Arkansas Code, Volume 15, 2013 Supplement

2013·9.4 MB·English

by  State of Arkansas

Arkansas Code
OF
1987
Annotated
SUPPLEMENT
2013
VOLUME
15
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ARKANSAS CODE REVISION COMMISSION
Senator David Johnson, Chair
Senator David Burnett
Representative John Vines
Representative Darrin Williams
Honorable Bettina E. Brownstein
Honorable Don Schnipper
Honorable David R. Matthews
Honorable Stacy Leeds, Dean, University ofArkansas at
Fayetteville, School ofLaw
Honorable Michael H. Schwartz, Dean, University ofArkansas at
Little Rock, School ofLaw
Honorable Warren T. Readnour, SeniorAssistant Attorney General
Honorable Matthew Miller, Assistant Director for Legal Services of
the Bureau ofLegislative Research
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TITLE 16
PRACTICE, PROCEDURE, AND COURTS
(CHAPTERS 1-17 IN VOLUME 14A; CHAPTERS 18-54 IN
VOLUME 14B; CHAPTERS 90-128 IN VOLUME 16)
SUBTITLE 5. CIVIL PROCEDURE GENERALLY
CHAPTER.
55. GENERAL PROVISIONS.
56. LIMITATION OFACTIONS. —
58. COMMENCEMENT OFACTION PROCESS.
VENUE.
60.
61. PARTIES.
62. SURVIVALAND ABATEMENT OFACTIONS.
PLEADINGSAND PRETRIAL PROCEEDINGS.
63.
64. TRIALAND VERDICT.
JUDGMENTS GENERALLY.
65.
EXECUTION OF JUDGMENTS.
66.
67. APPEAL.
SUBTITLE CRIMINAL PROCEDURE GENERALLY
6.
CHAPTER.
81. ARREST.
84. BAIL GENERALLY.
PRETRIAL PROCEEDINGS.
85.
86. INSANITY DEFENSE.
87. PUBLIC DEFENDERS.
88. JURISDICTIONAND VENUE.
89. TRIALAND VERDICT.
SUBTITLE CIVIL PROCEDURE GENERALLY
5.
CHAPTER
55
GENERAL PROVISIONS
subchapter.
1. General Provisions.
2. Civil Justice ReformAct of 2003.
—
Subchapter 1 General Provisions
section. — —
16-55-114. Notices Form Service
generally.
1
16-55-114 PRACTICE, PROCEDURE, AND COURTS 2
— —
16-55-114. Notices Form Service generally.
(a)(1) The notices mentioned in this code shall be in writing and may
be served by a sheriff, constable, coroner, or marshal of a town or city,
whose return thereon shall be proofofthe service.
(2) Notices may also be served by any person not a party or
interested in the action or proceeding, whose affidavit shall be proofof
the service, or by acknowledgment thereon in writingby the party upon
whom
served.
(b) The service of a notice shall be by giving a copy to the person to
whom it is directed, or ifhe or she cannot be found at his or her usual
place of abode, by leaving a copy there with a person over the age of
sixteen (16) years residing in the same family with him or her, or ifno
such person is there, thenby affixinga copyto the front doorofthe place
of abode. Ifthe person to whom the notice is directed cannot be found
and has no known place ofabode in this state, the notice maybe served
by delivering a copy to his or her attorney.
(c) The return ofthe officer or the affidavit ofthe person who served
the notice shall state the time and manner ofthe service. Ifa copy ofthe
notice is not given to the person to whom it is directed, the return or
affidavit shall state the facts authorizing the manner of service pur-
sued.
History. Civil Code, §§ 706, 707; C. & Publisher's Notes. This section is be-
M. Dig., §§ 1327, 1328; Pope's Dig., ing set out to reflect a gender neutraliza-
§§ 1552, 1553; A.S.A. 1947, §§ 27-1203, tion change in (b).
27-1204.
—
Subchapter 2 Civil Justice Reform Act of 2003
SECTION. SECTION.
16-55-206. Standards for award of puni- 16-55-213. Venue,
tive damages.
