Scamardo v. Jaggers

• Decision Date: 26 February 2004
• Docket Number: No. 03-765.,03-765.
• Citation: 149 S.W.3d 311,356 Ark. 236
• Parties: June D. SCAMARDO v. Dr. Robert JAGGERS; Sparks Regional Medical Center; and Steadfast Insurance Company.
• Court: Arkansas Supreme Court

149 S.W.3d 311

356 Ark. 236

June D. SCAMARDO v. Dr. Robert JAGGERS; Sparks Regional Medical Center; and Steadfast Insurance Company.

No. 03-765.

Supreme Court of Arkansas.

February 26, 2004

Law Offices of Charles Karr, P.A., by: Shane Roughley and Charles Karr, Fort Smith, for appellant.

Davis, Wright, Clark, Butt & Carithers, P.A., by: Constance G. Clark and Sidney P. Davis, Fayetteville, for appellee Steadfast Insurance Co.

Friday, Eldredge & Clark, by: Diane S. Mackey, Robert S. Shafer, and Kimberly A. Dickerson, Little Rock, for amicus curiae.

TOM GLAZE, Justice.

In this case, appellant June Scamardo asks this court to overrule our decision in Clayborn v. Bankers Standard Insurance Co., 348 Ark. 557, 75 S.W.3d 174 (2002). For the reasons discussed below, we decline to do so.

On November 21, 2002, Scamardo filed a lawsuit against Dr. Robert Jaggers, Sparks Regional Medical Center ("Sparks"), and Steadfast Insurance Company ("Steadfast"). In her complaint, Scamardo alleged that she underwent a popliteal artery bypass at Sparks on November 20, 2000, and was discharged to Healthsouth Rehabilitation Hospital in Fort Smith on November 28, 2000. While at Healthsouth, Scamardo was diagnosed with a severe staph infection in her leg. Her complaint alleged negligence against Dr. Jaggers and Sparks. Further, the complaint stated a belief that Sparks might claim to be immune from suit for tort under the charitable immunity doctrine. The complaint alleged that Steadfast, as the liability insurance carrier for Sparks, was subject to a direct cause of action pursuant to Ark.Code Ann. § 23-79-210 (Repl.1999).

Sparks answered, admitting that it was a not-for-profit corporation and that it was protected by the charitable immunity doctrine. Sparks further admitted that its assets were immune from execution, but contended that, based on our decision in Clayborn, supra, Sparks was not immune from suit. Sparks also denied that its insurance carrier, Steadfast, was a proper substitute defendant that could be sued under Arkansas' direct action statute, § 23-79-210.

On March 25, 2003, Steadfast moved to be dismissed from the lawsuit. Relying on Clayborn, Steadfast submitted that charitable organizations, such as Sparks, may be sued even though their assets are immune from execution. In sum, Steadfast argued that, because Sparks could be sued, the direct action statute was inapplicable, and Steadfast should be dismissed as a party defendant. In response, Scamardo argued that Clayborn's discussion of charitable immunity was dicta, and further contended that Clayborn contradicted two earlier cases on the topic of charitable immunity. See George v. Jefferson Hospital Assoc., Inc., 337 Ark. 206, 987 S.W.2d 710 (1999), and Helton v. Sisters of Mercy of St. Joseph's Hospital, 234 Ark. 76, 351 S.W.2d 129 (1961).

The trial court dismissed Steadfast on May 13, 2003, basing its dismissal on the Clayborn decision.¹ Scamardo appeals, arguing that this court should either overrule Clayborn or limit its holding; she also contends that the doctrine of charitable immunity should be abolished.

When reviewing a trial court's granting of a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. City of Dover v. City of Russellville, 352 Ark. 299, 100 S.W.3d 689 (2003); Clayborn, supra. In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. Id. Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id.; Ark. R. Civ. P. 8(a) (2003). We look to the underlying facts supporting an alleged cause of action to determine whether the matter has been sufficiently pled. Id.; Country Corner Food & Drug, Inc. v. First State Bank & Trust Co., 332 Ark. 645, 966 S.W.2d 894 (1998).

Before we address Scamardo's argument that Clayborn should be overruled, we dispose of her arguments regarding the continued viability of the doctrine of charitable immunity. Scamardo asks this court either to abolish the doctrine, or to conclude that the application of the doctrine leads to unconstitutional results. We are unable to reach either of these arguments. Although Scamardo raised these arguments in her brief in support of her response to Steadfast's motion to dismiss, the trial court did not explicitly rule on them. This court has repeatedly held that a party's failure to obtain a ruling is a procedural bar to this court's consideration of the issue on appeal. See Bell v. Bershears, 351 Ark. 260, 92 S.W.3d 32 (2002); Doe v. Baum, 348 Ark. 259, 72 S.W.3d 476 (2002); E-Z Cash Advance, Inc. v. Harris, 347 Ark. 132, 60 S.W.3d 436 (2001); Barker v. Clark, 343 Ark. 8, 33 S.W.3d 476 (2000). This is true even of constitutional arguments. Bell, 351 Ark. at 268, 92 S.W.3d 32. The record in this case reflects that both issues were raised in the motions filed below; however, the trial court's order does not reflect any specific ruling on these issues. The order states simply that "[b]ased on the decision in Clayborn ..., the motion of Steadfast Insurance Company should be and hereby is granted." Accordingly, we are precluded from reviewing them on appeal.

