Hood on Behalf of Hood v. Arkansas School Bd. Ins. Co-op.
| Decision Date | 05 June 1991 |
| Docket Number | No. CA,CA |
| Citation | 35 Ark.App. 1,811 S.W.2d 1 |
| Parties | , 68 Ed. Law Rep. 916 Doyle HOOD as Next Friend and on Behalf of Cory HOOD, a Minor, Appellant, v. ARKANSAS SCHOOL BOARD INSURANCE COOPERATIVE, Appellee. 90-317. |
| Court | Arkansas Court of Appeals |
Randall Dixon, Dardanelle, for appellant.
W. Paul Blume, Little Rock, for appellee.
This suit was filed on behalf of Cory Hood, a minor, by his father, as next friend, against the Arkansas School Board Insurance Cooperative (ASBIC), the Russellville Public School, and Gallagher Bassett Services, Inc. The complaint alleged that the Russellville Public School is a school district for the State of Arkansas, that its insurance carrier is the ASBIC, and that Gallagher Bassett Services, Inc. is a foreign corporation licensed to do business in the State of Arkansas.
It is then alleged that Cory Hood, while riding on a bus owned and operated by the Russellville Public Schools, was assaulted and sustained severe damage to his right eye, and that his injuries and damages were caused by the negligence of the school bus driver acting as agent for the school district. The complaint also alleged that as a direct and proximate result of the bus driver's negligence the plaintiff suffered damages and expended monies for treatment of injuries, and judgment is prayed against the defendants for these damages and expenses.
None of the defendants filed an answer within the proper time after service of summons but eventually they filed a pleading entitled "Response to Motion for Default Judgment and Motion to Permit Defendants to Answer." In this response, the defendants admitted that they did not timely respond to the complaint filed by the plaintiff "due to an administrative oversight." But it was alleged that "it would be inappropriate for the court to enter default judgment against the defendants in that none of [them] is a proper party under the circumstances of the case and, therefore, the entry of a default judgment would produce an unjust result." This pleading also alleged that the Russellville Public School was an entity immune from suit for tort liability, that the ASBIC "is not an insurer and is an unincorporated association," and that Gallagher Bassett Services, Inc. is a "foreign corporation which provides services on claims to the Russellville School District" and does not provide insurance. The prayer of this pleading is for the court to deny the motion for default judgment and that the defendants be permitted to answer or otherwise respond to the complaint.
Approximately ten days after the above described response and motion was filed on behalf of the defendants, the court entered an order denying the plaintiff's motion for default judgment. Shortly thereafter, a separate answer was filed by ASBIC alleging that it was an unincorporated association through which participating school districts "manage risk and self-insure." The answer also denied most of the allegations of the complaint except it did admit that Cory Hood while riding on a bus operated by the Russellville Public School District was struck by another student. The answer further stated that ASBIC was not amenable to suit under Ark.Code Ann. § 23-79-210 (1987) (), and that ASBIC would file a motion for summary judgment on that basis.
Because of our view of the matter before us, we will not describe in detail the motions filed by the other two defendants but suffice it to say that by orders filed on April 27, 1989, the court granted motions to dismiss both the Russellville Public School and Gallagher Bassett Services, Inc. The record reflects no notice of appeal was ever filed from these orders of dismissal.
On August 21, 1989, a motion for summary judgment was filed by ASBIC alleging it is not an insurance company but "a self-funded risk management pool which does not offer insurance for tort liability" and that it is not subject to suit under the Arkansas Direct Action statute, Ark.Code Ann. § 23-79-210 (1987). While a brief in support of the motion for summary judgment was filed, no affidavit was filed in support of the motion, there is no deposition in the record, and the record does not reflect any answers to the interrogatories which were filed by ASBIC. The record does contain, however, an order by the court filed on March 28, 1990, which states that the motion for summary judgment filed by ASBIC has been presented to the court and is "hereby granted and the complaint is dismissed."
