the kids and that his first responsibility was driving the bus.

On August 8, 1999, appellee ASBA filed a motion for summary judgment, arguing that its liability insurance to FLSD, as is required under Ark. Code Ann. § 21-9-303 (Repl. 1999), did not provide coverage in Mary’s case because the incident in question did not arise out of the ownership, maintenance, or use of the vehicle as required under the Motor Vehicle Safety Responsibility Act, which is codified at Ark. Code Ann. § 27-19-713(b)(2) (Supp. 2001). The ASBA argued that its policy only afforded protection in cases where there had been a collision that caused injuries to a third party. The trial court denied ASBA’s motion for summary judgment, concluding that the memorandum of intent provided coverage for damages “arising out of the ownership, maintenance, or use of any automobile,” that “accident” was defined as an event that resulted in personal injury, and, as such, the facts alleged in the complaint might be covered by insurance provided by the ASBA. That ruling is not at issue in this appeal, but remains the subject of future litigation.

On April 25, 2001, appellees Baum, FLSD, and ADE filed a motion for summary judgment, arguing that (1) they were immune from liability for negligence, gross negligence, and reckless indifference; (2) the coverage afforded by the ADE under Ark. Code Ann. § 6-17-1113 only required coverage for acts that have not traditionally been immune, and school district employees have traditionally been immune from acts of negligence; and (3) ADE was entitled to sovereign immunity and could not be sued.

On July 17, 2001, the Garland County Circuit Court issued an order: (1) granting summary judgment to ADE and dismissing appellants’ complaint against it with prejudice; (2) granting partial summary judgment to Baum and FLSD and dismissing appellants’ complaint against them as to the civil liability allegations; (3) ordering the complaint as to the motor vehicle liability allegations against Baum and FLSD and as to the allegations of liability protection or coverage under the program provided by ASBA to remain pending; and (4) certifying the case for appeal pursuant to Ark. R. Civ. P. 54(b). It is from this order that appellants bring this appeal.

We have outlined our standard of review of summary-judgment cases on numerous occasions. In Short v. Westark Community College, 347 Ark. 497, 65 S.W.3d 440 (2002), we stated:

In reviewing a summary-judgment case, we need only decide if the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. Aka v. Jefferson Hosp. Assoc., 344 Ark. 627, 42 S.W.3d 508 (2001). Notably, the moving party always bears the burden of sustaining a motion for summary judgment. All proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the moving party. However, the moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Ark. R. Civ. P. 56; Robert D. Holloway, Inc. v. Pine Ridge Add’n Resid. Prop. Owners, 332 Ark. 450, 966 S.W.2d 241 (1998) (citing McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997). Once the moving party makes a prima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof by showing a material issue of fact. Dillard v. Resolution Trust Corp., 308 Ark. 357, 824 S.W.2d 387 (1992).

Short, supra. With this standard of review in mind, we now turn to the points on appeal.

For their first point on appeal, appellants argue that the trial court erred in ruling that Ark. Code Ann. § 6-17-1113 did not provide coverage in this case. Specifically, appellants contend that Ark. Code Ann. § 6-17-1113 provides coverage in this case because, pursuant to Ark. Code Ann. § 6-19-105, school bus drivers have not traditionally been immune for their negligent acts, and the statute provides coverage for acts or omissions from which employees have not traditionally been immune. Appellees argue, however, that the trial court was correct in ruling that Ark. Code Ann. § 6-17-1113 did not provide coverage in this case because Arkansas recognizes immunity for school districts and their employees from civil liability for negligent torts, except to the extent that they have applicable liability insurance. We agree with appellees and affirm on this point.

We first note that Arkansas has long recognized immunity for school districts and their employees from civil liability for negligent torts. The applicable statute is Ark. Code Ann. § 21-9-301 (Supp. 2001), which provides:

It. is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the state and any of their boards, commissions, agencies, authorities, or other governing bodies shall be immune from liability and from suit for damages except to the extent that they may be covered by liability insurance. No tort action shall lie against any such political subdivision because of the acts of its agents and employees.

Id. (emphasis added). We have held that the immunity granted to the political subdivisions named in Ark. Code Ann. § 21-9-301 extends to the officials and employees of that governmental entity. See Cousins v. Dennis, 298 Ark. 310, 767 S.W.2d 296 (1989) (citing Matthews v. Martin, 280 Ark. 345, 658 S.W.2d 374 (1983)).

