Smith v. Rogers Group, Inc.

• Decision Date: 18 April 2002
• Docket Number: No. 01-1028.,01-1028.
• Citation: 72 S.W.3d 450,348 Ark. 241
• Parties: Denise SMITH, Individually, and as Natural Mother and Guardian of Jessica Moody, a Minor, and Deidre Moody, a Minor; Jo Ann Cross, Individually, and as Administratrix of the Estate of Cauley Shane Coffey, Deceased; Jeannie Bright Love, Individually, and as Administratrix of the Estates of Amy M. Bright, Deceased, and Emile Bright, Deceased; Stacey Jackson Montgomery, Individually, and as Administratrix of the Estate of Michael Jackson, Deceased, and as Natural Mother and Guardian of Erica Jackson, a Minor; and Tom M. Young, Administrator of the Estate of Vira A. Young, Deceased, v. ROGERS GROUP, INC., John Doe 1 through 5; Hartford Fire Insurance Company; and National Union Fire Insurance Company and James Evans, v. Rogers Group, Inc.; John Doe 1 through 5; Marilyn K. Loftin, Administratrix of the Estate of Heath Loftin, Deceased; Hartford Fire Insurance Company; and National Union Fire Insurance Company.
• Court: Arkansas Supreme Court

72 S.W.3d 450

348 Ark. 241

Denise SMITH, Individually, and as Natural Mother and Guardian of Jessica Moody, a Minor, and Deidre Moody, a Minor; Jo Ann Cross, Individually, and as Administratrix of the Estate of Cauley Shane Coffey, Deceased; Jeannie Bright Love, Individually, and as Administratrix of the Estates of Amy M. Bright, Deceased, and Emile Bright, Deceased; Stacey Jackson Montgomery, Individually, and as Administratrix of the Estate of Michael Jackson, Deceased, and as Natural Mother and Guardian of Erica Jackson, a Minor; and Tom M. Young, Administrator of the Estate of Vira A. Young, Deceased, v. ROGERS GROUP, INC., John Doe 1 through 5; Hartford Fire Insurance Company; and National Union Fire Insurance Company and James Evans, v. Rogers Group, Inc.; John Doe 1 through 5; Marilyn K. Loftin, Administratrix of the Estate of Heath Loftin, Deceased; Hartford Fire Insurance Company; and National Union Fire Insurance Company.

No. 01-1028.

Supreme Court of Arkansas.

April 18, 2002.

Gary Eubanks & Associates, by: William Gary Holt and Robert S. Tschiemer, Little Rock, for appellants.

Laser Law Firm, by Sam Laser and Brian A. Brown, Little Rock, for appellee Hartford Fire Insurance Company.

Huckabay, Munson, Rowlett & Tilley, P.A., by: Bruce Munson and Julia L. Busfield, Little Rock, for appellee National Union Fire Insurance Company.

DONALD L. CORBIN, Justice.

The central issue in this case is whether the acquired-immunity doctrine is still a viable defense in this state. The Faulkner County Circuit Court concluded that it is and granted summary judgment to Appellee Rogers Group, Inc., and its insurers, Appellees Hartford Fire Insurance Company and National Union Fire Insurance Company. This case stems from three automobile accidents that occurred on U.S. Highway 65 North, between Conway and Greenbrier. Appellants and their decedents brought suit against Rogers, as the contractor for the Arkansas Highway and Transportation Department (AHTD), alleging that Rogers was negligent in applying Type 3 asphalt to the highway, knowing that it should not be used on such a high-volume highway. The trial court found that Rogers was not negligent because it followed AHTD's specifications exactly. Thus, because AHTD, as a state agency, enjoys sovereign immunity, the trial court found that Rogers acquired immunity from any liability occurring as a result of its performance of the contract with AHTD. Appellants raise four points for reversal. Our jurisdiction of this appeal is pursuant to Ark. Sup.Ct. R. 1-2(b)(4), as it involves issues of substantial public interest. We find no error and affirm the grant of summary judgment.

In the spring of 1996, AHTD took bids on a job project to overlay a 6.28 mile stretch of U.S. Highway 65 North, between Conway and Greenbrier. The job called for the use of Type 3 asphalt. Rogers presented a bid, and it was accepted by AHTD, on the condition that Rogers would first submit a sample of the proposed Type 3 asphalt mixture for approval by AHTD's engineers. Rogers employed the engineering company of Grubbs, Garner, and Hoskyn, Inc., to prepare the asphalt mixture. The sample was prepared by engineer Steven Garrett. Rogers forwarded the sample to AHTD, and its engineers approved the sample for use on the project.

Rogers began work on the project in July 1996. Every day during the project, AHTD had an engineer and other employees on site, to inspect and oversee the work on the project. AHTD also had personnel at the asphalt plant, who monitored the asphalt and took samples of the mixture to make sure that it continued to meet AHTD's specifications. The job was substantially completed in the middle of September 1996 and was finally inspected by AHTD on September 29. The final inspection revealed that the job had been done according to AHTD's specifications and was thus accepted by AHTD. Rogers had no further contact with the work site after the final inspection.