Effective Dates. Acts 2013, No. 1315, nient forum. Therefore, an emergency is
§ 3:Apr. 18, 2013. Emergency clause pro- declaredtoexist, andthis actbeingimme-
vided: "It is found and determined by the diately necessary for the preservation of
General Assembly ofthe State ofArkan- the public peace, health, and safety shall
sas that school district litigation is a com- become effective on: (1) The date of its
plex and costly endeavor; that a new approval by the Governor; (2) Ifthe bill is
venue statute would resolve many issues neither approved nor vetoed by the Gov-
regarding where a lawsuit should be ernor, the expiration ofthe period oftime
brought; and that this act is immediately during which the Governor may veto the
necessarybecausefuturelitigantsarecur- bill; or (3) If the bill is vetoed by the
rently relying on venue statutes that Governor and the veto is overridden, the
would require litigation in an inconve- date the last house overrides the veto."
3 GENERAL PROVISIONS 16-55-201
RESEARCH REFERENCES
Ark. L. Notes. Leflar, The CivilJustice
Reform Act and the Empty Chair, 2003
Ark. L. Notes 67.
16-55-201. Modification ofjoint and several liability.
RESEARCH REFERENCES
Ark. L. Rev. Legislative Note, Arkan- tutionalityofTort ReforminArkansas, 59
sas's Civil Justice Reform Act of 2003: Ark. L. Rev. 781.
Who'sCheatingWho?, 57Ark. L. Rev. 651. Phantom Parties and Other Practical
Note, To Truly Reform We Must Be Problems with theAttemptedAbolition of
Informed: Davis v. Parham, the Separa- JointandSeveralLiability, 60Ark. L. Rev.
tion of Powers Doctrine, and the Consti- 437.
CASE NOTES
Analysis seq., can not be interpreted to permit a
jury to apportion fault in a tort suit to an
Constitutionality. immune nonparty employer because do-
Construction. ing so would render the statute unconsti-
Jury Instructions. tutional: (1) such an interpretation would
Necessary Party. violateArk. Const.,Art. 4, § 2,whichbars
the state legislature from encroaching on
Constitutionality. the Arkansas Supreme Court's authority
agAalilnesgtedlaynoitnhjeurredmodtroirviesrt,brwouhgohttshueint taonsiunpteerrvpirseetactoiuorntpwrooucleddurvei;olaatnedt(h2)eseumc-h
brought suit against a third party; the
ployer'sfundamentalconstitutionalrights
jury determined that the third party was
100percentatfault. The allegedlyinjured vbiesciaounseof§th1e1-A9r-k1a05n(saa)s,tWhoerkexecrlsu'siCvoitmypperno--
driver attacked the constitutionality of
thissectionand§ 16-55-212;however,the csoautritosn oAfcts,ub§jec1t1-m9a-t1t01erejtursiesqd.i,ctdieopnroivveesr
supreme court refused to consider the
employers and protects employers from
arguments because the supreme court
liability with regard to claims arising
consideredthemattertobemoot. Shippv.
from a covered worker's emplojmient-re-
Franklin, 370 Ark. 262, 258 S.W.3d 744
(2007). l5a2t2edRinSjuuprpie.s.2dBi1l1l2in1gs(Ev..D.AeArrokp.re2s007C)o.rp.,
Construction. Conversion does notnecessarilyinvolve
Civil Justice Reform Act (CJRA), § 16- damage to property, which would bring it
55-201 etseq., pertainstofaultapportion- within the reach ofthe statute and there-
ment in a general way, and theArkansas fore, the Civil Justice ReformAct—of2003
Comparative FaultAct, § 16-64-122, spe- (CJRA), codifiedat§§ 16-55-201 16-55-
cifically defines fault and identifies whose 220, does not automatically apply to ac-
fault can be apportioned. Because these tionsunder§ 18-60-102;theCJRAclearly
two provisions address the same subject evinces anintentto alterthe common law
matter, it is reasonable to conclude that regarding joint and several liability for
the general terms of the CJRA are in- the causes of action listed, such as per-
tended to be subject to the specific terms sonal injury or property damage, but it
of the Arkansas Comparative Fault Act. does not, however, display such an intent
BillingsV.Aeropres Corp., 522 F. Supp. 2d regarding causes of action involving the
1121 (E.D. Ark. 2007). conversion ofproperty, and thus, the trial
CivilJusticeReformAct, § 16-55-201 et court did not err in finding the company.
