author: R OBERT L. BROWN, Justice. THORNTON, J., dissents. J IM Hannah, Justice,

text:
    David LAIME and Jeanna Dodd v. STATE of Arkansas
    CR 01-559
    60 S.W.3d 464
    Supreme Court of Arkansas
    Opinion delivered December 6, 2001

      Wilson & Associates, P.L.L.C., by: Patrick J. Benca, for appellant David Laime.

      Jeff Rosenzweig, for appellant Jeanna Dodd.

      Mark Pryor, Att’y Gen., by: Misty Wilson Borkowski, Ass’t Att’y Gen., for appellee.
   R OBERT L. BROWN, Justice.

The appellants in this case, .David Laime and Jeanna Dodd, appeal from an order denying their motion to suppress drug evidence and statements. They raise seven points on appeal: (1) the state trooper lacked probable cause to make the initial stop of their vehicle; (2) the state trooper had no reasonable suspicion to detain them after proof of the vehicle’s registration was provided; (3) invocation of one’s constitutional rights cannot be grounds for probable cause; (4) the affidavit for search warrant omitted facts regarding the drug dog’s reliability which caused a Franks v. Delaware violation; (5) the drug dog’s “alert” on the vehicle did not constitute probable cause to search; (6) the search warrant was objectively unreasonable in stating that an invocation of constitutional rights provided probable cause; and (7) there was no proper basis for a nighttime search. We affirm the circuit judge’s order denying the motion to suppress and reverse the decision by our court of appeals. See Laime v. State, 73 Ark. App. 377, 43 S.W.3d 216 (2001).

The facts given in this case are taken from Arkansas State Trooper David Ramsey’s affidavit supporting the search warrant and probable cause for arrest as well as his testimony at the suppression hearing. We note initially that the affidavit and the testimony vary in certain important respects, which we will note in this opinion. At approximately 5:45 p.m. on July 28, 1998, Trooper Ramsey was patrolling Interstate 30 between Benton and Little Rock in a marked patrol unit. He observed a green 1986 Dodge van in the left-hand lane. The van was in the process of slowly passing two tractor-trailer trucks. Although the van was driving in the left lane of a double-lane stretch of 1-30 with a 70 mile-per-hour speed limit, it was traveling at a speed of approximately 60 miles per hour. Two cars separated the trooper’s patrol car from the van.

Trooper Ramsey believed that the van was hindering traffic and that the driver of the van was driving in violation of Arkansas’s left-lane law. See Ark. Code Ann. § 27-51-301 (b) (Supp. 2001). When the van cleared the trucks, it pulled into the right-hand lane. According to the trooper’s testimony, although the van was no longer in violation of any traffic law, he decided to pursue the left-lane violation. He pulled his patrol car behind the van and noted its Texas license plate number. He called the license plate number in to a state police operator to determine the validity of its registration, and the result of the call was that the van was not registered in Texas.

At this point, Trooper Ramsey pulled the van over to the side of the interstate to investigate its lack of registration. The trooper approached the driver of the van, David Laime, and requested to see his driver’s license. Laime produced a Virginia identification card in his name. Trooper Ramsey asked Laime if he had a driver’s license; he also asked whether the van belonged to Laime in light of the fact that its plates were from Texas and Laime’s identification was from Virginia. Laime replied that the van did not belong, to him but belonged to a friend and that he was driving to Little Rock to meet several people who were giving him a ride to Washington, D.C. Laime then referred to his passenger, who was later identified as Jeanna Dodd, and told the trooper that his passenger was planning to drive the van back to Texas after she dropped Laime off in Little Rock. Laime also told the trooper that he and Dodd were planning to meet some friends at a Little Rock restaurant for dinner at 6:00 p.m., and that it was these people who were then going to take him to Washington, D.C. At some point during this interchange, Laime produced a Virginia driver’s license.

Trooper Ramsey next asked about the van’s registration and insurance. Laime offered.the trooper proof of insurance, but the proof showed that the vehicle insured was a Subaru, not a Dodge van. After receiving this information, Trooper Ramsey returned to his patrol car and ran the Texas license plate number through the law enforcement database a second time. Again, he received information that the van was not registered in Texas. According to his affidavit for probable cause, at this time he requested a criminal history search on Laime. According to his affidavit for a search warrant and subsequent testimony, the request occurred later. The trooper returned to the van and asked Laime to accompany him to his patrol car to answer some questions. Laime agreed. Laime then offered Trooper Ramsey the registration documents for the van. These documents showed that the van was registered to Jeanna Dodd in Houston, Texas. At that point, Trooper Ramsey still did not know that Jeanna Dodd was the name of Laime’s passenger. The registration had been issued that very day at approximately 12:30 p.m., in Houston, Texas. Trooper Ramsey testified at the suppression hearing that because of this information, his suspicions about the van’s registration were dispelled. He wrote Laime a warning ticket for “license not on file.” After the warning ticket, he ran the criminal history check on Laime, according to his affidavit for a search warrant. Hours later, back at the Bryant police station, he added an additional warning on the ticket for “impeding the flow of traffic.”

During the interchange in the patrol car after Laime had submitted the van’s valid registration, Laime asked several times why he was being stopped and detained. Trooper Ramsey testified at the suppression hearing that he tried to answer Laime’s questions, but that “before I could get a chance to answer it he’d done fired up about four more.” Laime told the trooper that he needed to get to Little Rock as soon as possible because his friends would not wait for him to arrive. He added that if he did not meet the friends for dinner, they would leave him and he would miss his ride to Washington, D.C. Trooper Ramsey asked Laime the names of his friends and at which restaurant he was meeting the friends. Laime responded that he could not remember either, but that his passenger knew. Laime then told Trooper Ramsey that his passenger was his sister. According to Trooper Ramsey’s testimony on cross-examination at the suppression hearing, his suspicions were aroused solely on the basis of the above-stated facts, and he had at this point made up his mind to search the van. The trooper made no comparable statement in his affidavits or on direct examination.

Trooper Ramsey next testified at the suppression hearing that he asked Laime to remain in the patrol car while he checked with his passenger in the van about the dinner arrangements. Whether this conversation ever took place is a matter of factual dispute in this case. In reviewing Trooper Ramsey’s two affidavits (one for the search warrant and the second for probable cause to arrest), no mention is made of this conversation. At that time, Dodd told the trooper that she and Laime were driving up from Texas to meet some friends, and that these friends were going to give him a ride to Washington, D.C. She told Ramsey that she and Laime were planning on meeting the friends for dinner and then she was taking the van back to Texas. She confirmed Laime’s statement that she was his sister. However, she could not remember the name of the restaurant where they were to meet their friends or the names of the friends, but she said that Laime knew. According to Trooper Ramsey’s testimony at the suppression hearing, he did not yet know Dodd’s name even after this exchange.

Trooper Ramsey testified that now he was suspicious of Laime and Dodd because their stories were vague and were “kind of falling apart.” He added that he was concerned because neither of the subjects could remember the name of the restaurant at which they were planning to meet the friends or the friends’ names, but each said the other knew those names. The trooper said he was also concerned because they were driving a van that belonged to a friend.

The trooper returned to his patrol car, where Laime was still seated. It was then that he ran a criminal history check on Laime, according to his testimony at the suppression hearing. The results showed that Laime had a drug arrest in Florida and a drug charge in Virginia. The trooper next asked Laime if he had “ever been arrested before.” Laime replied that he had had a speeding ticket or some kind of traffic offense several years ago but that he could not remember what it was for. Trooper Ramsey next asked Laime: “You’re not one of them guys. . . carrying dope down the highway or anything . . . ?” The trooper also asked Laime if he had any “guns or dead bodies or stuff” in the van. Laime grew increasingly irritated during this exchange and repeatedly asserted that he needed to get back on the road to meet his friends. Trooper Ramsey described Laime’s behavior as irate, “bad combative,” and hostile, and noted that he was gesturing wildly and that his body language suggested that he was angry.

Because of this, the trooper called for backup. After this call, Trooper Ramsey asked Laime if he could search the vehicle. Laime vigorously objected to this. The trooper described what happened next at the suppression hearing:

He starts in that I was beginning to violate his constitutional rights. That he’s a law student and he knows right from wrong and that I was detaining him from getting to Little Rock by 6:00. By now I had the consent to search form out and I asked him did he know what this was. He said, “You’re not going to look.” I said, “Well, just let me explain this thing a minute.” I started filling out the top part and he said, “You’re not going to look.” I tried to read the top part up there and fill in the dates and times and things like that on there. He’s just telling me I’m not going to look.

After this exchange, Laime’s demeanor deteriorated further, according to the trooper. He repeated: “You’re violating my constitutional rights and I demand you let me go.” Laime repeated that he was a law student and threatened civil litigation.

Trooper Ramsey went back to the van to talk to Dodd about getting her consent to search the van. He asked Dodd for identification. At this point, according to his testimony, he learned her name for the first time. He asked her why she had stated that the van belonged to a friend when it was registered in her name. He also asked her if she would consent to a search of the van, to which she replied that she did not have time for a search because of the dinner engagement. She denied having any contraband in the van. Trooper Ramsey further noted at the suppression hearing that Dodd was eating potato chips during this conversation, which he believed was inconsistent with her contention that she was on her way to a Little Rock restaurant for dinner.

Trooper Ramsey returned to the patrol car, where Laime was still sitting, and told Laime that he wanted to run his drug dog, Moose, around the van. At this point, Laime “went ballistic,” according to Trooper Ramsey. He insisted that he either be arrested or be released, and the trooper responded that Laime was not under arrest and was free to go. Laime immediately got out of the patrol car and hurriedly walked toward the van. Before Laime could reach the van, Trooper Ramsey stopped him and informed him that while he was free to go, he could not take the van with him because he planned on running the drug dog around it. Trooper Ramsey recalled his specific words: “Y’all are free to leave. You can go. You can walk. You can run. You can crawl, just get out of here.” However, the trooper would not let them within 20 feet of the van for fear that the drug dog would bite them. This entire time, according to the trooper, Laime was repeatedly and boisterously asserting his constitutional rights, telling the trooper that he had no right to detain them, and that “this is America.”

