author: John I. Purtle, Justice. Tom Glaze, Justice,

text:
    HENRY, WALDEN & DAVIS v. Tony Gene GOODMAN
    87-120
    741 S.W.2d 233
    Supreme Court of Arkansas
    Opinion delivered December 7, 1987
    [Rehearing denied January 13, 1988.]

      Jerry Cavaneau, for appellant.

      Bill W. Bristow, P.A., for appellee.

      McMillan, Turner & McCorkle, by: Otis H. Turner, for amicus curiae Arkansas Trial Lawyers Association.

      Hays and Glaze, JJ., would grant rehearing.

   John I. Purtle, Justice.

The appellant law firm, which had been discharged by its client prior to the filing of suit, intervened in its former client’s action for personal injury damages against a third party. The intervention sought to enforce a lien for attorney’s fees upon the proceeds of any recovery by the client, the appellee herein. The appellant asked for one-third of the former client’s recovery as specified in the contract of employment between appellant and appellee. The trial court held that the appellee’s discharge of the appellant was not justified but that the appellant could only recover a reasonable fee for the services performed. On appeal, the law firm argues that it should have been awarded the full contingency fee as stated in the contract. On cross-appeal, the appellee seeks to reverse the trial court’s holdings that he was not entitled to a jury trial on the question of the attorney’s fees and that he did not have just cause to discharge the appellant. We find no prejudicial error and affirm the actions taken by the trial court.

The facts relating to the claim for an attorney’s lien are the only facts necessary for an understanding of this case. On Friday, August 10, 1984, Tony Goodman, the appellee, was driving his automobile in the city of Jonesboro when it collided with a vehicle driven by Susan Franks. Goodman’s vehicle was demolished and he received personal injury. The following Monday, August 13, 1984, he entered into a written contingency fee contract with the law firm of Henry, Walden & Davis, appellant herein, for the purpose of handling his interest in the matter. The appellant started an investigation immediately. The driver of the other vehicle was notified by letter dated August 14, 1984, that the appellant represented Goodman. Response to this letter was made by her liability carrier on August 21, 1984. The appellant notified the carrier of his contract and claim for a lien by letter of

October 4, 1984.

On October 4,1984, Goodman discharged the first attorney, and entered into a second contingency fee contract with the law firm of McDaniel, Gott & Wells, P.A. The second contract also included a one-third (331/3%) contingency fee. The second attorney informed Goodman he might be liable for two attorney’s fees. The second firm filed suit for damages on behalf of Goodman and eventually obtained a judgment for $100,000. The appellant firm intervened in the proceeding demanding their full contingency fee of one-third (33 V5 %) as specified in the contract between the appellant and Goodman, who contested the attorney’s fee and demanded a jury trial.

The trial court ruled that Goodman was not entitled to a jury trial and that he had breached his contract with the appellant without good cause. The court determined that the appellant was not entitled to the contingency fee, but was entitled to a quantum meruit recovery of $2500 based upon work performed prior to discharge. The appellant law firm appeals from the denial of the full contingency fee, and Goodman appeals from the denial of a jury trial on the question and the determination that the discharge was without good cause.

In order to determine the issue of attorneys’ fees in this case it is necessary first to examine the attorney’s lien statute which is Ark. Stat. Ann. §25-301 (Repl. 1962) (Acts 59 and 306 of 1941). This statute was enacted for the purpose of establishing the lien of an attorney upon the proceeds of his client’s cause of action, thereby reducing the number of separate suits filed by attorneys. The first paragraph of the statute relates to the two methods by which an attorney’s lien is actually created; the second paragraph provides the procedure for the enforcement of the lien once it comes into existence. Home Insurance Co. v. Guy H. Jones, 253 Ark. 218, 485 S.W.2d 190 (1972).

The first paragraph of the statute in part states: “The compensation of an attorney, solicitor, or counsellor at law for his services is governed by agreement, express or implied, which is not restrained by law.” The statute then provides that after an attorney and his client serve written notice upon the adverse party, by registered mail, return receipt requested, informing the adverse party of the attorney’s claim, the attorney shall have a lien upon the proceeds derived from his client’s cause of action. (The purpose of the registered notice is to establish delivery of said notice.) The lien thereby established in favor of the attorney attaches to the proceeds of any settlement, verdict, report, decision, judgment or final order in his client’s favor. The statute further provides that such lien cannot thereafter be defeated by subsequent negotiation or compromise by any litigant, and states that the lien applies only to the cause or causes specifically enumerated in said notice. However, failure to notify the adverse party in accordance with the foregoing procedure is not fatal to establishing a lien by the attorney. The attorney may establish the lien by “commencement of an action” wherein the adverse party is made aware that the attorney claims a lien against any recovery by his client. See Home Insurance Co. v. Jones, supra. (Under present law, an action is commenced by filing a complaint with the clerk of the proper court. See ARCP Rule 3.)

The second paragraph of § 25-301 provides that in case any of the parties compromise or settle the claim without the consent of the attorney, after receipt of the written notice or after suit is filed, “the court of proper jurisdiction shall, upon notice, enter judgment for a reasonable fee or compensation against all of the parties to such compromise or settlement. . . and the amount of such fee or compensation shall not be necessarily limited to the amount, if any, of the compromise or settlement. . .” The third paragraph of the act extends the attorney’s right of recovery for his fee to the parties’ agents and attorneys who effected the compromise or settlement.

We addressed prior cases concerning the attorney’s lien statute in Myers v. Muuss, 281 Ark. 188, 662 S.W.2d 805 (1984). There, after discussing Home Insurance Co. v. Jones, supra; Metropolitan Life Insurance Co. v. Roberts, 241 Ark. 994, 411 S.W.2d 299 (1967); Hamm v. Howard, 216 Ark. 326, 225 S.W.2d 333 (1949); Slayton v. Russ, 205 Ark. 474, 169 S.W.2d 571 (1943); Missouri Pacific v. Geurin, 200 Ark. 755, 140 S.W.2d 691 (1940); and St. Louis Iron Mtn. and So. Ry. Co. v. Hays & Ward, 128 Ark. 471, 195 S.W. 28 (1917), we concluded that “the trial court may nonetheless award a fee under this statute, even though no monetary remuneration is given.” Myers, supra at 192. Moreover, in Cato v. Arkansas Municipal League Health Benefit Fund, 285 Ark. 419, 688 S.W.2d 720 (1985), we stated that “the reasonable fee is not necessarily limited by the amount of settlement . . citing Slayton v. Russ, supra.

The attorney is not limited to an action against his former client in collecting his fee. He may proceed against any or all of the parties litigant. Cato, supra; and Jarboe v. Hicks, 281 Ark. 21, 660 S.W.2d 930 (1983). The attorney may also proceed against the parties’ agents and attorneys, if they affected a compromise or settlement. A.S.A. § 25-301. In Slayton we held that a settlement without the attorney’s consent, after the suit is filed, constitutes the only prerequisite to the right of an attorney to have his fee fixed under the statute.

The purpose of the statute is to establish a lien for attorney’s fees, after the specified notice to the adverse party or parties, which attaches to the proceeds of any settlement, verdict, report, decision, judgment or final order. Moreover, the statute provides for recovery of the attorney’s fee if the parties, or their agents or other attorneys, settle around the attorney. In such case the “judgment for a reasonable fee” may be against any of the parties litigant. Although the attorney’s lien statute makes no distinction between a contingency fee and a fee based on other criteria, the statute does not require that the fee shall be anything other than reasonable. Under the circumstances of this case, the Arkansas attorney’s lien statute does not mandate that the attorney recover the full fee stated in the contract.

The appellant argues that we should adhere to the rule announced in Brodie v. Watkins, 33 Ark. 545 (1878), and followed in Berry v. Nichols, 227 Ark. 297, 298 S.W.2d 40 (1957). Both of these cases held that an attorney employed under a contingency fee contract and discharged without just cause may recover damages as for breach of contract. This measure of recovery is the fee stated in the contract abated by such sum as would have been incurred if the legal services had been continued. These two decisions apparently rest upon the rationale that no distinction should be made between contracts for legal services and other contracts. We conclude that this rule is inconsistent with the intent of the attorney’s lien statute and the important public policy which favors a client’s right to discharge his attorney at any time. We therefore hold that the attorney is limited to a quantum meruit recovery for the reasonable value of his services.

