Recent Developments - Arkansas Law Review

(16) RECENT DEVELOPMENTS.DOC 4/23/2010 3:08:33 PM 

RECENT DEVELOPMENTS 

Civil Procedure—Filing Complaint Under the Same Docket 

Number as a Previously Nonsuited Complaint Is Sufficient 

for Purposes of the Savings Statute 

Tucker v. Sullivant, 

2010 Ark. 170, __ S.W.3d __ (April 15, 2010). 

The Arkansas Supreme Court held in this case that, when a 

plaintiff files a new complaint under the same docket number as 

a previous case for which the plaintiff took a voluntary nonsuit, 

that complaint is sufficient to trigger the protections of the 

Arkansas savings statute, so long as the plaintiff accomplished 

service of process on the new complaint. Here, the plaintiffs 

had taken a voluntary nonsuit on a prior complaint, filed a new 

complaint under the same docket number within one year but 

after the expiration of the statute of limitations, and 

accomplished service on the defendant of the new complaint. 

As a result, the Arkansas Supreme Court held that the plaintiffs 

had satisfied the Arkansas savings statute. 

This case involved the beneficiaries of the Maurine M. 

Sullivant Trust: Paul and Andrew Tucker, the plaintiffs in the 

case; their mother, who was not a party to the case; and their 

aunt, Rosemary Sullivant, who was the trustee of the trust and 

the defendant in the case. In April 2003, Sullivant decided to 

dissolve the trust and liquidate its remaining assets. On 

February 20, 2004, the Tuckers filed a complaint seeking an 

accounting of the trust assets. On April 16, 2008, they took a 

voluntary nonsuit on that claim. 

On March 31, 2009, the Tuckers filed an “Amended 

Complaint for Accounting by Trustee” under the same docket 

number as their original complaint and completed timely service 

on the new complaint. Sullivant filed a motion to dismiss based 

on the applicable statute of limitations, which was five years, 

arguing that the new complaint did not qualify as a new action


450 ARKANSAS LAW REVIEW [Vol. 63:449 

for purposes of the savings statute. On June 9, 2009, the trial 

court granted this motion. It subsequently denied the Tuckers’ 

motion for reconsideration, and the Tuckers appealed. 

On appeal, the primary issue facing the Arkansas Supreme 

Court was whether the Tuckers, by filing their second complaint 

and completing service for that complaint, had successfully 

commenced a “new action” for purposes of the savings statute. 

The court began by examining the language of the Arkansas 

savings statute, which provides: 

If any action is commenced within the time respectively 

prescribed in this act, in §§ 16-116-101 – 16-116-107, in §§ 

16-114-201 – 16-114-209, or in any other act, and the 

plaintiff therein suffers a nonsuit, or after a verdict for him 

or her the judgment is arrested, or after judgment for him or 

her the judgment is reversed on appeal or writ of error, the 

plaintiff may commence a new action within one (1) year 

after the nonsuit suffered or judgment arrested or reversed. 

(quoting Ark. Code Ann. 16-56-126(a)(1) (Repl. 2005)). 

Overall, the court noted, the savings statute is to receive a 

“liberal and equitable construction” to give parties a reasonable 

amount of time to renew their cause of action. (citing Rettig v. 

Ballard, 2009 Ark. 629, at 4, __ S.W.3d __, __). As a result, in 

prior opinions, the court had held that, to “commence a new 

action” and take advantage of the savings statute, the plaintiff 

need only file a complaint and complete timely service on a 

defendant, even if that service is later invalidated. (citing id.at 4, 

__ S.W.3d at __). 

On appeal, both the plaintiffs and defendant cited cases 

from the Arkansas Court of Appeals in support of their 

respective positions. (citing Tech. Parts., Inc. v. Regions Bank, 

97 Ark. App. 229, 245 S.W.3d 687 (2006); Hill-Rom, Inc. v. 

Swink, 65 Ark. App. 71, 984 S.W.2d 834 (1999)). In 

Technology Partners, which Sullivant cited, a plaintiff took a 

voluntary nonsuit and, nearly one year later, attempted to file an 

amended complaint under the old docket number, naming a new 

defendant. (citing Tech. Parts., 97 Ark. App. at 238, 245 S.W.3d 

at 695). When the trial court dismissed the amended complaint 

due to the prior dismissal of the claim, the plaintiff filed a new 

complaint more than a year after the original voluntary nonsuit. 

(citing id.). The Arkansas Court of Appeals held that the


2010] RECENT DEVELOPMENTS 451 

plaintiff had not commenced a new action within the one-year 

period of the savings statute. 

