Debra L. Burnett v. Philadelphia Life Insurance Company

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

DEBRA L. BURNETT

APPELLANT

V.

PHILADELPHIA LIFE INSURANCE COMPANY

APPELLEE

CA01-991

April 24, 2002

APPEAL FROM THE CONWAY COUNTY CIRCUIT COURT

[NO. CIV99-111]

HON. PAUL E. DANIELSON,

CIRCUIT JUDGE

APPEAL DISMISSED

This is an appeal from an order granting appellee summary judgment on a claim for proceeds of a life insurance policy. We dismiss because the order appealed from is not final.

Appellant alleged that, on November 1, 1997, Emmitt Bartch, the decedent, made an application for life insurance with appellee Philadelphia Life Insurance Company through its soliciting agent, Roy Touchet. The policy named appellant Debra Burnett, the decedent's fiancée, as beneficiary. Touchet filled out the application by asking Bartch the questions. Bartch signed the application form on November 1, 1997. One of the questions on the application asked for disclosure of any significant medical conditions or treatment. Bartch suffers from Marfan's Syndrome, a connective tissue disorder. This condition was not noted on the application. Appellant presented evidence that Bartch told Touchet about this

condition but that Touchet did not correctly complete the application form. Appellee issued a policy effective February 27, 1998. Touchet delivered the policy to Bartch on March 9, 1998, together with a statement of good health to be signed by Bartch. This statement provided, among other things, that Bartch was in good health and had not consulted a physician within ninety days. In fact, Bartch had consulted Dr. Jack Lyon on February 12, 1998, for treatment of bronchitis, which was unrelated to the Marfan's Syndrome. Bartch died on August 29, 1998, from complications of Marfan's Syndrome. Appellee refused to pay the policy proceeds because the application did not disclose the Marfan's Syndrome and the March 9, 1998, statement of good health did not disclose Bartch's visit to Dr. Lyon for bronchitis.

Appellant filed this suit seeking to recover the policy proceeds, statutory penalty, interest, and attorney fees. The suit named appellee and Touchet as defendants. Touchet was never served with process, despite two extensions of time to accomplish service. Appellee filed an answer and counterclaim, seeking a declaratory judgment that appellee acted properly in voiding the policy ab initio and that appellee has no obligation to pay the proceeds under the policy. Appellee filed a motion for summary judgment and, on June 18, 2001, the trial court entered summary judgment in favor of appellee, finding that the misrepresentations on the application were material as a matter of law. Although the caption of the summary judgment order listed the agent Touchet as a defendant, the order directed that summary judgment be granted only in favor of "the defendant, Philadelphia LifeInsurance Company." No other order was entered disposing of the claims against the agent, Touchet. The only issue on appeal is whether summary judgment was appropriate.

Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure--Civil provides that an appeal may be taken only from a final judgment or decree entered by the trial court. Whether a final judgment, decree, or order exists is a jurisdictional issue that this court has the duty to raise, even if the parties do not, in order to avoid piecemeal litigation. Shackleford v. Arkansas Power & Light Co., 334 Ark. 634, 976 S.W.2d 950 (1998); Mid-State Homes, Inc. v. Beverly, 20 Ark. App. 213, 727 S.W.2d 142 (1987). The appellate court will not engage in a review of an appellant's claim against some defendants when review of the claims against the remaining defendants could possibly be required in the future. Cortese v. Atlantic Richfield, 317 Ark. 207, 876 S.W.2d 581 (1994), appeal dismissed, 320 Ark. 639, 898 S.W.2d 467 (1995). It is the appellant's burden to produce a record on appeal showing the appellate court's jurisdiction. Id. This court cannot step in and resolve the issue by speculating that the unresolved claims may lack viability due to failure of service of process, a statute of limitations bar, or other impediments. Van DeVeer v. George's Flowers, Inc., 76 Ark. App. 408, 65 S.W.3d 488 (2002).

Furthermore, Arkansas Rule of Civil Procedure 54(b) states that an order that disposes of fewer than all of the claims or all of the parties is not a final appealable order unless the court makes an express determination that there is a danger of hardship or injustice that an immediate appeal would alleviate. Dismissal of an appeal is appropriate when all defendants are not granted summary judgment, leaving claims against certain defendants still pending. See Hodges v. Huckabee, 333 Ark. 247, 968 S.W.2d 619 (1998); see also Shackleford v. Arkansas Power & Light Co., supra. Also, an order is not appealable under Ark. R. Civ. P. 54(b) when it fails to comply with the certification requirements of the appeal on the basis that there is no just reason for delay, even though fewer than all of the claims have been resolved. Hodges v. Huckabee, supra. Pursuant to an amendment effective February 1, 2001, Rule 54(b) now provides that the court shall execute a certification of final judgment, as it appears in Ark. R. Civ. P. 54(b)(1), when it finds no just reason for delaying an appeal. Subsection (b)(2) of this rule further provides that, absent this required certification, any decision that adjudicates fewer than all the claims or the rights of fewer than all the parties shall not terminate the action. See Jackson v. Delis, 76 Ark. App. 436, 67 S.W.3d 596 (2002).

In the case at bar, the order appealed from neither disposed of all the claims against all the parties, nor contained the requisite certification that there was no just reason for delaying the appeal. Under these circumstances, the order appealed from is not final and we lack jurisdiction to hear this appeal.

Appeal dismissed.

Neal and Crabtree, JJ., agree.