The statute that appellants contend provides coverage in the present case is Ark. Code Ann. § 6-17-1113, which provides, in pertinent part:

(a) The Department of Education is authorized and directed to establish a School Worker Defense Program for the protection of:
* * *
(13) Bus drivers and mechanics employed by public schools;
* * *
against civil liability, attorney’s fees, and costs of defense for acts or omissions of each employee or volunteer in the performance of his or her duties as a volunteer or his or her official duties as a school employee, including civil liability for administering corporal punishment to students, in the amount of two hundred fifty thousand dollars ($250,000) for incidents which occurred prior to July 1, 1999, and one hundred fifty thousand dollars ($150,000) for each incident which occurs after June 30, 1999.
# * *
(d) The investigation of any incident or the defense of any protected person does not waive or forfeit any immunity or authorization to provide for hearing and settling claims extended to educational entities and their personnel by the laws of the State of Arkansas.

Id. Pursuant to the authorization of this statute, ADE opted to establish the School Employee — School Board Protection Program (“Program”).* 2

We interpreted the scope of Ark. Code Ann. § 6-17-1113 in Waire v. Joseph, 308 Ark. 528, 825 S.W.2d 594 (1992), where we stated:

Given Arkansas’ strong adherence to governmental immunity, we think that if the legislature had intended to require ADE to insure against the negligent acts of school district employees, claims from which school districts traditionally have been immune, they would have expressly stated this intent. In the absence of such express intent, we do not think this court should change the longstanding public policy of the State of Arkansas.
This court interprets Ark. Code Ann. § 6-17-1113 to authorize and direct ADE to establish a self-insurance fund or procure insurance policies to insure school district employees against acts or omissions from which they have not traditionally been immune, i.e., civil rights claim under federal legislation and intentional or malicious acts or omissions. In Battle v. Harris, 298 Ark. 241, 766 S.W.2d 431 (1989), we stated that Ark. Code Ann. § 21-9-301 does not provide immunity from intentional torts. Similarly, in Beaulieu v. Gray, 288 Ark. 395, 705 S.W.2d 880 (1986), we stated that the statute does not protect immune employees from malicious acts. Therefore, we hold that ADE was not statutorily required to insure against the negligent acts of school district employees.

Waire, supra; see also Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992), where we stated, “The Waire decision also reaffirmed our previous holdings that state employees are not immune from suit for negligence, to the extent the employees are covered by other viable liability insurance.” Id. (citing Waire, supra; Carter v. Bush, 296 Ark. 261, 753 S.W.2d 534 (1988)).

Applying the holdings in Waire, supra, and Deitsch, supra, to the present case, we hold that ADE was not required under Ark. Code Ann. § 6-17-1113 to provide coverage for the alleged negligent acts of Baum because the immunity statute codified at Ark. Code Ann. § 21-9-301 provides governmental agencies, including ADE, as well as school districts and their employees, immunity for negligent acts, and, thus, the trial court did not err in concluding that Ark. Code Ann. § 6-17-1113 does not provide coverage in this case. Moreover, the language included in the Program document itself does not waive the immunity afforded to either Baum or FLSD by the immunity statute; rather, that language expressly preserves immunity under the Program. Accordingly, we affirm on this point.

Because we have held that the trial court did not err in concluding that Ark. Code Ann. § 6-17-1113 does not require ADE to provide coverage in the present case, appellants’ sole avenue of redress is by way of the exception that lies within the immunity statute, which provides for a school district and its employees to be immune from liability and from suit for damages, except to the extent that it may be covered by liability insurance. Ark. Code Ann. § 21-9-301; see also Deitsch, supra; Waire, supra; Carter, supra. The trial court in the present case has previously ruled that the motor vehicle liability protection or coverage afforded to Baum and the FLSD by the ASBA may, potentially, apply to the present claim, and this ruling is not at issue on appeal. Accordingly, because appellants’s claim regarding the motor vehicle liability issue remains the subject of future litigation, they may still proceed under the exception to the immunity statute.

For their second point on appeal, appellants argue that the trial court erred in ruling that Ark. Code Ann. § 6-19-105 had been repealed by implication upon the enactment of Ark. Code Ann. §§ 21-9-301, 21-9-303, and 6-17-1113. We disagree and affirm.

Ark. Code Ann. § 6-19-105, which was first enacted in 1943 and has not previously been cited by our appellate courts, provides:

The driver or operator of a bus used for the transportation of school children to and from school or to and from other school activities as declared by the school district board of directors to be school activities shall be liable in damages for the death of or injury to any school child resulting from a failure of the driver or operator to use reasonable care while transporting pupils.