On the other hand, in Hill-Rom, which the Tuckers cited, a 

plaintiff had a cause of action dismissed against one defendant 

and subsequently filed an “amended complaint” under the same 

docket number against a new defendant and stating a new cause 

of action. (citing Hill-Rom, 65 Ark. App. at 74, 984 S.W.2d at 

836). The new defendant argued for dismissal on the grounds 

that, due to the dismissal of the original complaint, the trial court 

lacked jurisdiction to accept an amended complaint. (citing id.) 

The court of appeals rejected this argument and held that, given 

the need to construe pleadings liberally, the amended complaint 

had to be construed as a new cause of action, even though it was 

filed under the old docket number. (citing id.) 

The Arkansas Supreme Court distinguished Technology 

Partners because, in that case, the new defendant had never 

been brought into a lawsuit within the applicable statute of 

limitations, and, as a result, the plaintiff could not have availed 

itself of the savings statute as to that defendant. (citing Tech. 

Parts., 97 Ark. App. at 238, 245 S.W.3d at 695). On the other 

hand, in this case, the Tuckers had timely made Sullivant a 

defendant in the original, nonsuited cause of action. As to Hill- 

Rom, while that case was not directly on point in that it did not 

involve the savings statute, the court was persuaded by its 

reasoning. First, it agreed that pleadings are to be liberally 

construed. (citing Ark. R. Civ. P. 8(f)). Second, it agreed that the 

assignment of an old docket number should not negate a new 

complaint that states a new cause of action. Further, the court 

held that this interpretation was consistent with the purpose of 

the savings statute, which is to protect plaintiffs who timely file 

in good faith from suffering “a complete loss of relief on the 

merits because of a procedural defect.” (quoting Rettig v. 

Ballard, 2009 Ark. 629, at 3-4, __ S.W.3d __, __). 

In this case, the Tuckers filed their second complaint and 

completed service on Sullivant within the one-year period of the 

savings statute, and, accordingly, the Arkansas Supreme Court 

held that they had met the requirements of that statute. To hold 

otherwise, the court declared, would be “exalting form over 

substance and violating the stated purpose of the savings 

statute.” As a result, the court reversed and remanded the



decision of the trial court. 

Chief Justice Hannah and Justices Danielson and Wills 

dissented, with Chief Justice Hannah and Justice Wills both 

writing opinions in which all three dissenters joined. Chief 

Justice Hannah wrote to note that when the Tuckers took a 

voluntary nonsuit, that cause of action was terminated (citing 

Austin v. Austin, 241 Ark. 634, 638, 409 S.W.2d 833, 835-36 

(1966)). As a result the Tucker’s amended complaint was a 

“nullity.” Chief Justice Hannah disagreed with the majority’s 

decision to “ignore” this “procedural bar” and worried about 

what the majority’s decision might mean for the finality of 

judgments. 

Justice Wills wrote to declare that prior precedent required 

them to affirm the trial court. (citing West v. Searle & Co., 305 

Ark. 33, 36-37, 806 S.W.2d 608, 610-11 (1991). She also wrote 

to state her opinion that the Hill-Rom case, upon which the 

majority relied, was “outside the parameters of our existing case 

law.” (citing Hill-Rom, 65 Ark. App. at 74, 984 S.W.2d at 836)). 

Ultimately, Justice Wills believed that the majority had stretched 

the doctrine of liberal interpretation of pleadings too far in this 

case.



Civil Procedure—Standing Is Not a Matter of Subject 

Matter Jurisdiction and Cannot Be Grounds for a Writ of 

Prohibition 

Chubb Lloyds Insurance Co. v. Miller County Circuit 

Court, 

2010 Ark. 119, __ S.W.3d __ (March 11, 2010). 

Foremost Insurance Co. v. Miller County Circuit Court, 

2010 Ark. 116, __ S.W.3d __ (March 11, 2010). 

In these companion cases, the Arkansas Supreme Court 

held that standing, or lack thereof, is not a jurisdictional issue 

and is not, therefore, an appropriate grounds for a writ of 

prohibition.T 1 These cases arose from the attempts of two 

insurance cases to use writs of prohibition to have a proposed 

class-action suit dismissed prior to the trial court’s decision on 

class certification. Because the court held that standing was 

only a defense, and not a matter of jurisdiction, it deemed the 

writ of prohibition inappropriate in these cases. 

