Lacey v. Bekaert Steel Wire Corp., Civ. No. 85-2046.

• Decision Date: 02 October 1985
• Docket Number: Civ. No. 85-2046.
• Parties: Ronald LACEY, Individually and as Special Administrator of the Estate of Rebecca Lacey, Deceased; and Glenda Richie Tomlinson, Plaintiffs, v. BEKAERT STEEL WIRE CORPORATION; Crawford County, Arkansas; City of Van Buren, Arkansas; CNA; the Pillsbury Company; Fred McLane; and Bruce Shaw and Virgil Bracken, Co-Executors of the Estate of H.H. (Mike) Meyer, Deceased, Defendants.
• Court: U.S. District Court — Western District of Arkansas

619 F. Supp. 1234

Ronald LACEY, Individually and as Special Administrator of the Estate of Rebecca Lacey, Deceased; and Glenda Richie Tomlinson, Plaintiffs, v. BEKAERT STEEL WIRE CORPORATION; Crawford County, Arkansas; City of Van Buren, Arkansas; CNA; the Pillsbury Company; Fred McLane; and Bruce Shaw and Virgil Bracken, Co-Executors of the Estate of H.H. (Mike) Meyer, Deceased, Defendants.

Civ. No. 85-2046.

United States District Court, W.D. Arkansas, Fort Smith Division.

October 2, 1985.

Robert S. Blatt and Charles Karr, Fort Smith, Ark., for plaintiffs.

G. Alan Wooten, Warner & Smith, Fort Smith, Ark., for Bekaert Steel Wire Corp. and CNA.

Joseph C. Self, Deputy Pros. Atty., Van Buren, Ark., for Crawford County, Ark.

Gary R. Cottrell, Van Buren, Ark., for City of Van Buren, Ark.

Robert L. Jones, Jr., Jones, Gilbreath & Jones, Fort Smith, Ark., for Pillsbury Co.

Thomas Harper, Harper, Young, Smith & Maurras, Fort Smith, Ark., for Fred McLane.

James A. Arnold, II, Shaw, Ledbetter, Hornberger, Cogbill & Arnold, Fort Smith, Ark., for Bruce Shaw and Virgil Bracken, Co-Executors of the Estate of H.H. (Mike) Meyer, Deceased.

MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

I. Introduction

Plaintiffs initiated this action on February 19, 1985, against the various defendants, for damages sustained in a one-vehicle accident which occurred on July 30, 1982. Specifically, plaintiffs allege that on the aforementioned date the decedent, Rebecca Lacey, operated a vehicle owned by plaintiff, Ronald Lacey, and occupied by plaintiff, Glenda Tomlinson, on "Lee Creek Road" in Crawford County, Arkansas. Lee Creek Road ends at the north bank of the Arkansas River. Rebecca Lacey drove the vehicle off of the end of Lee Creek Road into the Arkansas River. Rebecca Lacey drowned and Glenda Tomlinson sustained personal injuries. Ronald Lacey's vehicle was damaged.

Defendants, Bruce Shaw and Virgil Bracken, are co-executors of the estate of H.H. Meyer, who is now deceased. It is alleged that H.H. Meyer and defendant Fred McLane owned the property in 1968 that would now be east of the center line of Lee Creek Road and immediately to the north of the point of the occurrence. Defendant, Pillsbury Company (Pillsbury) is the predecessor in title of defendant, Bekaert Steel Wire Corporation (Bekaert), to the property that would now be west of the center line of Lee Creek Road, and the property immediately to the north of the point of occurrence.

In April of 1968, H.H. Meyer, defendant McLane, and defendant Pillsbury conveyed to defendant Crawford County, Arkansas (Crawford County), an 80-foot right-of-way for Lee Creek Road running approximately 1663.25 feet from the north bank of the Arkansas River to the north. Crawford County accepted the easement for use as a public road.

In June, 1974, Pillsbury conveyed its interest in the property to Bekaert. In May, 1975, Crawford County annexed the land at the point of occurrence and immediately north thereof, to defendant City of Van Buren, Arkansas (Van Buren). The land was accepted by Van Buren that same day.

In July, 1976, Bekaert contracted with Van Buren for Van Buren to issue Act 9 bonds to raise capital for the construction of Bekaert's industrial plant. The agreement required Bekaert to maintain general public liability insurance against personal injury or death occurring in or about the plant and property damage insurance against damage on or about the plant. The agreement further provided for Bekaert's indemnification of Van Buren for liability from claims arising from the conduct or negligence of Bekaert, its assignees, or agents. The land described in the agreement includes Lee Creek Road at the point of occurrence and immediately to the north thereof.

At the time of the accident, there was a policy of insurance issued by defendant CNA in accordance with the Bekaert-Van Buren agreement. Van Buren is an alleged insured under the policy. Plaintiffs allege that CNA is therefore subject to direct-action suit pursuant to Ark.Stat.Ann. § 66-3240.