,
16-55-202 PRACTICE, PROCEDURE, AND COURTS 4
owner, and related individual jointly and surgeon operated onthewrongside ofthe
severally liable with the business and patient's brain, the circuit court did not
business owner and with each other for abuse its discretion in refusing to submit
the value of the landowner's timber. non-model jury instructions that would
Shamlin v. Quadrangle Enters., 101 Ark. have required thejuryto apportion liabil-
App. 164, 272 S.W.3d 128 (2008). ity to parties who were not defendants;
This sectionplainlyprovides thatliabil- the circuit court properly instructed the
ity is to be apportioned with regard to jury to allocate the fault of the hospital
"each defendant."Where there is onlyone where the surgery was performed only to
AdPrerkfo.eans4ds6au1nr,ta,n—ctehSiI.snWd.es3emdc.t—iCoon.2v0i.s1M2eitAnhraekppn.lyiL,cEa2Xb0lI1eS2. tMheethiensnuyrer2.01P2roAarsks.ur4a6n1c,e —IndSe.mW..3Cdo.—v.
499 (Dec. 13, 2012). , 2012 Ark. LEXIS 499 (Dec. 13, 2012).
Trial court did not abuse its discretion Necessary Party.
bystrikingthehospital's third-partycom- Trial court did not err by finding that
plaint against the rehabilitation center the rehabilitation centerwas not a neces-
because the hospital did not have a cause sary or indispensable partyunderArk. R.
ofaction against the rehabilitation center
Civ. P. 19 because the presence of the
under this section as it did not create a rehabilitation center was not indispens-
cause of action. St. Vincent Infirmar—y
able to the determination ofthe hospital's
Med. Ct—r. v. Shelton, 2013 Ark. 38, separate liability under the Civil Justice
S.W.3d (2013).
ReformAct of2003. St. Vincent Infirma—ry
Jury Instructions. Med. Ct—r. v. Shelton, 2013 Ark. 38,
In a medical negligence case that was S.W.3d (2013).
brought against a liability insurer after a
16-55-202. Assessment of percentages of fault.
CASE NOTES
Analysis Ark. Const.,Amend. 80, § 3 becauserules
regarding pleading, practice, and proce-
Constitutionality. dure were solely the responsibility ofthe
Application. supreme court; the nonparty-fault provi-
Interpretation. sion bypassed the rules ofpleading, prac-
tice and procedure by setting up a proce-
Constitutionality.
dure to determine the fault ofa nonparty
Eastern District ofArkansas, Western and mandating the consideration of that
Division, district court did not have to nonparty's fault in an effort to reduce a
address a constitutional challenge to this plaintiffs recovery. Thomas v. Rockwell
section, the nonparty notice provision of Automation, Inc., 2009 Ark. 241, 308
the Civil Justice Reform Act (CJRA),
S.W.3d 135 (2009).
§ 16-55-201 et seq., because the CJRA In a products liability action by an in-
could be plausibly interpreted to comply juredworker against the manufacturer of
withtheUnitedStatesandArkansasCon-
a defective chemical tank, the district
stitutions and to conformwith theArkan- court appropriately declined to allow the
sas Workers' Compensation Act (WCA), jury to assign a percentage offault to the
§ 11-9-101etseq., andtheArkansasCom- worker's employer, a nonparty, because
parative Fault Act (CFA), § 16-64-122. the nonparty-fault provision in this sec-
Pursuant to the canon of constitutional tion had been declared unconstitutional.
avoidance, the district court would not McCoy V. Augusta Fiberglass Coatings,
ruleontheconstitutionalityofthissection 593 F.3d 737 (8th Cir. 2010).
because doing so was not absolutely nec-
essary. Billings V. Aeropres Corp., 522 F. Application.