On September 8, 2004, several plaintiffs filed suit on behalf 

of a proposed nationwide class against several insurance 

companies, including Foremost Insurance Company and Chubb 

Lloyds Insurance Company, alleging a variety of wrongs, 

including conspiracy and fraud. As to both Foremost and Chubb 

Lloyds, the only named plaintiffs who were or ever had been 

their customers were dismissed from the lawsuit. In the case of 

Foremost, the only plaintiff with whom it had a contractual 

relationship was Daniel Sherrouse. Sherrouse was removed to 

the United Stated Bankruptcy Court for the Western District of 

Arkansas and then dismissed following his death. No plaintiff 

was substituted for Sherrouse. In the case of Chubb, the only 

named plaintiff who had a policy with it took a voluntary 

1. The court’s primary opinion on the issue of standing was Chubb Lloyds Insurance 

Co. v. Miller County Circuit Court, 2010 Ark. 119, __ S.W.3d __. While the discussion 

here of the factual background of these cases is drawn from both opinions, the discussion 

of the legal issues raised in these opinions is drawn entirely from the Chubb Lloyds 

opinion, unless otherwise noted.



dismissal. 

As a result, both insurance companies filed motions to 

dismiss based on Rule 12(b)(1) of the Arkansas Rules of Civil 

Procedure, arguing that the court lacked subject-matter 

jurisdiction. In essence, the insurance companies argued that 

because no remaining plaintiff had standing to sue them, the 

court lacked jurisdiction over them. The circuit court 

determined that standing was a defense, not a jurisdictional 

issue, and that addressing the insurance companies’ standing 

arguments would require it to delve into the merits of the case 

prior to determining class certification. Accordingly, it deferred 

its decision on these motions until after it had made its classcertification 

determination. 

The insurance companies then filed requests for a writ of 

prohibition or certiorari with the Arkansas Supreme Court, 

asking it to stop the circuit court from exercising jurisdiction 

over them. The insurance companies argued that amendment 80 

had made standing a part of subject-matter jurisdiction in 

Arkansas. (citing Ark. Const. amend. 80 § 6(a)). That 

amendment provides in part, “Circuit courts are established as 

the trial courts of all justiciable matters not otherwise assigned 

pursuant to this Constitution.” (citing Ark. Const. amend. 80 § 

6(a)). The insurance companies argued that because amendment 

80 made justiciability an element of subject-matter jurisdiction 

in Arkansas, and standing is an element of justiciability, 

standing is part of the requirements for subject-matter 

jurisdiction. Because none of the remaining plaintiffs were 

current or former customers of the insurance companies, they 

argued that no remaining plaintiff had standing to sue them. 

Further, they argued that the conspiracy charges were not 

sufficient to confer standing on the remaining plaintiffs. As a 

result, the insurance companies argued that the lower court was 

without jurisdiction, and either a writ of prohibition or certiorari 

would be appropriate remedies in this case. 

The Arkansas Supreme Court began by noting that a writ of 

prohibition is only appropriate when a court “wholly lacks 

jurisdiction,” meaning that it lacks the power to “hear and 

determine the controversy between the parties.” (citing Ulmer v. 

Circuit Court of Polk County, 366 Ark. 212, 215-16, 234 

S.W.3d 290, 293-94 (2006)). Further, such writs are only



available when no other remedy, like an appeal, is available and 

will not be issued to stop a court from the erroneous exercise of 

its jurisdiction. (citing id.). The Arkansas Supreme Court will 

ultimately only issue writs of prohibition in cases of “extreme 

necessity.” (citing id.). 

Thus, to determine whether to issue writs of prohibition in 

these cases, the Arkansas Supreme Court had to determine 

whether standing was a matter of subject matter jurisdiction in 

Arkansas. Historically, the answer to that question had been 

“no.” The court thus began by citing several pre-amendment 80 

cases where it had refused to recognize standing as a matter of 

subject-matter jurisdiction. (citing Ark. Game & Fish Comm’n v. 

Murders, 327 Ark. 426, 428, 938 S.W.2d 854, 855, n.1 (1997) 

(“[L]ack of standing does not deprive a court of jurisdiction.”); 

Pulaski County v. Carriage Creek Prop. Owners Improvement 

Dist, No. 639, 319 Ark. 12, 14, 888 S.W.2d 652, 653 (1994) 

(“[W]e are unaware of any authority in this Court holding that 

lack of standing deprives a court of jurisdiction.”); Nat’l Sec. 

Fire & Cas. Co. v. Poskey, 309 Ark. 206, 207, 828 S.W.2d 836, 

837-38 (1992) (“The propriety of hearing such a case, especially 

when it appears that no cause of action exists . . . is a distinctly 

different issue and one that is not addressed in a writ of 

prohibition.”)). 

