Arkansas Code, Volume 15 Supplement

2011·5.2 MB·English

by  State of Arkansas

Arkansas Code
OF
1987
Annotated
SUPPLEMENT
2011
VOLUME
15
Place in pocket of bound volume
Prepared by the Editorial Staffofthe Publisher
Under the Direction and Supervision ofthe
ARKANSAS CODE REVISION COMMISSION
Senator David Johnson, Chair
Senator Sue Madison
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 John DiPippa, Dean, University ofArkansas at
Little Rock, School ofLaw
Honorable Warren T. Readnour, SeniorAssistant Attorney General
Honorable Marty Garrity, Assistant Director for Legal Services of
the Bureau ofLegislative Research
IP LexisNexis
©
Copyright 2007, 2009, 2011
BY
The State ofArkansas
All Rights Reserved
LexisNexis andthe Knowledge Burstlogo areregisteredtrademarks, andMichieis atrademark
ofReedElsevierPropertiesInc.usedunderlicense. MatthewBenderis aregisteredtrademarkof
Matthew BenderProperties Inc.
For information about this Supplement, see the
Supplementpamphletfor Volume 1
5050519
ISBN 978-0-327-10031-7 (Code set)
ISBN 978-0-8205-7191-1 (Volume 15)
LexisNexis@
Matthew Bender & Company, Inc.
701 East Water Street, Charlottesville, VA 22902
www.lexisnexis.com
(Pub.40604)
TITLE 16
PRACTICE, PROCEDURE, AND COURTS
(CHAPTERS 1-17 IN VOLUME 14A; CHAPTERS 18-54 IN
VOLUME 14B; CHAPTERS 90-126 IN VOLUME 16)
SUBTITLE 5. CIVIL PROCEDURE GENERALLY
CHAPTER.
55. GENERAL PROVISIONS.
60. VENUE.
PLEADINGSAND PRETRIAL PROCEEDINGS.
63.
JUDGMENTS GENERALLY.
65.
EXECUTION OF JUDGMENTS.
66.
SUBTITLE CRIMINAL PROCEDURE GENERALLY
6.
CHAPTER.
81. ARREST.
84. BAIL GENERALLY.
85. PRETRIAL PROCEEDINGS.
87. PUBLIC DEFENDERS.
88. JURISDICTIONAND VENUE.
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.
— —
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 ofa 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, orby acknowledgment thereon inwritingbythe partyupon
whom
served.
16-55-201 PRACTICE, PROCEDURE,AND COURTS 2
(b) The service ofa 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
suchpersonis there, thenbyaffixinga copytothefrontdoorofthe 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 copyofthe
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 ReformAct of 2003
SECTION.
16-55-206. Standards for award of puni-
tive damages.
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- tutionalityofTortReforminArkansas, 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.
GENERAL PROVISIONS 16-55-202
CASE NOTES
Analysis tutional: (1) such an interpretation would
violateArk. Const.,Art. 4, § 2,whichbars
Constitutionality. the state legislature from encroaching on
Construction. the Arkansas Supreme Court's authority
to supervise courtprocedure; and (2) such
Constitutionality. an interpretation would violate the em-
Allegedly injured driver brought suit ployer'sfundamentalconstitutionalrights
against another motorist, who then because§ 11-9-105(a),theexclusivitypro-
brought suit against a third party; the vision oftheArkansas Workers' Compen-
jury determined that the third party was
100percentatfault. Theallegedlyinjured scaotuirotns oAfcts,ub§jec1t1-m9a-t1t01erejtursiesqd.i,ctdieopnriovveesr
driver attacked the constitutionality of
employers and protects employers from
thissectionand§ 16-55-212;however,the liability with regard to claims arising
supreme court refused to consider the
from a covered worker's employment-re-
arguments because the supreme court
consideredthemattertobemoot. Shippv. lated injuries. Billings v. Aeropres Corp.,
Franklin, 370 Ark. 262, 258 S.W.3d 744 522 F. Supp. 2d 1121 (E.D. Ark. 2007).