The relationship between the attorney and his client must be based upon the utmost trust and confidence, and if that basis has been substantially undermined, the relationship should be terminated. Model Rules of Professional Conduct Rule 1.16 provides that a lawyer may withdraw from representing a client “if withdrawal can be accomplished without material adverse effect on the interests of the client.” The rule further provides that an attorney shall withdraw from the representation of a client if he is discharged. Provided such discharge does not relieve the client from his obligation to pay a reasonable attorney’s fee.

The exercise of the right to discharge an attorney with or without cause does not constitute a breach of contract because it is a basic term of the contract, implied by law into it by reason of the nature of the attorney-client relationship, that the client may terminate that contract at any time. It would be an injustice to the client to hold him liable for both contingency fees for exercising that fundamental right. See Fracasse v. Brent, 494 P.2d 9 (Calif. 1972); and Heinzman v. Fine, 234 S.W.2d 282 (Va. 1977).

Overruling its prior decisions, the California Supreme Court in Fracasse found no injustice in a rule awarding a discharged attorney the reasonable value of the services he had rendered up to the time of discharge. The court noted that this rule preserves the client’s right to discharge his attorney, and yet acknowledges the attorney’s right to fair compensation for work performed. Apparently, an underlying assumption of this proposition is that the contingency has not been effected prior to discharge. See 92 A.L.R. 3d 690.

The California Supreme Court in Fracasse, quoting from an earlier California opinion, explained the reasons for the rule:

“The right to discharge is of little value if the client must risk paying the full contract price for services not rendered upon a determination by a court that the discharge was without legal cause. The client may frequently be forced to choose between continuing the employment of an attorney in whom he has lost faith, or risking the payment of double contingent fees equal to the greater portion of any amount eventually recovered. . . . Unless a rule is adopted allowing an attorney as full compensation the reasonable value of services rendered to the time of discharge, clients will often feel required to continue in their service attorneys in whose integrity, judgment or capacity they have lost confidence.”

We wish to emphasize at this point that contingency contracts for legal services are valid and enforceable, and when those services have been performed as contemplated in the contract, the attorney is entitled to the fee fixed in the contract and to the lien granted by the statute. A.S.A. § 25-301 and 302. Amicus contends that the decision today will have a “chilling effect” upon the utilization of the contingency contract in this state. In answer to this argument, the California court stated:

Nor do we believe that abandonment of the present rule will lead to a wholesale discharging of attorneys by clients motivated solely by a desire to save attorney’s fees. To the extent that such discharge is followed by the retention of another attorney, the client will in any event be required, out of any recovery, to pay the former attorney for the reasonable value of his services. Such payment, in addition to the fee charged by the second attorney, should certainly operate as a self-limiting factor on the number of attorneys so discharged. To the extent such discharge occurs “on the courthouse steps,” where the client executes a settlement obtained after much work by the attorneys, the factors involved in a determination of reasonableness would certainly justify a finding that the entire fee was the reasonable value of the attorney’s services.

Having decided that A.S.A. § 25-301 does not authorize an attorney to recover the full contingency fee under the contract where, as here, the contract has not been fully performed, and having decided that the attorney is limited to the recovery of a reasonable fee for his services, we address the factors that should be considered in the determination of a reasonable fee. In Jarboe v. Hicks, supra, where the client settled without the consent of the attorney, we determined that the attorney, who was suing the adverse party, was entitled only to a reasonable fee. In discussing a reasonable fee, we stated that the factors that should be considered included the amount of time and labor involved, the skill and ability of the attorneys, and the nature and extent of the litigation. It is clear in the present case that the trial court correctly took these factors into consideration in awarding the appellant a reasonable fee for the services rendered.

On cross appeal, the appellee asserts two constitutional violations concerning the trial court’s decision denying him a jury trial on the question of whether he had just cause to discharge the appellant law firm. He argues that this decision of the trial court violated the equal protection clauses of the United States and Arkansas Constitutions and also violated the Arkansas Constitution’s provision respecting the right to a jury trial. The appellee contends that he has been deprived of equal protection of the laws in that a class of citizens, namely lawyers, is being granted special privileges not available to other citizens in contract disputes. In HCA Medical Services v. Rodgers, 292 Ark. 359, 730 S.W.2d 229 (1987), we stated that the party challenging a statute on equal protection grounds has the burden of proving that the General Assembly did not have or could not have had a reasonable basis for making such a distinction. Moreover, if the law is neither unreasonable nor arbitrary, it will not be struck down as unconstitutional. HCA Medical Services, supra.

The attorney’s lien statute (Ark. Stat. Ann. § 25-302 (Supp. 1985)) provides that the court before which said action was instituted or may be pending “shall determine and enforce the lien created by this Act.” The appellee has failed to demonstrate that the General Assembly did not have a reasonable basis for providing for the enforcement of an attorney’s lien upon the client’s cause of action. Nor has the appellee demonstrated that the statute is unreasonable or arbitrary.

The appellee’s second constitutional argument is that the statute violates Article 2, Section 7 of the Arkansas Constitution. Section 7 provides “[t]he right of trial by jury shall remain inviolate, and shall extend to all cases at law. . .” Discussing the argument that the former attorney’s lien statute was in deprivation of the right of trial by jury in St. Louis I.M. & S. Ry. Co. v. Hays & Ward, supra, we stated, “the constitutional right of trial by jury applies only to rights that existed at common law before the adoption of the Constitution, and does not apply to new rights created by the legislature since the adoption of the Constitution.” See also Colclasure v. Kansas City Life Insurance Co., 290 Ark. 585, 720 S.W.2d 916 (1986), in which we held that a defendant in a mortgage foreclosure proceeding did not have a right to a jury trial because there was no such right at common law.

Finally, the appellee contends on cross-appeal that the trial court erred in finding that he did not have good cause to discharge his original attorney. The judgment of the trial court stated: “Tony Gene Goodman did not have just cause to discharge his attorney.” There were no specific findings of fact, and none were requested. The record reveals that the first attorney immediately commenced investigating the case and obtained some benefits from the client’s own carrier. The only complaints advanced by Goodman are that first party benefits had not been started and his own carrier was not aware that the insured vehicle was a total loss. We do not set aside the trial court’s findings of fact unless clearly erroneous. ARCP Rule 52. Clearly erroneous has been defined by this Court: “a finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” Bogan v. State, 293 Ark. 370, 738 S.W.2d 94 (1987). We are unable to hold that the trial court was clearly erroneous in finding that the appellee did not have just cause to dismiss the first attorney.

Under the circumstances of this case the trial court was correct in holding that the attorney was discharged without just cause and is entitled to a reasonable fee for the services performed prior to discharge. The trial court also correctly allowed the intervention by the discharged attorney to establish a lien for the attorney’s fee pursuant to Ark. Stat. Ann. § 25-301 and 302 (Repl. 1962 and Supp. 1985).

The attorney’s lien statute clearly was designed to insure that attorneys who represent clients on a contingent basis have an effective means of enforcing their right to compensation for services performed. Where the legal services have been fully performed as contemplated in a contingency fee contract, the attorney is entitled to the fee fixed in the contract and to the lien granted by the statute. By our decision today this Court does not hold or imply that contingent fee contracts are not valid and enforceable agreements. When a written notice is given pursuant to the attorney’s lien statute (25-301), or a pleading, giving notice of the claim for a lien, is signed and filed by the attorney, he has a valid and enforceable lien against the proceeds of his former client’s recovery or against the other parties litigant, or their attorneys or agents, if the claim is settled without the consent of the former attorney. We simply hold that when a client discharges his attorney, as he has a right to do, he is bound to pay the discharged attorney a reasonable fee for the services rendered.

Hickman, J., concurs and Hays and Glaze, JJ., dissent.

