NATIONSBANK, NA v. Murray Guard, Inc.

• Decision Date: 25 January 2001
• Docket Number: No. 99-891.,99-891.
• Citation: 36 S.W.3d 291,343 Ark. 437
• Parties: NATIONSBANK, N.A. v. MURRAY GUARD, INC.
• Court: Arkansas Supreme Court

36 S.W.3d 291

343 Ark. 437

NATIONSBANK, N.A. v. MURRAY GUARD, INC.

No. 99-891.

Supreme Court of Arkansas.

January 25, 2001.

COPYRIGHT MATERIAL OMITTED

Anderson, Murphy & Hopkins, L.L.P., by Mariam T. Hopkins and Scott D. Provencher, Little Rock, for appellant.

The Laser Law Firm, P.A., by Dan F. Bufford and Donna L. Gay, Little Rock, for appellee.

DONALD L. CORBIN, Justice.

Appellant NationsBank, N.A., appeals the judgment of the Pulaski County Circuit Court entered in favor of Appellee Murray Guard, Inc. For reversal, NationsBank argues that the trial court erred by: (1) entering judgment in Murray Guard's favor based on the jury's apportionment of fault; (2) allowing the testimony of a city planner regarding alleged code violations; (3) allowing Murray Guard to introduce into evidence a management agreement between NationsBank and its property management company; and (4) allowing an expert witness to testify that NationsBank failed to comply with Section 601 of the National Fire Prevention Association. This appeal involves issues of first impression, as well as issues of substantial public interest and statutory construction; hence, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(b)(1), (4), and (6). We affirm.

The present appeal stems from damages caused by a fire that occurred January 24, 1994, on the fourteenth floor of the Worthen Bank Building. At the time of the fire, the building was owned by Worthen National Bank of Arkansas¹, but the fourteenth floor was leased to KPMG Peat Marwick ("KPMG"), an accounting firm. The fire was the result of a space heater igniting papers on a nearby desk. The space heater was either left on by a KPMG receptionist, or was accidently turned on by a Laidlaw, Inc., janitor cleaning KPMG's offices.

At approximately 10:00 p.m., on the evening of the fire, a Laidlaw supervisor, William Muse, reported smelling an odor of "extremely hot wood" on the fourteenth floor to the building's security guard, Don Hutchins. Hutchins was an employee of Murray Guard. According to Hutchins, he investigated the report, but after finding no problem determined that the smell was probably burned sawdust emanating from a workshop in the basement. Muse testified that he again notified Hutchins about an unusual smell he detected while checking on an employee on the eighteenth floor. Hutchins then dispatched his supervisor, Larry Minor, to the eighteenth floor to check out Muse's report. According to Muse, he repeatedly instructed Hutchins to contact the fire department. The fire alarms, however, did not go off until 11:56 p.m. According to Gary Jones, an Assistant Fire Marshal for the City of Little Rock, it took the fire department twenty-five minutes to locate the fire because security personnel initially reported that they smelled smoke on the eighteenth floor. NationsBank and two of its tenants, KPMG and the law firm of Wright, Lindsey & Jennings ("Wright"), suffered significant damages as a result of the fire.

NationsBank and KPMG filed suit against Murray Guard and Laidlaw alleging negligence in failing to detect the fire and failing to timely contact the fire department. Flake, Tucker, Wells & Kelley, Inc. ("Flake"), NationsBank's property management company, was also made a party to the suit when Murray Guard filed a third-party complaint against them. Wright filed a separate suit against Worthen, KPMG, and Laidlaw for its damages caused by the fire. The Wright suit was eventually consolidated with the present action. St. Paul Fire and Marine Insurance Company ("St.Paul") intervened to recover damages for the amounts it paid out for the business interruption losses of Wright.

Following mediation, all claims, cross-claims, and counterclaims were settled, with the exception of the claims against Murray Guard. These settlements included a payment of $22,535 from KPMG to NationsBank, in exchange for a release in accordance with the Uniform Contribution Among Joint Tortfeasors Act. Murray Guard subsequently settled the claims against it, except for those filed by NationsBank, KPMG, and St. Paul. St. Paul's claim was ultimately dismissed on a motion for summary judgment.

