Carter v. Bush

Annotate this Case

669 S.W.2d 902 (1984)

283 Ark. 16

Jodine CARTER, Individually and as Executrix of the Estate of J.C. Carter, deceased, Appellant, v. Eddie BUSH, Ernest Collard, & Commercial Union Insurance Co., Appellees.

No. 84-16.

Supreme Court of Arkansas.

June 11, 1984.

Daggett, Van Dover, Donovan & Cahoon by Robert J. Donovan, Marianna, for appellant.

Bush & Collard, by Ted Goodloe and Gail O. Matthews, Little Rock, for appellees.


The appellees, Eddie Bush and Ernest Collard, in the course of their jobs as patrolmen for the Arkansas Highway Police, stopped a tractor-trailer truck at night on Highway 1 near DeWitt, Arkansas, to weigh the vehicle. As they finished weighing the truck, a second tractor-trailer stopped in the opposite lane to be weighed. The trucks completely blocked the travel portion of the highway. While the trucks were so stopped, the decedent, J.C. Carter, ran into the back of one of the trailers and *903 received injuries which ultimately resulted in his death. The decedent's executrix, the appellant Jodine Carter, brought a suit for wrongful death against Bush and Collard and against Commercial Union Insurance Co. The suit asked for the proceeds from the insurance policies both Bush and Collard had in force covering their own personal vehicles. In the alternative, the appellant sought the proceeds from the uninsured motorist insurance coverage provided to the decedent by Commercial Union.

The trial court dismissed the cause of action with prejudice as to Bush and Collard pursuant to Ark.Stat.Ann. § 13-1420 (Supp.1981) which bars civil suits against state governmental employees. There was apparently no disposition of the case as to the insurance company. This case comes to us on appeal under Sup.Ct.Rule 291(c) because it involves the construction of a statute. We reverse.

The appellees argue that the issue raised by the appellant was not raised before the trial court and is being presented for the first time on appeal. However, the appellant made substantially the same argument in a memorandum brief submitted to the trial court. Therefore, the argument is properly presented.

The appellant is also attempting to collect on an insurance policy issued to the decedent by Commercial Union. In the trial judge's order dismissing the appellant's complaint, no mention was made of the status of the suit as to Commercial Union. Since there is no final, appealable order in the record, that portion of the appellant's argument which is directed to Commercial Union is not properly before us and will not be discussed.

The appellant's principal contention, and the only one we will consider, is whether § 13-1420 operates as a complete bar to suits against governmental employees or whether it grants such immunity only to the extent that said employees do not have liability insurance coverage or to the extent that the injured party is not insured. We do not decide in this opinion whether or not the appellees were in fact negligent or whether their insurance policies would cover this situation if they are negligent. We are merely deciding whether or not the appellant can maintain an action against the appellees. We hold that she can.

The appellant would be unable to maintain an action against the officers if she was actually attempting to sue the State of Arkansas under Art. 5, § 20, of the Arkansas Constitution which provides that the State "shall never be made defendant in any of her courts." However, we have allowed lawsuits to be filed against police officers when the matter involves a negligent action caused by the officer's violation of a duty imposed upon him by law in common with all other peopleas where a policeman violates a traffic rule and causes an accident. Kelly v. Wood, Judge, 265 Ark. 337, 578 S.W.2d 566 (1979); Grimmett v. Digby, Circuit Judge, 267 Ark. 192, 589 S.W.2d 579 (1979).

The difficulty in this case arises because of Ark.Stat.Ann. § 13-1420 (Supp.1981) which provides:

Officers and employees of the State of Arkansas are immune from civil liability for acts or omissions, other than malicious acts or omissions, occurring within the course and scope of their employment.

The trial court held that this provision precluded a lawsuit against the appellees, since they were acting in their official capacity when they stopped the two tractor-trailers. However, § 13-1420 is part of Chapter 14, which is entitled "State Claims Commission." The other sections of the *904 Act concern the claims commission's authority to subrogate any claim they award when the claimant has also received benefits under a policy of insurance. The emergency clause explains that the purpose of the Act is to provide a procedure whereby the claims commission can hear claims when the injured party has received partial compensation from an insurer. Such a procedure did not formerly exist.