Tom Glaze, Justice,

dissenting. I dissent. I have no doubt that the majority court is sincere in its belief that justice would be served by its abandoning settled Arkansas case law in favor of a 1972 California decision on the issue of enforcement of contingent fee contracts. See Berry v. Nichols, 227 Ark. 297, 298 S.W.2d 40 (1957); Brodie v. Watkins, 33 Ark. 545 (1878); and Fracasse v. Brent, 6 Cal.3d 784, 494 P.2d 9, 100 Cal. Rptr. 385 (1972). The court’s decision today, however, will assuredly and inevitably increase the instances of collusion and solicitation in cases and, for all practical purposes, destroy the use of contingency contracts. Under the majority holding, A can enter into a contingency contract with lawyer B, who diligently and professionally develops A’s case for trial. Before trial, A may, without cause, dismiss lawyer B because lawyer C has offered to perform and complete the case for less money. Thus, instead of A being bound by the contingency fee contract signed by A and B, A, through his unilateral actions, effectively changed the parties’ agreement to one based upon quantum meruit.

While the majority declares that its decision does not affect the validity and enforceability of contingency contracts, such contracts now will only be as good as a client wishes them to be. If presented with a better deal by a second or third attorney, why, if not bound by his or her contingent contract, would the client not opt for an arrangement to pay less for legal services? So what, one might ask, is wrong with that? The answer, I submit, lies in the unique purpose which is served by contingency contracts, viz., such contracts provide people of modest means with an affordable way to prosecute their claims for injuries they have sustained; without contingency contracts, those parties will find it difficult to employ competent counsel to protect their legal rights.

After this court changes the rules which affect agreements between attorneys and clients, I have no doubt that attorneys will design an agreement which will best protect their own interests when being employed to prosecute a claim. In the end, I have little doubt, as well, that persons (clients) of modest means will, in some measure, ultimately be required to pay for services rendered for the preparation and development of their cases prior to obtaining any recovery. Thus, while the majority believes public policy will be served by its decision, I believe the decision will impact adversely on the interests of the public, generally, and on persons of poor and modest means, specifically.

The irony presented by the instant case is that it presents a worst-case scenario where the appellee-client appeared to be obligated under two contingent fee contracts, each of which provided for a fee in the amount of one-third of the recovery. This resulted in the prospect that appellee was obligated to pay $66,000 in attorneys’ fees out of a $ 100,000 recovery. I first would point out that the record clearly shows the appellee knowingly and voluntarily breached his contract with the appellant-law firm after being apprised of the enforceability of the contract by both appellant as well as the attorney who took over appellants’ claim. In addition, appellee breached his agreement with appellants without legal cause or justification. Nonetheless, the court rewards such action by rewriting the parties’ contract to benefit the appellee. I believe the majority court’s sympathies are misplaced in favoring a party who breached an agreement under these circumstances. On the other hand, if a law firm fails to meet its contracted obligations, a party-client has his or her remedy, as in any contract case, to obtain a judicial declaration on whether the party can set aside the agreement and engage other counsel to pursue the claim. Apparently, the majority feels this is much too onerous a task to place on one who must hire and contract with an attorney.

In my opinion, the long-term effect of today’s decision will not serve the best interests of the working and injured claimant in this state, much less the state’s broad public policy. Accordingly, I would reject the view or rule expressed in the California decision that the majority now adopts, and, instead, adhere to the rule our courts have followed since the court’s holdings in Brodie v. Watkins, 33 Ark. 545, and Berry v. Nichols, 227 Ark. 297, 298 S.W.2d 40. Therefore, I would reverse this cause.

Hays, J., joins in this dissent.


source: Caselaw Access Project

author: John I. Purtle, Justice.

license: Public Domain

text:
    The MUNICIPAL COURT OF HUNTSVILLE, Madison County, Arkansas v. Pier L. CASOLI
    87-268
    740 S.W.2d 614
    Supreme Court of Arkansas
    Opinion delivered December 7, 1987

      W. Q. Hall, for appellant.
    No brief for appellee.
   John I. Purtle, Justice.

This is an appeal by the municipal court of Huntsville from the order of the circuit court of Madison County directing the municipal court to refund an appearance bond. For reversal the appellant argues that the writs of prohibition and mandamus do not lie and that the circuit court has no authority to determine the amount of bond set by the municipal court. We agree that the circuit courts do not have authority to direct the municipal courts in discretionary matters and we reverse the order of the circuit court in this case.

On May 20,1985, Pier L. Casoli was issued a citation by an Arkansas State Trooper which charged Casoli with a third offense DWI. A $1500 appearance bond was posted and, when Casoli failed to appear for trial, this bond was forfeited. The municipal court was informed that Casoli was in Italy and would not return. The municipal court then told the attorney for the absent accused that if Casoli returned to Madison County he would be arrested. He returned and was arrested and this time was required to post a $5000 bond. After many continuances the trial was set for November 6,1986. On November 5 Casoli filed a petition for mandamus and prohibition in the circuit court requesting that his $5000 bond be returned and that the municipal court be prohibited from proceeding with the case. On that same date the circuit court issued an “interlocutory order” restraining the municipal court from conducting any further proceedings in the matter. A hearing was held in the circuit court on November 25, 1986, and on December 9, the circuit court issued a final order which found the $5000 bond to be excessive, ordered its return, and “reinstated” the DWI charge in the municipal court.

The municipal court argues on appeal that the circuit court “had no business” in ordering the return of the $5000 bond as the necessity and the amount of the bond are controlled by the Arkansas Rules of Criminal Procedure. The appellant argues further that if Mr. Casoli has any remedy, it is certiorari, citing Thomas v. State, 260 Ark. 512, 542 S.W.2d 284 (1976). It is the contention of the municipal court that the $5000 bond in this case is not unreasonable because the maximum penalty on a third offense DWI conviction is a $5000 fine and one year in jail. See Ark. Stat. Ann. §§ 75-2504(2) and 75-2505(c) (Supp. 1985).

We considered the relationship between the municipal and circuit courts concerning pretrial release hearings and appearance bonds in Thomas v. State, supra. Thomas was arrested for allegedly possessing marijuana for sale. Bail was set for all such offenses by prearrangement of the municipal court. Thomas applied to the circuit court for “Petition for Supervisory Writ of Mandamus and Certiorari and for Writ of Habeas Corpus.” The circuit court, after a hearing, denied the petition and held that the “pre-set” bond was within the authority of the municipal court. Upon application of Thomas we granted a temporary writ of certiorari releasing the petitioner upon posting $5000 bail with surety or by depositing 10% of that bail with the clerk of the municipal court.

On appeal we first reviewed A.R.Cr.P. Rules 8 and 9. Rule 8.5 mandates a pretrial release inquiry prior to or upon the first appearance and Rule 9.2(a) states that the magistrate shall require cash bond only as a last resort in order to guarantee the appearance of the accused. Rule 9.2(e) provides that the same bond shall continue throughout the trial and appellate process. See Miller v. Pulaski County Circuit Court, 284 Ark. 55, 679 S.W.2d 187 (1984). We held in Thomas that the circuit court erred in refusing to require the municipal court to hold a pretrial release inquiry in compliance with the Arkansas Rules of Criminal Procedure. We rejected the state’s contention that the hearing in the circuit court cured the error of the municipal court in failing to conduct a hearing. Relying upon State v. Nelson, Berry Petroleum Co., 246 Ark. 210, 438 S.W.2d 33 (1969), we held that certiorari was available in the exercise of this court’s superintending control over inferior courts which are proceeding illegally where there is no other adequate mode of review.

The circuit courts are charged with a corresponding duty to supervise inferior courts by Arkansas Constitution article 7, sec. 14, which states:

The circuit courts shall exercise a superintending control and appellate jurisdiction over county, probate, court of common pleas and corporation courts and justices of peace, and shall have power to issue, hear and determine all the necessary writs to carry into effect their general and specific powers, any of which writs may be issued upon order of the judge of the appropriate court in vacation.

In Reese v. Steel, 73 Ark. 66, 83 S.W. 335 (1904), this court stated: “The Constitution (art. 7, § 14) confers on the circuit courts appellate jurisdiction of, and superintending control over, county and other inferior courts, and gives the circuit judges in vacation power to issue, hear and determine all necessary writs to carry into effect this jurisdiction and control.” It is thus clear that the circuit court has superintending control over the municipal court. However, the question presented is whether the circuit court had the authority to order the municipal court to return the $5000 bond.

