Bps, Inc. v. Parker

• Decision Date: 28 June 2001
• Docket Number: 01-204
• Citation: 47 S.W.3d 858
• Parties: BPS, INC., AND MICRO FLO COMPANY, APPELLANT/PETITIONERS, VS. JASON PARKER, APPELLEE/RESPONDENT, ALLEN BARTLO, BPS, INC. AND MICRO FLO COMPANY, APPELLANTS/PETITIONERS, VS. LINDA WINSTON, ET AL., APPELLEES/RESPONDENTS. SUPREME COURT OF ARKANSASOpinion Delivered
• Court: Arkansas Supreme Court

BPS, INC., AND MICRO FLO COMPANY, APPELLANT/PETITIONERS VS JASON PARKER, APPELLEE/RESPONDENT, ALLEN BARTLO, BPS, INC. AND MICRO FLO COMPANY, APPELLANTS/PETITIONERS VS LINDA WINSTON, ET AL., APPELLEES/RESPONDENTS.

SUPREME COURT OF ARKANSAS

No. 01-204

Opinion Delivered

June 28, 2001

APPEAL FROM THE PHILLIPS COUNTY CIRCUIT COURT, NO. CIV 97-212; CIV 97-294, HON. L.T. SIMES, II, JUDGE, MOTION TO DISMISS APPEAL DENIED.

ORDER OF COURT OF APPEALS GRANTING MOTION TO DISMISS APPEAL VACATED.

REVERSED IN PART AND REMANDED.

ROBERT L. BROWN, Associate Justice

This is an appeal from an order of the circuit court entitled "Joint Findings of Fact and Conclusions of Law" in which the court denied summary judgment to appellants, BPS, Inc. and Micro Flo Company. The court of appeals granted a motion filed by appellees Jason Parker and Linda Winston to dismiss the appeal, and this court granted review of that dismissal. We deny the motion to dismiss this appeal and vacate the court of appeals' order granting that motion. Furthermore, we reverse that part of the circuit court's order which makes findings of fact and conclusions of law on the issue of the Fireman's Rule and remand this matter to the circuit court with instructions to limit its order to the issue of whether summary judgment is appropriate.

The facts are that on May 8, 1997, the West Helena Fire Department responded to an emergency call at the BPS facility, which packages agricultural chemicals. The Fire Department received a report that the chemical, Azinphos Methyl (AZM), was smoldering in BPS's Unit 2. As firefighters responded to the emergency at Unit 2, the building exploded, killing three firefighters, including Reginald Robinson, Sr., a volunteer firefighter. A fourth firefighter, Jason Parker, was injured in the explosion.

On August 8, 1997, Jason Parker filed a personal injury lawsuit against BPS and asserted that BPS representatives had misrepresented to the firefighters that there was no chance of explosive harm. He sued for negligence; willful, wanton, and reckless misconduct; strict liability due to the mishandling of ultra-hazardous chemicals; and the presence of hidden dangers on BPS's premises. On October 31, 1997, Linda Winston, as administratrix of Reginald Robinson, Sr.'s estate, filed a wrongful death action against BPS and its president, Allen Bartlo. She sued for negligence; willful, wanton, and reckless misconduct; misrepresentation; hidden danger; and strict liability due to ultra-hazardous materials. Both complaints sought compensatory and punitive damages. Later, both Parker and Winston amended their separate complaints to include Micro Flo Company, which was BPS's supplier of AZM, as a party defendant. In their respective answers to the amended complaints, BPS, Bartlo, and Micro Flo stated that the claims of Parker and Winston were barred under the doctrine of the Fireman's Rule. BPS also filed a third-party complaint against Micro Flo for contribution and indemnity, and Micro Flo cross-claimed against BPS.

On December 18, 1998, BPS filed a motion for summary judgment in the Parker case based upon the Fireman's Rule. Allen Bartlo and BPS filed a similar motion in the Winston case. Micro Flo did the same in both cases. Parker and Winston both responded that factual issues existed, that exceptions to the Fireman's Rule prevented summary judgment from being entered, and that the motions for summary judgment should be denied. Neither Parker nor Winston filed summary judgment motions on their own behalf. On May 22, 2000, the circuit court entered its order entitled "Joint Findings of Fact and Conclusions of Law." In that order, the court recited the facts involved in the case, the issues involved in the case, and the applicable law. The circuit court made numerous findings of fact and conclusions of law in its order. It then concluded that summary judgment should be denied.

On June 15, 2000, BPS, Bartlo, and Micro Flo (hereinafter referred to jointly as BPS) appealed "from the order containing joint findings of fact and conclusions of law of the Circuit Court[.]" On October 11, 2000, the two appeals were consolidated by order of the court of appeals. On January 15, 2001, Parker and Winston moved to dismiss the appeal as an invalid appeal from a denial of a motion for summary judgment. On February 7, 2001, the court of appeals granted that motion to dismiss. BPS petitioned this court for review of the dismissal of the appeal, and we granted review and set an expedited briefing schedule.

