City of Little Rock v. Dayong Yang

• Decision Date: 09 February 2017
• Docket Number: No. CV–15–1057,CV–15–1057
• Citation: 509 S.W.3d 632
• Parties: CITY OF LITTLE ROCK, Arkansas ; Stuart Thomas, Individually and in his official capacity as Chief of Police for the City of Little Rock; Wayne Bewley, Individually and in his official capacity as Assistant Chief of Police for the City of Little Rock; Laura Martin, Individually and in her official capacity as Communications Center Manager for the City of Little Rock; Linda Wilson, Individually and in her official capacity as Communications Administrator for the City of Little Rock; Sharon Martin, in her official capacity as Shift Supervisor for the City of Little Rock; Alan Cate, Individually and in his official capacity as Communications Shift Supervisor for the City of Little Rock; Marquita Dooley, Individually and in her official capacity as Emergency Communications Trainer for the City of Little Rock; Candace Middleton, Individually and in her official capacity as Communications Call Taker for the City of Little Rock; Karen Grimm, Individually and in her official capacity as Communications System Specialist for the City of Little Rock; Gregory L. Summers, Individually and in his official capacity as Fire Chief for the City of Little Rock; Robert Sharp, Individually and in his official capacity as Fire Captain for the City of Little Rock;Frank Scott and Eddie Rhine, Individually and in their official capacities as Firefighters for the City of Little Rock; and Little Rock Ambulance Authority d/b/a Metropolitan Emergency Medical Services, Appellants v. DAYONG YANG, as Special Administrator of the Estate of Le Yang, Deceased, Appellee
• Court: Arkansas Supreme Court

509 S.W.3d 632

CITY OF LITTLE ROCK, Arkansas ; Stuart Thomas, Individually and in his official capacity as Chief of Police for the City of Little Rock; Wayne Bewley, Individually and in his official capacity as Assistant Chief of Police for the City of Little Rock; Laura Martin, Individually and in her official capacity as Communications Center Manager for the City of Little Rock; Linda Wilson, Individually and in her official capacity as Communications Administrator for the City of Little Rock; Sharon Martin, in her official capacity as Shift Supervisor for the City of Little Rock; Alan Cate, Individually and in his official capacity as Communications Shift Supervisor for the City of Little Rock; Marquita Dooley, Individually and in her official capacity as Emergency Communications Trainer for the City of Little Rock; Candace Middleton, Individually and in her official capacity as Communications Call Taker for the City of Little Rock; Karen Grimm, Individually and in her official capacity as Communications System Specialist for the City of Little Rock; Gregory L. Summers, Individually and in his official capacity as Fire Chief for the City of Little Rock; Robert Sharp, Individually and in his official capacity as Fire Captain for the City of Little Rock;Frank Scott and Eddie Rhine, Individually and in their official capacities as Firefighters for the City of Little Rock; and Little Rock Ambulance Authority d/b/a Metropolitan Emergency Medical Services, Appellants

v.DAYONG YANG, as Special Administrator of the Estate of Le Yang, Deceased, Appellee

No. CV–15–1057

Supreme Court of Arkansas.

Opinion Delivered February 9, 2017

Friday, Eldredge & Clark, LLP, by: Edie R. Ervin, Little Rock, for appellant MEMS.

Thomas M. Carpenter, Office of the City Attorney, North Little Rock, for appellant City of Little Rock.

McMath Woods, P.A., by: Bruce McMath, Charles Harrison, and Carter C. Stein, Little Rock, for appellee.

JOSEPHINE LINKER HART, Associate Justice

The question raised in this appeal is whether the appellants, the City of Little Rock, Arkansas (the "City"), its employees, and Little Rock Ambulance Authority, doing business as Metropolitan Emergency Medical Services ("MEMS"), may assert the affirmative defense of statutory immunity provided for by Arkansas Code Annotated § 21–9–301 (Supp. 2015), in the lawsuit filed by Dayong Yang, as special administrator of the estate of his deceased child, Le Yang. At issue is whether, in view of the evidence presented by the parties regarding insurance coverage, the circuit court properly denied summary judgment on Yang's negligence claims against appellants. We affirm in part and reverse and remand in part.

