Khan Duc Doan and Min Thi Kim Doan v. State Automobile Mutual Insurance Company et al.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

KHAN DUC DOAN and MIN THI KIM DOAN

APPELLANTS

v.

STATE AUTOMOBILE MUTUAL INSURANCE COMPANY, DUNN, MURPHY, WHITE INSURANCE, B.J. DUNN and TIM WHITE

APPELLEES

CA03-792

APRIL 14, 2004

APPEAL FROM THE POPE COUNTY CIRCUIT COURT

[CV-01-527]

HONORABLE DENNIS CHARLES SUTTERFIELD, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

Appellants, Khan Duc Doan and Min Thi Kim Doan, appeal the grant of summary judgment precluding their suit against their insurance company and agent. They urge on appeal for the modification of existing case law and contend that the statute of limitations for causes of action based upon an insurance agent's negligence should begin to run on the day that the negligence is discovered, not the day that the negligence is committed. We find no error and affirm.

Appellants owned a restaurant in Russellville, Arkansas. Appellants purchased a casualty insurance policy issued by the appellees, State Automobile Mutual Insurance Company (State Auto), to cover the property. Appellees Dunn, Murphy and White Insurance, specifically by B.J. Dunn and Tim White, sold the policy to appellants on September 1, 1996. The insured property sustained damages due to fire on December 16, 1999, and appellants immediately filed a claim. State Auto investigated the loss and paid appellants the policy limits of $220,000. Appellants filed suit against appellees Dunn, Murphy and White Insurance, and B.J. Dunn, and Tim White, contending that they were negligent in advising them as to the amount of insurance required to afford adequate coverage. Appellants also alleged that the negligence was imputed to State Auto via vicarious liability and principles of agency.

Appellee State Auto filed a motion for summary judgment based upon the statute of limitations and the issue of imputed liability as it relates to theories of agency. The remaining appellees adopted that motion, and appellants responded. After a hearing, the trial court granted the motions for summary judgment.

We have ceased referring to summary judgment as a drastic remedy, and we now regard it simply as one of the tools in a trial court's efficiency arsenal. Addington v. Wal-Mart Stores, Inc., 81 Ark. App. 441, 105 S.W.3d 369 (2003). The standards governing motions for summary judgment are as follows:

As we have often stated, summary judgment is to be granted by a trial court if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried.

... Once a moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appeal, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties.

Chavers v. General Motors Corp., 349 Ark. 550, 558-59, 79 S.W.3d 361, 367 (2002) (citations omitted).

Appellants concede that our supreme court's decisions in Calgano v. Shelter Mutual Ins. Co., 330 Ark. 802, 957 S.W.2d 700 (1997) and Flemens v. Harris, 323 Ark. 421, 915 S.W.2d 685 (1996), hold that the statute of limitations in negligence cases against insurance agents of the type involved in this case begins to run at the time the negligent act was committed and not when the act was discovered. They urge us to adopt the rationale of the dissent in Flemens, supra, and overrule the supreme court's precedent. We have no authority to do so, and accordingly affirm.

Stroud, C.J., and Crabtree, J., agree.