The insurance companies argued, however, that amendment 

80 had changed the law in Arkansas by making justiciability, 

and concomitantly standing, a matter of subject-matter 

jurisdiction. The Arkansas Supreme Court disagreed, noting 

that its post-amendment 80 jurisprudence had not reflected this 

supposed shift in the law. (citing Ulmer, 366 Ark. at 216-17, 234 

S.W.3d at 294) (refusing to grant a writ of prohibition based on 

lack of standing); Populist Party of Ark. v. Chesterfield, 359 

Ark. 58, 63, 195 S.W.3d 354, 357 (2004) (refusing to hear a 

standing argument on appeal without proper objection below)). 

As a result, the court refused to accept the insurance companies’ 

interpretation of the law. 

The court also distinguished and/or dismissed as dicta two 

cases that the insurance companies cited as supporting their 

position. (citing Giles v. Harrington, Miller, Neihouse & Krug, 

362 Ark. 338, 208 S.W.3d 197 (2005); Hames v. Cravens, 332 

Ark. 437, 966 S.W.2d 244 (1998)). In the Giles case, the court



had actually stated, “The [plaintiffs] are without standing to 

bring suit, and the trial court was without jurisdiction to hear the 

case.” (citing Giles, 362 Ark. at 348-49, 208 S.W.3d at 204). 

The court in this case, however, dismissed that statement as 

being only dicta because it was not reflected in the disposition of 

the case. As to the Hames case, the court distinguished it as 

being dismissed for being filed in the wrong court, not for lack 

of standing. (citing Hames, 332 Ark. at 441, 966 S.W.2d at 246). 

Finally, the insurance companies argued that Arkansas 

should follow federal precedent, which does make standing an 

element of subject-matter jurisdiction. The Arkansas Supreme 

Court acknowledged that, in the federal courts, jurisdiction is 

limited to actual “cases” or “controversies,” and standing is one 

doctrine that in part defines the limits of a “case or controversy.” 

(citing Clinton v. City of New York, 524 U.S. 417, 429-30 

(1998); Warth v. Seldin, 422 U.S. 490, 498-99 (1975); Ben 

Oehrleins & Sons & Daughter, Inc. v. Hennepin County, 115 

F.3d 1372, 1373 (8th Cir. 1997); Neighborhood Transp. Net., 

Inc. v. Pena, 42 F.3d 1169, 1172 (8th Cir. 1994). Some states 

likewise require standing as an element of jurisdiction. (citing 

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444- 

45 (Tex. 1993)). Arkansas, however, has not followed and is 

not compelled to follow the precedents set by these other 

jurisdictions. (citing David Newbern & John Watkins, 2 

Arkansas Civil Practice and Procedure 155 (4th ed. 2006)). 

Ultimately, the court rejected the insurance companies’ 

argument that amendment 80 had changed Arkansas law based 

on its case law and the text of amendment 80 itself. As to its 

case law, the Arkansas Supreme Court had previously held, 

“Amendment 80 did not alter the jurisdiction of law and equity. 

It only consolidated jurisdiction in the circuit courts.” (quoting 

First Nat’l Bank of DeWitt v. Cruthis, 360 Ark. 528, 534, 203 

S.W.3d 88, 92 (2005)). Further the text of amendment 80 

provides, “Jurisdiction conferred on Circuit Courts established 

by this Amendment includes all matters previously cognizable 

by Circuit, Chancery, Probate, and Juvenile Courts.” (citing Ark. 

Const. amend. 80, § 19(b)(1)). Therefore, the court refused to 

hold that standing was a matter of subject-matter jurisdiction, 

and, as a result, a writ of prohibition was not an appropriate 

remedy in the case.



As to the alternative remedy of a writ of certiorari, the court 

rejected that request on similar grounds. Because standing is not 

a matter of jurisdiction in Arkansas, the court held that none of 

the applicable grounds for granting a writ of certiorari applied in 

this case. (citing Conner v. Simes, 355 Ark. 432, 438, 139 

S.W.3d 476, 479-80 (2003)). As a result, the court also rejected 

the insurance companies’ alternative request. 