Three troopers then arrived as backup. At that time, Trooper Ramsey began running the drug dog, Moose, around the van. He testified at the suppression hearing that Moose was trained to respond to marijuana, cocaine, heroin, and methamphetamine. Moose “alerted” on the van four times, indicating the presence of illegal drugs. Trooper Ramsey informed Laime that Moose’s behavior showed there were illegal drugs in the van, and that the troopers were going to search the van. One of the newly-arrived troopers escorted Laime to a patrol car and held him there while the other troopers searched the contents of the van.

During this search, the troopers found a small loose amount of brownish-green vegetable matter that they suspected was marijuana in the bottom of a pouch on the back of the driver’s seat. The state crime laboratory later weighed the amount as .1 gram. They also found a marijuana seed in the pocket of the driver’s side door. At this point, the troopers arrested Dodd and Laime for possession of a controlled substance.

The search of the van continued, and the troopers found a shotgun case containing about twenty blown glass pipes or bongs. Trooper Ramsey noted that they were new and still had price tags on them. The bongs did not appear to have been used to smoke marijuana. The troopers also found two locked safes, a large one and a small one. They pulled these safes out of the van and onto the side of the road. After Dodd refused to open the safes, Trooper Ramsey had the drug dog react to the safes. Moose alerted on both safes.

The troopers decided to place the safes back in the van and obtain a search warrant for them. During the course of placing the smaller safe into the van, the safe slipped accidentally and broke open on the road. Despite the drug dog’s previous alert on the broken safe, there was nothing in the safe.

The troopers took Dodd and Laime to the Bryant police station and had the van towed there. Trooper Ramsey swore out an affidavit for a search warrant for the second safe in the van and took it to the Bryant municipal judge’s home. The judge signed the search warrant, and it was executed shortly before midnight that night on the safe in the van at the Bryant police station.

When the troopers searched the safe, they found several sheets of paper which were perforated. The sheets of paper contained a large number of doses of LSD, as indicated by a field chemical test the troopers performed on the paper. The troopers also found a film canister which contained what they believed to be cocaine residue and a leather pouch which contained a few marijuana seeds. The troopers further found some glass pipes containing marijuana residue.

On August 6, 1998, Laime and Dodd were charged by criminal information with the offenses of possession of LSD with intent to deliver, possession of drug paraphernalia, possession of cocaine, and possession of marijuana. They subsequently moved to suppress the physical evidence seized during the roadside search and the search of the safe which occurred at the Bryant police station. The motion also included a request for suppression of any statements made by them during the course of their contact with the state troopers. An amended criminal information eliminated the cocaine charge but added that Laime had a prior criminal conviction for illegal drug possession and was subject to enhanced sentencing under Ark. Code Ann. § 5-64-408 (Repl. 1997).

On May 5, 1999, the circuit judge held a hearing on the motion to suppress. The judge heard testimony from Trooper Ramsey and Trooper James Kelloms. On February 2, 2000, the circuit judge entered an order denying the motion to suppress. Laime and Dodd then entered conditional pleas of guilty, reserving their right to appeal the non-suppression order under Ark. R. Crim. P. 24.3(b). Laime was sentenced to ten years in prison. Dodd was sentenced to four months in prison and eight years probation.

I. Standard of Review

Laime and Dodd argue multiple grounds for reversal, as previously set out in this opinion. In most respects, their points for reversal overlap. We begin by noting the standard of review, which is critical to this case. In reviewing a ruling denying a defendant’s motion to suppress, we make an independent determination based on the totality of the circumstances and view the evidence in the light most favorable to the State. We reverse only if the trial court’s ruling is clearly against the preponderance of the evidence. Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997); Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997). When we grant a petition to review a decision of the court of appeals, we treat the matter as if the appeal had been originally filed in this court. Thompson v. State, 333 Ark. 92, 966 S.W.2d 901 (1998); Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998). This court defers to the trial court in assessing witness credibility. E.g, Rankin v. State, 338 Ark. 723, 1 S.W.3d 14 (1999); Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998); Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998).

II. Traffic Stop

For their first point, Laime and Dodd contend that Trooper Ramsey did not have probable cause to make the initial stop of the van. They assert that the left-lane law, Ark. Code. Ann. § 27-51-301(b) (Supp. 2001), which they were allegedly violating, is unconstitutionally vague and that Trooper Ramsey only stopped their van as a pretext to search it. The State counters that under the standard established by this court in Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998), Trooper Ramsey had more than sufficient probable cause to make the traffic stop.

We need not reach Laime’s and Dodd’s pretextual argument or their vagueness argument regarding § 27-51-301 (b), because we conclude that the trooper’s information about lack of a valid Texas registration for the van gave him probable cause to make a valid stop. It is true that in order for a police officer to make a traffic stop, he must have probable cause to believe that the vehicle has violated a traffic law. Travis v. State, supra. Probable cause is defined as facts or circumstances within a police officer’s knowledge that are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected. Burris v. State, supra; Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994). In assessing the existence of probable cause, our review is liberal rather than strict. Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997). Whether a police officer has probable cause to make a traffic stop does not depend on whether the driver was actually guilty of the violation which the officer believed to have occurred. Travis v. State, supra. See also Barrientos v. State, 72 Ark. App. 376, 39 S.W.3d 17 (2001).

In Travis v. State, supra, we held that what appeared to be illegality regarding a license plate without expiration tags gave a police officer probable cause to stop that vehicle and investigate the circumstances. This was so even though a Texas license plate was involved, and Texas had no requirement that expiration tags be on the license plate. Our holding in Travis comports with our other cases involving license plates and probable cause to stop. See, e.g., Burris v. State, supra (holding that probable cause to stop existed when trailer’s license plate was illegally fastened and was flapping in the wind and taillight cover was broken); Wilburn v. State, 317 Ark. 73, 876 S.W.2d 555 (1994) (holding that a police officer had probable cause to stop a motorist when he discovered that the vehicle bore a license plate which was issued to a different car in violation of state law). See also Wimbley v. State, 68 Ark. App. 56, 3 S.W.3d 709 (1999) (holding that a police officer had probable cause to stop a truck which had no license plate in violation of state law).

We hold that the circuit judge did not err in finding that the traffic stop was valid.

III. Reasonable Suspicion

We turn next to Laime’s and Dodd’s claim that Trooper Ramsey lacked grounds to detain them after they presented proof that the van was validly registered in Texas.

Our rule which provides when a detention without an arrest may transpire reads as follows:

A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer’s presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.

Ark. R. Crim. P. 3.1. The rule is precise in stating that the reasonable suspicion must be tied to commission of a felony or a misdemeanor involving forcible injury to persons or property.

Our criminal rules also define “reasonable suspicion” as “a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.” Ark. R. Crim. P. 2.1. This court has further said that “[w]hether there is reasonable suspicion depends on whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating that the person may be involved in criminal activity.” Smith v. State, 343 Ark. 552, 570, 39 S.W.3d 739, 750 (2001) (citing Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982)). See also Ark. Code Ann. § 16-81-202 (1987).

In this same vein, the General Assembly has passed legislation listing the factors to be considered in determining if a police officer has grounds to reasonably suspect:

(1) The demeanor of the suspect;
(2) The gait and manner of the suspect;
(3) Any knowledge the officer may have of the suspect’s background or character;
(4) Whether the suspect is carrying anything, and what he is carrying;
(5) The manner in which the suspect is dressed, including bulges in clothing, when considered in light of all of the other factors;
(6) The time of the day or night the suspect is observed;
(7) Any overheard conversation of the suspect;
(8) The particular streets and areas involved;
(9) Any information received from third persons, whether they are known or unknown;
(10) Whether the suspect is consorting with others whose conduct is “reasonably suspect”;
(11) The suspect’s proximity to known criminal conduct;
(12) Incidence of crime in the immediate neighborhood;
(13) The suspect’s apparent effort to conceal an article;
(14) Apparent effort of the suspect to avoid identification or confrontation by the police.

Ark. Code Ann. § 16-81-203 (1987). This court has stated that § 16-81-203 is merely illustrative, and not exhaustive, of the types of factors that may be considered in forming reasonable suspicion. See Potter v. State, 342 Ark. 621, 30 S.W.3d 701 (2000); Muhammad v. State, 337 Ark. 291, 988 S.W.2d 17 (1999). As is the case with Rule 3.1, the reasonable suspicion under state statutes must be coupled to the fact that the suspect is involved in some felonious activity. See Ark. Code Ann. § 16-81-204 (1987). Specifically, § 16-81-204(a) refers to a reasonable suspicion that the person “is committing, has committed, or is about to commit a felony.”

The genesis for both the criminal rule and state statute is Terry v. Ohio, 392 U.S. 1 (1968). In Terry, the United States Supreme Court held that a police officer could detain a person without violating the Fourth Amendment if that officer had a reasonable suspicion that “criminal activity may be afoot.” Terry, 392 U.S. at 30. Both Ark. R. Crim. P. 3.1 and § 16-81-204 are more specific in stating that the detention must be associated with suspected felonious activity or, in the case of Rule 3.1, either a felony or a misdemeanor involving forcible injury.

In the case at hand, the State sets forth five factors which, it asserts, gave Trooper Ramsey reasonable suspicion that criminal activity was underway or imminent:

(1) Laime’s irritated, hostile, demanding, and combative demeanor, which includes his refusal to consent to a search and his invocation of his constitutional rights;
(2) The fact that both Laime and Dodd told Ramsey they were meeting people in Litde Rock for dinner, but neither of them was able to name the restaurant or their dinner companions;
(3) Laime’s assertion that the van was borrowed from a friend, but the van had actually been registered to Dodd earlier that day;
(4) The fact that Ramsey asked Laime if he had ever been arrested, and although Laime disclosed only a traffic violation, he had been previously arrested on drug charges;
(5) Dodd’s consumption of potato chips, which was inconsistent with her assertion that she and Laime were on their way to Little Rock to eat dinner.

We begin by noting that the focal point for our analysis must be the time when Trooper Ramsey decided that the registration of the van was valid because at that point the reason for the stop had vanished. This court has held with respect to the issue of whether probable cause to arrest exists that (1) after-acquired knowledge is irrelevant to the probable cause analysis, and (2) only what the police officer knew at the time of arrest enters the analysis. Friend v. State, 315 Ark. 143, 865 S.W.2d 275 (1993) (citing Beck v. Ohio, 379 U.S. 89 (1964); Roderick v. State, 288 Ark. 360, 705 S.W.2d 433 (1986)). The same principle holds true with respect to a decision on whether to detain under Rule 3.1.