On April 17, 1990, a notice of appeal and designation of record was filed by the plaintiff, and it specifically states that the plaintiff is appealing from the order entered on March 28, 1990. Thus, what we have before us is an appeal by the plaintiff from an order granting a summary judgment to ASBIC, and the plaintiff's argument that the trial court erred in failing to grant plaintiff's motion for default judgment against ASBIC.
We discuss the summary judgment issue first. Under Ark.R.Civ.P. 56(c), summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." There were no depositions or answers to interrogatories or admissions on file; therefore, we can only look at the pleadings. As pointed out above, the complaint filed by the plaintiff alleged that ASBIC was the insurance carrier for the Russellville Public School District; that the plaintiff was injured and sustained damages caused by the negligence of the driver of a school bus for the Russellville Public School District; and that the driver of the school bus was acting as an agent for the school district at the time the plaintiff was injured.
Under these circumstances, we think the trial court clearly erred in granting the motion filed by ASBIC for summary judgment. The motion alleged that ASBIC was "a self-funded risk management pool which does not offer insurance for tort liability" and, therefore, "an action against ASBIC is inappropriate under the Arkansas Direct Action Statute [Ark.Code Ann.] § 23-79-210." Of course, the problem with that allegation is that it raises an issue of fact. "Summary judgment is only proper when a review of the pleadings, depositions or other filings reveal that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Woods v. Hopmann Machinery, Inc., 301 Ark. 134, 137, 782 S.W.2d 363 (1990). Here, there is nothing to support ASBIC's motion for summary judgment other than the bare allegations in the motion itself.
On appeal, ASBIC cites Coffelt v. Arkansas Power & Light Co., 248 Ark. 313, 451 S.W.2d 881 (1970), for the proposition that ASBIC's "bare allegations" should stand as undisputed in the present case because the plaintiff (appellant) did not file a response to (ASBIC's) appellee's motion for summary judgment. Appellee is mistaken in the holding of that case. In that case Coffelt filed a class action suit for a declaratory judgment seeking a ruling that "our constitutional prohibition against usury is violated by the utility company's authorized practice of imposing a 'late charge' against customers who do not pay their monthly bills within ten business (fourteen calendar days) after the due date." 248 Ark. 313-14, 451 S.W.2d 881. The power and light company filed a motion for summary judgment. The court's opinion states: "We take the controlling facts from the affidavit and exhibits accompanying the defendant's motion for summary judgment." Id. at 314, 451 S.W.2d 881. After discussion, the opinion states that the facts set out in the power and light company's affidavit and exhibits are undisputed, and the opinion then makes this pertinent observation: "We should add that the appellant is mistaken in suggesting in his brief that the facts supporting the motion for summary judgment must be treated as being disputed by the plaintiff's verified complaint." Id. at 315-16, 451 S.W.2d 881.
Thus we see the statement in Coffelt does not support the argument made by ASBIC in the present case. The matter is made clear in Ark.R.Civ.P. 56(e) which states that when a motion for summary judgment is made and properly supported the adverse party may not rest upon the mere allegations or denials of his pleadings but must respond by affidavits, depositions, answers to interrogatories or otherwise as provided in the rule and show that there is a genuine issue for trial. Moreover, the burden is on the moving party to show that there is no genuine issue of fact for trial. Wolner v. Bogaev, 290 Ark. 299, 718 S.W.2d 942 (1986).
Because of the allegations made in the complaint filed by the plaintiff in the present case, it was necessary for ASBIC to support its motion for summary judgment in some manner authorized by Ark.R.Civ.P. 56 in order for the summary judgment motion to be granted. The mere statement in the motion alleging that it was not an insurance company and, therefore, was not subject to suit under the direct action statute, Ark.Code Ann. § 23-79-210 (1989), was not sufficient to establish that there was no genuine issue of material fact to be tried under the allegations of the plaintiff's complaint. Thus, the trial court's order granting ASBIC's motion for summary judgment must be reversed.
Appellant also argues that the trial court erred in refusing to grant appellant's motion for default judgment against appellee ASBIC. Appellant could not, of course, appeal from the trial court's order denying appellant's motion for default judgment because that was not a final, appealable order. Associates Financial Services Company of Oklahoma v. Crawford County Memorial Hospital, ...
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