Each provision of the Claims Commission Act cross-references Ark.Stat.Ann. § 12-3401-3406 (Repl.1979). That Act is entitled "Governmental Liability" and the first section, § 12-3401 provides:

The State of Arkansas shall pay actual, but not punitive, damages adjudged by a state or federal court, or entered by such a court as a result of a compromise settlement approved and recommended by the Attorney General, against officers or employees of the State of Arkansas, or against the estate of such an officer or employee while acting without malice and in good faith within the course and scope of his employment and in the performance of his official duties.

Clearly then, § 12-3401 provides the exact remedy sought by the appellant and which is prohibited by § 13-1420.

It is a general rule that a statute is open to construction where the language used in the statute may reasonably be considered ambiguous. 73 Am.Jur.2d Statutes § 194 (1974). Courts may construe statutes even when the meaning of the words seems clear. Id. § 195. Furthermore:

An ambiguity justifying the interpretation of a statute is not simply that arising from the meaning of particular words, but includes such as may arise in respect to the general scope and meaning of a statute when all its provisions are examined. The courts regard an ambiguity to exist where the legislature has enacted two or more provisions or statutes which appear to be inconsistent.

Id. Since this obviously is the case here, we must construe and reconcile these two statutory provisions.

Statutes enabling the public to seek redress against government officials, as both these statutes do, are enacted to benefit the public. We have held that such statutes are to be interpreted most favorably to the public. Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968). We have also held that any interpretation of a statute which avoids opportunities to evade the act are favored in the law. Sturdivant, Adm'x v. City of Farmington, 255 Ark. 415, 500 S.W.2d 769 (1973). We can observe both of these rules if we hold that § 13-1420 is not to be construed to provide governmental immunity since that is controlled by § 12-3401. Although it is a general rule of construction that a repeal by implication of the earlier statute is accomplished whenever the legislature enacts a subsequent, conflicting statute, Berry v. Gordon, 237 Ark. 547, 376 S.W.2d 279 (1964), it is also a rule that our function is to ascertain and give effect to the intent of the legislature. Berry, supra. We held in Berry that the "reason, spirit, and intention of the legislation ... shall prevail over its letter ... especially ... where adherence to the letter would result in absurdity or injustice, or would lead to contradiction, or would defeat the plain purpose of the law."

Here, were we to give effect to the claims commission statute conferring immunity, we would be substituting the claims commission as the arena for legal redress of a wrong committed by a state official instead of the courts, as provided in § 12-3401. We do not believe that is what the Legislature intended.

Furthermore, in looking at the titles of the two acts, § 12-3401 is entitled "Governmental Immunity" while § 13-1420 is entitled "Claims Commission." Therefore, it seems reasonable to assume that the act whose title suggests that it sets the guidelines for governmental immunity would *905 control on the issue of the immunity of a state employee. We have held that "[t]he title of the act ... indicates the prime and controlling purpose ...; and while the title of an act is not controlling in its construction, it is always proper to look to the title in determining its meaning." Oliver v. Southern Trust Co., 138 Ark. 381, 212 S.W. 77 (1919).

Section 12-3403 of the liability statute states that damages payable under this Act shall be reduced to the extent the employee is indemnified under a contract of insurance. Section 13-1416-1421 apparently elaborates on this section and was not intended to effect a repeal of § 12-3401.

Further evidence that the Legislature intended officers to be liable in certain situations is provided by the emergency clause to § 12-3401-3406 which provides:

It is hereby found and determined ... that a number of State officers and employees are being made defendants in lawsuits seeking damages for their acts or omissions in the performance of their official duties; ... and that it is essential that the State of Arkansas offer protection for its officers or employees against personal liability for performing their official duties.

The clause does not deny that officers may be held liable; it merely establishes a method for the State to pay the damages adjudged against the officers or employees, rather than have them bear the full brunt. Arguably then, § 13-1420 could have been a second attempt by the Legislature to emphasize that officers and employees of the State are not personally liable if their negligent act was committed in the course of their employment.

We hold that, reading this statute in context with the earlier Act, and in light of the purpose of both acts, the Legislature did not intend to confer governmental immunity from civil liability on officers and employees of the State. Therefore, we reverse the trial court's dismissal of the appellees from this lawsuit and remand this case for further development of the issues.

Reversed and remanded.