At the same time, this court recognizes that as part of a valid traffic stop, a police officer may detain a traffic offender while he completes certain routine tasks. This detention is, of course, unrelated to a Rule 3.1 detention. The Eighth Circuit Court of Appeals has discussed the detention associated with a valid traffic stop succinctly:

[HJaving made a valid traffic stop, the police officer may detain the offending motorist while the officer completes a number of routine but somewhat time-consuming tasks related to the traffic violation, such as computerized checks of the vehicle’s registration and the driver’s license and criminal history, and the writing up of a citation or warning. See United States v. Carrazco, 91 F.3d 65, 66 (8th Cir. 1996). During this process, the officer may ask the motorist routine questions such as his destination, the purpose of the trip, or whether the officer may search the vehicle, and he may act on whatever information is volunteered.

United States v. $404,905.00 In U.S. Currency, 182 F.3d 643, 647 (8th Cir. 1999). Routine questioning and the criminal history-check appear to be precisely what Trooper Ramsey engaged in as part of a valid traffic stop.

Under these circumstances, we consider a criminal background check to have been not only routine but prudent. The van initially appeared to be unregistered; the trooper was given papers on a Subaru, not a Dodge van; the trooper was told that the van was owned by a friend and not by the driver or passenger; and Laime first gave the trooper a Virginia I.D. card and not a driver’s license. Most importantly, according to one affidavit, the background check was set in motion before the question about the van’s registration was resolved.

We conclude that under the totality-of-the-circumstances standard and viewing the evidence in the light most favorable to the State, as we are required to do, reasonable suspicion of criminal activity was legitimately entertained by Trooper Ramsey. The background check first revealed a drug conviction which Laime lied about. The trooper’s suspicions were magnified by the couple’s ignorance of their destination and the names of their friends as well as Laime’s ever-increasing agitation. All of this led to the canine sniff and the positive alert to drugs by the drug dog. We hold that the Fourth Amendment protection afforded Laime and Dodd was not violated in this case, and we affirm the circuit judge on this point.

In holding as we do, we emphasize that Laime’s invocation of his Fourth Amendment rights cannot be the sole basis for probable cause to search. See Florida v. Bostick, 501 U.S. 429 (1991) (a suspect’s assertion of his constitutional rights cannot be the sole basis for probable cause to search); Doyle v. Ohio, 426 U.S. 610 (1976) (post-Miranda warnings silence cannot be used to impeach a defendant’s credibility); United States v. Hyppolite, 65 F.3d 1151 (8th Cir. 1995) (refusal to consent to search cannot be sole basis for probable cause to search apartment). That principle is fundamental, and our jurisprudence is clear. The legitimate assertion of one’s constitutional rights is not a weapon to be used against a criminal suspect.

Nor can mere nervousness, standing alone, constitute reasonable suspicion of criminal activity and grounds for detention. We agree with the Eighth Circuit Court of Appeals in this regard. See United States v. Beck, 140 F.3d 1129 (8th Cir. 1998). As was stated by the Beck court, initial signs of nervousness are commonplace when one is confronted by a law enforcement officer. Id. Nevertheless, Laime’s conduct is distinguishable. It went from inquisitiveness to anger to combativeness when Trooper Ramsey began to delve into his criminal record and suggested a search of the van. The fact that criminal history and an angry response were involved distinguishes this case from the Beck facts. See United States v. Lebrun, 261 F.3d 731 (8th Cir. 2001).

As a final point, we discount the eating of snack food as a bonafide factor for reasonable suspicion.

IV Drug Dog Search

Dodd briefly argues as one of her points that a dog sniff, standing alone, cannot constitute probable cause to search. Laime and Dodd argue much more extensively that Trooper Ramsey’s affidavit supporting the search warrant was inadequate under Franks v. Delaware, 438 U.S. 154 (1978). They base their Franks argument on the trooper’s failure to state in the affidavit that the drug dog, Moose, had already falsely alerted on one safe. They also assert that Trooper Ramsey knew that Moose had been inaccurate at least ten times and possibly as many as fifty times but did not mention this fact in the affidavit.

According to the Eighth Circuit Court of Appeals, a dog sniff that results in an alert on a container, car, or other item, standing alone, gives an officer probable cause to believe that there are drugs within the item, if the dog is reliable. United States v. Sundby, 186 F.3d 873 (8th Cir. 1999); United States v. Bloomfield, 40 F.3d 910 (8th Cir. 1994). See also Newton v. State, 73 Ark. App. 285, 43 S.W.3d 170 (2001). In Sundby, the Eighth Circuit stated:

A dog’s positive indication alone is enough to establish probable cause for the presence of a controlled substance if the dog is reliable. To establish the dog’s reliability, the affidavit need only state the dog has been trained and certified to detect drugs. An affidavit need not give a detailed account of the dog’s track record or education.

Sundby, 186 F.3d at 876 (cases omitted). This court has never been confronted with the issue of whether a dog sniff, standing alone, provides probable cause to search.

We need not reach that issue in the instant case because the dog sniff was bolstered by other facts in the trooper’s affidavit. Particularly, the search warrant and affidavit referred to Laime’s criminal history, his failure to honestly disclose his drug arrest and charge, his refusal to reveal details about the van’s ownership, his combative demeanor, and the marijuana and drug paraphernalia that the trooper found before the warrant was obtained.

We turn then to the allegation that Trooper Ramsey committed a Franks violation in this case. The Franks decision stands for the proposition that if a defendant shows by a preponderance of the evidence that (1) the affiant for a search warrant made a false statement knowingly and intelligently, or with reckless disregard of the truth, and (2) with the affidavit’s false material set aside, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant should be invalidated. State v. Rufus, 338 Ark. 305, 993 S.W.2d 490 (1999) (citing Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993)). Matters omitted must be material circumstances which contradict or dispel the incriminating factors in the affidavit and which render what is in the affidavit effectively false because of their nondisclosure. Biggers v. State, 317 Ark. 414, 878 S.W.2d 717 (1994) (citing Pyle, supra).

We need not address this point because we conclude that upon finding marijuana and drug paraphernalia in the van following the drug dog’s positive alert, the troopers had reasonable cause to believe that the van contained other things subject to seizure. Under our criminal rule and case law, a search of the van could commence under these facts without a search warrant. See Ark. R. Crim. P. 14.1; Bohanan v. State, 324 Ark. 158, 919 S.W.2d 198 (1996). As a result, any asserted defect in the affidavit for a search warrant is of no moment as a warrantless search could have been performed.

We affirm on this point.

V. Nighttime Search

Arkansas Rule of Criminal Procedure 13.2(c) authorizes a nighttime search under the following circumstances:

Except as hereafter provided, the search warrant shall provide that it be executed between the hours of six a.m. and eight p.m., and within a reasonable time, not to exceed sixty (60) days. Upon a finding by the issuing judicial officer of reasonable cause to believe that:
(i) the place to be searched is difficult of speedy access; or
(ii) the objects to be seized are in danger of imminent removal; or
(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy;
the issuing judicial officer may, by appropriate provision in the warrant, authorize its execution at any time, day or night, and within a reasonable time not to exceed sixty (60) days from the date of issuance.

Ark. R. Crim. P. 13.2(c). See Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999).

We give the appellants’ arguments under this point little credence. The search of the safe took place at the Bryant police station. The policy considerations that led to the adoption of Rule 13.2(c) and nighttime searches of dwellings simply do not pertain to a search of a van at a police station. We affirm on this point as well.

Affirmed.

Corbin and Hannah, JJ., dissent.

THORNTON, J., dissents.

I dissent on the basis of the analysis provided in the Arkansas Court of Appeals’ decision of Laime v. State, 73 Ark. App. 377, 43 S.W.3d 216 (2001).

J IM Hannah, Justice,

dissenting. I am concerned about the erosion of every citizen’s right against unlawful search and seizure under both the Arkansas and the United States Constitutions. We may not abdicate our duty to protect the constitution and our citizens by allowing law enforcement officers to engage in unconstitutional conduct simply because as law enforcement officers their hunches often payoff. The analysis under our constitution and under the federal constitution in search and seizure cases should not be reduced to simply determining whether the appellant is suspicious in some broad, undefined context, but rather, whether the facts infer the required proof for the action to be taken, in other words, whether the required proof of reasonable suspicion or probable cause is present.

The majority decides this case by finding reasonable suspicion to justify the continued detention and canine sniff. The majority finds the required reasonable suspicion based upon the following facts:

1. Laime’s lie about his criminal background;
2. Dodd’s and Laime’s ignorance or refusal to state their destination and names of friends they were to meet; and,
3. Laime’s increasing agitation.

Other facts are discussed. The majority states Laime’s invocation of his right against unlawful search and seizure cannot be the sole basis for probable cause to search, and then states the assertion of one’s constitutional rights is not a weapon to be used against a suspect. What is stated is not clear and implies invoking one’s constitutional rights is a fact that weighs in favor of reasonable suspicion. Other facts are also discussed. The majority wisely ignores Ramsey’s assertion that reasonable suspicion may be based upon when someone chooses to eat snack foods. However, we ought to take special note of Ramsey’s assertion about the snack foods, for it shows us ever more clearly his intent in this matter. Ramsey had a hunch, and it was a correct hunch. His intent was to stop the van and search it. Once Ramsey stopped the van, he attempted to develop facts to justify his detention of Laime and the search of the van.

In summary, the facts show Laime declined to divulge details of the trip, of his criminal past, and that he was nervous. Nothing about these facts has any tendency in fact to show there was any contraband in the van. The facts might infer Laime was nervous and felt he would only make things worse by divulging information, especially information about his past. They could infer Laime was frightened. Nervousness and agitation could mean any number of things. I don’t believe these facts under any reasonable analysis can be argued to be “specific, particularized and articulable reasons indicating the person or vehicle may be involved in prohibited criminal activity.” Potter v. State, 342 Ark. 621, 627, 30 S.W.3d 701 (2000). This is the required inference. The facts support no such conclusion nor any conclusion even close to reasonable suspicion.