Supp. 2d 1121 (E.D. Ark. 2007). While a products liability defendant
This section was unconstitutional and could issue a nonparty notice under sub-
conflictedwithArk. Const.,Art. 4, § 2and division (b)(2) ofthis section with regard
5 GENERAL PROVISIONS 16-55-206
to anonparty equipment manufacturer, it Corp., 522 F. Supp. 2d 1121 (E.D. Ark.
could not issue an apportionment ofdam- 2007).
agesnoticeundersubdivision(b)(2)ofthis
sectionwithregardto aninjuredworker's Interpretation.
employer and coemployee: (1) the purpose Nonpartynoticerequirementssetoutin
of the notice under this section was to subdivision (b)(2) ofthis section apply in
allow an apportionment of liability with addition to state civil procedure rules.
regard to the injured worker's damages; This section should be interpreted as be-
(2) a notice under this section could only ing compatible with § 16-64-122(a),
be used with regard to an individual or whichlimits the apportionmentoffaultto
entity that could be made a party to the an individual or entity from whom the
suit byway ofcross or third party claims; claiming party seeks to recover damages,
(3)defendantcouldfile anoticeunderthis which includes individuals and entities
section against the manufacturer, pro- that are subject to being brought into a
vided it filed a third party complaint and suit pursuant to a cross or third party
broughtthe manufacturerin as apartyto claim underArk. R. Civ. R 13 and 14, but
the suit; and (4) defendant couldnot file a excludes nonparties who are otherwise
notice under this section against the em- immune from suit, including employers
ployer or the coemployee because they who are immune pursuant to § 11-9-
were statutorily immune pursuant to 105(a),theexclusiveremediesprovisionof
§ 11-9-105(a), the exclusiveremedies pro- the Workers' Compensation Act, § 11-9-
vision ofthe Workers' Compensation Act, 101 et seq. Billings v.Aeropres Corp., 522
§ 11-9-101 et seq. Billings v. Aeropres F. Supp. 2d 1121 (E.D. Ark. 2007).
16-55-206. Standards for award of punitive damages.
In orderto recoverpunitive damages from a defendant, a plaintiffhas
the burden of proving that the defendant is Hable for compensatory
damages and that either or both of the following aggravating factors
were present and related to the injuryforwhich compensatory damages
were awarded:
(1) The defendant knew or ought to have known, in light of the
surrounding circumstances, that his or her conduct would naturally
and probably result in injury or damage and that he or she continued
the conduct with malice or in reckless disregard of the consequences,
from which malice may be inferred; or
(2) The defendant intentionally pursued a course of conduct for the
purpose ofcausing injury or damage.
History. Acts 2003, No. 649, § 9. ingsetouttoreflectagrammaticalcorrec-
Publisher's Notes. This section is be- tion.
CASE NOTES
Analysis supplier's refusal to honor its rebate pro-
gram for the retailer's customers, and the
Conduct Not Warranting Punitive Dam- claims requiring any knowing or inten-
tional wrongful act failed, and no reason-
ages.
ablejurycouldfindthatthesupplieracted
Relevant Evidence.
with malice or an intent to harm the
Conduct Not Warranting Punitive retailer, the retailer was not entitled to
Damages. pursue punitive damages under this sec-
Where plaintiffretailer sued defendant tion, especially since the standard under
supplier on claims offraud and deceptive this section had to be met by clear and
trade practices in connection with the convincing evidence as required by § 16-
,
16-55-207 PRACTICE, PROCEDURE, AND COURTS 6
55-207. Curtis Lumber Co. v. La. Pac. Relevant Evidence.
Corp., 618 F.3d 762 (8th Cir. 2010). In a negligence case, a trial court erred
Inthisactionforneghgenthiring,train- bygrantingamotioninlimineandexclud-
ing, supervision or monitoring, and reten- ing evidence ofprior drivingwhile intoxi-
tion, defendants were granted summary cated offenses because theywere relevant
judgmentonplaintiffs'claims forpunitive underArk. R. Evid. 401 to the determina-
damages because plaintiffs had not pro- tion ofwhether punitive damages under
vaibldeedjuervyidteonfciendthtahtawtoduelfdenadlalnotwsakrneeaswono-r tDhoisss,s3ec7t0iAornk.we1r2e2,w2a5r7raSn.tWe.d3.d8Y9e5ak(l2e00y7)v..