Conversion does notnecessarilyinvolve
(2007).
damage to property, which would bring it
Construction. within the reach ofthe statute and there-
Civil Justice ReformAct (CJRA), § 16- fore, the Civil Justice ReformAct—of2003
55-201 etseq., pertainstofaultapportion- (CJRA),codifiedat§§ 16-55-201 16-55-
ment in a general way, and theArkansas 220, does not automatically apply to ac-
Comparative FaultAct, § 16-64-122, spe- tionsunder§ 18-60-102;theCJRAclearly
cifically defines fault and identifies whose evinces an intentto alterthecommonlaw
fault can be apportioned. Because these regarding joint and several liability for
two provisions address the same subject the causes of action listed, such as per-
matter, it is reasonable to conclude that sonal injury or property damage, but it
the general terms of the CJRA are in- does not, however, display such an intent
tended to be subject to the specific terms regarding causes of action involving the
of the Arkansas Comparative Fault Act. conversion ofproperty, and thus, the trial
Billingsv.Aeropres Corp., 522 F. Supp. 2d court did not err in finding the company,
1121 (E.D. Ark. 2007). owner, and related individualjointly and
CivilJusticeReformAct, § 16-55-201 et severally liable with the business and
seq., can not be interpreted to permit a business owner and with each other for
jury to apportion fault in a tort suit to an the value of the landowner's timber.
immune nonparty employer because do- Shamlin v. Quadrangle Enters., 101 Ark.
ing so would render the statute unconsti- App. 164, 272 S.W.3d 128 (2008).
16-55-202. Assessment of percentages offault.
CASE NOTES
Analysis could be plausibly interpreted to comply
withtheUnitedStatesandArkansasCon-
Constitutionality. stitutions and to conformwith theArkan-
Application. sas Workers' Compensation Act (WCA),
Interpretation. § 11-9-101etseq.,andtheArkansasCom-
parative Fault Act (CFA), § 16-64-122.
Constitutionality. Pursuant to the canon of constitutional
Eastern District ofArkansas, Western avoidance, the district court would not
Division, district court did not have to ruleontheconstitutionalityofthissection
address a constitutional challenge to this because doing so was not absolutely nec-
section, the nonparty notice provision of essary. Billings v. Aeropres Corp., 522 F.
the Civil Justice Reform Act (CJRA), Supp. 2d 1121 (E.D. Ark. 2007).
§ 16-55-201 et seq., because the CJRA This section is not an unconstitutional
16-55-202 PRACTICE, PROCEDURE,AND COURTS
intrusion on the rule-making authority of a defective chemical tank, the district
the Supreme Court ofArkansas, it must court appropriately declined to allow the
be interpreted based on its plain terms, jury to assign a percentage offault to the
anditclearlyallowsjuries to considerthe worker's employer, a nonparty, because
fault of employers and other non-parties the nonparty-fault provision in this sec-
in tort suits, including products liability tion had been declared unconstitutional.
suit, without restriction and regardless of McCoy v. Augusta Fiberglass Coatings,
whether the employer or non-party could 593 F.3d 737 (8th Cir. 2010).
be directlyjoined in the suit: (1) the fact
that an employer may be protected from Application.