Turning to the merits of her remaining argument on appeal, Scamardo argues that this court should overrule our holding in Clayborn. In Thiel v. Priest, 342 Ark. 292, 28 S.W.3d 296 (2000), this court noted that while it does have the power to overrule prior decisions, it is necessary, as a matter of public policy, to uphold those decisions unless a great injury or injustice would result. See also Murphy Oil USA, Inc. v. Unigard Security, 347 Ark. 167, 61 S.W.3d 807 (2001); Sanders v. County of Sebastian, 324 Ark. 433, 922 S.W.2d 334 (1996). In Thiel, we noted that "[t]he United States Supreme Court has recognized that adherence to precedent promotes stability, predictability, and respect for judicial authority." Id. at 300, 28 S.W.3d at 300 (citing Sanders, supra; Zinger v. Terrell, 336 Ark. 423, 985 S.W.2d 737 (1999)). As a general rule, we are bound to follow prior case law under the doctrine of stare decisis, a policy designed to lend predictability and stability to the law. Aka v. Jefferson Hosp. Ass'n, Inc., 344 Ark. 627, 42 S.W.3d 508 (2001); State Office of Child Support Enforcem't v. Mitchell, 330 Ark. 338, 343, 954 S.W.2d 907 (1997) (citing Parish v. Pitts, 244 Ark. 1239, 1252, 429 S.W.2d 45, 52 (1968) (superseded by statute on other grounds)). Indeed, it is well settled that "[p]recedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable." Mitchell, 330 Ark. at 343, 954 S.W.2d 907 (quoting Parish, 244 Ark. at 1252, 429 S.W.2d 45). Our test is whether adherence to the rule would result in "great injury or injustice." Aka, 344 Ark. at 641, 42 S.W.3d 508.

The holding Scamardo asks us to overrule, Clayborn, was a 2002 case involving both § 23-79-210 — the direct action statute — and the doctrine of charitable immunity. Briefly, the facts of that case were that appellant Clayborn's daughter was injured by the negligence of an employee of Forrester-Davis Development Center, a daycare organized as a nonprofit corporation. Clayborn filed a direct action against Forrester-Davis's insurer, Bankers Standard Insurance Company. Bankers responded by filing a motion to dismiss Clayborn's complaint, urging that it was not a proper party to the suit. Clayborn then added Forrester-Davis as a defendant. The trial court eventually dismissed the suit against Bankers, finding that a direct cause of action could not be allowed against Bankers under § 23-79-210, since Ark.Code Ann. § 16-120-103 (Supp.2001) did not grant Forrester-Davis or its employees immunity from suit in tort. Clayborn, 348 Ark. at 560-61, 75 S.W.3d 174. On appeal, this court affirmed.

Relying on Rogers v. Tudor Ins. Co., 325 Ark. 226, 925 S.W.2d 395 (1996), and Smith v. Rogers Group, Inc., 348 Ark. 241, 72 S.W.3d 450 (2002), this court held that § 23-79-210 only provides for direct actions against an insurer in the event that the organization at fault is immune from suit in tort. Id. at 564, 75 S.W.3d 174 (emphasis in original). Further, we held that § 23-79-210 was inapplicable to the facts presented by Clayborn because there was "nothing in the pleadings to show that Forrester-Davis is a nonprofit corporation that is immune from suit in tort. Because no showing is made of such alleged immunity, [Clayborn] is precluded from bringing a direct action against Forrester-Davis's insurer, Bankers." Id. (emphasis in original). Noting that nonprofit corporations generally have the power to sue and be sued, the court further pointed out that § 16-120-103 provides that the tort liability immunity statute shall not be construed to limit the liability of the nonprofit corporate entity itself for damages as a result of the torts of its employees. Id. at 565, 75 S.W.3d 174.

Finally, the Clayborn court noted that this court has "never said that charitable organizations are altogether immune from suit." Id. at 566, 75 S.W.3d 174. On this subject, the court wrote the following:

While we affirmed the trial court's dismissal of a case on the ground that the charitable organization was immune from liability in George v. Jefferson Hosp. Ass'n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999), no argument was raised in that case that a charitable organization is not subject to suit for tort, as was argued in the present case. We have repeatedly stated that the property of a charity cannot be sold under execution issued on a judgment rendered for the nonfeasance, misfeasance, or malfeasance of its agents or trustees. See, e.g., Fordyce & McKee v. Woman's Christian Nat'l Library Ass'n, 79 Ark. 550, 96 S.W. 155 (1906) (emphasis added). We...