Approximately two months later, on November 24, 1996, Michael Jackson was driving his car on that stretch of Highway 65 when his vehicle hydroplaned and crossed the center line, striking a car driven by Vira Young. Both Jackson and Young were killed in the accident. Jackson's wife, Stacey, and his infant daughter, Erica, were injured. Although Erica's injuries were relatively minor, Stacey suffered severe injuries requiring weeks of intensive-care hospitalization.

On March 2, 1997, another accident occurred on the same stretch of highway. This time, a car driven by Amy Bright hydroplaned during heavy rain, causing the car to cross the center line and strike a car driven by Denise Smith. Bright and her two passengers, Cauley Coffey and Emile Bright, were fatally injured. Smith and her two minor daughters, Jessica and Deidre Moody, suffered severe injuries.

Finally, on August 2, 1998, James Evans was driving his truck on that same stretch of Highway 65 when he was struck by a truck driven by Heath Loftin. The accident occurred when Loftin's vehicle hydroplaned and crossed the center line, striking Evans's truck. As a result, Loftin was killed and Evans was injured.

Appellants in this case are the victims of the foregoing accidents and their survivors. They sued Rogers, its two insurers, and a number of Rogers's employees, alleging negligence in applying Type 3 asphalt to that 6.28 mile stretch of highway. Appellants assert that Rogers knew that Type 3 asphalt should not have been used on such a high-volume highway, because its use increased the potential for accidents caused by hydroplaning. Additionally, Appellant Evans alleged that Loftin was concurrently negligent with Rogers.¹

The basis of Appellants' claim against Rogers is an affidavit filed by Steven Garrett, the engineer who prepared the Type 3 mixture used on the project. His affidavit reflects that he spoke with a quality-control employee of Rogers and warned the employee about using Type 3 asphalt on the project. Garrett stated that using Type 3 asphalt on a highway of such high volume was imminently dangerous. He stated that the problems with the mix would cause hydroplaning, due to the sheeting action of water runoff during heavy rains. His affidavit reflects in pertinent part:

At the time that Rogers Group, Inc., was awarded the high volume overlay project on Highway 65 North, it was aware of each of the above mentioned problems with using the design asphalt mix on a highway application, and that it was using Type 3 design mix improperly in the wrong application. I spoke with a quality control materials employee of Rogers Group, Inc., who told me that he was using Type 3 design asphalt mix for the highway overlay application, and that he was aware that it was never designed for that type of application. I told him that the mix design should never be used for an overlay project on this highway.

Appellants alleged that based on Garrett's warning, Rogers was negligent in (1) using the Type 3 asphalt mix on the overlay project, and (2) failing to warn AHTD and the public of the dangers of using such a mix on that particular stretch of highway. As for the latter allegation, Appellants claim that Rogers's failure to warn amounted to a negligent performance of the contract with AHTD.

Rogers filed a motion for summary judgment, claiming that any negligence in the use of Type 3 asphalt was the result of the contract specifications set out by AHTD, and that, accordingly, it was shielded from liability by virtue of the sovereign immunity enjoyed by AHTD. Rogers asserted that all the decisions were made by AHTD, including the specific requirement for the use of Type 3 asphalt. It further asserted that it performed the contract exactly as specified by AHTD, and that, as a result, it was not liable for any injuries caused by the use of Type 3 asphalt on the highway.

In support of its motion, Rogers submitted an affidavit from AHTD's resident engineer, C.W. McMillian, who oversaw the project on this highway. McMillian's affidavit reflected that AHTD specified the type and composition of asphalt to be used in the job, as well as the procedures to be used in applying the asphalt and preparing the surface for the asphalt. McMillian stated that AHTD had selected Type 3 asphalt for use on the project on the basis that it was suitable and appropriate for the project. He stated further that since its application, the asphalt mixture had performed satisfactorily on Highway 65. Most significantly, McMillian's affidavit reflected that AHTD would have used Type 3 asphalt on the project regardless of whether Rogers had notified AHTD that Type 3 was not suitable for the job.

The trial court granted summary judgment to Rogers on the basis of acquired immunity. The trial court based its conclusion on the fact that Rogers merely implemented the plans and specifications laid down by AHTD, and that AHTD had completely approved the work done by Rogers. The trial court also dismissed the claims against the two insurers, concluding that because Rogers was not negligent in the performance of its contract with AHTD, there was no cause of action against the insurers.

For reversal, Appellants argue that the trial court erred in granting summary judgment on the basis of the doctrine of acquired immunity. They claim that this defense is no longer viable under Arkansas law, following the holding in Suneson v. Holloway Constr. Co., 337 Ark. 571, 992 S.W.2d 79 (1999). Alternatively, they assert that Rogers's conduct falls within an exception to the acquired-immunity doctrine, because Rogers negligently performed the contract with AHTD. Appellants also argue that there was a material issue of fact on the issue of Rogers's duty to warn AHTD. They argue further that if Rogers is immune, they should be allowed to proceed directly against the two insurers. Lastly, they argue that the trial court erred in striking some exhibits and an affidavit filed by Appellants the day before the...