Pugh v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 13 June 1994
• Docket Number: No. 93-1148,93-1148
• Citation: 877 S.W.2d 577,317 Ark. 304
• Court: Arkansas Supreme Court
• Parties: Joy PUGH, et al., Appellants, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, et al., Appellees.

Page 577

877 S.W.2d 577

317 Ark. 304

Joy PUGH, et al., Appellants, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, et al., Appellees.

No. 93-1148.

Supreme Court of Arkansas.

June 13, 1994.

Sherry D. DeJanes, Kansas City, MO, for appellant.

Dennis L. Shackleford, El Dorado, for appellee.

HAYS, Justice.

This is an appeal from a summary judgment in a medical malpractice case. The trial court applied the decision in Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), holding that the malpractice claim was time-barred. That holding is challenged on appeal and we affirm.

Joy Pugh, appellant, filed a medical malpractice suit in 1987 against Warner Brown Hospital and two doctors, James Weedman and Durwood Flournoy, all appellees. St. Paul Fire and Marine is the carrier for the hospital. The complaint alleged negligence in the treatment of Mrs. Pugh's husband, resulting in his death. The negligent acts complained of occurred on May 26, 1985. On September 29, 1989, Mrs. Pugh took a voluntary nonsuit. On September 24, 1990, she served appellees with notice of intent to sue, a prerequisite for a medical malpractice action under Ark.Code Ann. § 16-114-204 (1987). On November 24, 1990, she refiled the complaint. Appellees moved for summary judgment on December 19, 1990, alleging her action was barred by the statute of limitations. The motion was denied.

On February 25, 1993, appellees filed a motion for reconsideration of summary judgment. The trial court granted the motion, applying a recent case, Weidrick v. Arnold, supra, retroactively, and finding the action was time-barred. Mrs. Pugh urges this was error.

Appellant recognizes the two-year limitation provided in § 16-114-203 for medical malpractice claims, but contends because she took a nonsuit, she comes within the savings statute, Ark.Code Ann. § 16-56-126 (1987), which gives her a year to refile from the time of her nonsuit. Appellant's suit, however, was not refiled within a year, but more than two months after the one-year extension had run. Appellant insists that fact does not defeat her claim because the ninety-day (formerly seventy-day) extension provided under § 16-114-204(b) was applicable to the savings statute and gave her the additional time needed to file her complaint.

In Weidrick, supra, this court held the requirement for notice of intent to sue in § 16-114-204(a) was superseded by ARCP 3. That opinion did not specifically deal with section (b), which provided the ninety-day extension. ¹ The trial court ruled, however, that Weidrick was intended to supersede section (b), and that it was to apply retroactively. Thus under the trial court's holding appellant was denied the extended time allowed under § 16-114-20(b).

Whether Weidrick should have been applied retroactively has been addressed in the briefs and oral argument. However, it is unnecessary to reach that issue as we hold the extension provided in § 16-114-204 was not intended to apply to the savings statute. Without that extension, regardless of the application of Weidrick, appellant's claim is barred as it was not refiled within one year as required by § 16-56-126.

§ 16-114-204(b) provides:

If the notice is served within sixty (60) days of the expiration of the period for bringing suit described in § 16-114-203 [two years] the time for commencement of the action shall be extended ninety (90) days from the service of the notice.

§ 16-56-126 provides:

If any action is commenced within the time respectively prescribed in this act, in §§ 16-116-101 - 16-116- 107, in §§ 16-114-201 - 16-114-209, or in any other act, and the plaintiff therein suffers a nonsuit ... the plaintiff may commence a new action within one (1) year after the nonsuit suffered....

Under the wording of § 16-114-204(b), the ninety-day extension period applies to only the two-year limitation in § 16-114-203. The savings statute is not mentioned. Similarly, the savings statute makes reference to the medical malpractice act but expressly states a one-year limitation and does not mention the ninety-day extension.

The basic rule of statutory construction, to which all other interpretive guides must yield, is to give effect to the intent of the General Assembly. Roy v. Farmers & Merchants Ins. Co., 307 Ark. 213, 819 S.W.2d 2 (1991). When a statute is clear, it is given its plain meaning and we do not search for legislative intent. That intent must be gathered from the plain meaning of the language used. Hinchey v. Thomasson 292 Ark. 1, 727 S.W.2d 836 (1987). Here the plain language of § 16-56-126 does not include the addition of the ninety-day extension provided for in § 16-114-204. Appellant's claim was therefore not timely refiled.

Appellant raises another point. Prior to the order granting summary judgment, appellant engaged in pretrial discovery. After summary judgment was entered on June 25, 1993, she filed a motion under ARCP 60(b) on July 13, 1993, questioning some developments involving discovery: the reasonableness of certain expert fees, the failure of two experts to refund their fees when they were not deposed, and the propriety of the trial court's denial of subpoenas for some of the experts. The trial court denied the motion and appellant argues that was error.

We affirm the trial court's denial of the motion because appellant was precluded from bringing a Rule 60(b) motion on the grounds requested. Appellant's motion should have been made under ARCP 52(b), for an amendment to the trial court's findings. That motion, however, must be made within ten days of entry of judgment and in this case the motion was not timely.

Rule 60(b) allows a motion within ninety (90) days of the judgment...