In re Special Task Force On Practice
| Decision Date | 07 August 2014 |
| Parties | IN RE SPECIAL TASK FORCE ON PRACTICE AND PROCEDURE IN CIVIL CASES - ARK. R. CIV. P. 9, 49, 52, AND ARK. R. APP. P.-CIV. 8 |
| Court | Arkansas Supreme Court |
No.
Our Special Task Force on Practice and Procedure in Civil Cases submitted proposed amendments to the Arkansas Rules of Civil Procedure and other rules affecting civil practice. These rules were referred to the Committee on Civil Practice and published for comment. See In re Special Task Force on Practice & Procedure in Civil Cases, 2014 Ark. 5 (per curiam); In re Special Task Force on Practice & Procedure in Civil Cases - Final Report, 2014 Ark. 47 (per curiam). Over forty comments were submitted. The Committee reviewed the proposed rules and the comments and submitted a report to the court.
Three rule changes were proposed to address allocation of fault, including nonparty liability, which arises under the provisions of Act 649 of 2003, codified at Ark. Code Ann. §§ 16-61-201 and 16-61-202(c), as amended by Act 1116 of 2013. These rules, Ark. R. Civ. P. 9, 49, and 52, seek to fill the procedural void resulting from procedural aspects of Act 649 that were struck on separation-of-powers grounds. See Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135. The Committee on Civil Practice endorsed the rules as proposed by the Task Force except for several changes to Rule 9 that were suggested by thosewho commented.1
We agree with the Task Force and the Civil Practice Committee that rules are needed in this area. We accept the rules that they have proposed. As with any rules, if problems surface or improvements are needed, the court will be receptive to addressing them, but these rules are a good start. Accordingly, we adopt Arkansas Rules of Civil Procedure 9, 49, and 52, as set out below, and republish them. In order to give the bench and bar time to acclimate to these changes and to allow our Committee on Model Jury Instructions-Civil time to consider the impact of these changes on jury instructions, the effective date for theamendments to Rules 9,2 49, and 52 shall be January 1, 2015.
The Task Force and Committee on Civil Practice also agreed to recommend a revision to Ark. R. App. P.-Civ. 8 governing supersedeas bonds on appeal. We adopt this amendment, effective immediately, and republish the rule as set out below.3
The Reporter's Notes should be consulted for further explanation of the amendments to all the rules we adopt today.
The Task Force recommended revisions to Ark. R. Civ. P. 3, 11, and 42, and proposed a new Rule 11.1. In response to the comments received and considering its own concerns, the Committee on Civil Practice made substantive changes to Rules 11 and 42. Consequently, we are publishing these rules for comment in a separate per curiam order. The substantive change in proposed subsection (b)(5) of Rule 11 replaces the Rule 11.1 proposed by the Task Force that provided for a certificate of expert consultation. There were an overwhelming number of negative comments received from both the plaintiff and defense bar regarding the Rule 11.1 and Ark. R. Evid. 702 proposals. Although an alternative to Rule 11.1 is being considered, we decline to adopt the proposed amendments to Rule 702.4 We share the sentiment expressed in the comments and by the Civil Practice Committee that Rule 702 should remain as is.
The remaining rule change proposed by the Task Force concerns Ark. R. Civ. P. 3, related to pre-suit notice for medical-malpractice cases. The Task Force, the Committee, and those who responded with comments all had various issues with this proposal. The Civil Practice Committee has submitted a revised proposal that is being published for comment in a separate per curiam order.
Finally, we once again acknowledge the work performed by the members of the Task Force in getting these rule changes off the ground. They have provided a valuable service to this court and to the legal profession. As always, we are indebted to our Civil Practice Committee and express our gratitude for its prompt response to the Task Force's proposals.
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(h) Allocation of Nonparty Fault; Notice. (1) In an action for personal injury, medical injury, wrongful death, or property damage, a defending party seeking to allocate fault to a nonparty pursuant to Ark. Code Ann. § 16-61-202(c) or any other statute providing a substantive right to do so shall give notice as provided in paragraph (2) of this subdivision. This requirement does not apply with respect to a nonparty who has entered into a settlement agreement with the claimant.