In his third amended complaint and petition for declaratory judgment, Yang sued the appellants for the alleged mishandling of a 911 call by an employee of the City, Candace Middleton, that had been made by Yang's wife, Jinglei Yi, on January 14, 2013, seeking rescue services when Yi lost control of her vehicle and drove into a retaining pond. Dayong Yang alleged in his complaint that Le Yang died of pneumonia complicated by the anoxic encephalopathy that occurred in the near-drowning event. In his complaint, Yang made several claims of negligence. In their answer, the City and its employees asserted as an affirmative defense that it was entitled to the statutory immunity provided for in Arkansas Code Annotated § 21–9–301. MEMS, which is an emergency medical health-care facilities board created by the City, filed a motion to dismiss asserting that as part of the City, it is also entitled to statutory immunity. In his response to MEMS's motion to dismiss, Yang attached insurance policies showing that MEMS held a commercial general liability policy with a limit of $1 million and a commercial-liability umbrella policy with a limit of $2 million.

The City and its employees filed a motion for summary judgment, again asserting that it was entitled to statutory immunity on Yang's negligence claims against them. At the hearing on the motion MEMS orally moved to join the motion. While granting summary judgment on some claims, in its order the circuit court denied summary judgment on Yang's negligence claims against the City and against the employees in their official capacities only. In denying summary judgment, the circuit court concluded, "As questions of fact remain on these claims, they should proceed to trial." The circuit court also noted that during the hearing, MEMS had adopted the City's "municipal immunity argument regarding Yang's negligence claims against it." The circuit court denied summary judgment on "Yang's negligence claims against MEMS on all claims not covered by insurance." The circuit court again concluded, "As questions of fact remain on these claims, they should proceed to trial." This interlocutory appeal followed.

This court has jurisdiction to hear the statutory-immunity issue pursuant to Rule 2(a)(10) of the Arkansas Rules of Appellate Procedure–Civil, which provides that "[a]n order denying a motion to dismiss or for summary judgment based on the defense of sovereign immunity or the immunity of a government official" is an appealable order. Where the refusal to grant a summary-judgment motion has the effect of determining that the appellant is not entitled to immunity from suit, an interlocutory appeal is permitted because the right of immunity from suit is effectively lost if a case goes to trial. City of Malvern v. Jenkins , 2013 Ark. 24, at 6, 425 S.W.3d 711, 715. However, we do not hear on appeal any issue other than whether the circuit court erred in denying summary judgment on the issue of immunity. Id. , 425 S.W.3d at 715. The issue of whether a party is immune from suit is purely a question of law and is reviewed de novo on appeal. City of Fayetteville v. Romine , 373 Ark. 318, 321, 284 S.W.3d 10, 13 (2008).

Statutory immunity is set out in Arkansas Code Annotated section 21–9–301, which provides as follows:

(a) It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the state and any of their boards, commissions, agencies, authorities, or other governing bodies shall be immune from liability and from suit for damages except to the extent that they may be covered by liability insurance.

(b) No tort action shall lie against any such political subdivision because of the acts of its agents and employees

Thus, Arkansas Code Annotated section 21–9–301 grants immunity to the City, its employees, and MEMS, except to the extent that they may be covered by liability insurance. Repking v. Lokey , 2010 Ark. 356, at 11, 377 S.W.3d 211, 220. This provision protects employees against suits in their official and individual capacities. Blevins v. Hudson , 2016 Ark. 150, at 6, 489 S.W.3d 165, 169. However, when a defendant pleads an affirmative defense of immunity, that defendant must plead and prove no liability coverage under this section for purposes of summary judgment. Repking , 2010 Ark. 356, at 12, 377 S.W.3d at 220.

On appeal, the City argues that the circuit court erred in denying summary judgment on the claims of negligent hiring, negligent training, negligent supervision, negligent retention, negligent maintenance of the CAD system, negligent staffing, and negligent performing of rescue services. The City argues that the circuit court erred in failing to grant summary judgment on these negligence claims based on their statutory immunity provided pursuant to Arkansas Code Annotated § 21–9–301.

In response, Yang contends that the statutory immunity granted to the appellants is not absolute because they can be sued to the extent that applicable coverage exists under an insurance policy. Yang argues that this statutory immunity is an affirmative defense that must be specifically pled and proven and that the appellants were required to present evidence of liability insurance, or a lack thereof. Yang concludes that because there is no proof of insurance in the record, the City and its employees are not entitled to summary judgment because a genuine issue of fact exists on whether the City has insurance to cover its negligent acts. As for MEMS, Yang asserts that there is proof of insurance and argues that MEMS is not immune...