The facts relied upon in this case do infer something. They infer something about Ramsey’s conduct. We cannot ignore Ramsey’s conduct as it relates to the alleged facts he gives in support of his continued detention of the van after his reason for stopping the van on the basis of a lack of registration was resolved. First, I note it is obvious any purpose in making a lawful stop based on a report from Texas that the van lacked current Texas registration was completed prior to appellants’s detention and the execution of the canine sniff. This is clearly so because Ramsey told Laime and Dodd they were free to go. United States v. Beck, 140 F.3d 1129 (8th Cir. 1998). Thus, in order to continue to detain appellants, there had to be events that transpired during the traffic stop that gave rise to reasonable suspicion. Id. Therefore, the court had to then determine whether Ramsey had a reasonable, articulable suspicion that appellant’s van was carrying contraband or that other criminal activity may have been afoot. Id. While it is true that Ramsey’s subjective intent in the stop will not invalidate the stop if there are other valid reasons for the stop, the facts developed during that stop do not support continued detention. Herein lies the majority’s fundamental error in its analysis. The Fourth Amendment to the United States Constitution and the Arkansas Constitution will not allow the detention of the appellants on the basis that they were acting suspicious in Ramsey’s subjective opinion. When all the pretense and fiction created by Ramsey is stripped away, it is facially apparent that the canine sniff was carried out because Ramsey wanted to search the van. That was his intent from the beginning. Ramsey asserts he stopped the van for impeding traffic flow; however, his own account contradicts that this could have been a valid concern. He states the van was traveling about 60 mph in a 70 mph zone while passing two tractor trailer rigs. He further states that none of the traffic in the area was moving at 70 mph. So we must ask at this juncture, where was the impediment to traffic? Ramsey notes that two vehicles were behind the subject van. He then asserts the van was holding them up. For authority he cites to Ark. Code Ann. § 27-51-301 (b)(Supp. 2001), “driving continuously in the left lane. ...” Obviously this was not occurring. Ramsey admits the van was passing the trucks. Ramsey, however, called in the license of the van and found it was not listed as registered. This gave him the right to stop the van. However, once that issue was resolved, Ramsey detained them still based on the above noted facts. Testimony by Ramsey is conflicting, and does not support the conclusion that Ramsey had “specific, particularized and articulable reasons indicating the person or vehicle may be involved in prohibited criminal activity.” Potter, 342 Ark. at 627.

The facts of this case are simple to understand. Ramsey stopped the van because he intended to search it. Ramsey asserts Laime was agitated. It seems so obvious that it need not be argued that an ordinary, reasonable person would rightfully become agitated when, without any cause whatever, he is asked by a law enforcement officer if he is carrying a dead body. New of us would not be offended by an inference that we are a murderer, and most of us would be offended by baseless assertions that we are carrying drugs. That a person reacts in an expected and normal way to such accusations may not give rise to reasonable suspicion.

Next, the majority ought to consider that Ramsey feigned permission to leave after he completed his “investigatory” stop on Interstate 30. According to Ramsey, they were free to go. They could “walk or crawl,” Ramsey told them, but they could not take their van. Ramsey’s conduct showed that appellants were not free to leave. They were not free to leave because Ramsey intended to search the van.

We also ought to consider the request for consent to search. Ramsey’s request for consent to a search was not a request. He did not ask if he could search and then move on to other questions relevant to his stop. He relentlessly pressed on. After Laime refused multiple verbal requests, Ramsey got out a consent form even though his requests had been rejected. Ramsey pressed on. Laime still denied the request. Ramsey still did not give up and respect the denial of his request. He began to try to read the form. Still Laime would not submit. Then Ramsey began to fill the form out. To what purpose? It was apparent Ramsey was hoping that by applying relentless pressure, Laime would submit to a search. Surely we have not reduced constitutional protections to only providing protection where the citizen, alone on the side of the road, has the courage to engage in an Olympic test of wills with law enforcement officers sworn to uphold the law and the Constitution. This decision leaves the citizens, who the Constitution is supposed to protect, to fend for themselves and to bear the burden of fighting off unrestrained law enforcement knowing that if they resist, their invocation of their constitutional rights will be interpreted as an admission of guilt. One would hope we have moved beyond the grossly simplistic approach that a citizen will comply and allow a search because if he doesn’t he must have something to hide. The Constitution is designed to protect the innocent from unlawful search and seizure. This court bears a duty to protect the Constitution. Potter, supra. Also, the constitutional guarantee against unlawful search and seizure must be construed in favor of the individual. State v. Broadway, 269 S.W.2d 215, 599 S.W.2d 721 (1980); Lowery v. United States, 128 F.2d 477 (8th Cir. 1942).

In the majority’s decision, we learn that if someone lies about his criminal background when asked by police, is unable or unwilling to identify his destination and names of friends he is to meet, and seems agitated, that there is reasonable suspicion he is carrying contraband in his vehicle, or that he has committed or is about to commit a crime. There is nothing, taken individually, collectively, or in totality about these facts, that has any tendency to show anything was in the van or that a crime had been or was about to be committed. At most, they show the police officer had a nervous man before him who had a prior drug conviction. Nonetheless, these facts are found by this court to constitute the required “specific, particularized and articulable reasons indicating the person or vehicle may be involved in prohibited criminal activity.” See Potter, 342 Ark. at 627. The facts provided are so woefully inadequate that a cursory review is all that is needed to show that the continued detention and canine sniff were unlawful. The facts are so amorphous that they mean nothing. The facts must be specific. The word specific means “precisely formulated or restricted, of an exact or particular nature.” The People v. C.T. Thomas, 25 Cal. 2d 880, 898, 156 P.2d 7 (1945). There is nothing restricted or precise about these facts. Particular means “separate, single, specific, as opposed to general.” State v. Patterson, 60 Idaho 67, 88 P.2d 493, 497 (1939). No particular facts inferring any criminal activity whatever are offered. Nothing about the facts in totality infers anything other than a nervous man who has a criminal background, which he is understandably not proud of. More is required of this court than such a mechanical review as is present here. So much time has passed since the decision in Terry v. Ohio, 390 U.S. 1 (1968) and similar cases under our own Constitution that discussion of this issue has digressed to lists of factors and facts from prior cases. This is misleading because the decision by the court must be based upon facts of the case that rationally infer a crime has been or is about to be committed. Beck, supra. The analysis has digressed to a conclusion of reasonable suspicion where a criminal defendant appears merely suspicious in the opinion of law enforcement. Such conjectural suspicion is not sufficient. Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997). An “inchoate and unparticularized suspicion or ‘hunch’ ” will not suffice. Potter, 342 Ark. at 625-626 (citing Terry v. Ohio, 392 U.S. 1 (1968)). Nonetheless, in this case we allow a detention and search on a set of specious facts questionably and conflictingly presented by the officer, and cast aside fundamental constitutional rights.

This case should be reduced to its simplest terms so what this court is doing may be clearly understood. The majority finds the detention for the canine sniffi was justified because Ramsey had a reasonable suspicion that a crime had been or was about to be committed. His testimony at the hearing varied fundamentally from his affidavit. His conduct shows he stopped the van to search it and everything else was an attempt to justify the detention and search. The facts in this case are abundantly dear. Ramsey saw a vehicle that fit his profile of one that he thought could be carrying drugs. He acted on a hunch. He stopped and search the van on that basis. Such an “inchoate and unparticularized suspicion or ‘hunch’ ” will not suffice to support a search under the Fourth Amendment. Potter v. State, 342 Ark. at 625-626, (citing Terry v. Ohio, 392 U.S. 1 (1968)).

For the above reasons I respectfully dissent.

CORBIN, J., joins in this dissent.

       As to when Trooper Ramsey got Laime’s criminal history, the record is unclear. His affidavit for probable cause says the radio operator called back after the trooper asked Laime about his arrest record. The affidavit for search warrant does not state whether Trooper Ramsey had the criminal history before or after he questioned Laime about his record.

       The precise chronology of events is a matter of factual dispute in this case. According to his testimony on direct examination at the suppression hearing, it was at this point that Trooper Ramsey decided to search the van — after he had spoken with Dodd. However, in the affidavit that Trooper Ramsey wrote for the search warrant, the affidavit for probable cause, and his cross-examination, he makes no mention of Dodd in connection with his decision to search. Trooper Ramsey testified at the hearing that his memory was better at the times that he wrote the two affidavits than it was at the suppression hearing. On cross-examination, he admitted that he decided to search the van much earlier, before he ever spoke to Dodd.

       The drug dog apparently had been in the patrol car the entire time.

       The length of time of the detention is not raised as an issue in this appeal. Rather, the issue raised is whether Trooper Ramsey had grounds to detain Laime and Dodd at all.


source: Caselaw Access Project

author: R OBERT L. BROWN, Justice.

license: Public Domain

text:
    MURPHY OIL USA, INC. v. UNIGARD SECURITY INSURANCE COMPANY and Employers’ Surplus Lines Insurance Company, Appellees; Employers’ Surplus Lines Insurance Company, Cross-Appellant; Murphy Oil USA, Inc.; United States Fidelity & Guaranty Company, Cross-Appellees

    00-1408
    61 S.W.3d 807
    Supreme Court of Arkansas
    Opinion delivered December 6, 2001
    [Petition for rehearing denied January 10, 2002.]

      Compton, Prewett, Thomas & Hickey, PA, by: Robert C. Compton; and Wright, Lindsey & Jennings LLP, by: M. Samuel Jones, III and Claire Shows Hancock, for appellant.

      Quattlebaum, Grooms, Tull & Burrow PLLC, by: J. Leon Holmes and Steven W Quattlebaum, for appellee Unigard Security Insurance Company.

      James & Carter, PLC, by: Daniel R. Carter; Of Counsel: Rogers, Towers, Bailey, Jones & Gay, by: G. Kenneth Norrie and Cheryl L. Woman; and Christie, Pabarue, Mortensen and Young, a Professional Corporation, by: James W Christie and Catherine Olanich Raymond, for appellee Employers’ Surplus Lines Insurance Company.

      Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., by: John C. Calhoun, Jr., and Phil Campbell; and Shaw Pittman, by: Frank Winston, Jr., for cross-appellee United State Fidelity & Guaranty Company.

      Henry C. Kinslow, for amicus curiae City of El Dorado.

      Barrett & Deacon, P.A., by: D. P. Marshall Jr.; and Wiley, Rein & Fielding, by: Laura A. Foggan, Daniel E. Troy, and Dineen P. Wasylik, for amicus curiae Insurance Environmental Litigation Association.