(2) Notice shall be given in the initial responsive pleading, if the factual and legal basis upon which fault can be allocated is then known, or in an amended or supplemental pleading subject to the requirements and conditions of Rule 15 after the party discovers thatinformation. The pleading shall:
(A) sufficiently identify the nonparty to permit service of process, regardless whether service can be made or the court has in personam jurisdiction over the nonparty; and
(B) state in ordinary and concise language facts showing that the nonparty is at fault for the personal injury, medical injury, wrongful death, or property damage alleged by the claimant.
(3) A party served with a pleading that identifies a nonparty pursuant to this subdivision may, within 30 days after service, file an amended pleading pursuant to Rule 15 stating a claim against the nonparty.
(4) A party may not seek to allocate fault to a nonparty pursuant to Rules 49(c) or 52(a)(2) except by compliance with this subdivision (h). This subdivision does not prohibit a party from introducing evidence on any issue.
Addition to Reporter's Notes (2014 amendment): New subdivision (h) creates the exclusive procedural mechanism for asserting the right to an allocation of nonparty fault created by Ark. Code Ann. § 16-61-202(c), Act 1116 of 2013, § 3, or by any other statute. Other states have placed similar provisions in their rules that govern the pleading of special matters. E.g., Mich. Ct. Rule 2.112(k); Utah R. Civ. P. 9(l). Subdivision (h) draws in part on those rules and on Section 2 of Act 649 of 2003, codified at Ark. Code Ann. § 1655-202, which was held unconstitutional on separation-of-powers grounds in Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135.
Under subdivision (h), a defendant asserts a contribution claim for allocation ofnonparty fault in an answer or amended answer. By contrast, a defendant seeking contribution for damages may bring a third-party claim against a nonparty under Rule 14 or a cross-claim against a co-party under Rule 13. The procedural section of the Uniform Contribution Among Tortfeasors Act, Ark. Code Ann. § 16-61-207, is inconsistent with Rule 9(h) and in some respects with Rules 13 and 14. Therefore, section 16-61-207 is superseded pursuant to Ark. Code Ann. § 16-11-301.
Notice under Rule 9(h) is necessary if a nonparty's fault is to be considered by the trier of fact. See 2014 Amendments to Rules 49 and 52. Under paragraph (h)(1), however, the notice requirement does not apply if a nonparty has settled with the claimant. When there has been a settlement, there is no need for notice in light of Ark. Code Ann. § 16-61-204(d), which provides that "the remaining defendants are entitled to a determination by the finder of fact of the released joint tortfeasor's pro rata share of responsibility for the injured person's damages."
Under paragraph (h)(2), notice must be given in the defending party's original responsive pleading, if the necessary information is then available, or in an amended or supplemental pleading under Rule 15. Unlike former section 16-55-202, under which notice could be given no later than 120 days before the trial date, paragraph (h)(2) contains no deadline. Although Rule 15 allows amended and supplemental pleadings as a matter of right, the court may, on motion, strike the amended or supplemental pleading or grant a continuance if it determines that "prejudice would result or the disposition of the cause would be unduly delayed."
Paragraph (h)(2)(A) requires that nonparties be identified in sufficient detail to permit service of process, even though service cannot be made and the court lacks in personam jurisdiction. This requirement guards against the practice of naming so-called "phantom tortfeasors." See Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000). Paragraph (2)(B) parallels Ark. R. Civ. P. 8(a) in requiring the same fact pleading necessary in a complaint. The requirement in former section 16-55-202— "a brief statement of the basis for believing the nonparty to be at fault"—was uncertain in scope but well short of the fact-pleading standard.
Paragraph (h)(3) permits any party, within 30 days after being served with a pleading that identifies a nonparty, to amend his or her pleadings to assert a claim against the nonparty. Paragraph (h)(4) makes plain that the procedure set out in subdivision (h) is the exclusive method for allocation of nonparty fault under Rules 49(c) and 52(a)(2). It also emphasizes, as should be clear from the context, that subdivision (h) has nothing whatsoever to do with the admissibility of evidence. For example, defense counsel remain free to introduce evidence of proximate causation with respect to a nonparty in the course of raising the so-called "empty chair" defense.
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(c) Allocation of Fault. (1) In an action for personal injury, medical injury, wrongful death, or property damage, the jury shall determine the fault of all persons or entities, including those not made parties, who may have joint liability or several liability for thealleged injury, death, or damage to property. However, the jury shall determine the fault of a nonparty only if:
(A) the claimant entered into a settlement...
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