Foremost also had two arguments on appeal that were 

unique to it. 2 First, Foremost argued that the lack of jurisdiction 

in this case was apparent on the face of the record, meaning that 

the trial court had no need to defer its decision on Foremost’s 

motions to dismiss to avoid delving into the merits of the case 

before certifying the class. The Arkansas Supreme Court 

rejected this argument noting first that it had only permitted, and 

not required, the granting of some motions to dismiss prior to 

class certification. (citing Speights v. Stewart Title Guar. Co., 

358 Ark. 59, 65-A, 186 S.W.3d 715, 715 (2004) (supplemental 

opinion on denial of rehearing)). Further, the court had already 

rejected Foremost’s jurisdictional arguments and so did not 

agree that any jurisdictional defects were apparent on the face of 

the record. 

For its second additional argument, Foremost argued that 

the trial court’s refusal to determine its “power to act” prior to 

certification deprived Foremost of due process in violation of 

the Arkansas and United States Constitutions. Foremost, 

however, cited only “authority for general due-process law,” 

without any cases directly on point. As a result, the Arkansas 

Supreme Court held that it had no need to address this issue. 

2. The remainder of this discussion is based entirely on Foremost Insurance Co. v. 

Miller County Circuit Court, 2010 Ark. 116, __ S.W.3d __.



Civil Justice Reform Act of 2003—Medical Malpractice 

Venue Provisions Held Constitutional 

Clark v. Johnson Regional Medical Center, 

2010 Ark. 115, __ S.W.3d __ (March 11, 2010). 

Clark v. Johnson Regional Medical Center, 

2010 Ark. 114, __ S.W.3d __ (March 11, 2010). 

In these companion cases, the Arkansas Supreme Court 

upheld the medical-malpractice venue provisions of the Civil 

Justice Reform Act of 2003 (the CJRA) against a separation-ofpowers 

challenge under amendment 80 to the Arkansas 

Constitution. 3 The plaintiff here had filed the same case in two 

separate counties, and each circuit court dismissed those 

defendants for whom venue was not proper in that county. The 

Arkansas Supreme Court held that the trial courts had properly 

applied the relevant venue statutes and that these statutory 

provisions were constitutional. Accordingly, it affirmed the 

lower courts. 

On February 3, 2006, Mary Clark underwent back surgery 

at Sparks Medical Center in Sebastian County, Arkansas. 

Clark’s surgeon there was Dr. Arthur Johnson, and, during 

surgery, Clark suffered a dural tear to her left side. After being 

discharged, Clark continued to see Johnson at his clinic, 

Orthopaedics, P.A., also in Sebastian County. She was also 

receiving physical therapy for the surgical wound at Johnson 

Regional Medical Center (JRMC), in Johnson County, 

Arkansas. On March 8, 2006, staff at JRMC determined that 

Clark’s wound had become infected. Between August and 

December of 2006, Clark made several trips to the emergency 

room at JRMC, where she complained of weakness and nausea, 

and received treatment from three different doctors. On 

December 1, 2006, one of these doctors, Dr. John Dunham, 

3. The court’s main opinion, and the primary source of this discussion, is Clark v. 

Johnson Regional Medical Center, 2010 Ark. 115, __ S.W.3d __. Both cases had the same 

parties, and Clark raised the same arguments in both cases on appeal.



found that the surgical wound had begun to bulge and was 

draining. He released her with instructions to see her original 

surgeon within the week, but Clark returned to the JRMC 

emergency room the next day. Discovering that the wound was 

severely abscessed, Dr. Dunham had Clark transferred back to 

Sparks. There, doctors discovered that the infection had spread 

to some hardware installed in her back, necessitating the 

removal of that hardware. 

On November 26, 2007, Clark filed identical medicalmalpractice 

suits against each of the doctors, hospitals, and 

clinics that had treated her in both Johnson and Sebastian 

Counties. In each case, the defendants that had not treated Clark 

in that county made a motion to dismiss based on Arkansas Rule 

of Civil Procedure 12(b)(3) and section 16-55-213(e) of the 

Arkansas Code, the medical-malpractice venue provision of the 

CJRA, arguing that venue was improper in that county. Both 

circuit courts dismissed the claims against those defendants that 

did not practice in its county, i.e., the Johnson County Court 

dismissed the Sebastian County defendants and the Sebastian 

court dismissed the Johnson defendants. Clark appealed the 

decisions of both trial courts, producing these two opinions. 

On appeal, Clark raised two arguments. First, Clark argued 

that the courts should not have applied the CJRA’s medicalmalpractice 

venue provision to her claim. Second, she argued in 

the alternative that the venue statute was unconstitutional. The 

Arkansas Supreme Court rejected both arguments, affirming the 

trial courts. 

As to the application of this provision, Clark argued that 

the provision only applies when a medical injury occurred in a 

single county and involved only a single medical provider. 

Clark, on the other hand, had alleged that the negligence of 

multiple providers in multiple counties had caused her injuries. 