We cannot determine from the record whether the court intended to issue a writ of prohibition or a writ of mandamus. However, neither writ is appropriate because the $5000 appearance bond was within the discretion of the trial court. Mandamus will not lie to compel action on discretionary matters. Chandler v. Perry-Casa Public School District #2, 286 Ark. 170, 690 S.W.2d 349 (1985). Mandamus will not lie to control a public official in a discretionary act. Lewis v. Conlee, 258 Ark. 715, 529 S.W.2d 132 (1975). Prohibition is designed to prevent a court from exercising jurisdiction not possessed by it or power not otherwise authorized by law when there is no other adequate remedy by appeal or otherwise. State v. Nelson, Berry Petroleum Co., supra.

In setting the appearance bond the municipal court considered the fact that the accused had previously failed to appear and that he was from Italy. These are some of the factors that should be considered in setting a bond. See A.R.Cr.P. Rule 9.2(c). However, the amount of bail rests in the reasonable discretion of the trial court. Under the circumstances of this case we hold that the circuit court erred in ordering the bond refunded. The order of the circuit court is vacated with directions to remand the case to the Municipal Court of Huntsville, Arkansas for proper disposition.

Reversed and remanded.


author: Steele Hays, Justice.

text:
    Michael SIMPSON and Janetta Brock Simpson v. Danny HURT and Budget Transmission, Inc.
    87-202
    740 S.W.2d 618
    Supreme Court of Arkansas
    Opinion delivered December 7, 1987

      Gary Eubanks and Associates, by: James Gerard Schulze, for appellant.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Beverly A. Rowlett, for appellees.
   Steele Hays, Justice.

This is an appeal from a defendant’s verdict in a personal injury action arising from a motor vehicle collision. Appellants are Mr. and Mrs. Michael Simpson. Appellees are Danny Hurt and Budget Transmissions, Inc. The collision occurred when the Simpsons turned onto Phyllis Street in North Little Rock as Danny Hurt was backing from a parking area of Budget Transmissions, Inc. The testimony of the Simpsons and Hurt was conflicting on the issue of who was at fault and the jury resolved that question in favor of the defendants by a vote of eleven to one. The Simpsons have appealed from the adverse verdict, contending that the trial court erred in admitting over their objection evidence of obscene remarks allegedly made by the Simpsons immediately after the collision, and in refusing to instruct the jury in accordance with AMI 2203, aggravation of preexisting injuries. We affirm the judgment.

Danny Hurt testified that “Right after the wreck, I got out and both of them jumped out of the car, screaming and yelling. Mr. Simpson said, ‘Didn’t you see me coming, you mother f- — r,’ and she said it too, not just Mr. Simpson. She was jumping around, acting crazy. I got out of there and got my dad. I got my dad, had him come out there.” While Mr. Simpson denied using obscenities, he testified that this was the third accident he had been involved in, that he was tired of people running into him and he was “very upset” following the collision. He acknowledged apologizing before leaving the scene. Mrs. Simpson’s testimony was essentially the same.

The prejudicial import of the language attributed to the Simpsons is self-evident. However, we cannot say it is so lacking in relevance that the trial judge abused his discretion in receiving it. The Simpsons were claiming extensive injuries and their actions, demeanor and behavior immediately following the impact casts some light on their claims. The trial court has discretion in determining the relevance of evidence [Clawson v. Rye, 281 Ark. 8, 661 S.W.2d 354 (1983); Riegler v. Riegler, 262 Ark. 70, 553 S.W.2d 37 (1977)] and in gauging its probative value against unfair prejudice. A.R.E. Rule 403. While these remarks, if made, are plainly inflammatory, we are not prepared to adopt a rule which would effectively immunize litigants from the consequences of their own conduct when it is otherwise germane. A.R.E. Rule 803(1), (2), (3).

Secondly, the Simpsons maintain that, having been injured in previous collisions, they were entitled to AMI 2203, which told the jury it should consider “the full extent of any injury sustained, even though the degree of injury is found by you to have proximately resulted from the aggravation of a condition that already existed and that predisposed Michael Simpson (or Janetta Simpson) to injury to a greater extent than another person.” It was not obligatory on the trial court to give the instruction. Neither the Simpsons nor their medical experts testified that their present complaints were the result of an aggravation of earlier injuries. Dr. G. Morrison Henry treated Mrs. Simpson and related her symptoms to the accident with Hurt. (“I think the accident caused all of this.") Dr. Jon Harrol Dodson testified about Mr. Simpson’s injuries, i.e., “I felt this was a new injury, as opposed to a recurrence of the injury I had treated him for in the past.” And, elsewhere, “In my opinion, he had recovered completely from that prior accident and he had a new injury on that day.” (Our emphasis.) With respect to Mrs. Simpson, Dr. Dodson said, “In my opinion, she had a complete recovery from the prior accident at that time.”

The Simpsons rely entirely on a conjectural response by Dr. Dodson to a question by plaintiffs counsel, “Does a person who has had back injuries in the past, would that predispose them, or make them more susceptible to a back injury again?” To which the witness answered, “Yes, it can.” In view of the decisive medical testimony relating the entirety of the plaintiffs’ complaints to the current accident and the absence of any testimony from either Mr. or Mrs. Simpson suggesting aggravation as an issue, we hardly think it was compulsory on the trial court to give AMI 2203 based on the abstract response quoted above. In fact, when the instruction was being discussed in chambers, the court asked counsel directly if he wanted to claim preexisting condition. He answered, “I want to claim that this is a new injury, but that’s a possibility and there’s circumstantial evidence, since they are saying, ‘my back was injured in the same place,’ that their prior injury may have had some effect on this.”

We believe the instruction as given, including AMI 2202, telling the jury in fixing the amount of a recovery to consider the nature, extent, duration and permanency of any injury was sufficient under the proof. Baxter v. Grobmeyer Bros. Construc tion Co., 275 Ark. 400, 631 S.W.2d 265 (1982).

Affirmed.


author: Steele Hays, Justice. Hickman, J., and Glaze, J.,

text:
    James Michael STICKLEY v. STATE of Arkansas
    CR 87-134
    740 S.W.2d 616
    Supreme Court of Arkansas
    Opinion delivered December 7, 1987

      Hickman & Williams, P.A., by Lynn Williams, for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

James Michael Stickley brings this appeal from his conviction for the crime of aggravated robbery. As an habitual offender he was sentenced to fifty years, concurrent with three other sentences. The single point for reversal is that the trial court erred in denying his motion for a directed verdict for lack of corroboration of the testimony of an accomplice. We find sufficient other evidence connecting Stickley to the crime and, therefore, there was no error in denying the motion for a directed verdict.

Mr. James Massey testified that just after he and his wife had retired about 11:30 p.m. his dog began barking frantically. When he was unable to quiet the dog, he got up and turned on the light. At about that time the doorbell rang at the front door. He took a pistol with him and, without opening the door, asked who was there. The response was a neighbor needing to borrow gasoline. Massey went to his carport and the caller explained that he was out of gas. He asked if he could use the bathroom and Massey refused. Massey went back into the house to put on his shoes, locking the door behind him. When he returned to the carport no one was there, though he heard footsteps. Mr. Massey went back in the house and soon the caller knocked again, explaining that he had gone back to the car to search unsuccessfully for a container. Mr. Massey found a plastic vessel and poured gasoline into it from his lawnmower. The man left but returned shortly to say, “It’s me again,” explaining that he needed jumper cables to start the car. As Massey started to open the door the individual began pushing and stuck his arm inside pointing a pistol toward Massey. Massey managed to close the door, reached for his own pistol and fired six times through the door, striking the intruder twice. Stickley was later arrested at the hospital and was identified at trial as the individual Massey encountered that night.

Kenny Simmons was also charged with the crime. He testified that he met Mike Stickley on the night of the incident. They had driven around town in Mike’s car and then driven to Music Mountain Road, stopping near the Massey residence. Simmons said Stickley left for a few minutes, came back and poured gas into the tank, which was not empty. Simmons said Stickley told him, “This guy has a lot of money and we’re going to rob him.” Stickley took a pistol from the car and handed Simmons a pantyhose to use as a mask. Simmons testified that he refused to participate and began walking away. He heard three or four shots and saw Stickley running from the house. He tried to drive Stickley to the hospital, then took him to his sister’s house when they couldn’t find the hospital. He testified that he expected the charges against him to be dropped.

