National Sec. Fire & Cas. Co. v. Poskey

• Decision Date: 20 April 1992
• Docket Number: No. 91-344,91-344
• Citation: 828 S.W.2d 836,309 Ark. 206
• Court: Arkansas Supreme Court
• Parties: NATIONAL SECURITY FIRE & CASUALTY COMPANY, Petitioner, v. Henry POSKEY and Hon. Harold Erwin, Circuit Judge of Jackson County, Arkansas, Respondents.

Page 836

828 S.W.2d 836

309 Ark. 206

NATIONAL SECURITY FIRE & CASUALTY COMPANY, Petitioner, v. Henry POSKEY and Hon. Harold Erwin, Circuit Judge of Jackson County, Arkansas, Respondents.

No. 91-344.

Supreme Court of Arkansas.

April 20, 1992.

Dan F. Bufford, Little Rock, for petitioner.

David Hodges, Little Rock, for respondents.

CORBIN, Justice.

Petitioner, National Security Fire & Casualty Company, seeks a writ prohibiting the Jackson County Circuit Court from hearing a case wherein respondent, Henry Poskey, seeks a judgment declaring petitioner's insurance coverage of one Theron E. Spurlock. Respondent was injured in an automobile accident involving Spurlock. During the investigation of the accident, petitioner determined it may have a possible defense to Spurlock's coverage. Following this determination, respondent filed his complaint for a judgment declaring petitioner's coverage of Spurlock and requiring petitioner to defend any cause of action filed against Spurlock. Petitioner filed a motion to dismiss on grounds that respondent did not have standing to maintain the suit, that the complaint did not state a claim for which relief could be granted, and that the court lacked subject matter jurisdiction. After a hearing on the motion, the trial court entered an order summarily denying the motion to dismiss.

Ordinarily, a petition for a writ of prohibition is not the proper remedy for the failure of a trial court to grant a motion to dismiss. Farm Bureau Mut. Ins. Co. of Ark. v. Southall, 281 Ark. 141, 661 S.W.2d 383 (1983). A writ of prohibition is an extraordinary writ and is only granted when the lower court is wholly without jurisdiction, there are no disputed facts, there is no adequate remedy otherwise, and the writ is clearly warranted. Miller v. Lofton, 279 Ark. 461, 652 S.W.2d 627 (1983). There is no doubt that a circuit court has proper subject matter jurisdiction to hear a declaratory judgment action concerning insurance coverage. The propriety of hearing such a case, especially when it appears that no cause of action exists or that not all the parties to the insurance contract have been made parties to the suit, is a distinctly different issue and one that is not addressed by a writ of prohibition, for the writ is issued only to prevent a court from exceeding its jurisdiction, rather than to prevent it from erroneously exercising its jurisdiction. Abernathy v. Patterson, 295 Ark. 551, 750 S.W.2d 406 (1988).

Petitioner concedes that the circuit court has proper subject matter jurisdiction of a declaratory judgment action, but argues that we should issue the writ because injured parties are not permitted to sue their non-immune tortfeasors' insurance carriers directly. Petitioner relies on our direct action statute, Ark.Code Ann. § 23-79-210 (1987). We agree that our direct action statute does not allow injured parties to sue their non-immune tortfeasors' insurance carriers directly until the injured party has obtained a judgment against the tortfeasor and the judgment remains uncollected after thirty days. See Ark.Code Ann. § 23-89-101(b) (1987); see also Carter v. Bush, 296 Ark. 261, 753 S.W.2d 534 (1...