Accordingly, she argued, the provision could not apply to her 

claim. 

The Arkansas Supreme Court began by looking at the plain 

language of the statute. The CJRA’s venue provision provides 

in part: 

(a) All civil actions other than those mentioned in §§ 16- 

60-101–16-60-103, 16-60-107, 16-60-114, and 16-60-115, 

and subsection (e) of this section must be brought in any of



the following counties: 

(1) The county in which a substantial part of the events or 

omissions giving rise to the claim occurred; 

(2)(A) The county in which an individual defendant 

resided. 

(B) If the defendant is an entity other than an individual, 

the county where the entity had its principal office in this 

state at the time of the accrual of the cause of action; or 

(3)(A) The county in which the plaintiff resided. 

(B) If the plaintiff is an entity other than an individual, the 

county where the plaintiff had its principal office in this 

state at the time of the accrual of the cause of action. . . . 

(e) Any action for medical injury brought under § 16-114- 

201 et seq. against a medical care provider, as defined in § 

16-114-201(2), shall be filed in the county in which the 

alleged act or omission occurred. 

(quoting Ark. Code Ann. § 16-55-213(a), (e) (Repl. 2005)). In 

looking at the statute’s plain language, the court simply noted 

that it found nothing to support Clark’s proposed limitation. 

The Court found further support for rejecting Clark’s 

proposed interpretation in the interpretations it had already given 

to the Medical Malpractice Act. (citing Ark. Code Ann. § 16- 

114-201(1) (Repl. 2006)). Clark wanted the court to interpret 

the singular nouns in section 16-55-213(e) literally, meaning, for 

example, that 213(e) would only apply to cases involving “a” 

medical provider. The court, however, had already interpreted 

similar language in the Medical Malpractice Act to apply to 

cases with multiple defendants. (citing Rice v. Tanner, 363 Ark. 

79, 81, 210 S.W.3d 860, 862 (2005); Adams v. Arthur, 333 Ark. 

53, 61-62, 969 S.W.2d 598, 602 (1998)). The court also rejected 

Clark’s claim that its reading of the CJRA’s venue provision 

failed to harmonize subsections (a) and (e), and, as a result, it 

rejected Clark’s proposed interpretation as creating absurd 

results. 

The court next turned to Clark’s constitutional arguments. 

Clark argued that the provision in question violated the 

separation-of-powers provision of the Arkansas Constitution by 

being a legislative encroachment on the judiciary’s power to set



the rules of pleading, practice, and procedure. (citing Ark. 

Const. art. 4, § 2; amend. 80, § 3). Clark cited previous cases 

where the Arkansas Supreme Court had struck down parts of the 

CJRA as impinging upon its power over procedure for the 

proposition that a statute conflicting with the Arkansas Rules of 

Civil Procedure is invalid. (citing Johnson v. Rockwell 

Automation, Inc., 2009 Ark. 241, at 7, __ S.W.3d __, __; 

Summerville v. Thrower, 369 Ark. 231, 239, 253 S.W.3d 415, 

421 (2007)). Clark then noted that CJRA’s medical-malpractice 

venue provision conflicts with these rules in that it would 

prohibit joinder of all defendants under Rule 20, prevent the 

joinder of necessary parties under Rule 19, and prevent some 

necessary counter- and cross-claims from being brought under 

Rule 13. 

While the court noted this prior precedent and the potential 

conflicts between the statute and its rules, it rejected Clark’s 

arguments because setting venue is within the province of the 

legislature. First, the court noted that amendment 80 gives the 

General Assembly the power to set venue. (citing Ark. Const. 

amend. 80, § 10). Second, the court looked to its precedents, 

which had previously established the legislature’s power over 

venue. (citing Farm Bur. Mut. Ins. Co. of Ark. v. Gadbury-Swift, 

2010 Ark. 6, at 8, __ S.W.3d __, __; Dotson v. City of Lowell, 

375 Ark. 89, 92, 289 S.W.3d 55, 58 (2008)). Finally, the court 

noted that the Arkansas Rules of Civil Procedure themselves 

state that they “shall not be construed to extend or limit...the 

venue of” the circuit courts. (quoting Ark. R. Civ. P. 82). As a 

result, the court distinguished this statute from other parts of the 

CJRA that it had stricken, upholding the constitutionality of the 

CJRA’s medical-malpractice venue provision. 

Justices Danielson and Wills wrote concurring opinions. 