Appellant cites us to our recent holding in Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986). Trotter does not govern the decision here. The two cases are factually similar, but there are material differences. Trotter involved the corroboration of a confession, whereas, this case involves the corroboration of the testimony of an accomplice. The applicable statutes have different wording. In Trotter, the appellant and a companion entered Bob’s Grocery Store. Appellant fired a weapon, striking the store owner in the neck. Appellant then fired at another individual behind the counter but the gun misfired. Appellant placed the gun at that individual’s head and attempted to fire the weapon. When the gun failed to discharge appellant and his companion walked out of the store. Nothing was taken, but appellant’s confession revealed that he and his companion had discussed robbing Bob’s Grocery Store “to get some money.” On appeal appellant’s conviction of aggravated robbery was reduced to the lesser included offense of first degree battery. The opinion in Trotter points out that under Ark. Stat. Ann. § 41-2102 (Supp. 1985) a confession by the accused, unless made in open court, must be accompanied by “other proof that such an offense was committed.” Trotter’s confession was not made in open court and there was no other proof of robbery, hence, the robbery conviction could not stand.

In the case at hand we are dealing with Ark. Stat. Ann. § 43-2116 (Repl. 1977), which provides that a felony conviction cannot rest entirely on the testimony of an accomplice — it must be corroborated by “other evidence tending to connect the defendant with the commission of the offense.” (Our emphasis). The testimony of Kenny Simmons established robbery as the intended act and there was ample independent evidence connecting appellant to the commission of the offense. Williams v. State, 290 Ark. 449, 720S.W.2d 305 (1986);Bennett v. State, 284 Ark. 87, 679 S.W.2d 202 (1984).

This case invites comparison with Johnson v. State, 289 Ark. 589, 715 S.W.2d 441 (1986), where the appellant argued that his burglary conviction was based solely on the testimony of an accomplice. Appellant was arrested along with one Murie on the roof of a warehouse. An officer arriving at the scene said he saw an arm clad in denim reaching through an open window dropping articles into a dumpster. When arrested, Murie, and not the appellant, was wearing a denim jacket. We said, “The fact that the appellant was discovered on the roof of the warehouse with no apparent reason for being there other than to escape detection as a participant in a burglary is sufficient.”

The judgment is affirmed.

Hickman, J., and Glaze, J.,

concurring, stating they believe Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986) controlling and would take this opportunity to overrule it.


author: David Newbern, Justice.

text:
    Royzelle ACKERS v. STATE of Arkansas
    CR 87-136
    740 S.W.2d 620
    Supreme Court of Arkansas
    Opinion delivered December 7, 1987

      William R. Simpson, Jr., Public Defender, Deborah R. Sailings, Deputy Public Defender, by: Bret Qualls, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Royzelle Ackers, was convicted on September 30, 1985, of terroristic threatening, battery, and sexual abuse. He was sentenced as an habitual offender to consecutive sentences, the longest of which was eight years. No notice of appeal was filed, but the appellant petitioned this court for a belated appeal, contending that he had, on the day of his conviction, informed his counsel he wished to appeal but that his counsel had failed to perfect the appeal. The appellant’s counsel, John Achor, filed an affidavit to the contrary. We denied the petition but invited the appellant to apply to the trial court for a hearing to determine whether he had informed his counsel of his desire to appeal. In an unpublished per curiam opinion of October 20,1986, we noted that the appellant would be allowed to appeal from an adverse ruling. The hearing was held. The appeal before us now is from the trial court’s determination that the appellant did not request that his counsel perfect an appeal. We affirm the trial court’s ruling.

At the hearing held to determine whether the appellant had sought to have his counsel appeal his convictions, the appellant testified that he had told counsel he wanted to appeal just after sentence had been pronounced when he and his counsel were still in the courtroom in the presence of the judge. The appellant’s sister and niece testified that they were in the courtroom and heard the appellant state to his counsel that he wanted to appeal. While their testimony was a little vague, it corroborated that of the appellant. To the contrary, Mr. Achor testified clearly that he had advised the appellant against taking an appeal because if one of the convictions were reversed he might be reconvicted in a new trial and sentenced to more than eight years imprisonment. He testified that the appellant seemed satisfied with his sentences and that was the extent of their discussion of whether to appeal.

Letters from the appellant to Mr. Achor asking about the status of the appeal were introduced, but they were mailed after the time for appeal had run and after, as the appellant put it, he had “gotten his law” from a fellow inmate. The record contains an affidavit of indigency executed by the appellant on the date of his convictions, and he relies heavily on the argument that the affidavit was executed solely for the purpose of pursuing an appeal thus supporting his contention that he sought an appeal on that date.

The appellant has stated as his point for reversal that the evidence is insufficient to support the trial court’s decision that he did not ask his counsel, in a timely manner, to appeal his convictions. The appellant had the burden of proving that he had made the request. If the request had been made, it would have been the duty of counsel either to file a notice of appeal or withdraw from representation of the appellant. Lewis v. State, 279 Ark. 143, 649 S.W.2d 188 (1983). In view of the swearing match between Mr. Achor on the one hand, and the appellant and his relatives on the other, the evidence was sufficient to support a ruling either way. The issue is thus not whether the evidence was sufficient to support the court’s ruling. Rather, as in the case of review of other postconviction fact-finding hearings, our duty is to determine whether the trial court’s ruling was clearly against the preponderance of the evidence. See, e.g., Porter v. State, 264 Ark. 272, 570 S.W.2d 615 (1978); Huff v. State, 289 Ark. 404, 711 S.W.2d 801 (1986); Knappenberger v. State, 283 Ark. 210, 672 S.W.2d 54 (1984); Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980); Houston v. State, 263 Ark. 607, 566 S.W.2d 403 (1978); Degler v. State, 257 Ark. 388, 517 S.W.2d 515 (1974).

At the close of the hearing, the trial court ruled from the bench. He stated that the appellant had failed to sustain his burden of proving that he had made a timely request that his counsel appeal his convictions. The court pointed out that he often encouraged having an indigency affidavit executed by a convicted party to save the trouble and expense of bringing him back to court from the department of correction for that purpose. The appellant argues that the court seemed to be requiring proof of more than a mere request of counsel that an appeal be taken. He points to the court’s remark that “even if he said at that time I want to appeal” that would be “understandable” but that the appellant did not take the steps necessary to appeal. That remark does give us pause, because it flies in the face of the rule that requires counsel to file a notice of appeal or withdraw if such a request has been made. However, we must regard the remark as a mere aside, for the court had already stated clearly that the appellant had failed to meet the burden of proving he had made such a request. The ruling of the trial court was not clearly against the preponderance of the evidence.

Affirmed.


author: David Newbern, Justice. Tom Glaze, Justice,

text:
    Nadine BURKETT, Administratrix of the Estate of Ray Burkett, Deceased v. PPG INDUSTRIES, INC., et al.
    87-204
    740 S.W.2d 621
    Supreme Court of Arkansas
    Opinion delivered December 7, 1987
    [Rehearing denied January 13, 1988.]

      Mark B. Chadick, for appellant.

      Friday, Eldredge & Clark, by: Donald H. Bacon, for appellee Aetna Casualty and Surety Co., The Standard Fire Ins. Co.

      Lovett Law Firm, for appellee Parker Solvent Co., Inc.

      Anderson & Kilpatrick, by: Overton S. Anderson, for appellee PPG Industries, Inc.

      Eilbott, Smith, Eilbott, Humphries & Taylor, for appellee Diaz Refinery, Inc.
   David Newbern, Justice.

