Shelter Mut. Ins. Co. v. Nash

• Court: Arkansas Supreme Court
• Writing for the Court: Tom Glaze
• Citation: Shelter Mut. Ins. Co. v. Nash, 184 S.W.3d 425, 357 Ark. 581 (Ark. 2004)
• Decision Date: 03 June 2004
• Docket Number: No. 03-1378.,03-1378.
• Parties: SHELTER MUTUAL INSURANCE COMPANY v. Coleman NASH.

Page 425

184 S.W.3d 425

SHELTER MUTUAL INSURANCE COMPANY v. Coleman NASH.

No. 03-1378.

Supreme Court of Arkansas.

June 3, 2004.

Roy, Lambert & Lovelace, by: James M. Roy, Jr., and James H. Bingaman, Springdale, AR, for appellant.

Jeff Slaton, Springdale, for appellee.

TOM GLAZE, Justice.

This appeal raises a question of first impression regarding when, in an action on an underinsured motorist insurance policy, does the cause of action arise so as to trigger the statute of limitations. The trial court in this case determined that the five-year statute of limitations for contract actions applies, and that the statute does not begin to run until the insurance contract is breached. We agree, and therefore affirm.

The facts of this case were stipulated by the parties. On June 28, 1996, appellee Coleman Nash was involved in an automobile accident in Springdale. Nash was driving southbound on Butterfield Coach Road when Lavisia Rundall ran the red light at Highway 412 and struck Nash's vehicle. Rundall had total insurance coverage of $75,000: $50,000 in a policy on the vehicle with American National, and her own policy of $25,000 with Farm Bureau. At the time of the accident, Nash was insured with appellant Shelter Insurance Company, and had underinsured motorist coverage in the amount of $25,000. Nash filed suit against Rundall on June 25, 1999, almost three years after the accident.

On January 22, 2001, Nash's attorney wrote to Shelter, informing the insurer that he would "be making an underinsured claim at some point ... on [Nash's] policy." The problem, Nash explained, was that the occurrence happened in June of 1996, and the five-year statute of limitations would expire in June of 2001. Therefore, Nash requested that Shelter "waive any statute of limitations that might be raised until the claim is resolved against the tortfeasor." Shelter responded, declining to waive the statute of limitations. Nash again asked Shelter to waive the statute of limitations on February 27, 2001, and Shelter declined again on March 6, 2001.

On July 21, 2001, American National offered its $50,000 limits to Nash, and on July 30, 2001, Farm Bureau offered its $25,000 policy limits. On August 1, 2001, Nash wrote to Shelter to request permission to settle with Rundall; the letter also made demand for the $25,000 in underinsured benefits under the Shelter policy. Shelter responded on August 7, granting permission for Nash to settle so long as it was "with the understanding that by allowing you do so in no way implies Shelter Insurance will provide underinsured motorist coverage for [Nash's] claim."

On August 15, 2001, Shelter's attorney wrote to Nash's counsel, advising him that it was Shelter's position that the claim was barred by the statute of limitations. As a result, on September 25, 2002, Nash filed suit against Shelter in Washington County Circuit Court, seeking a declaratory judgment regarding the extent of Shelter's coverage. In its answer, Shelter pointed out that the accident had occurred on June 28, 1996, and no suit had been filed until September of 2002; as such, Shelter claimed, the statute of limitations had expired.

By stipulation filed with the court on February 18, 2003, the parties agreed that the sole issue to be determined by the court was whether or not Nash's claim against Shelter was barred by the applicable statute of limitations. The parties further agreed that, should the court find that the claim was not barred, Nash's damages were agreed to be $10,000, and he would not be required to submit any proof of those damages.

The trial court entered an order on August 19, 2003, concluding that the five-year statute of limitations for a contract action should apply, and further finding that the majority of jurisdictions to consider the issue of when the statute of limitations begins to run has concluded that the cause of action accrues either 1) when the underlying tort claim is settled or brought to judgment, or 2) when the insurance contract is breached, "typically when the insured's claim is denied."¹ Under either of these two approaches, the trial court found, Nash's cause of action did not accrue until Shelter denied his underinsured motorist claim on August 7, 2001, when both the settlement of the tort case and the denial of insurance coverage occurred. Therefore, the court concluded, Nash's complaint, filed on September 25, 2002, was timely. Thus, in accordance with the stipulation entered into by the parties, the court declared that Nash was entitled to damages in the amount of $10,000.

From this order, Shelter has appealed, arguing two points for reversal: 1) the trial court erred in finding that the five-year contract statute of limitations applied to underinsured motorist claims: and 2) the trial court erred in finding that the applicable statute of limitations begins to run when the underlying tort claim is settled or brought to judgment, or when the insurance contract is breached.