Justice Danielson suggested that the legislature reconsider this 

provision in light of the potential procedural problems it may 

cause and questioned the constitutionality of this provision on 

other grounds, namely the fact that it “carved out” a venue 

provision for a single industry. Justice Wills wrote to say that 

she would have confined the majority’s analysis entirely to the 

text of the Arkansas Constitution, without referring to 

extraneous sources such as Rule 82 of the Arkansas Rules of 

Civil Procedure.



Insurance Law—Insurance Company May Not Need to 

Show Prejudice to Avoid Coverage Based on an Insured’s 

Failure to Provide Timely Notice of a Claim 

Fireman’s Fund Insurance Co. v. Care Management, 

Inc., 

2010 Ark. 110, __ S.W.3d __ (March 4, 2010). 

In this case, the Arkansas Supreme Court held that, where 

timely notice of a claim is a condition precedent to insurance 

coverage, the insurance company is not required to prove 

prejudice in order to avoid coverage. This case arose as a 

certified question from Judge Leon Holmes, United States 

District Judge for the Eastern District of Arkansas, as to whether 

such a showing of prejudice was necessary under Arkansas law. 

The Arkansas Supreme Court answered that question in the 

negative, provided that timely notice was a condition precedent 

to coverage. 

In 2000, Southwest Nursing Home, Inc., took out a 

healthcare facility liability insurance policy with Fireman’s 

Fund Insurance Co. A subsequent endorsement changed the 

named insured to Care Management, Inc. D/B/A Southwest 

Nursing Homes, and Fireman’s Fund transferred its obligations 

under the policy to Healthcare Underwriters Mutual, which later 

changed its name to Medical Liability Mutual Insurance 

Company (MLMIC). Thus, by July 2001, the named parties to 

this insurance policy were Care Management, the named 

insured, and MLMIC. 

On June 15, 2006, Carole Henson brought a wrongful-death 

claim against Care Management and other defendants on behalf 

of the estate of Mamie Denton. On September 26, 2008, Care 

Management’s attorney wrote a letter to MLMIC to inquire 

about insurance coverage. At the time, the case was scheduled 

for a final hearing on October 7, 2008, and this letter was the 

first notice to MLMIC from Care Management as to the claim 

against it. 

In October 2008, Care Management’s attorney sent two 

more requests to MLMIC for coverage under its policy with 

MLMIC. Finally, Care Management filed a declaratory-



judgment action in the United States District Court for the 

Eastern District of Arkansas. In a motion for summary 

judgment, MLMIC cited language in the policy that it claimed 

created a condition precedent to coverage. This policy listed, as 

one of Care Management’s “Duties in Event of Claim,” to 

“[n]otify [MLMIC] in writing as soon as practicable” after a 

claim was made against it. Further, the policy provided that no 

one could sue MLMIC unless all of the terms of the policy had 

been “fully complied with.” Because two years had elapsed 

from the filing of the complaint against Care Management and 

its providing notice to MLMIC, MLMIC claimed that this 

condition precedent had not been fulfilled, and as a result, its 

coverage obligation had not arisen. On the day after MLMIC 

filed its motion for summary judgment, November 25, 2008, the 

Denton estate moved for and obtained a voluntary dismissal 

without prejudice of the underlying state-court action against 

Care Management. 

The district court noted that the Eighth Circuit had 

previously held that, under Arkansas law, the insurance 

company had no need to show prejudice to avoid liability when 

notification was a condition precedent to coverage. The Eighth 

Circuit, however, had recently expressed doubt as to the validity 

of that prior holding. (citing AIG Centennial Ins. Co. v. Fraley- 

Landers, 450 F.3d 761, 767 (8th Cir. 2006)). As a result, the 

district court certified the following question to the Arkansas 

Supreme Court: 

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? 

The Arkansas Supreme Court accepted the certified question, 

adding the phrase “is a condition precedent to recovery” after 

the first occurrence of the phrase “as soon as practicable,” and 

answered the question as modified in the negative. 

The answer to this question turned on the distinction 

between a requirement of notice that is a condition precedent to 

coverage and one that is an ordinary contract promise. When 

the policy requires notice as a condition precedent to coverage, 

the insured must strictly comply with that requirement. As a



result, the insurer need not show prejudice to avoid liability on 

the policy. On the other hand, when the requirement of notice is 

an ordinary contract promise, the insured’s noncompliance does 

not forfeit coverage under the policy unless the insurance 

company can demonstrate that it was prejudiced by the delay or 

lack of notice. The court noted, however, that an unreasonable 

delay in notice could in itself be prejudicial to the insurer. In 

reaching this conclusion, the court explicitly acknowledged that 

it was bucking the current trend toward requiring a showing of 

prejudice more frequently but felt compelled to reach its holding 

because “[i]n Arkansas, a condition precedent is still a condition 

precedent.” (citing Alcazar v. Hayes, 982 S.W.2d 845 (Tenn. 