This is a wrongful death case. The appellant, Nadine Burkett, brought the action as administratrix of the estate of the decedent, Ray Burkett, who died February 14, 1983. Named as defendants were PPG Industries, Inc., Parker Solvents Company, Inc., and Diaz Refinery, Inc., which allegedly made and sold an industrial solvent the decedent used in his work as an employee in Central Malony Transformer, Inc. The complaint alleged that the decedent’s use of the solvent caused his death. Also named as defendants were Aetna Casualty and Surety Company and The Standard Fire Insurance Company. The insurance companies were allegedly liable because of their obligation to inspect the work premises pursuant to the agreement by which they provided workers’ compensation insurance coverage to Central Malony. Mrs. Burkett first filed the complaint in a United States District Court which dismissed it for lack of diversity of citizenship jurisdiction. She then filed the complaint in the Jefferson County Circuit Court on February 12, 1986. The complaint was dismissed as to all defendants because it was not timely. An additional ground of dismissal of the claim against the insurance companies was the court’s holding that they were immune from liability under our workers’ compensation law.

Two main issues are presented for our consideration. First, we must decide whether Ark. Stat. Ann. § 27-907 (Supp. 1985), which provides that an action must be brought within one year after nonsuit “without regard to the date of death of the person alleged to have been wrongfully killed,” means that the action must be brought within one year even if the otherwise applicable statute of limitations has not run. Second, we must decide whether the trial court was correct in holding that the workers’ compensation insurers may have no independent liability to a worker because of the immunity provisions of our workers’ compensation law.

We reverse the holding of the trial court that the action was untimely, as we find the legislative intent in creating the one-year-after-nonsuit provision in our wrongful death statute was not to shorten the limitations period in the event of a nonsuit. However, we affirm the trial court’s holding that the insurance companies are immune from suit, due to our workers’ compensation laws which identify the insurers with the employer who clearly is immune.

1. Limitation after nonsuit

For well over a century Arkansas law has provided that a plaintiff may bring an action within one year after suffering a nonsuit if the action was originally commenced within the period prescribed by the applicable statute of limitations. The current codification is found in Ark. Stat. Ann. § 37-222 (Supp. 1985). In Lubin v. Crittenden Memorial Hospital, 288 Ark. 370, 705 S.W.2d 872 (1986), we reviewed our long history of liberal construction of that statute and the numerous cases which have held that its purpose is not to shorten the applicable statute of limitations but to permit one who has originally commenced an action within the time prescribed to recommence it, having suffered nonsuit, although the limitations period may have run.

In Sugg v. Continental Oil Company, 270 Ark. 882, 608 S.W.2d 1 (1980), we held that § 37-222 was inapplicable where the action was one for wrongful death. Our holding was based upon Vines v. Arkansas Power & Light Company, 232 Ark. 173, 337 S.W.2d 722 (1960), and other cases where we have held that because a wrongful death action was unknown at common law, and the general assembly had creáted it with its own special statute of limitations, our “general savings statute,” § 37-222 was inapplicable. Our decision in the Sugg case was by a court divided four to three, and we issued what could be regarded as an invitation to the general assembly to remedy the seeming inequity caused by the disparity between plaintiffs who suffer nonsuits in common law actions and those who suffer nonsuits in actions for wrongful death. We said: “The rule enunciated in Vines has been the law in Arkansas for many years, and the legislature has not seen fit to amend the pertinent statutes to provide that the general tolling provision (§ 37-222) would apply, as urged by appellant, to this type of action. That case is controlling here. [270 Ark. at 884, 608 S.W.2d at 2].”

Apparently in response to our decision in the Sugg case, the general assembly amended our wrongful death statute. Prior to the amendment, the statute, which was Act 255 of 1957, provided, in part, in Section 2., that “Every action authorized by this act [§§ 27-906 through 27-910] shall be commenced within three [3] years after the death of the person alleged to have been wrongfully killed and not thereafter.” By Act 625 of 1981, the following sentence was added: “If a non-suit be suffered, such action shall be brought within one [1] year from the date of such non-suit without regard to the date of the death of the person alleged to have been wrongfully killed.” The emergency clause accompanying Act 625 was as follows:

It is hereby found and determined by the General Assembly of the State of Arkansas that the Supreme Court of the State of Arkansas announced in Sugg v. Continental Oil Co., 270 Ark. 882, 608 S.W.2nd 1 (1980) that the nonsuit statute, Sec. 21 Revised Statutes, Chapter 91, same being Ark. Stat. 37-222, shall not apply in an action for wrongful death where a non-suit is suffered more than three years after the death of the person allegedly to have been wrongfully killed, and this Act is needed in order to avoid unnecessary hardships in wrongful death actions and to avoid confusion to provide for the proper administration of justice. Therefore, an emergency is declared to exist and this Act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.

The appellees argue that the language of the statute is so clear that we need not, and should not, resort to consideration of legislative intent, citing our recent decision in Hinchey v. Thomasson, 292 Ark. 1, 727 S.W.2d 836 (1987). Their point is that by saying that unless action shall be brought within one year after suffering nonsuit “without regard to the date of the death of the person alleged to have been wrongfully killed” the general assembly has effectively shortened the limitations period for one who has suffered a nonsuit. In other words, even though there may be time remaining in the applicable statute of limitations period, as in the case before us, when the nonsuited action is recommenced, it must be dismissed if not recommenced within one year of suffering nonsuit.

In our view, the statute is not as unambiguous as the appellees contend. When it added the nonsuit provision to § 27-907, the general assembly was speaking in the context of the preceding sentence which says, “Every action authorized by this Act shall be commenced within three (3) years after the death of the person alleged to have been wrongfully killed.” By stating that a claim must be refiled within a year of suffering nonsuit regardless of the “date of death of the person alleged to have been wrongfully killed,” the general assembly may or may not have meant “regardless of date of death as a predicate for applying the statute of limitations.” In other words, it may or may not have meant “the claim shall be refilled within one year of suffering nonsuit even if the statutory limitation period has run.” In our view, the statute would have been less ambiguous had it simply said, “the claim as to which a nonsuit has been suffered shall be brought within one year of the date of the nonsuit.” By referring to the date of death of the decedent, the language suggests there may be some reason for thinking that an action may not be brought at some specific time after the death. There is, and it is the period set in the preceding three-year limitation language. We can think of no reason for the reference to the date of death in this sentence other than to make reference to the statute of limitations. Again, the general assembly thus possibly was saying that, regardless of the fact that the statute of limitations has run, a party who has suffered a nonsuit has one year to recommence the action. This possibility becomes the obvious when we look beyond the language of the act to its history and the emergency clause which accompanied it.

In Steele v. Murphy, 279 Ark. 235, 650 S.W.2d 573 (1983), we considered whether a statute which, by its literal terms, applied only to oral leases would apply also to tenancies from year to year. In response to the argument that the statute limited its applicability to oral leases only, we said:

We decline to give such a limited interpretation to the statute because the literal interpretation does not give effect to the legislative intent. It is the duty of this Court to give effect to the intent of the General Assembly, even though the true intention, though obvious, has not been expressed by the language employed when given its literal meaning. Berry v. Gordon, 237 Ark. 547, 376 S.W.2d 279 (1964). We conclude that a proper construction of the act renders it applicable to tenancies from year to year. [279 Ark. at 238, 650 S.W.2d at 575]

While we could have said the language was clear and limiting, we refused to do so because it would have subverted a legislative intent which was less obvious than the legislative intent glaring at us in this case.

We hold that § 27-907 does not preclude a party who has commenced a wrongful death action within three years of the date of death, and who has suffered a nonsuit of that action, from recommencing it more than one year after the date of the nonsuit but within three years from the date of death.

2. The insurers’ immunity

We agree with the trial court’s dismissal of the claim against the insurers who had already paid workers’ compensation benefits with respect to this claim. Whether an insurer who has agreed to inspect the work premises as a part of the contract by which it provides workers’ compensation coverage to an employer may have independent liability to an employee who is injured in the workplace is a question of first impression in this court. However, the United States Court of Appeals for the Eighth Circuit has considered the matter and has predicted, with great accuracy as it turns out, our holding. In Kifer v. Liberty Mutual Insurance Company, 777 F.2d 1325 (8th Cir. 1985), an injured employee sued the carrier of his employer’s workers’ compensation insurance claiming that it had independent liability to him for a workplace injury caused by its failure to inspect the premises and warn him of danger. The court made an exhaustive study of the law with respect to whether a workers’ compensation act such as ours precludes such liability, and found that it did.