      Rose Law Firm, a Professional Association, by: Richard T. Donovan and Garland J. Garrett; O.H. Storey, III; and Kathleen D. Gardner, for amici curiae Mark Pryor, Attorney General, State of Arkansas; Anthony Forest Products Company; Anthony Timberlands, Inc.; Arkansas Education Association; Arkansas State Chamber of Commerce; Arkla, Inc.; Associated Industries of Arkansas, Inc.; Deltic Timber Corporation; Dillard’s, Inc.; Entergy Arkansas, Inc.; J.B. Hunt Transport, Inc.; The Poultry Federation; Riceland Foods, Inc.; Southwestern Energy Company; Tyson Foods, Inc.
   R OBERT L. BROWN, Justice.

Appellant Murphy Oil USA, Inc. appeals a grant of summary judgment in favor of appellee Unigard Security Insurance Company (Unigard) and appellee Employers’ Surplus Lines Insurance Company (ESLIC). In that summary judgment, the circuit court concluded that Unigard and ESLIC had no duty to defend their insured, Murphy Oil, in litigation brought by Harrison Brothers Dry Dock and Repair Yard. On appeal, Murphy Oil urges this court to reverse the summary judgment and then revisit and overrule our previous decision in Unigard Sec. Ins. Co. v. Murphy Oil USA, Inc., 331 Ark. 211, 962 S.W.2d 735 (1998) (Murphy I). We agree with Murphy Oil that the summary judgment must be reversed, but we decline to overrule our previous decision. On cross-appeal, ESLIC contends that the circuit court erred in refusing to order cross-appellee Murphy Oil or cross-appellee United States Fidelity and Guaranty Company (USF&G) to reimburse it for costs advanced in two other lawsuits to Murphy Oil as part of its obligation to defend. We affirm the circuit court on the cross-appeal.

The underlying events which have led to several lawsuits against Murphy Oil were three petroleum spills at Murphy Oil’s facility which occurred in 1970, 1975, and 1982. During those years, Murphy Oil occupied a facility which it leased from Blakely Corporation on Blakely Island, located in the Mobile River in Alabama. In 1970, Murphy Oil personnel overestimated the capacity of a tank and between 8,800 to 23,000 gallons spilled onto the ground. In 1975, between 22,000 and 26,000 gallons of gasoline leaked onto the ground because of a tank valve that was accidentally left open. In 1982, 4,600 gallons of diesel fuel leaked onto the ground through a corroded hole in the bottom of a tank. In April 1990, Blakely Corporation sued Murphy Oil in the Alabama federal district court for negligence, breach of the lease agreement, and trespass associated with the spills. The jury awarded Blakely $3.4 million in compensatory damages on the breach-of-lease claim but no damages for negligence or trespass. The jury also awarded $4.6 million in punitive damages, which was subsequently reduced to $2 million. The total judgment in this litigation, when costs were included, was $5.8 million. This litigation in federal district court is referred to as Blakely I.

Murphy Oil then sued its liability carriers, including USF&G, Unigard, and ESLIC, in 1991 in Union County Circuit Court for indemnity associated with the Blakely I judgment. USF&G, as primary carrier, settled with Murphy Oil and paid the policy limits for the three years that the spills occurred. Following a jury trial, judgment for complete indemnity was entered in favor of Murphy Oil as against Unigard and ESLIC. Unigard and ESLIC appealed the judgment, and this court reversed in Unigard Sec. Ins. Co. v. Murphy Oil USA, Inc., supra (Murphy I). In doing so, this court held as a matter of law that the Unigard and ESLIC insurance policies afforded Murphy Oil no coverage for liability based on the breach-of-lease claim.

During the pendency of Murphy Oil’s appeal to this court in Murphy I, a second action by the Blakely Corporation was pending against Murphy Oil in the Alabama federal district court entitled Blakely Corp. v. Murphy Oil USA, Inc. (Blakely II), in which Blakely sought a verdict for property damage caused by the three spills to an adjoining Blakely site. On March 11, 1996, the Union County Circuit Court held a hearing on Unigard’s and ESLIC’s duty to defend Murphy Oil in the Blakely II matter. Following the hearing, the court ruled from the bench:

Of course, I have already ruled in the other case that there was a duty to defend, and I am going to make a similar ruling in this case that there is a duty on the part of ESLIC and Unigard to defend for the years 1970, ‘75 and ‘82 in the Blakely II matter.
But it seems to me that the facts that are alleged are identical to what has been previously litigated. . . .

ESLIC then requested the circuit court to delay entering an order to that effect, so that it could add a cross-claim for the defense costs against USF&G. In Blakely II, summary judgment on the issue of Murphy Oil’s liability for the spills was entered by the Alabama federal district court in favor of Murphy Oil. The summary judgment was affirmed by the Eleventh Circuit Court of Appeals. See Blakely Corp. v. Murphy Oil, 141 F.3d 1189 (11th Cir. 1998) (unpublished table disposition).

Subsequently, a second amended complaint was filed in a third suit against Murphy Oil relating to the Blakely Island spills. This suit, entitled Harrison Bros. Dry Dock & Repair Yard, Inc., et al. v. Murphy Oil USA, Inc., was filed in Mobile County Circuit Court in Alabama (Blakely III). In this suit, Harrison Brothers alleged claims of trespass, continuing trespass, nuisance, negligence, and wantonness, all relating to the “allowance of] petroleum products and/or other polluting, contaminating or hazardous substances to be discharged and/or released onto and into the ground, subsoil and/or ground water” on Murphy Oil’s leased property that was located adjacent to the Harrison Brothers’ property. Harrison Brothers also alleged that “[i]n or about August 1996, Plaintiffs discovered that the above described petroleum products and/or other polluting, contaminating or hazardous substances had migrated from the subject property onto Plaintiffs’ property.”

As a consequence of Blakely III, on April 24, 1999, Murphy Oil filed a seventh amended complaint in the ongoing action in the Union County Circuit Court and prayed for a declaratory judgment that both Unigard and ESLIC be obligated to defend Murphy Oil and to indemnify it for the defense costs incurred in its defense in Blakely III. ESLIC answered and counterclaimed seeking a declaration that it did not have a duty to defend or indemnify Murphy Oil in either Blakely II or Blakely III. ESLIC further sought a judgment for defense costs paid to Murphy Oil under a reservation of rights in Blakely II and III.

In May 1999, Murphy Oil filed an amended and supplemental motion for partial summary judgment in Union County Circuit Court in which it requested the court to order Unigard and ESLIC to pay Murphy Oil’s defense costs in Blakely III. Murphy Oil argued that Blakely III involved the same spills and many of the same issues as Blakely I and Blakely II. Thus, it argued, Unigard and ESLIC, as umbrella carriers, had a contractual duty to defend it which they inherited from the primary carrier, USF&G, which had already paid policy limits. Murphy Oil further asserted in its brief in support of the amended partial summary-judgment motion that the Harrison Brothers complaint in Blakely III plainly stated a claim that could activate the policy coverage of Unigard and ESLIC.

ESLIC responded to Murphy Oil’s amended motion for partial summary judgment and cross-motioned for summary judgment for the reimbursement of defense costs paid to Murphy Oil, or, alternatively, for reimbursement of those costs from USF&G. ESLIC then filed a Combined Motion and Brief in Support of Summary Judgment as to Blakely III, in which it claimed that due to the Alabama statute of limitations on claims involving property damage and ESLIC’s policy’s definition of the term “occurrence,” there could be no coverage under the policy and, thus, no duty to defend or indemnify.

On October 12, 1999, Unigard filed a Motion for Summary Judgment in which it alleged that the Blakely III complaint asserted a migration of contaminants and that migration is a slow process which would cause the event to be excluded under the Pollution Exclusion to its policy. Unigard submitted an affidavit in support of its motion from Dr. Gary R. Walter, a professional hydrogeologist, as well as the testimony of Jane Spellman, another hydrogeologist, who was Murphy Oil’s expert witness.

On May 8, 2000, a hearing was held on the various motions. At the close of the hearing, the circuit court ruled:

I understand that all these issues were raised back in ‘93, and I ruled in favor of Murphy on [them]. This set of facts is a little bit different. I’m going to grant summary judgment on both based upon the —
—■ based upon the exclusionary provision of the policies that this was classic pollution, and the language is rather clear to the Court that they excluded coverage, and that ends the issue in my eyes on this particular fact situation — which is different from the previous case.
And I’m persuaded by the language and the discussion in this Bell [Lumber & Pole Co. v. United States Fire Ins. Co., 60 F.3d 437 (8th Cir. 1995)] case also.
Yes, I think [other pending motions] would be [moot] because this is a coverage question, and I have ruled that there’s no coverage so duty to defend and all those would be out . . . the window.

In the resulting order of summary judgment, the circuit court made the following findings:

• there is no genuine issue of material fact;
• as a matter of law the insurance policies do not provide coverage for the claims asserted in Blakely III;
• Unigard and ESLIC are entitled to judgment as a matter of law on the claims asserted by Murphy Oil in its Seventh Amendment to Complaint that the carriers had an obligation to defend; and
• after hearing arguments of counsel, the Court denies ESLIC’s request for reimbursement of the defense costs it has paid in Blakely II and Blakely III.

Murphy Oil brings this appeal, and ESLIC brings its cross-appeal.

I. Summary Judgment on Duty to Defend

Murphy Oil mounts a legion of arguments as to why summary judgment in favor of Unigard and ESLIC on their duty to defend was error. We are persuaded, however, that Murphy Oil is correct that neither policy’s Pollution Exclusion negates the duty to defend of the respective carrier.

We first address the test for determining a liability carrier’s duty to defend. In examining the duty to defend, this court has recognized the general rule that the allegations in the pleadings against the insured determine the insurer’s duty to defend. See Mattson v. St. Paul Title Co. of the South, Til Ark. 290, 641 S.W.2d 16 (1982); Fox Hills Country Club, Inc. v. American Ins. Co., 264 Ark. 239, 570 S.W.2d 275 (1978); Commercial Union Ins. Co. of America v. Henshall, 262 Ark. 117, 553 S.W.2d 274 (1977). Additionally, this court has recognized that the duty to defend is broader than the duty to indemnify. See Commercial Union Ins. Co. of America v. Henshall, supra. However, the duty to defend arises when there is a possibility that the injury or damage may fall within the policy coverage. See Home Indemnity Co. v. City of Marianna, 291 Ark. 610, 727 S.W.2d 375 (1987). Conversely, where there is no possibility that the damage alleged in the complaint may fall within the policy coverage, there would be no duty to defend. See C.T. Drechsler, Annotation, Allegations in Third Person’s Action Against Insured as Determining Liability Insurer’s Duty to Defend, 50 A.L.R.2d 458 (1956). The Home Indemnity Co. case summarizes much of this law:

Home’s secondary argument is that genuine issues of material fact remain. We are not persuaded that that is so. One fact assertedly undecided deals with the issue of whether damages will result in the federal suit. But the duty to defend is broader than the duty to pay damages and as we have seen, it is enough if the possibility of damages exists. If injury or damage within the policy coverage could result, the duty to defend arises. Commercial Union Ins. Co. v. Henshall, 262 Ark. 117, 553 S.W.2d 274 (1977).