BPS raises two issues in its brief on appeal: (1) that the circuit court's order is an appealable order, and (2) that the circuit court acted outside of the bounds of Ark. R. Civ.P. 56 when it made findings of fact and conclusions of law that granted affirmative relief to Parker and Winston. This had the effect, according to BPS, of striking part of its answer pertaining to its defenses. Thus, BPS contends that an appeal is appropriate under Ark. R. App. P.-Civ. 2(a)(4). With regard to requested relief, BPS asks that the dismissal of its appeal be vacated and that its appeal be reinstated. It further requests that the improper findings of fact and conclusions of law be set aside and that the circuit court be instructed to enter an order that merely denies the various motions for summary judgment.

Parker and Winston dispute the assertion that the circuit court made improper findings of fact and conclusions of law and rest their argument on the fact that this court has steadfastly refused to entertain appeals from denials of summary judgment. The appellees emphasize that the circuit court entered no directed verdicts on the liability issues. They further point out that this case has now been set for trial, and that BPS will have ample opportunity to present additional proof and argue its defenses respecting the Fireman's Rule at that time.

It appears clear to this court that the issues before us involve not only the appealability of the circuit court's order, but also consideration of a remedy to limit the scope of that order should we determine that it was improperly entered. When this court grants a petition for review, we consider the matter as if the appeal had been originally filed in this court. See Crockett v. Essex, 341 Ark. 558, 19 S.W.3d 585 (2000). Hence, we consider the appeal by BPS and the motion to dismiss by Parker and Winston, which was granted by the court of appeals.

We begin by examining the circuit court's order. It is eighteen pages in length and, as already stated, entitled "Joint Findings of Fact and Conclusions of Law." The order begins by stating that it is prompted by the identical motions for summary judgment filed by the appellants. A five-page recitation of the facts follows. That, in turn, is followed by a discussion of the law of summary judgment and the Fireman's Rule, as adopted by this court in Waggoner v. Troutman Oil Co., 320 Ark. 56, 894 S.W.2d 913 (1995).¹

The circuit court then made certain findings of fact and conclusions of law. We quote directly from the circuit court's order:

Plaintiffs have established the facts and circumstances in the instant cause allowing for the instigation of the various defenses asserted and have overwhelmingly proven through the testimony of the defendants' witnesses themselves: (a) the presences [sic] of misrepresentation on the part of Micro Flo Company and BPS; (b) the presence of continuous affirmative acts of negligence afer [sic] the initial negligence which caused the accident; (c) the presence of hidden peril and dangers which were known to both Micro Flo Company and BPS relative to reactivity and flammability; (d) the presence of hidden peril caused by a previous dousing of chemicals through the sprinkler system of BPS either early the [sic] morning of the date of this incident or the day before; (e) the presence of a forklift with a propane tank in vicinity [sic], i.e. heat or fire; (f) the presence of Maneb in the area of the AZM which had a known reactivity propensity after being exposed to water; (g) the presence of AZM in an area adjacent to a heated pipe.²

....

In conclusion, the Court incorporates its findings of facts and conclusions of law and more specifically finds that the defendants' reliance on Waggoner is misplaced.aa...aaSpecifically, the rule of law that a firefighter cannot recover for injuries or death that results from ordinary or open and obvious dangers which are associated with his/her employment. However, the mere fact that a person is a firefighter injured or killed in the line of duty is not enough to be an absolute bar to recovery. ... It is undisputed in this case that on May 8, 1997, BPS reported to the City of West Helena Fire Department that they had a smoldering supersack of AZM and requested that firefighters remove the material from Warehouse No. 2, where the material was located, this [sic] factual issue is sufficient to deny summary judgment. ...

The Court, specifically, finds that the incorrect MSDS sheet constituted a hidden danger, and such defect is attributable to BPS and Micro Flo Company;³ that the failure to correctly test and rate such a volatile and dangerous chemicals [sic] is tantamount to willful and wanton conduct; and supplying the firefighters with this limited amount of incorrect information was an independent act of negligence and arguably reckless indifference to the value of human life, on the part of both defendants BPS and Micro Flo Company.

This Court has no hesitancy in determining that the Motion for Summary Judgment in and of itself does not comport with the requirement of proof for proof, and it is deficient in the elements plead on the specific subject matter of summary judgment per the Firemen's Rule as required by Lipson v. The Superior Court of Orange County; John Berger, Real Party in Interest, cited as 31 Cal. 3d [362,] 644 P.2d [8]22; 1982 Cal. Lewis 178; 182 Cal Rptr. 62 (1982). The...