We agree with the opinion in the Kifer case, particularly with that portion of it which concludes that Ark. Stat. Ann. §81-1340 (Repl. 1976), in addressing the matter of “third party liability” to an injured worker, shows the intent of the general assembly to have been to preclude the insurer from independent liability. We quote from the opinion:

The language in subsection (a)(2) of section 81-1340 implies that the extent of a carrier’s liability for injuries covered by the Act is limited to the payment of workers’ compensation benefits. That subsection establishes a formula by which the proceeds of any recovery from the “third party” are distributed. After deducting “reasonable attorney’s fees and one-third of the remainder for the injured employee,” the subsection provides for the distribution of “the remainder, or so much thereof as is necessary to discharge the actual amount of the liability of the employer and the carrier . . . .” (emphasis added) The reference to the phrase “actual amount of the liability of the. . . carrier” suggests a legislative intent to limit the carrier’s liability to the payment of workers’ compensation benefits.
Language by the Arkansas Supreme Court in Neal v. Oliver, 246 Ark. 377, 438 S.W.2d 313 (1969) lends additional support for this construction of section 81-1340(a)(1). Although Neal did not involve a workers’ compensation insurance carrier as the defendant, the language employed by the court seems applicable to the facts of the present case.
The term “third party” is not defined in the act and the first and second parties are not even mentioned, but from the language employed in the context it is used in § 1340(a) . . .“third party” can only mean some person or entity other than the first and second parties involved, and the first and second parties can only mean the injured employee and the employer or one liable under the compensation act.
Id. at 380, 438 S.W.2d at 315 (emphasis added). The court’s reference to “one liable under the compensation act” can only mean a workers’ compensation insurance carrier. The carrier is the only other party mentioned in section 81-1340 who is equated with the employer and who is liable for the payment of compensation. Neal represents the closest approach of the Arkansas Supreme Court to the issue presented in this case.
We note also that Professor Arthur Larson, who is generally regarded as the leading academic authority on workers’ compensation statutes, has reached a similar conclusion in regard to the issue of carrier immunity under the Arkansas Act. In his treatise, Professor Larson includes the Arkansas Act within the category of statutes “that, while not expressly identifying the carrier with the employer [for purposes of immunity], employ language containing a strong implication to [that] effect.” 2A A. Larson, The Law of Workmen’s Compensation § 72.93, at 14-290 to -291 (1983). Professor Larson cross-references to Horne for the proposition that under the Arkansas Act a workers’ compensation carrier is immune from tort actions brought by the injured employee. His treatment of Arkansas law on this point is summed up with a citation to Horne and the statement: “Carrier held immune under the wording of the Arkansas third-party provision, in which the words ‘employer or carrier’ are closely followed by ‘any third party,’ thus identifying the employer and carrier in third-party situations, and disassociating the carrier from ‘any third party.’ ” Id. at § 72.91, at 14-273 n. 29. [777 F.2d at 1333-1334]

We hold that a workers’ compensation insurance carrier has the same immunity from suit by an injured employee as is provided the employer by Ark. Stat. Ann. § 81-1304 (Supp. 1985).

The dismissal of the action against PPG Industries, Inc., Parker Solvents Company, Inc., and Diaz Refinery, Inc., is reversed, and the dismissal of the action against Aetna Casualty and Surety Company and The Standard Fire Insurance Company is affirmed.

Affirmed in part, reversed in part, and remanded.

Hickman, Hays, and Glaze, JJ., dissent.

Tom Glaze, Justice,

dissenting. While the majority decision may speak well of the equities in permitting the appellant to file this wrongful death action, it is not supported by the law.

It is elementary to say that Arkansas courts follow the prevailing rule that where a cause of action does not exist at common law, but is created by the statutes of a state, it exists only in the manner and form and for the length of time prescribed by the statute of the state which created it. See Smith v. Missouri-Pacific R. R. Co., 175 Ark. 626, 1 S.W.2d 48 (1927). The court in Smith, quoting from Ernest v. St. Louis, Memphis & S. E. Ry. Co., 87 Ark. 65, 112 S.W. 141 (1908), said:

[W]e conclude that it is now well settled that, where a statutory right of action is given which did not exist at common law, and the statute giving the right also fixes the time within which the right may be enforced, the time so fixed becomes a limitation or condition upon the right of action, and will control, no matter in what forum the action is brought.

Here, the applicable statute is Ark. Stat. Ann. § 27-907 (Supp. 1985), as amended by Act 625 of 1981, which provides:

Every such action shall be brought by and in the name of the personal representative of such deceased person, and if no personal representative, then same shall be brought by the heirs at law of such deceased person. Every such action authorized by this act, shall be commenced within three (3) years after the death of the person alleged to have been wrongfully killed. If a nonsuit be suffered, such action shall be brought within one year from the date of such non-suit without regard to the date of death ofsuch person alleged to have been wrongfully killed.

As can be readily discerned, the final sentence in § 27-907 establishes the limitation period following a nonsuit and does so in unambiguous language. Simply put, § 27-907 provides that a wrongful death action must be commenced within three years after the person’s death; however, if that action is nonsuited, such action must be filed within one year from the date of the nonsuit — without regard to the date of the person’s death.

Now, the majority holds § 27-907 does not mean what it says. Instead, the majority’s interpretation of § 27-907 changes the final sentence of that statute, in effect, to read:

If a nonsuit be suffered, such [wrongful death] action must be filed within one year from the date of the nonsuit without regard to the date of the person’s death, except such action may be recommenced more than one year after the date of nonsuit if the action is brought within three years from the date of death.

In adding the above language by judicial fiat to meet its interpretation of § 27-907, the majority ignores the longstanding rules on construction of statutes enacted in derogation of common .law, and, in particular, as these rules apply to limitation provisions. Smith v. Missouri-Pacific R. R. Co., 175 Ark. 626, 1 S.W.2d 48. Because of the decedent’s unfortunate death, a natural tendency exists to provide an extension of the limitation to permit the filing of appellant’s case. While I am personally sympathetic with the appellant’s request to permit her filing this action, I believe the majority is wrong in doing so and its construction of § 27-907 to lengthen the limitations runs counter to settled law.

My view of how this court is supposed to construe and interpret our wrongful death law and applicable limitation provisions is based upon the court’s previous holdings in Vines v. Arkansas Power & Light Company, 232 Ark. 173, 337 S.W.2d 722 (1960) and Sugg v. Continental Oil Company, 270 Ark. 882, 608 S.W.2d 1 (1980). The majority cites these cases but refuses to apply the underlying principles to the case at hand; instead the majority suggests the special limitation statute, § 27-907, is somehow ambiguous and then proceeds, contrary to applicable rules of construction, to engraft a meaning to that statute which is not supported in any fashion by the provision’s expressed terms. Although such a construction has been held proper when considering a general savings statute and a general statute of limitation, see Shelton v. Jack, 239 Ark. 875, 395 S.W.2d 9 (1965), the court has not authorized such a construction when considering the wrongful death statute, which, as noted earlier, is in derogation of common law.

This case involves a legal issue that should be addressed by the Arkansas General Assembly. The majority, in my opinion, commits error by giving meaning to § 27-907 which cannot be supported, either directly or impliedly, by its statutory terms.

Hickman and Hays, JJ., join in this dissent.


author: David Newbern, Justice. John I. Purtle, Justice,

text:
    Vance MARTIN, et al. v. Luke QUINN, et al.
    87-210
    740 S.W.2d 627
    Supreme Court of Arkansas
    Opinion delivered December 7, 1987
    [Rehearing denied January 13, 1988.]

      Dan J. Kroha, for appellant.

      Wright, Lindsey & Jennings, for appellees Luke Quinn, Vail Paschal, and Al Garms.

      Mark Stodola, City Att’y, by: Thomas M. Carpenter, Asst. City Att’y, for appellee City of Little Rock.

      Glaze, J., not participating.

   David Newbern, Justice.