Home Indemnity Co., 291 Ark. at 618, 727 S.W.2d at 379. Accordingly, this court must examine whether the Blakely III complaint alleges facts which would come within the coverage of the Unigard and ESLIC liability policies. If so, their duty to defend arises.

Unigard relies on its Pollution Exclusion in its liability policy for its argument that there is no possibility that Unigard will be called upon to indemnify Murphy Oil. It further relies on the two opinions by the hydrogeologists submitted with its motion for summary judgment that migration caused the damage to the Harrison Brothers’ property. We turn then to that exclusion in the liability policy to assess the potential for Unigard’s liability. That section reads:

SEEPAGE, POLLUTION AND CONTAMINATION EXCLUSION CLAUSE
IT IS UNDERSTOOD AND AGREED THAT EXCEPT INSOFAR AS COVERAGE IS AVAILABLE TO THE
ASSURED IN THE UNDERLYING INSURANCES AS SET OUT IN THE SCHEDULE OF UNDERLYING POLICIES, THIS INSURANCE SHALL NOT APPLY TO ANY LOSS ARISING OUT OF CONTAMINATION OR POLLUTION.
NOTWITHSTANDING THE FOREGOING, IT IS UNDERSTOOD AND AGREED THAT THIS INSURANCE DOES NOT APPLY TO PERSONAL INJURY OR PROPERTY DAMAGE ARISING OUT OF THE DISCHARGE, DISPERSAL, RELEASE OR ESCAPE OF:
(1) SMOKE, VAPORS, SOOT, FUMES, ACIDS, ALKALIS, TOXIC CHEMICALS, LIQUIDS OR GASES, WASTE MATERIALS OR OTHER IRRITANTS, CONTAMINANTS OR POLLUTANTS INTO OR UPON LAND, THE ATMOSPHERE OR ANY WATERCOURSE OR BODY OF WATER, BUT THIS EXCLUSION DOES NOT APPLY IF SUCH DISCHARGE, DISPERSAL, RELEASE OR ESCAPE IS SUDDEN AND ACCIDENTAL;
(2) OIL OR OTHER PETROLEUM SUBSTANCE OR DERIVATIVE (INCLUDING ANY OIL REFUSE OR OIL MIXED WITH WASTES) INTO OR UPON ANY WATERCOURSE OR BODY OF WATER, WHETHER OR NOT SUCH DISCHARGE, DISPERSAL, RELEASE OR ESCAPE IS SUDDEN AND ACCIDENTAL.

Thus, the Unigard Pollution Exclusion contains an exception, and it is that exception upon which the resolution of this case turns. The exception reads; “but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental^]” Murphy Oil contends that the 1975 spill during Unigard’s coverage qualifies as a sudden and accidental release and that this is what caused the alleged damage to Harrison Brothers in Blakely III. Specifically, Murphy Oil emphasizes that the Harrison Brothers complaint bases its causes of action on the release of polluting substances onto the ground or into the ground water of the Murphy Oil leased property. Hence, Murphy Oil contends, the “release” in question relates to the three sudden and accidental spills, and this triggers the exception to the Pollution Exclusion and Unigard’s liability for coverage. Unigard, on the other hand, focuses on events after the three spills and the alleged migration of the polluting substances from the Blakely property to the Harrison Brothers property over a period of years.

Truthfully, the Pollution Exclusion and its exception could be read either as Murphy Oil interprets it or in accordance with Unigard’s reading. The test, however, is whether the mere possibility of coverage exists in this case. See Home Indemnity Co. v. City of Marianna, supra. We are mindful also of the principle that in testing the pleadings to determine if they state a claim within the policy coverage, we resolve any doubt in favor of the insured. See Mattson v. St. Paul Title Co. of the South, supra. We hold that there is a possibility that Unigard will be liable for coverage as a result of Blakely III based on the fact that the triggering spills may fall within the exception to the Pollution Exclusion. Accordingly, the duty to defend Murphy Oil comes into play. With regard to Unigard’s contention that Murphy Oil failed to meet proof with proof because it did not counter the affidavits of the two hydrogeologists, we do not view those affidavits as determinative. Resolution of this case centers on the facts alleged and the policy language, and specifically on the Pollution Exclusion, and not on the fact that migration may have occurred.

Our analysis is similar with respect to ESLIC. The applicable Pollution Exclusion in ESLIC’s policy reads:

Endorsement #4
It is agreed that this policy does not cover any liability for: —
(3) Property damage caused by seepage, pollution or contamination, unless such seepage, pollution or contamination is caused by a sudden, unintended and unexpected happening during the period of this Insurance, but this paragraph (3) shall not be construed as excluding any liability which would otherwise be covered under this Insurance for property damage caused by a sudden, unintended and unexpected happening during the period of this Insurance arising out of seepage, pollution or contamination.

Again, the exception to the exclusion is for damage caused by “a sudden, unintended and unexpected happening during the period of this Insurance arising out of” the pollution. In our opinion, this exception can be read as being broader than the exception in the Unigard policy. Regardless, Murphy Oil and ESLIC cross swords over whether the “sudden happening” refers to the initial spill in 1970 or to the alleged damage caused by the subsequent migration of the contaminants. For the same reasons stated above, we believe the language can be legitimately read either way. Moreover, the doctrine of contra preferentum would lead towards an interpretation of the exception favorable to Murphy Oil. See, e.g., Elam v. First Unum Life Ins. Co., 346 Ark. 291, 57 S.W.3d 165 (2001). As a final point, we are not aware of a decision by the Alabama trial court in Blakely III concerning any applicable Alabama statute of limitations and the impact of that limitations statute on ESLIC’s liability for coverage in the Harrison Brothers litigation. Once again, we hold that the possibility of liability coverage exists and that, as a result, ESLIC also has a duty to defend Murphy Oil in Blakely III.

We note where the circuit court relied on the case of Bell Lumber & Pole Co. v. United States Fire Ins. Co., 60 F.3d 437 (8th Cir. 1995), in reaching its decision. The Bell Lumber case involved an action for declaratory judgment regarding the liability of insurance carriers and a motion for summary judgment by those carriers. In that case, the Pollution Exclusion and exception in the affected policy were comparable to the language in Unigard’s policy. There were fifteen polluting events which involved tank overifills and cracks and leaks in the containers. The damage to property occurred after the contaminants entered the groundwater of a third party, the State of Minnesota, which occurred gradually over many years. The debate centered on whether the release or escape of the contaminants was sudden and accidental so as to fit within the exception or a gradual event which would fall under the general Pollution Exclusion. The trial court entered summary judgment in favor of the insurance carriers. The Eighth Circuit affirmed and concluded that Bell Lumber’s liability was triggered only when damage was done to the property of the third party, that is, when the contaminant entered the groundwater of the state of Minnesota. Thus, the “release” envisioned by the exception was when the damage to the state’s groundwater occurred and not the initial events when the contaminant leaked or poured onto the ground. In holding as it did, the Eighth Circuit rejected as dicta an assumption by the Minnesota Court of Appeals in a previous case that the relevant release under the exception was the initial spill onto the ground.

This court, of course, is not bound by the precedent of the Eighth Circuit Court of Appeals. See, e.g., Romine v. Arkansas Dept. of Env. Quality, 342 Ark. 380, 40 S.W.3d 731 (2000). But, in addition, the Bell Lumber case concerned only the ultimate issue of indemnity coverage and not the issue of an insurance carrier’s obligation to defend. Plus, even in the Bell Lumber case, it was noted that different courts had voiced different opinions as to what was the relevant release. See also Sunbeam Corp. v. Liberty Mut. Ins. Co., 781 A.2d 1189 (Pa. 2001) (proof of custom in the insurance industry may indicate that the “sudden and accidental” exception to the Pollution Exclusion meant “unexpected” and “unintended” and not a requirement of abruptness). Our focus in this appeal is on whether the possibility exists for indemnity by Unigard and ESLIC based upon the facts alleged. Using this liberal standard, we cannot conclude that that possibility does not exist.

Nor do we believe that this court’s decision in Murphy I resolves this issue in favor of Unigard and ESLIC, as the appellees would have it. The parties were different in the underlying case of Blakely I, and the rationale for reversal by this court was that the jury-awarded damages for breach of a lease, not property damage. At this stage, we can only speculate as to the basis for a jury award, if any, in Blakely III.

Finally, we are cognizant of the case of Waste Mgmt. of Carolinas, Inc. v. Peerless Ins. Co., 315 N.C. 688, 340 S.E.2d 374 (1986). In that case, the North Carolina Supreme Court concluded that the liability carriers had no duty to defend their insured, Trash Removal Services, Inc., against a third-party complaint that Trash Removal Services had delivered hazardous waste to a landfill over a six-year period that resulted in contamination of groundwater beneath the landfill. The policies of Peerless Insurance Company and Pennsylvania National Mutual Casualty Insurance Company had comparable language to that in the policies of Unigard and ESLIC. What distinguishes the Waste Mgmt. case, however, from the facts of the present case is that a “sudden release” of contaminants was not alleged in the Waste Mgmt. matter. On the other hand, as already stated in this opinion, Harrison Brothers did allege that Murphy Oil allowed “polluting, contaminating or hazardous substances to be discharged and/or released onto and into the ground” that Murphy Oil was leasing. That allegation certainly could embrace a sudden release such as occurred during the period of ESLIC’s coverage in 1970 or during the course of Unigard’s coverage in 1975.

We reverse the circuit court on this point and hold that Unigard and ESLIC have a duty to defend Murphy Oil in Blakely III during their periods of respective coverage.