NationsBank and KPMG's claims and cross-claims were tried before a jury on March 29, 1999, through April 1, 1999. The parties stipulated to the amount of damages prior to trial. This stipulation provided that NationsBank sustained damages in the amount of $1,635,000 and that KPMG sustained damages in the amount of $888,600. The case was submitted to the jury on interrogatories on the issue of liability. The jury returned a verdict apportioning liability as follows: KPMG, twenty-one percent; Murray Guard, thirty-two percent; and NationsBank, forty-seven percent. Following the jury's verdict, the trial court entered judgment in favor of Murray Guard on the basis of its interpretation of Arkansas's comparative-fault law, codified at Ark.Code Ann. § 16-64-122 (Supp.1997). Specifically, the trial court ruled that under the statute, KPMG's fault could not be combined with the fault of Murray Guard for purposes of determining whether NationsBank was barred from recovering due to its own negligence. This appeal followed.

I. Comparative Fault

For its first point on appeal, NationsBank argues that the trial court erred in entering judgment in favor of Murray Guard based on the jury's apportionment of fault. NationsBank contends that the fault of KPMG should be combined with the fault of Murray Guard, and thus NationsBank is less at fault and entitled to damages in the amount of $523,200, or thirty-two percent of $1,635,000, the amount of the stipulated damages, plus prejudgment interest. NationsBank supports this argument by pointing to the fact that it reached a settlement agreement with KPMG in the amount of $22,535. Murray Guard responds that it is improper to combine the fault of KPMG and Murray Guard because KPMG was a co-plaintiff in this action, not a defendant. In other words, KPMG was not a party from whom NationsBank was attempting to recover damages. We agree with Murray Guard.

This court reviews issues of statutory construction de novo, as it is for this court to decide what a statute means. Simmons First Bank v. Bob Callahan Servs., Inc., 340 Ark. 692, 13 S.W.3d 570 (2000); Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). In this respect, we are not bound by the trial court's decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id.; Stephens v. Arkansas Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000).

NationsBank relies on the case of Riddell v. Little, 253 Ark. 686, 488 S.W.2d 34 (1972), to support its argument that KPMG's fault should be combined with the fault of Murray Guard. In Riddell, this court held that the fault of two codefendants could be combined for purposes of determining whether the fault of the plaintiff barred his recovery. This court reasoned that the legislature did not mean to go any further than to deny recovery to a plaintiff only when his negligence was at least fifty percent of the cause of the alleged damages. Id.

Riddell and its progeny, however, are inapplicable to the instant appeal. The comparative-fault statute analyzed by this court in Riddell was amended by the Arkansas General Assembly in 1975. Prior to its amendment, the statute allowed recovery where the negligence of the person injured or killed "is of less degree than the negligence of any person, firm, or corporation causing such damage." Id. at 689, 488 S.W.2d at 36 (emphasis added) (citing Ark. Stat. Ann. § 27-1730.1 (Repl.1962)). The amended version of the comparative-fault statute, section 16-64-122, clearly limits the comparison of fault:

(a) In all actions for damages for personal injuries or wrongful death or injury to property in which recovery is predicated upon fault, liability shall be determined by comparing the fault chargeable to a claiming party with the fault chargeable to the party or parties from whom the claiming party seeks to recover damages.

(b)(1) If the fault chargeable to a party claiming damages is of a lesser degree than the fault chargeable to the party or parties from whom the claiming party seeks to recover damages, then the claiming party is entitled to recover the amount of his damages after they have been diminished in proportion to the degree of his own fault.

(2) If the fault chargeable to a party claiming damages is equal to or greater in degree than any fault chargeable to the party or parties from whom the claiming party seeks to recover damages, then the claiming party is not entitled to recover such damages.

Thus, the statute in its current form no longer provides for a comparison of fault among all those responsible for the harm.

The basic rule of statutory construction is to give effect to the intent of the General Assembly. Stephens, 341 Ark. 939, 20 S.W.3d 397; Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999). In determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. The statute must be construed so that no word is left void or superfluous and in such a way that meaning and effect is given to every word therein, if possible. Id. If the language of a statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation. Id.

In light of this court's rules regarding statutory construction, we reject NationsBank's argument that KPMG was a party from whom they sought to recover damages for purposes of section 16-64-122. At no time did NationsBank and KPMG claim damages from one another. In fact, the settlement between the two parties was the result of each party being exposed to potential contribution claims. Because Murray Guard had filed counterclaims against NationsBank and KPMG...