Fireman's Fund Ins. Co. v. Care Mgmt., Inc.
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SUPREME COURT OF ARKANSAS
No.
09-662
FIR EM A N ’S FU N D IN SU R A N C E
COMPANY AND MEDICAL LIABILITY
MUTUAL INSURANCE COMPANY
F / K / A /
H E A L T H C A R E
UNDERWRITERS’
MUTUAL
INSURANCE COMPANY,
PETITIONERS,
VS.
CARE MANAGEMENT, INC. D/B/A
SOUTHW EST NURSING HOMES,
SOUTHWEST NURSING HOMES, INC.,
A N D
H E A L T H
C A R E
ORGANIZATIONS, INC.,
RESPONDENTS,
Opinion Delivered JUNE 25, 2009
REQUEST TO CERTIFY QUESTION
OF LAW FROM THE UNITED STATES
DISTR IC T C O U R T FO R TH E
EASTERN DISTRICT OF ARKANSAS
(BATESVILLE DIVISION)
CERTIFIED QUESTION ACCEPTED.
PER CURIAM
In accordance with section 2(D)(3) of Amendment 80 to the Arkansas Constitution
and Rule 6-8 of the Rules of the Supreme Court and Court of Appeals of the State of
Arkansas, Judge J. Leon Holmes, of the United States District Court for the Eastern District
of Arkansas, filed a motion and certifying order with our clerk on June 17, 2009. The
certifying court requests that we answer one question of Arkansas law that may be
determinative of a cause now pending in the certifying court, and it appears to the certifying
court that there is no controlling precedent in the decisions of the Arkansas Supreme Court.
The law in question involves whether an insurer must prove prejudice in order to avoid
coverage where the insured failed to give notice in accordance with the terms of the insurance
policy.
After a review of the certifying court’s analysis and explanation of the need for this
court to answer the question of law presently pending in that court, we accept certification
of the following question:
When an insurance policy requires the insured to give notice of a claim
as soon as practicable and the insured fails to give the insurer notice of the claim
as soon as practicable, must the insurer prove that it was prejudiced by the
failure to give timely notice in order to avoid coverage?
This per curiam order constitutes notice of our acceptance of the certification of
question of law.
For purposes of the pending proceeding in this court, the following
requirements are imposed:
A. Time limits under Ark. Sup. Ct. R. 4-4 will be calculated from the
date of this per curiam order accepting certification. The plaintiffs in the
underlying action, Fireman’s Fund Insurance Company and Medical Liability
Mutual Insurance Company, f/k/a Healthcare Underwriters’ Mutual Insurance
Company, are designated the moving parties and will be denoted as the
“Petitioners,” and their brief is due thirty days from the date of this per curiam;
the defendants, Care Management, Inc. d/b/a Southwest Nursing Homes,
Southwest Nursing Homes, Inc., and Health Care Organizations, Inc., shall be
denoted as the “Respondents,” and their brief shall be due thirty days after the
filing of Petitioners’ brief. Petitioners may file a reply brief within fifteen days
after Respondents’ brief is filed.
B. The briefs shall comply with this court’s rules as in other cases except
for the briefs’ content. Only the following items required in Ark. Sup. Ct. R.
4-2(a) shall be included:
(3) Point on appeal which shall correspond to the certified question of
law to be answered in the federal district court’s certification order.
(4) Table of authorities.
(6) Statement of the case which shall correspond to the facts relevant to
the certified question of law as stated in the federal district court’s certification
order.
-2-
09-662
(7) Argument.
(8) Addendum, if necessary and appropriate.
(9) Cover for briefs.
C. Oral argument will only be permitted if this court concludes that it
will be helpful for presentation of the issue.
D. Ark. Sup. Ct. R. 4-6 with respect to amicus curiae briefs will apply.
E. This matter will be processed as any case on appeal.
F. Rule XIV of the Rules Governing Admission to the Bar shall apply
to the attorneys for the Petitioners and Respondents.
Certified Question Accepted.
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09-662
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