Flemens v. Harris
| Decision Date | 27 February 1995 |
| Docket Number | No. 94-245,94-245 |
| Citation | 319 Ark. 659,893 S.W.2d 783 |
| Parties | Roger D. FLEMENS and Nancy Flemens, Appellants, v. Glen D. HARRIS, Appellee. |
| Court | Arkansas Supreme Court |
Don P. Chaney, Arkadelphia, for appellants.
Phillip M. Clay, Lynn Williams, Hot Springs, for appellee.
The appellants in this case, Roger D. Flemens and Nancy Flemens, appeal an order granting summary judgment to appellee Glen D. Harris because the Flemenses' complaint for negligence was filed outside of the time of the applicable statute of limitations. Because the record on appeal fails to reflect any disposition of the complaint filed by the Flemenses against a party defendant, Shelter Life Insurance Company, we dismiss the appeal for lack of finality under Ark.R.Civ.P. 54(b).
In the summer of 1988, Glen Harris was an insurance agent for Shelter Life in the town of Dierks. He had passed his state licensure examination in June 1988. On August 8, 1988, Harris sold Roger Flemens several insurance policies on behalf of Shelter Life, including a disability insurance policy. Roger Flemens's wife, Nancy Flemens, was the named beneficiary under that policy which, upon her husband's disability, would pay her $1,000 a month.
On December 15, 1988, Roger Flemens had a car accident in which he experienced back injuries. He applied for disability benefits under his policy with Shelter Life and initially received one payment in the amount of $233.33 by check dated February 7, 1989, for his disability during the last two weeks in December 1988. On March 21, 1989, Shelter Life then discovered what it described as a "problem" with the policy and stopped paying benefits. Shelter Life contended that Roger Flemens had misrepresented his annual earned income on the application form as being too high. On December 13, 1991, the Flemenses filed a complaint against Harris and Shelter Life and alleged that Harris was negligent in completing the insurance application for Roger Flemens which provided Shelter Life with "an excuse" not to pay benefits. The complaint further alleged that Shelter Life had failed and refused to pay the benefits due and owing, despite demand.
The parties on appeal have advised this court that Shelter Life was dismissed from this litigation due to settlement, but there is no order in the record of this appeal showing that Shelter Life was dismissed as a party defendant. An Abstractor's Note was included in the Flemenses' brief in this appeal to the effect that Shelter Life "was dismissed early on in this litigation." Appellee Harris confirmed that fact in his brief and added that Shelter Life "was dismissed after a settlement and compromise which required a payment from Shelter to the Appellants of $125,000." The only reference in the record to Shelter Life's status, however, is the following statement in Harris's brief before the trial court in support of his motion for summary judgment:
It is first important to ask the court to note that the only issue remaining and pertaining to the parties in this action, Roger Flemens, Nancy Flemens and Glen Harris, is an action for contended negligence on the part of Defendant Harris in the handling of Plaintiff's application for disability insurance. The independent action, which Plaintiff Roger Flemens has filed against Shelter Insurance Company in the Circuit Court of Pike County, Arkansas, and subsequently removed to the United States District Court for the Western District of Arkansas has been settled and compromised between the parties.
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Flemens v. Harris
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