This case began when the appellants petitioned the Board of Directors of the City of Little Rock, pursuant to Ark. Stat. Ann. § 20-116 (Repl. 1968), to remove the appellees from their positions as commissioners of Sewer Improvement District #142. The city board declined to remove the commissioners, and the appellants sought a writ of certiorari in circuit court to compel removal. The circuit court, after ordering up and reviewing the record, summarily denied the relief sought, and the appeal is from that denial. As the appellants have not shown that the city board’s action was arbitrary, capricious, or void, we affirm the circuit court’s decision.

The appellants, Vance Martin, Joe P. DeWitt, Mack Porter, •Rachel Steinhardt, and Rhea Denison, petitioned to have appellees, Luke Quinn, Vail Paschal, and A1 Garms, removed from their positions as commissioners of Sewer Improvement District #142. The allegations were that these commissioners had failed to file financial statements required by law during the first seven years of the district’s existence. It was also alleged that Paschal had improperly benefited because his wife had been paid $270 for work done in an annexation campaign undertaken by the district.

The city board appointed a master, Wayne Lee, who was an attorney, to hold a hearing and present the board with legal and factual conclusions and recommendations for action to be taken. The master held an extensive hearing in which evidence was presented that the financial statements were not filed as required. Evidence presented by the appellees was to the effect that they were being advised by counsel whose understanding was that no financial statements would be necessary until the district began receiving payments from assessments, and that upon being told by the city attorney that the financial statements were necessary, they filed them within two days.

The additional evidence with respect to Mr. Quinn was that after a previously appointed coordinator of the annexation campaign failed to perform sufficiently, he inquired whether it would be proper for a member of the real estate firm of which he was a principal, Barnes, Quinn, Flake, and Anderson, to undertake the task. He was told by counsel that it would not be improper as long as he, Quinn, obtained no benefit from the transaction. He testified that he instructed the firm’s controller that he was to receive no money paid to the firm by the district.

As to Mrs. Paschal, the evidence was that she was paid the $270 for her help in getting signatures on petitions for the voluntary annexation campaign being waged by the district. Some evidence showed that it was to reimburse her for her expenses incurred in the effort. The appellants contended this payment should cause the removal of her husband as a commissioner.

The master recommended that the city board not remove the appellees. He concluded that there was no cause to do so, as he found no willful misconduct on their part as commissioners. Although the abstract presented by the appellants does not contain the resolution or other action taken by the city board upon the report of the master, the parties agree that the city board adopted the master’s report.

The appellants contend that because there was cause to remove the commissioners it was error for the city board to fail to do so, and it was error for the circuit court not to order the removal pursuant to the requested writ of certiorari.

1. Certiorari

Section 20-116 provides that the city board “shall have the power to remove” the commissioners of a municipal improvement district for cause. The appellants present no authority to the effect that the court may substitute its judgment for that of the city board as to whether the “cause” is sufficient for removal.

Certiorari may be the basis for a court’s determination that the action of an administrative board is void, Warren v. McRae, 165 Ark. 436, 264 S.W. 940 (1924); however, there is no such argument made here. Rather, the appellants contend the city board erred “as a matter of law” in concluding that the evidence against the appellees did not demonstrate “sufficient cause” for their removal. They say that because the evidence showed the failure to file the financial reports in a timely manner the city board was required to remove them. No authority for that proposition is presented. The same is true with respect to the other allegations against the commissioners individually.

The appellants cite Boullioun v. City of Little Rock, 176 Ark. 489, 3 S.W.2d 334 (1928), but that case is one in which we affirmed a holding that removed improvement district commissioners for failure to file financial statements, among other things. Nothing in that case suggests that the city board, in that case or this one, was required to remove the commissioners.

In reviewing the city board’s action, the circuit court was not required to conduct a de novo review. The circuit court reviews the record for errors of law and for the legal sufficiency of the evidence to support the action of the board. Fulmer v. Holcomb, 261 Ark. 580, 550 S.W.2d 442 (1977); Martin v. Cogbill, 214 Ark. 818, 218 S. W.2d 728 (1949). In Piggott State Bank v. State Banking Board, 242 Ark. 828, 416 S.W.2d 291 (1967), we dealt with an appeal from a circuit court’s refusal to set aside a decision of the State Banking Board upon a petition for certiorari. We said:

It is not the function of this court, on appeal from a circuit court, to determine where the preponderance of the evidence lies. Decisions in cases appealed from chancery courts, in which our trial is de novo, do not constitute authority on this question. Moreover, certiorari lies only for the purpose of review for errors of law, one of which may be the legal sufficiency of the evidence to sustain the judgment of the tribunal, but a court cannot review merely for errors of judgment or try the matter de novo. Hall v. Bledsoe, 126 Ark. 125, 189 S.W. 1041 [1916]; Veteran’s Taxicab Co. v. City of Ft. Smith, 213 Ark. 687, 212 S.W.2d 341 [1948]; McCain v. Collins, 204 Ark. 521, 164 S.W.2d 448 [1942]. It has been said that a board’s action will not be set aside on certiorari unless there is an entire absence of substantial evidence, in which case the board action is deemed to be arbitrary. Bockman v. Arkansas State Medical Board, 229 Ark. 143, 313 S.W.2d 826 [1958]. [242 Ark. at 837, 416 S.W.2d at 297]

In State v. Nelson, 246 Ark. 210, 438 S.W.2d 33 (1969), we pointed out that certiorari “. . . is not available to look beyond the face of the record to ascertain the actual merits of a controversy, to control discretion, to review a finding upon facts or review the exercise of a court’s discretionary authority. Hardin v. Norsworthy, 204 Ark. 943, 165 S.W.2d 609 [1942]; Arkansas State Highway Commission v. Light, 235 Ark. 808, 363 S.W.2d 134 [1962]; Hendricks v. Parker, 237 Ark. 656, 375 S.W.2d 811 [1964].”

2. The master’s opinion

While it is not directly argued by the appellants, their brief, by innuendo at least, suggests that because the master found at one point that no cause for removal of the appellees had been shown, it was error for the circuit court to refuse the relief requested in view of the fact that there clearly was cause for removal, and the city board merely adopted the master’s report. The point to be made here is that no authority has been cited by the appellants which would support their point, and while we might have sustained the court’s action had it approved the removal of the commissioners upon the evidence presented here, that hardly requires either the circuit court or this court to substitute its judgment for that of the city board.

Affirmed.

Purtle, J., dissents.

Glaze, J., not participating.

John I. Purtle, Justice,

dissenting. The commissioners should have been removed and the majority opinion does not hold to the contrary. The special master, appointed by the city, was in cahoots with the city attorney and returned the recommendation expected of him. The hearings conducted by him and the conclusions he reached were obviously biased.

The law clearly required the three commissioners to make annual accountings of the funds entrusted to them. They did not do this for six years. After being challenged they came up with reports for each year within a matter of a couple of days. If such reports were so easy to come by, one would expect that the commissioners would have presented them in the earlier years. During the time the annual reports were not made the commissioners spent as much as $800,000 in a single year.

One of the commissioners was a member of a firm which received benefits from the district. Contracts with such a firm are no more permissible than if the contracts had been made with an individual commissioner. This commissioner must have winked when he told his secretary not to include any of the income from the district in his salary or bonus. This secretary testified that funds were received from the district but that none of these funds. was used to pay the commissioner’s salary or bonus even though his pay remained at the same level of that of his associates in the firm. If he didn’t receive the money, some other member did. Likewise the wife of another commissioner received reimbursement for expenses. If she had not received the reimbursement, either she or the commissioner would have been out the money. Any way you look at it, the commissioners’ actions appear improper and unethical, if not illegal.

The majority opinion makes it clear that this court would have affirmed the action of the city board of directors had it removed these commissioners from office. This action was taken in Boullioun v. City of Little Rock, 176 Ark. 489, 3 S.W.2d 334 (1928), and this court affirmed the action removing the commissioners from office. I would give the board of directors another opportunity to consider the matter now that the facts are known. It is true that the removal of such officers is within the discretion of the city board of directors. However, if the facts as developed in the hearing before the circuit court had been known to the board, I am confident that the directors would have removed the commissioners. I would like to add that there is no evidence that Commissioner Garms acted with any impropriety except for the failure of the commission as a whole to make proper financial reports as required by law.

I would remand the case to the board of directors for reconsideration of the matter of the removal of the commissioners of this district after review of all pertinent facts and law.