ought to have known that their conduct Defendants were not entitled to sum-
would naturally and probably result in
injury or damage to th—e victim. Perry—v. mcaaursyejaudrgemaseonntabolnepjuunriotrivceoudladmfaignedsthbaet-
Stevens Transp., Inc., F. Supp. 2d
2012 U.S. Dist. LEXIS 94942 (E.D. Ark. defendant property owner, acting on be-
July 9, 2012). half of defendant entities, knew or had
Alleged violations ofthe Federal Motor reason to know that proceeding with ex-
Carrier Safety Regulations did not sup- cavation of the hillside without a recom-
port a punitive-damages award, because mended retaining wall in place would in-
there was no evidence that the driverhad flict injury to plaintiffs property, but he
been drinking alcohol or using controlled proceeded with excavation with conscious
substancespriortothe accidentorthathe indifference to the consequences, from
was or appeared to be underthe influence which malice may be inferred. Rivercli—ff
ofalcohol or any controlled substances at Co.V. Residenc—es atRiverdale GP, LLC,
the time of the acc—ident. Br—umley v. F. Supp. 2d 2011 U.S. Dist. LEXIS
Keech, 2012Ark. 263, S.W.3d (2012). 139158 (E.D. Ark. Dec. 2, 2011).
16-55-207. Burden of proof for award of punitive damages.
CASE NOTES
Analysis ing evidence as required by this section.
Curtis Lumber Co. v. La. Pac. Corp., 618
Burden ofProof. F.3d 762 (8th Cir. 2010).
Summary Judgment Denied. Summary Judgment Denied.
Burden ofProof. Defendants were not entitled to sum-
Where plaintiffretailer sued defendant mary judgment on punitive damages be-
cause a reasonable juror could find that
supplier on claims offraud and deceptive
defendant property owner, acting on be-
trade practices in connection with the half of defendant entities, knew or had
supplier's refusal to honor its rebate pro- reason to know that proceeding with ex-
gram forthe retailer's customers, and the cavation ofthe hillside without a recom-
claims requiring any knowing or inten- mended retaining wall in place would in-
tional wrongful act failed, and no reason- flict injury to plaintiffs property, but he
ablejurycouldfindthatthesupplieracted proceeded with excavation with conscious
with malice or an intent to harm the indifference to the consequences, from
retailer, the retailer was not entitled to which malice may be inferred. Rivercli—ff
pursue punitive damages under § 16-55- Co.V. Residenc—es atRiverdaleGP, LLC,
206, especially since § 16-55-206' s stan- F. Supp. 2d 2011 U.S. Dist. LEXIS
dard had to be met by clear and convinc- 139158 (E.D. Ark. Dec. 2, 2011).
7 GENERAL PROVISIONS 16-55-212
16-55-208. Limitations on the amount of punitive damages.
RESEARCH REFERENCES
Ark. L. Rev. Note, To Truly Reform We ConstitutionalityofTortReforminArkan-
Must Be Informed: Davis v. Parham, the sas, 59Ark. L. Rev. 781.
Separation of Powers Doctrine, and the
CASE NOTES
Constitutionality. that allowed its rice to contaminate con-
This sectionwasunconstitutionalunder ventional seed was upheld. Bayer Crop-
Ark. Const.Art. 5, § 32,becauseitlimited Science LP V. Schafer, 2011 Ark. 518, 385
the amount ofrecovery outside ofan em- S.W.3d 822 (2011).
plojrment relationship. Therefore, a puni- Cited: Holiday Inn Franchisingv. Ho-
tive damage award of$42 million against tel Assocs., 2011 Ark. App. 147, 382
a manufacturer ofgenetically altered rice S.W.3d 6 (2011).
16-55-211. Bifurcated proceeding.
RESEARCH REFERENCES
Ark. L. Rev. Note, To Truly Reform We ConstitutionalityofTortReforminArkan-
Must Be Informed: Davis v. Parham, the sas, 59Ark. L. Rev. 781.
Separation of Powers Doctrine, and the
16-55-212. Compensatory damages.
CASE NOTES
Analysis received on those amounts because (1) if
theArkansas Supreme Courtwereconsid-
Constitutionality. ering the constitutionality of subsection
Plain Error Review. (b), it would hold that subsection (b) in-
fringedonitsconstitutionalprerogativeto
Constitutionality. prescribe rules of evidence under Ark.
