Hettel v. Rye
| Decision Date | 31 January 1972 |
| Docket Number | No. 5--5719,5--5719 |
| Parties | Alfred B. HETTEL, Appellant, v. Bethel Lee RYE, Administrator, et al., Appellees. |
| Court | Arkansas Supreme Court |
Laws & Schulze, P.A., Russellville, for appellant.
Williams & Gardner, Russellville, for appellees.
Following a traffic accident the appellant, Alfred B. Hettel, brought this action for personal injuries against Charles M. Rye. Upon Rye's death a few months later, the cause was revived against his administrator, one of the appellees. The other appellee, Northwestern National Insurance Company, is the plaintiff's own insurer, whom the plaintiff brought into the case for the assertion of a cause of action under the uninsured motorist clause in the policy. Although the original cause was revived against Rye's administrator, the plaintiff failed to file a copy of the complaint or other pleading in the probate proceeding, as the Probate Code requires. Ark.Stat.Ann. § 62--2602 (Repl.1971); Wolfe v. Herndon, 234 Ark. 543, 353 S.W.2d 540 (1962). This appeal is from a circuit court order dismissing the complaint both as to the administrator and as to the insurance company.
We affirm the dismissal as to the administrator. On that branch of the case the only argument made for reversal is that the plaintiff should be excused from filing a copy of the complaint in the probate court, for the reason that the same attorneys were then representing both the plaintiff and Rye's administrator. That argument must be rejected, because it is raised for the first time on appeal. Had the contention been made in the court below it is manifestly possible that some explanation of the apparent conflict of interest would have been forthcoming.
We must, however, set aside the dismissal as to the insurance company. We are not persuaded by the company's argument that the dismissal as to the uninsured motorist's estate necessarily requires that the cause of action under the uninsured motorist clause also be dismissed.
The policy requires the company, within stated limits, '(t)o pay all sums which the insured . . . shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury . . . sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile.' The policy goes on to define an uninsured automobile as including a hit-and-run automobile.
The uninsured...
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Jenkins v. City of Elkins
...and the amount of the insured's damages; the tortfeasor's immunity, for whatever reason, does not prevent coverage. See Hettel v. Rye, 251 Ark. 868, 475 S.W.2d 536 (1972); Borjas v. State Farm Mut. Auto. Ins. Co., 33 P.3d 1265 (Colo.App.2001); Tinsley v. Worldwide Ins. Co., 212 Ga.App. 809,......
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Jenkins v. City of Elkins
...and the amount of the insured's damages; the tortfeasor's immunity, for whatever reason, does not prevent coverage. See Hettel v. Rye, 475 S.W.2d 536 (Ark. 1972); Borjas v. State Farm Mut. Auto. Ins. Co., 33 P.3d 1265 (Colo. App. 2001); Tinsley v. Worldwide Ins. Co., 442 S.E.2d 877 (Ga. Ct.......
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Nationwide Mut. Ins. Co. v. Hatfield, 2001-SC-0969-DG.
...support the essential facts approach. In summary, they are as follows: Harvey v. Mitchell, 522 So.2d 771 (Ala.1988); Hettel v. Rye, 251 Ark. 868, 475 S.W.2d 536 (1972); Allstate Ins. Co. v. Elkins, 63 Ill.App.3d 62, 21 Ill.Dec. 66, 381 N.E.2d 1 (1978); Allied Fidelity Ins. Co. v. Lamb, 361 ......
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