II. Revisiting Murphy I

Murphy Oil next urges that this court should revisit and overrule our decision in Murphy I. The crux of Murphy Oil’s argument is that because the California Supreme Court ruled in favor of the policyholder in a similar case and this court was misled in Murphy I, we should correct our mistake.

We find Murphy Oil’s initial premise, which is based on law of the case, to be faulty. The underlying litigation for Murphy I was Blakely I, and we are convinced that Blakely III and Blakely I are not the same case. The parties are different, and we can only speculate as to what the triggering spills for liability may be in Blakely III, because that is not altogether clear from the Harrison Brothers complaint. Migration is also alleged in Blakely III, but was not a factor in Blakely I. Furthermore, the liability of Murphy Oil has yet to be decided in Blakely III, much less the grounds for that liability. In sum, we do not believe that the doctrine of law of the case applies to these circumstances for a reason different than that posited by Murphy Oil.

Having said that, to the extent Murphy Oil is urging the reversal of a three-year-old case based on a 1999 California decision [Vandenberg v. Superior Court, 21 Cal. 4th 815, 982 P.2d 229, 88 Cal. Rptr. 2d 366 (1999)], we decline to do so. In Thiel v. Priest, 342 Ark. 292, 28 S.W.3d 296 (2000), this court noted that while it does have the power to overrule prior decisions, it is necessary, as a matter of public policy, to uphold those decisions unless a great injury or injustice would result. See id. (citing Sanders v. County of Sebastian, 324 Ark. 433, 922 S.W.2d 334 (1996)). In Thiel, we noted that “[t]he United States Supreme Court has recognized that adherence to precedent promotes stability, predictability, and respect for judicial authority.” Id. at 300, 28 S.W.3d at 300 (citing Sanders, supra; Zinger v. Terrell, 336 Ark. 423, 985 S.W.2d 737 (1999)). In Aka v. Jefferson Hosp. Ass’n, Inc., 344 Ark. 627, 42 S.W.3d 508 (2001), we made similar statements regarding stare decisis:

As a general rule, we are bound to follow prior case law under the doctrine of stare decisis, a policy designed to lend predictability and stability to the law. State Office of Child Support Enforcem’t v. Mitchell, 330 Ark. 338, 343 (1997) (citing Parish v. Pitts, 244 Ark. 1239, 1252, 429 S.W.2d 45, 52 (1968) (superseded by statute on other grounds)). Indeed, it is well-settled that “[precedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable.” Mitchell, 330 Ark. at 343 (quoting Parish, 244 Ark. at 1252). Our test is whether adherence to the rule would result in “great injury or injustice.” Mitchell, 330 Ark. at 343 (quoting Independence Fed. Bank v. Webber, 302 Ark. 324, 331, 789 S.W.2d 725, 730 (1990)).

Aka, 344 Ark. at 641, 42 S.W.3d at 518.

It is our belief that overruling precedent after three short years would lend instability to our common law. It is true that differing views were expressed in Murphy I, evidencing the point that justices could differ dramatically over the law and the result in the case. We cannot, however, conclude that our opinion in Murphy I attains the high standard of patent error or manifest injustice necessary for us to overrule this precedent.

III. Cross-Appeal by ESLIC

a. Murphy Oil.

ESLIC contends in its cross-appeal that because of this court’s decision in Murphy I, there could be no potential for indemnity in Blakely II and Blakely III. We disagree. We have already held in this opinion that Murphy I does not control this issue and that the possibility for indemnity coverage by ESLIC exists with regard to the facts alleged in Blakely III, and, thus, the duty to defend is triggered.

Moreover, in Blakely II, Murphy Oil prevailed, and so the question of indemnity coverage was not at issue. On the duty to defend, the circuit court ruled in Blakely II that ESLIC had that duty, and no effort was taken by ESLIC to appeal that ruling. It is simply too late to appeal that issue in connection with the circuit court’s order in Blakely III, which, as has already been stated in this opinion, involved different parties and different facts.

Costs incurred by ESLIC in each case in defending Murphy Oil were appropriate. We affirm the circuit court on this facet of the cross-appeal.

b. USF&G.

ESLIC further contends that regardless of whether USF&G has exhausted its primary coverage for the three spill years, one of which was 1970, it has not done so for the other years in which it insured Murphy Oil. According to ESLIC, the Blakely II and Blakely III complaints precipitated USF&G’s duty to defend for those additional years in which additional spills may have occurred; thus, it has an obligation to reimburse ESLIC in the amount of $113,432.42 for defense costs paid in connection with Blakely II. ESLIC also prays that this court remand the case with instructions to the circuit court to allocate the costs required to defend Murphy Oil in Blakely III between USF&G and ESLIC.

We see no reason to reverse the circuit court on this point in connection with either Blakely II or Blakely III. USF&G paid the policy limits for 1970 for the 1970 spill, at which time ESLIC had umbrella coverage, and also paid the policy limits for the spills in 1975 and 1982. Saddling USF&G with a duty to defend for additional, unspecified spills in unnamed years would require this court to enter the realm of gross conjecture and speculation. It is further notable that neither USF&G nor ESLIC maintains that it had any exposure for those years when the contaminant was allegedly migrating as opposed to its initial release. The only conceivable exposure could be for a sudden event such as the 1970 spill, and USF&G exhausted its coverage for that occurrence. Under these facts, there is no additional duty to defend on the part of USF&G.

We affirm the circuit court on this point as well.

Direct Appeal reversed and remanded.

Cross-Appeal affirmed.

Glaze and Corbin, JJ., not participating.

Special Justice Charles A. Banks joins.

Special Justice W.H. “Sonny” Dillahunty joins.

       The original style of this case was Murphy Oil USA, Inc. v. United States Fid. & Guar. Co.

       The Union County litigation had been continued as an ongoing matter since Murphy Oil first sued its liability carriers following Blakely I in 1991.

       We do not consider Murphy Oil’s appeal from the denial of its motion for partial summary judgment. We have held repeatedly that appeals from a denial of a motion for summary judgment do not lie. See, e.g., Ball v. Foehner, 326 Ark. 409, 931 S.W.2d 142 (1996); Rick’s Pro Dive ‘N Ski Shop, Inc. v. Jennings-Lemon, 304 Ark. 671, 803 S.W.2d 934 (1991).

       The appellees argue that at one point in this extensive litigation Murphy Oil contended the language was not ambiguous. Determination of whether ambiguity exists in policy language is ordinarily a question of law for the courts to resolve. See Elam v. First Unum Life Ins. Co., 346 Ark. 291, 57 S.W.3d 165 (2001).

       It is somewhat unclear whether ESLIC is appealing from a denial of its motion for partial summary judgment or an adverse order relating to its prayer for declaratory relief in its counterclaim. We will treat this as an appeal from the latter. As previously mentioned in this opinion, this court does not countenance appeals from denials of motions for summary judgment. See Rick's Pro Dive 'N Ski Shop, Inc. v. Jennings-Lemon, 304 Ark. 671, 803 S.W.2d 934 (1991).

       According to ESLIC, it should only be liable for one year (1970) out of the twenty-four years since the spill, and USF&G should be liable for the balance.


author: R AY THORNTON, Justice. D ONALD L. CORBIN, Justice,

text:
    SHELTER MUTUAL INSURANCE COMPANY v. Linda KENNEDY
    01-329
    60 S.W.3d 458
    Supreme Court of Arkansas
    Opinion delivered December 6, 2001

      Daggett, Donovan, Perry & Flowers, PLLC, by: Robert J. Donovan, for appellant.

      Easley, Hicky & Hudson, by: Michael Easley, for appellee.
   R AY THORNTON, Justice.

On January 7, 1999, appellee, Linda Kennedy, was involved in an automobile accident with John Reynolds. Appellant, Shelter Mutual Insurance Company, provided appellee’s automobile insurance at the time of the accident. Under the terms of her insurance policy, appellee had $5,000 in medical coverage and $25,000 in underinsured motorist coverage. Appellee’s policy also contained a subrogation clause. As a result of the accident, appellee incurred approximately $6,500 in medical bills. Pursuant to the terms of appellee’s policy, appellant paid $5,000 of appellee’s medical expenses.

At the time of the accident, Mr. Reynolds was insured by Nationwide Insurance Company (Nationwide). Mr. Reynolds’s policy provided $25,000 in liability coverage. On June 8, 2000, Nationwide paid appellee $11,000 to settle her claims against Mr. Reynolds. Appellee, thereafter, released all claims against Mr. Reynolds. Appellee settled her claims against Mr. Reynolds against the advice of her attorney.

After entering into this settlement agreement, appellee requested that appellant waive its right to subrogation. Appellant denied appellee’s request. On June 15, 2000, appellee filed a complaint in the Circuit Court of St. Francis County, requesting that appellant be denied the right of subrogation. Appellee argued that appellant should not be allowed to enforce its subrogation rights because appellee was inadequately compensated in her setdement with Nationwide.

On February 12, 2001, a hearing was held on appellee’s complaint. On that same day, an order was entered in which the trial court found that appellant was not entitled to subrogation. The trial court, relying on Franklin v. Healthsource of Arkansas, 328 Ark. 163, 942 S.W.2d 837 (1997), determined that appellee was not wholly compensated by her settlement with Nationwide. On February 26, 2001, the trial court awarded appellee’s attorney $1,225 in attorney’s fees.

It is from these orders that appellant appeals, raising two points for our consideration. We affirm the trial court on the first point, and reverse the trial court’s award of attorney’s fees.

In its first point on appeal, appellant argues that the trial court erred when it found that appellee was not wholly compensated by her settlement with Nationwide and denied appellant the right to subrogation. Specifically, appellant argues that because appellee settled for less than Mr. Reynolds’s policy limits then she should be estopped from arguing that she was not “made whole.” In bench trials, the standard of review on appeal is not whether there is any substantial evidence to support the finding of the court, but whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Schueck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997).

Appellant argues that appellee was estopped from arguing that appellant was not entitled to subrogation because appellee settled for less than Mr. Reynolds’s insurance policy’s limits. We have outlined the principles one must establish to prove estoppel in City of Russellville v. Hodges, 330 Ark. 716, 957 S.W.2d 690 (1997). In Hodges, we explained:

Four elements are necessary to establish estoppel. They are: (1) the party to be estopped must know the facts; (2) the party to be estopped must intend that the conduct be acted on or must act so that the party asserting the estoppel had a right to beheve it was so intended; (3) the party asserting the estoppel must be ignorant of the facts; and (4) the party asserting the estoppel must rely on the other’s conduct and be injured by that reliance.