1998)). 

To reach its conclusion in this case, the court turned to its 

prior precedent on the subject. From its first case addressing the 

issue, the Arkansas Supreme Court had not required the insurer 

to show prejudice when notice of a claim was a condition 

precedent to recovery. (citing Teutonia Ins. Co. v. Johnson, 72 

Ark. 484, 490, 82 S.W. 840, 842 (1903)). The court had not 

changed its position in subsequent cases. (citing Myers v. Mut. 

of Omaha Ins. Co., 253 Ark. 135, 136, 484 S.W.2d 879, 880 

(1972); Am. Fid. & Cas. Co. v. Ne. Ark. Bus Lines, Inc., 201 

Ark. 622, 623, 146 S.W.2d 165, 166 (1941); Pac. Mut. Life Ins. 

Co. v. Butler, 190 Ark. 282, 286, 78 S.W.2d 813, 815 (1935)). 

Further, the court had likewise required strict compliance from 

the insured when provisions other than notice were a condition 

precedent to coverage. (citing Vill. Mkt., Inc. v. State Farm Gen. 

Ins. Co., 333 Ark. 552, 557, 970 S.W.2d 243, 247 (1998)). On 

the other hand, the court had required a showing of prejudice on 

the part of the insurer when notice was not a condition precedent 

to coverage. (citing Home Indem. Co. v. Banfield Bros. Packing 

Co., 188 Ark. 683, 689, 67 S.W.2d 203, 206 (1934); Home Life 

& Acc. Co. v. Beckner, 168 Ark. 283, 288, 270 S.W. 529, 531 

(1925); Hope Spoke Co. v. Md. Cas. Co., 102 Ark. 1, 8, 143 

S.W. 85, 87 (1912)). As a result, the court held that whether the 

insurer must show prejudice turns on whether the clause in 

question was a condition precedent. 

The court acknowledged that the confusion in the Eighth 

Circuit over Arkansas law on this point arose from three cases, 

each of which had imposed liability when an insurer had failed



to show it was prejudiced by the insured’s failure to comply 

strictly with a notice requirement in the policy. (citing Members 

Mut. Ins. Co. v. Benefield, 255 Ark. 156, 158, 499 S.W.2d 608, 

609 (1973); Kealy v. Lumberman’s Mut. Ins. Co., 239 Ark. 766, 

767, 394 S.W.2d 629, 630 (1965); So. Farm Bur. Cas. Ins. Co v. 

Robinson, 236 Ark. 268, 274, 364 S.W.2d 454, 458 (1963)). As 

to two of these cases, the court held that they were in fact 

consistent with its current holding because the provisions in 

question in those cases did not make notice a condition 

precedent to coverage. (citing Kealy, 239 Ark. at 767, 294 

S.W.2d at 630; Robinson, 236 Ark. at 274, 364 S.W.2d at 458). 

On the other hand, the court could not reconcile the third case 

with its holding and, accordingly, overruled it. (citing Benefield, 

255 Ark. at 158, 499 S.W.2d at 609). 

Finally, the court turned to a case that it ultimately deemed 

to be irrelevant to the certified question before it. (citing M.F.A. 

Mut. Ins. Co. v. White, 232 Ark. 28, 334 S.W.2d 686 (1960)). In 

that case, like this one, the plaintiff in the underlying claim 

giving rise to the dispute over insurance coverage had 

voluntarily dismissed that claim. (citing id. at 29, 334 S.W.2d at 

687). The White court held that the insured’s failure to comply 

with a notice condition as to the voluntarily dismissed suit did 

not give the insurance company a defense to coverage in a 

subsequent suit based on the same facts. (citing id. at 30, 334 

S.W.2d at 687). While the court did not dispute that holding, it 

concluded it had no bearing on the certified question before it. 

Thus, while the dismissal of the suit does “essentially reset” the 

duty of the insured to provide notice of the claim against it, the 

insured still must strictly comply with any notice requirement as 

to a subsequent suit, if that notice requirement is a condition 

precedent to recovery. Ultimately, whether an insured must 

show prejudice from a failure of the insured to comply strictly 

with a notice requirement will depend on whether that notice 

requirement was a condition precedent to recovery. 

MICHAEL A. THOMPSON

Recent Developments - Arkansas Law Review

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