This case requires the court to determine whether the trial court correctly construed the law concerning the applicable statute of limitations. This court reviews issues of statutory interpretation de novo, as it is for this court to decide what a statute means. Fields v. Marvell Sch. Dist., 352 Ark. 483, 102 S.W.3d 502 (2003). Although we are not bound by a trial court's construction, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id.

In its first point on appeal, Shelter argues that the trial court erred in applying the five-year statute of limitations for actions on contracts. The alleged breach of a written contract is controlled by the five-year statute of limitations set out in Ark.Code Ann. § 16-56-111 (Supp.2001). See Ray & Sons Masonry v. United States Fidelity, 353 Ark. 201, 114 S.W.3d 189 (2003). An action for personal injury, however, must be brought within three years after the cause of action accrues. Ark.Code Ann. § 16-56-105 (Supp.2001). Shelter suggests that, because an insured's ability to recover underinsured motorist benefits "is tied directly to the occurrence of a motor vehicle accident caused by the negligence of the tortfeasor," the accident—a tort—is the triggering event for coverage.

However, the vast majority of jurisdictions to have considered this precise question have held that, because any recovery of the insured is based upon the insurance policy, without which no liability could be imposed upon the insurer, the statute of limitations for contract actions controls. See, e.g., Allstate Insurance Co. v. Spinelli, 443 A.2d 1286 (Del.1982); Hamm v. Allied Mut. Ins. Co., 612 N.W.2d 775 (Iowa 2000); Berkshire Mut. Ins. Co. v. Burbank, 422 Mass. 659, 664 N.E.2d 1188 (1996); Jacobs v. Detroit Auto. Inter-Insurance Exchange, 107 Mich.App. 424, 309 N.W.2d 627 (1981); Grayson v. State Farm Mut. Auto. Ins., 114 Nev. 1379, 971 P.2d 798 (1998); Wille v. Geico Cas. Co., 2 P.3d 888 (Okla.2000); Pickering v. American Employers Ins. Co., 109 R.I. 143, 282 A.2d 584 (1971); Schleif v. Hardware Dealer's Mut. Fire Ins. Co., 218 Tenn. 489, 404 S.W.2d 490 (1966); Alvarez v. American Gen. Fire & Cas. Co., 757 S.W.2d 156 (Tex.Ct.App.1988); Safeco Ins. Co. v. Barcom, 112 Wash.2d 575, 773 P.2d 56 (1989); Plumley v. May, 189 W.Va. 734, 434 S.E.2d 406 (1993); Effert v. Heritage Mut. Ins. Co., 160 Wis.2d 520, 466 N.W.2d 660 (1990).

Further, we note that Ark.Code Ann. § 23-79-202(a) (Repl.2004) explicitly addresses the question of when an insured may bring a claim against his or her insurer; that provision provides as follows:

An action may be maintained in the courts of this state by an insured or any other person on his behalf to recover on any claim or loss arising under a policy of insurance on property or life against the insurer issuing the policy or against the sureties on any bond filed by the insurer as a condition precedent to its right to do business in this state, at any time within the period prescribed by law for bringing actions on promises in writing.

(Emphasis added.) Although we have not previously applied this section to an action for underinsured motorist benefits, this court has applied it to a suit for the recovery of life insurance benefits. See First Pyramid Life Ins. Co. v. Stoltz, 311 Ark. 313, 312 Ark. 95, 843 S.W.2d 842 (1992), cert. denied 510 U.S. 908, 114 S.Ct. 290, 126 L.Ed.2d 239 (1993). Because Nash's suit against Shelter is clearly an action by an insured against the insurer to recover a claim arising under a policy of insurance, we hold that the five-year statute of limitations applies.

In its second argument on appeal, Shelter argues that the trial court erred in determining that the cause of action accrues and the statute of limitations begins to run when the underlying tort claim is settled or brought to judgment, or when the insurance contract is breached. Shelter argues that a cause of action for underinsured motorist benefits accrues at the time of the accident, and therefore, Nash's claim for benefits should have been time-barred even under the five-year statute of limitations, because the accident occurred more than six years before Nash filed suit against Shelter.

Arkansas law is clear that a cause of action accrues the moment the right to commence an action comes into existence, and the statute of limitations commences to run from that time. Ray & Sons Masonry, supra, Courtney v. First Nat'l Bank, 300 Ark. 498, 780 S.W.2d 536 (1989). A cause of action for breach of contract accrues the moment the right to commence an action comes into existence, and occurs when one party has, by words or conduct, indicated to the other that the agreement is being repudiated or breached. Dupree v. Twin City Bank, 300 Ark. 188, 777 S.W.2d 856 (1989). In ordinary contract actions, the statute of limitations begins to run upon the occurrence of the last element essential to the cause of action. Id.; Chapman...