Id.

Appellant raised the affirmative defense of estoppel in its amended answer. This amended answer was filed on the day this matter was set for trial.

Appellee argues that appellant should be procedurally barred from raising this issue on appeal because appellant failed to develop this defense below. Appellee further argues that the only issue before the trial court and before our court on review is whether appellee was “made whole” through her settlement with Nationwide.

Based upon our review of the abstract, we conclude that we cannot consider the issue of estoppel on appeal. We have held that something more than a mere assertion of an argument in the pleadings is required to preserve an issue for appellate review. Seyller v. Pierce and Company, Inc., 306 Ark. 474, 816 S.W.2d 577 (1991). In this case, appellant’s amended answer stated: “[Hjaving previously settled her claim for eleven thousand dollars ($11,000.00) the plaintiff is now estopped to deny the adequacy of such settlement.” Appellant did not pursue the affirmative defense of estoppel at trial, and failed to establish the elements of estoppel at trial. Moreover, the trial court’s order did not address the issue of estoppel. Because appellant did not develop the affirmative defense of estoppel below, we cannot consider this issue on appeal.

Having determined that we cannot consider the issue of estoppel on appeal, we turn next to the issue of whether the trial court’s order finding that appellee was not “made whole” is erroneous. The trial court’s finding that appellant was not entitled to subrogation because appellee was not “made whole” was based on Franklin v. Healthsource of Arkansas, supra. In Franklin, Curtis Franklin had a health insurance contract with Healthsource of Arkansas, that included a subrogation clause and an assignment-of-benefits clause. Following an automobile accident, Healthsource paid $71,120.65 of Franklin’s medical bills. Franklin’s medical expenses were in excess of $124,000. He had additional damages valued at over $400,000. Id.

Franklin then sued the other driver and accepted an offer from the driver’s insurance carrier to settle for $25,000. Id. Healthsource, in a subsequent action, claimed it was entitled to the entire $25,000 under the subrogation clause in its contract. The trial court agreed with Healthsource and distributed the funds to it, less attorney’s fees for Franklin’s attorney. Id.

Upon appellate review, we reversed the trial court. We explained that “subrogation is recognized or denied upon equitable principles” and further explained that Healthsource was not entitled to subrogation because “an insured’s right to subrogation takes precedent over that of an insurer, so the insured must be wholly compensated before an insurer’s right to subrogation arises; therefore, the insurer’s right to subrogation arises only in situations where the recovery by the insured exceeds his or her total amount of damages incurred.” Id.

We do not agree with the trial court’s finding that Franklin controls the outcome of the case now before us. The facts in the case sub judice are distinguishable from the facts in Franklin. Notwithstanding our conclusion that there are differences between Franklin and the case now under consideration, we recognize that the principle outlined in Franklin, which holds that subrogation is an equitable right to which an insurer is not entitled unless the insured is wholly compensated for his injuries, must be considered in our review of the trial court’s order.

We now consider the question of whether appellant was entitled to subrogation. Appellee settled with Mr. Reynolds for $11,000. As a result of the accident, appellee incurred approximately $6,500 in medical bills. At trial, appellee testified that she was still having medical problems as a result of the accident. Specifically, she explained that she could not use one of her hands and that she had trouble keeping her balance. She further stated that she has seen a doctor on several occasions since her settlement with Mr. Reynolds. Appellee also noted that as a result of the injuries sustained during the accident she would require additional medical treatment. Appellant did not contest the evidence offered by appellee. Having reviewed the evidence, we conclude that the trial court’s finding that appellee was not made whole by her settlement with Mr. Reynolds, and that therefore appellant was not entitled to the equitable right of subrogation was not clearly erroneous.

In its final point on appeal, appellant contends that the trial court erred when it granted appellee’s request for attorney’s fees. The trial court’s order did not rely on a specific statutory provision when it awarded appellee’s request. We have noted that as a general rule, attorney’s fees are not allowed in Arkansas unless expressly authorized by statute. Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991).

Appellee asserts that attorney’s fees were proper under either Ark. Code Ann. § 16-22-308 (Repl. 1999) or Ark. Code Ann. § 23-79-208 (Repl. 1999). Arkansas Code Annotated § 16-22-308 is a general statute providing for the recovery of attorney’s fees in actions for breach of contract. It provides:

In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney fee to be assessed by the court and collected as costs.

Id.

Arkansas Code Annotated § 23-79-208 is a statute that allows the recovery of attorney’s fees where an insurer fails to pay benefits when they become due. The statute in pertinent part states:

In all cases where loss occurs and the cargo, fire, marine, casualty, fidelity, surety, cyclone, tornado, life, health, accident, medical, hospital, or surgical benefit insurance company and fraternal benefit society or farmers’ mutual aid association hable therefor shall fail to pay the losses within the time specified in the policy after demand made therefor, the person, firm, corporation, or association shall be hable to pay the holder of the policy or his assigns, in addition to the amount of the loss, twelve percent (12%) damages upon the amount of the loss, together with all reasonable attorney’s fees for the prosecution and collection of the loss.

Id.

In order to determine whether attorney’s fees could be awarded under either of these statutory provisions, it is necessary to review appellee’s complaint to determine the nature of appellee’s legal action. Appellee filed a complaint requesting that the trial court “conduct a hearing, and make a determination that the plaintiff [appellee] by reason of an $11,000.00 settlement herein, is inadequately compensated, and that subrogation back to the defendant [appellant] will not lie.”

After reviewing appellee’s complaint, we conclude that appellee did not assert a cause of action which would entitle her to receive attorney’s fees. Specifically, appellee was not seeking recovery based on a breach of contract claim, nor was she seeking to enforce the terms of an insurance policy, but rather appellee was seeking relief from a specific term in her insurance policy which permitted subrogation to appellant if appellee recovered from a tortfeasor. Because there is no statutory provision which would allow attorney fees under the facts presented in this case, we reverse the trial court’s award of attorney’s fees.

Affirmed in part; reversed in part.

Glaze, J., concurs.

Corbin and Hannah, JJ., dissent.

D ONALD L. CORBIN, Justice,

dissenting. I cannot abide by the majority’s conclusion that Appellee Linda Kennedy was not made whole by her settlement with the tortfeasor’s insurer. Moreover, I believe that if she has not been fully compensated for her injuries, she has no one but herself to blame. Accordingly, I must dissent.

The facts are undisputed that Appellee was injured in an automobile accident with John Reynolds, who was insured by Nationwide Insurance Company. As a result of her injuries, Appellee incurred around $6,500 in medical bills. Her insurer, Appellant Shelter Mutual Insurance Company, paid $5,000 of Appellee’s medical expenses. Appellee procured the services of an attorney to represent her claim against Reynolds and Nationwide. Against the advice of her attorney, Appellee agreed to settle for the sum of $11,000. Appellee chose to settle knowing full well that the amount she received was less than half of the policy limit. She also knew that out of her settlement, she would have to reimburse Appellant for the $5,000 it paid for her medical bills, pursuant to the subrogation provision of her insurance contract. When Appellant refused to waive its subrogation right, Appellee filed this suit, claiming that she had not been made whole for her injuries.

In the first place, I take issue with Appellee’s claim and the trial court’s corresponding finding that she has not been made whole by her settlement. Based on what? As the majority points out, Appellee had a net gain from her settlement of approximately $2,100, after paying medical bills, attorney’s fees, and setting aside Appellant’s subrogation amount. From my review of the record, I am not convinced that this amount is insufficient to fully compensate her. The only evidence presented of possible future damages was Appellee’s own self-serving testimony. She did not present any evidence as to the value of her alleged future damages. It is beyond me how, without such evidence, the trial court could have found that Appellee was not made whole by the settlement. As such, I believe his finding is clearly erroneous.

Moreover, if we were to accept her claim that she is still éxperiencing pain from her injuries, I am greatly troubled by the fact that she admitted that she is no longer undergoing physical therapy, that she will not take her prescribed pain medication, and that she refuses to have surgery to relieve her pain. This testimony demonstrates to me that Appellee’s continued pain is due to her refusal to take part in any affirmative treatment.

In the second place, I disagree with the majority’s application of Franklin v. Healthsource of Ark., 328 Ark. 163, 942 S.W.2d 837 (1997), in this case. Although the majority acknowledges that the facts in Franklin are distinguishable from those in the present case, it nonetheless proceeds to apply the reasoning and holding of Franklin. I believe this is error.

In Franklin, the insured was injured in an automobile accident and incurred approximately $124,000 in medical bills. Additionally, there was testimony demonstrating that his future damages amounted to approximately $400,000. Franklin’s insurer, Health-source, paid in excess of $71,000 of those medical bills. Franklin settled his claim against the tortfeasor and the tortfeasor’s insurance carrier for $25,000, the full amount of the liability policy. Thereafiter, Healthsource sought the full amount of the settlement as subrogation. This court held, and rightly so, that Franklin’s right of subrogation took precedent over that of Healthsource because he had not been made whole, even after he received the full value of the liability policy. The decision in Franklin was based on equitable principles.

In the present case, Appellee was fully aware that she was settling her claim for less than the policy amount available. Indeed, her decision to settle was made against the advice of her attorney and with the full knowledge that she would have to reimburse Appellant, pursuant to the subrogation clause of her insurance contract. Had she received the full amount of Reynolds’s policy and still not been made whole, under Franklin, Appellant would not be entitled to enforce its subrogation contract. Because she chose to setde for less than the full amount of the policy, and, apparently, less than the full amount of her damages, her equitable claim of subrogation is not superior to Appellant’s, and Franklin is not controlling. For these reasons, I respectfully dissent.

Hannah, J., joins in this dissent.

       The policy language stated:
      In the event of any payment under coverages A, B, C, E, F, or G of this policy, or under any other coverage where permitted by applicable law, we will be subrogated to all rights of recovery for which the insured or any person receiving the payment may have against any person or organization. The insured, or such person, shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The insured, or such person, shall do nothing after loss to prejudice these rights.

       We note that after paying medical bills, attorney’s fees, and setting aside appellant’s subrogation money, appellee only received $2,097.37 from her settlement with Mr. Reynolds.