Allegedly injured driver brought suit Const., Amend. 80, § 3, and was, there-
against another motorist, who then fore, unconstitutional because subsection
brought suit against a third party; the (b) would, if enforced, work a reversal of
jury determined that the third party was the collateral source rule that had been
100percentatfault. The allegedlyinjured recognized and approved bytheArkansas
driver attacked the constitutionality of Supreme Court, yet the Arkansas Su-
§ 16-55-201 andthissection;however,the preme Court did not "prescribe" subsec-
supreme court refused to consider the tion (b), and (2) the Arkansas Supreme
arguments because the supreme court Courtwould, ifpresentedwiththeinstant
consideredthemattertobe moot. Shippv. motion, find that subsection (b) violated
Franklin, 370 Ark. 262, 258 S.W.3d 744 Ark. Const., Art. V, § 32 as theArkansas
(2007). Supreme Court had held that a personal
Court granted plaintiffs motion chal- injury plaintiff was entitled, assuming a
lengingtheArkansas CivilJusticeReform successful showing ofliability, to recover
Act of2003, subsection (b) ofthis section, the payments made (orwritten ofD onher
and allowed plaintiff to introduce evi- behalfby a collateral source, but subsec-
dence of the amounts billed to her for tion (b) would prevent her from doing
medical services necessitated by the inju- that. Burns v. Ford Motor Co., 549 F.
ries that were the subject ofher lawsuit, Supp. 2d 1081 (W.D. Ark. 2008).
regardless of any discount that she had Medical costs provision, subsection (b)
16-55-213 PRACTICE, PROCEDURE, AND COURTS 8
ofthis section, violated separation ofpow- because a courthadto considerthelaw at
ersunderArk. Const.,Art. 4, § 2 andArk. the time of appeal when reviewing for
Const., Amend. 80, § 3, because rules re- plain error, the error was clear. But the
gardingtheadmissibilityofevidencewere error did not affect plaintiffparents' sub-
within the province ofthe supreme court. stantial rights; the objectionable portions
Thomas v. Rockwell Automation, Inc., of the closing argument related to the
2009Ark. 241, 308 S.W.3d 135 (2009).
failure ofplaintiffs to support their claim
Plain Error Review. for damages, as well as any evidence pre-
In light oftheArkansas court's decision sented concerningthe financial aspects of
in Johnson v. Rockwell Automation, Inc., theirdaughter's care andtreatment,were
2009 Ark. 241, 308 S.W.3d 135 (2009), a rendered irrelevant by the jury's verdict
districtcourterredbylimitingthepresen- in favor ofdefendant hospital and obste-
tation of evidence relating to damages trician on liability. Csiszer v. Wren, 614
basedonsubsection(b)ofthis section, and F.3d 866 (8th Cir. 2010).
16-55-213. Venue.
—
(a) All civil actions other than those mentioned in §§ 16-60-101
16-60-103, 16-60-107, 16-60-114, 16-60-115, and 16-60-119 and subsec-
tion (e) ofthis section must be brought in any ofthe following counties:
(1) The county in which a substantial part ofthe 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 ofthe accrual ofthe cause of action; or
(3)(A) The county in which the plaintiffresided.
(B) Ifthe plaintiffis an entity other than an individual, the county
where the plaintiffhad its principal office in this state at the time of
the accrual ofthe cause of action.
(b)(1) The residence of any properlyjoined named class representa-
tive or representatives may be considered in determining proper venue
in a class action.
(2) The residency of any putative or actual member of a class other
than a named representative shall not be considered in determining
proper venue for a class action.
(c) In any civil action, venue must be proper as to each or every
named plaintiffjoined in the action unless:
(1) The plaintiffs establish that they assert anyrightto reliefagainst
the defendantsjointly, severally, or arising out ofthe same transaction
or occurrence; and
(2) The existence of a substantial number of questions of law or
material fact common to all those persons not only will arise in the
action, but also that:
(A) The questions will predominate over individualized questions
pertaining to each plaintiff;
(B) The action can be maintained more efficiently and economi-
cally for all parties than ifprosecuted separately; and
(C) The interest ofjustice supports the joinder of the parties as
plaintiffs in one (1) action.