Plaintiffs contend that Bekaert, Crawford County, Van Buren, Pillsbury, McLane and H.H. Meyer were negligent in the dedication, acceptance, design, construction, maintenance, marking, and guarding of Lee Creek Road at the point of occurrence. In this regard, plaintiffs assert essentially that any negligence of Bekaert is "imputed" to Crawford County, whose negligence is "imputed" to Van Buren, whose negligence is "imputed" to Pillsbury, whose negligence is "imputed" to McLane and H.H. Meyer, whose negligence is "imputed" to United States Trust Company of New York, Trustee. This negligence is alleged to arise from the following particulars:

(1) dedication and acceptance of a public road that would not benefit the public and which ended at the north bank of the Arkansas River;

(2) designing and constructing a public road that does not benefit the public and ends at the north bank of the Arkansas River;

(3) designing, constructing and paving a road that ends at the north bank of the Arkansas River which appears to be a "through" highway, which is marked with double yellow lines;

(4) failing to erect barricades and warning devices and signs to prevent persons from driving into the Arkansas River;

(5) inaccurately warning persons that the road ended in three-fourths of a mile;

(6) failing to close the road and generally failing to exercise ordinary care.

Although Ark.Stat.Ann. § 12-2901 renders counties, cities and political subdivisions immune from tort liability, plaintiffs contend that this immunity violates section 1 of the fourteenth amendment to the United States Constitution. This argument is premised on the fact that Ark.Stat.Ann. § 12-2901 requires political subdivisions to carry liability insurance on all motor vehicles, but does not require them to carry general liability insurance. Ark.Stat.Ann. § 66-3240 authorizes a direct action against an insurance carrier when a political subdivision not ordinarily subject to suit carries liability insurance, but this statute does not require political subdivisions to carry such insurance.

Van Buren moved to dismiss the complaint under Rule 12(b)(6), Fed.R.Civ.P., based upon the "statutory" immunity and plaintiffs' failure to utilize sections 7.20.01 and 7.20.02 of chapter 7.20 of the Van Buren Municipal Code which authorize an administrative claims procedure against Van Buren.

Crawford County moved to dismiss, pursuant to Ark.Stat.Ann. § 12-2901, and because plaintiffs' complaint and exhibits demonstrate that Crawford County had no control over Lee Creek Road for more than seven years prior to the accident. However, because counsel for Crawford County failed to submit a brief in support of its motion as required by Local Rule 20 of the Rules for the Eastern and Western Districts of Arkansas, this court, by order dated March 11, 1985, denied Crawford County's motion and directed it to submit an answer to the complaint within 13 days. The answer was duly submitted reaffirming its defenses raised by motion and adding several other factual defenses.

Shaw and Bracken filed an answer to the complaint, raising factual defenses and affirmatively alleging that this court lacks jurisdiction of the subject matter or persons of these separate defendants, Shaw and Bracken. They further contend that the complaint fails to state a cognizable claim as to them, and that the action is barred by the statute of limitations.

Bakaert answered the complaint raising the defenses of comparative fault, unavoidable casualty, and failure to state a claim upon which relief can be granted.

CNA moved to dismiss under Rules 12(b)(2) and 6, Fed.R.Civ.P. CNA argues that the policy referred to in the complaint was issued to Bekaert rather than Van Buren, and therefore that Ark.Stat.Ann. § 66-3240 does not apply so as to allow a direct action against it.

Evelyn McLane, guardian of the person and property of Fred McLane, moved to quash service because the summons was not signed by the clerk, bore no date, was not "sealed" by the court, directed McLane to answer within 20 days rather than 30, and additionally because the guardian and ward were not both served as required by law. McLane additionally asserts that the complaint fails to state a claim and is barred by the statute of limitations.

On March 27, 1985, Crawford County moved for summary judgment pursuant to Rule 56, Fed.R.Civ.P., primarily on the grounds raised in its motion and answer.

Pillsbury moved to dismiss plaintiffs' complaint for an alleged failure to state a claim cognizable under law.

Shaw and Bracken moved to dismiss plaintiffs' complaint on the bases alleged in their answer.

Plaintiffs subsequently re-served McLane properly, and the adequacy and sufficiency of the original service are no longer before the court.

On May 3, 1985, the court advised the parties that the court had decided to consider the motions to dismiss filed by Crawford County, Van Buren, Pillsbury, McLane, and Shaw and Bracken, as motions for summary judgment. The parties were given ten days to supplement the record as necessary. All issues are now ripe for resolution and the motions of the various parties will be discussed in turn.

II. The Motions of the City of Van Buren and Crawford County, Arkansas

It is undisputed that the complaint purports to allege a claim for relief based upon negligence against Van Buren and Crawford County. Ark.Stat.Ann. § 12-2901 provides:

12-2901. State subdivisions immune from tort liability.— It is hereby 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 shall be immune from liability for damages, and no tort action shall lie against any such political subdivision, on account of the acts of their agents and employees. Acts 1969, No. 165, § 1, p. 455.

Section 12-2902 allows political s...