Id.

Ark. Code Ann. § 21-9-301 provides:

It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the state and any of their boards, commissions, agencies, authorities, or other governing bodies shall be immune from liability and from suit for damages except to the extent that they may be covered by liability insurance. No tort action shall lie against any such political subdivision because of the acts of its agents and employees.

Id. We have held, that the immunity granted to the political subdivisions named in Ark. Code Ann. § 21-9-301 extends to the officials and employees of such governmental entities. Cousins, supra (holding that school district employees were immune from tort liability under Ark. Code Ann. § 21-9-301 for alleged acts of negligence they committed while performing their official duties for the school district); see also Autry v. Lawrence, 286 Ark. 501, 696 S.W.2d 315 (1985); Matthews, supra.

We have outlined our statutory construction rules regarding repeal by implication on numerous occasions. When interpreting statutes, the first rule of construction is to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Henson v. Fleet Mortgage Co., 319 Ark. 491, 892 S.W.2d 250 (1995). Yet the basic rule of statutory interpretation to which all other interpretive guides must yield is to give effect to the intent of the legislature. Rogers v. Tudor Ins. Co., 325 Ark. 226, 925 S.W.2d 395 (1996); Henson, supra. In ascertaining an act’s intent, the appellate court examines the statute historically, as well as the contemporaneous conditions at the time of the enactment, the object to be accomplished, the remedy to be provided, the consequences of interpretation, and matters of common knowledge within the court’s jurisdiction. Rogers, supra; Henson, supra; City of Little Rock v. AT & T Communications of the S.W., Inc., 318 Ark. 616, 888 S.W.2d 290 (1994). A statute of a general nature does not repeal a more specific statute unless there is a plain, irreconcilable conflict between the two. Winston v. Robinson, 270 Ark. 996, 606 S.W.2d 757 (1980); Patrick v. State, 265 Ark. 334, 576 S.W.2d 191 (1979). Thus, the treatment of a general repealer clause does not differ from the rules applicable to a repeal by implication. The fundamental rule of that doctrine is that a repeal by implication is not favored and is never allowed except when there is such an invincible repugnancy between the provisions that both cannot stand. Donoho v. Donoho, 318 Ark. 637, 887 S.W.2d 290 (1994); Uilkie v. State, 309 Ark. 48, 827 S.W.2d 131 (1992). Repeal by implication is not a favored device in our interpretation of statutes, and we must construe all statutes relating to the same subject matter together. Waire, supra. “[A] repeal by implication is accomplished where the Legislature takes up the ivhole subject anew and covers the entire ground of the subject matter of a former statute and evidently intends it as a substitute, although there may be in the old law provisions not embraced in the new. ” Uilkie, supra (quoting Berry v. Gordon, 237 Ark. 547, 376 S.W.2d 279 (1964)); see also Bryant v. English, 311 Ark. 187, 843 S.W.2d 308 (1992) (constitutional provision). Hence, the older act will be “repealed” if it is apparent that the latter act was intended to substitute for the prior one. Uilkie, supra.

In light of the enactment of Ark. Code Ann. § 21-9-301, which provides immunity from tort actions for school districts and their employees, except to the extent of liability insurance, it appears that Ark. Code Ann. § 6-19-105 has been repealed by implication. The Legislature took up the whole subject of school bus driver liability anew with the enactment of Ark. Code Ann. § 21-9-301 and has covered the entire ground of the subject matter of Ark. Code Ann. § 6-19-105 and clearly intended Ark. Code Ann. § 21-9-301 as a substitute. Ark. Code Ann. § 6-19-105, which was enacted in 1943, imposes liability upon school bus drivers for their negligence in the transportation of students. Ark. Code Ann. § 21-9-301, however, which was enacted in 1969, creates immunity for such school bus drivers for their negligent acts, except to the extent that there is applicable liability insurance coverage. In addition, the adoption of a comprehensive scheme of motor vehicle liability coverage under Ark. Code Ann. § 21-9-303 and the Legislature’s decision not to amend Ark. Code Ann. § 6-17-1113 to reflect disagreement with our decisions in Waire and Deitsch indicates tacit recognition by the Legislature that school bus drivers are immune from civil liability for negligence, except to the extent that they have applicable liability insurance. The Legislature was aware of our decisions in Waire and Deitsch, where we held that the Ark. Code Ann. § 6-17-1113 does not waive employees’ immunity for negligent acts, but has never taken steps to amend the statute to reflect disagreement with those decisions,

Under Ark. Code Ann. § 21-9-301, school districts and their employees are immune from tort actions except to the extent that they are covered by liability insurance. We conclude that the legislature did not intend to treat school bus drivers, unlike any other governmental entity’s employees, as not being immune for their acts of negligence. To reach a contrary conclusion would create a repugnancy that the Legislature surely could not have intended. Accordingly, we affirm the trial court’s finding that Ark. Code Ann. § 6-19-105 has been repealed by implication.

For their third argument on appeal, appellants argue that the trial court erred in not allowing appellants to proceed under Ark. Code Ann. § 6-19-118 (Repl. 1999). Specifically, appellants argue that Ark. Code Ann. § 6-19-118 directed ADE to provide additional insurance coverage for injuries that occur on school buses. Appellants further argue that despite the fact that the statute became effective in 1999, after the alleged rape occurred, it should be applied retroactively. Appellees, on the other hand, assert that the trial court was correct in not allowing appellants to proceed under Ark. Code Ann. § 6-19-118 because the alleged incident occurred months prior to the statute’s enactment, there is no indication that the Legislature intended it to apply retroactively, and the statute was only funded by the Legislature once, is no longer funded, and the statute’s effectiveness is expressly contingent upon the appropriation of necessary funding.

We note that appellants have failed to preserve for appeal their argument regarding the applicability of Ark. Code Ann. § 6-19-118 (Repl. 1999) to the facts of the present case. Appellants in this case failed to obtain a ruling from the trial court on the issue. The trial court did not rule on the issue either at the hearing or in its order, which was drafted by appellees and approved by appellants. Additionally, appellants did not seek to set aside the order in order to seek a ruling on the issue. It is well settled that to preserve arguments for appeal, even constitutional ones, the appellant must obtain a ruling below. E.g., Barclay v. First Paris Holding Co., 344 Ark. 711, 42 S.W.3d 496 (2001) (citing Wilson v. Neal, 332 Ark. 148, 964 S.W.2d 199 (1998)). Accordingly, we reject this argument without reaching the merits.

For their final argument on appeal, appellants argue that the trial court erred in granting summary judgment to Baum on the issues of gross negligence and/or reckless indifference and that such issues should have been submitted to the jury. We disagree.

As we previously set out, our standard of review of summary-judgment cases is well settled. In reviewing a summary-judgment case, we need only decide if the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. Short, supra (citing Aka v. Jefferson Hosp. Assoc., 344 Ark. 627, 42 S.W.3d 508 (2001)). The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Short, supra (citing Ark. R. Civ. P. 56; Robert D. Holloway, Inc. v. Pine Ridge Add’n Resid. Prop. Owners, 332 Ark. 450, 966 S.W.2d 241 (1998) (citing McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997)).

We note that the only authority appellants have cited to us regarding the applicable standards of gross negligence and reckless negligence are from Black’s Law Dictionary (6th ed. 1990). Black’s Law Dictionary defines “gross negligence” as “[t]he intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another.” Id. at 1033. Black’s Law Dictionary defines “reckless negligence” as being when “the actor has intentionally done an act of an unreasonable character in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.” Id. at 1034.

Here, viewing the proof in the light most favorable to appellants, we cannot say that Baum’s cbnduct rose to the level of gross negligence or reckless indifference. There is no evidence showing that Baum intentionally failed to perform a manifest duty in reckless disregard of the consequences as affecting the life of Mary, nor that he intentionally performed an act of an unreasonable character in disregard of a risk to Mary that was known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It is not controverted that Mary did not try to call out to or try to run to her brother, did not call out to or try to run to the bus driver, did nothing to try to get away from James, did nothing to try to bring the incident to the attention to the other students on the bus, and did not tell anyone about the incident after she got off the bus.

Appellants asserted that Baum was grossly negligent or recklessly indifferent because Baum knew that James was a problem student that he had to keep his eye on and failed to do so. However, appellants failed to provide any evidence that such a failure was in any way intentional. Rather, appellants’ deposition testimony shows that one grandparent conceded that things could happen on a school bus that a driver could not see, and the other grandparent stated that she could not contend that Baum intentionally tried to harm Mary, but that she thought that he just “wasn’t watching those children when he should have been.” Additionally, Mary admitted in her deposition testimony that Baum did not know what James was doing to her.

Appellants also asserted that Baum was grossly negligent or recklessly indifferent because of his knowledge of an incident during the prior year when Mary complained to Baum that another student, Kenny, had improperly touched her. Appellants contended that such earlier incident put him on notice that inappropriate sexual conduct had occurred on the bus. However, there was no evidence of an intentional failure to perform a manifest duty or intentional performance of an act with disregard of a known or obvious risk as a result of the earlier incident. Appellant does not cite any authority, and we know of none, that holds that an incident involving another student during the previous year establishes that a failure to observe or respond to an unobserved incident a year later rises to the level of gross negligence or reckless indifference. Appellants have failed to provide evidence to support the allegation that Baum intentionally failed to perform a manifest duty or act with disregard of a known or obvious risk on the day the incident occurred with regard to James. Applying our standard of review of summary-judgment cases to the present case, we hold that there exists no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law on the issues of gross negligence and reckless indifference.

We again note that the trial court certified this case for appeal of the issues resolved by its order pursuant to the provisions of Ark. R. Civ. P. 54(b) and that the allegations presented by the complaint on the basis of insurance coverage under the motor vehicle liability insurance provided to FLSD by ASBA remains pending.

We conclude that the trial court did not commit reversible error in its disposition of the issues brought forward in this appeal.

Affirmed.

Glaze, Imber, JJ., not participating.

       We note that Mr. Baum’s last name was misspelled as “Vaum” in the original styling of the case, and we have corrected the mistake to reflect the correct spelling as “Baum.”

       We note that Ark. Code Ann. § 6-19-105 has been repealed by implication. See our discussion at pp. 12-15 infra.

       The language of the Program provides, in pertinent part:
      A. PERSONS PROTECTED
      2. The following employees of public school districts and public school educational cooperatives:
      g. Bus drivers
      B. GOVERNMENTAL IMMUNITY IS NOT WAIVED BY THIS PROGRAM
      The investigation of any incident, the defense of any protected person, nor any protection provided by this program, does not waive or forfeit any immunity extended' to any protected person as identified in Paragraph A. above by the laws of the State of Arkansas.
      C. WHAT WILL THE PROTECTION PROGRAM PAY?
      5. SUCH AUTOMOBILE PROTECTION as afforded shah not apply within the state of Arkansas and shall apply to only those persons identified in Paragraph A(2) and A(3) and then only when operating a vehicle owned or leased by, and with the permission of, a public school district or public school educational cooperative. Such automobile protection provided shall be excess to any coverage in force on the involved school vehicle driven by a covered person and shall not waive any immunities that would otherwise apply.
      D. EXCLUSIONS — PROTECTION DOES NOT APPLY TO:
      7. Any and all claims for damages which are subject to the affirmative defense of governmental immunity under Arkansas law.
      School Employee — School Board Protection Program, at 1-4.

       Ark. Code Ann. § 21-9-303 provides:
      (a) All political subdivisions shall carry liability insurance on their motor vehicles or shall become self-insurers, individually or collectively, for their vehicles, or both, in the minimum amounts prescribed in the Motor Vehicle Safety Responsibility Act, § 27-19-101 et seq.

        (b) The combined maximum liability of local government employees, volunteers, and the local government employer in any action involving the use of a motor vehicle within the scope of their employment shall be the minimum amounts prescribed in the Motor Vehicle Safety Responsiblity Act, § 27-19-101 et seq., unless the political subdivision has purchased insurance coverage or participates in a self-insurance pool providing for an amount of coverage in excess of the minimum amounts prescribed in the Motor Vehicle Safety Responsibility Act, § 27-19-101 et seq., in which event the maximum liability of the insurer or pool shall be the limits of the coverage provided for in the policy or agreement.
      (c) (1) Any person who suffers injury or damage to person or property caused by a motor vehicle operated by an employee, agent, or volunteer of a local government covered by this section shall have a direct cause of action against the insurer if insured, or the governmental entity if uninsured, or the trustee or chief administrative officer of any self-insured or self-insurance pool.
      (2) Any judgment against a trustee or administrator of a self-insurance pool shall be paid from pool assets up to the maximum limit of liability as herein provided.

        Id.

       We note that Ark. Code Ann. § 6-19-118 (Repl. 1999) has since been repealed by Act 1220 of 2001. See Ark. Code Ann. § 6-19-118 (Supp. 2001).