being sued under theArkansas' Workers' While a products liability defendant
Compensation Act, based on its payment could issue a nonparty notice under sub-
of workers' compensation and medical division (b)(2) ofthis section with regard
benefits to an injured worker, does not to a nonpartyequipment manufacturer, it
preclude ajury from consideringwhether could not issue an apportionment ofdam-
the employer is at fault or is partially at agesnoticeundersubdivision(b)(2)ofthis
fault for the accident giving rise to the sectionwithregardto aninjuredworker's
worker's injuries; (2) the Eastern District employer and coemployee: (1) the purpose
ofArkansas, Pine BluffDivision, district of the notice under this section was to
court respectively disagrees with a prior allow an apportionment of liability with
judge's holding, in Billings v. Aeropres regard to the injured worker's damages;
Corp., 522 E Supp. 2d 1121 (E.D. Ark. (2) a notice under this section could only
2007), that subsection (a) of this section be used with regard to an individual or
appliesonlytopersonsorentitiesthatcan entity that could be made a party to the
bejoined in the action by a cross-claim or suitbyway ofcross orthird party claims;
third party claim and that subdivision (3)defendantcouldfile anoticeunderthis
(b)(2) ofthis section applies only to cross- section against the manufacturer, pro-
claimed co-defendants that have settled vided it filed a third party complaint and
before trial; and (3) this section does not broughtthe manufacturerin as apartyto
present any constitutional concerns be- the suit; and (4) defendantcouldnotfile a
cause under the Arkansas Civil Justice notice under this section against the em-
ReformAct, ofwhichthis sectionis apart, ployer or the coemployee because they
a designated non-party is not subject to were statutorily immune pursuant to
any liability for its fault, therefore that § ll-9-105(a), the exclusiveremediespro-
party does not need to be served under vision ofthe Workers' CompensationAct,
Ark. R. Civ. P. 4, and the non-party will § 11-9-101 et seq. Billings v. Aeropres
receive sufficient notice and protection Corp., 522 F. Supp. 2d 1121 (E.D. Ark.
pursuant to the discovery process that 2007).
resultswhenanoticeunderthis sectionis Motion to strike the notice ofintent to
filed.—Bohannon v. Jo—hnson Food Equip., assert non-party fault, which was filedby
Inc., F. Supp. 2d , 2008 U.S. Dist. defendants who were sued by an injured
LEXIS 45273 (E.D. Ark. June 9, 2008). worker in a products liability suit, was
This section was unconstitutional and denied. By it plain terms, this section
conflictedwithArk. Const.,Art. 4, § 2and allowed defendants to request that the
Ark. Const.,Amend. 80, § 3 becauserules jury to consider the fault ofthe worker's
regarding pleading, practice, and proce- employer and a non-party manufacturer
dure were solely the responsibility ofthe of a component used in the chicken pro-
supreme court; the nonparty-fault provi- cessingmachine thatwas the focus ofthe
sion bypassed the rules ofpleading, prac- suit, and it did not matter that the em-
tice and procedure by setting up a proce- ployer could not be directly sued in the
dure to determine the fault ofa nonparty suit, based on the exclusivity provision of
and mandating the consideration ofthat Arkansas' Workers' CompensationAct, or
nonparty's fault in an effort to reduce a thatthemanufacturerhadnotbeenmade
plaintiffs recovery. Thomas v. Rockwell apartyinthesuitorservedunderArk. R.
Automation, Inc., 2009 Ark. 241, 308 Civ. P. 4, as no liabilitywouldbe imposed,
S.W.3d 135 (2009). evenifthejuryfoundthe employerorthe
In a products liability action by an in- manufacturer to be at fault pursuant to
juredworker against the manufacturer of this section. Bohannon v. Johnson Food
GENERAL PROVISIONS 16-55-206
— —
Equip., Inc., F. Supp. 2d 2008 U.S. claiming party seeks to recover damages,
Dist. LEXIS 45273 (E.D. Ark. June 9, which includes individuals and entities
2008). that are subject to being brought into a
suit pursuant to a cross or third party
Interpretation. claim underArk. R. Civ. P. 13 and 14, but
Nonpartynoticerequirementssetoutin excludes nonparties who are otherwise
subdivision (b)(2) ofthis section apply in immune from suit, including employers
addition to state civil procedure rules. who are immune pursuant to § 11-9-
This section should be interpreted as be- 105(a),theexclusiveremediesprovisionof
ing compatible with § 16-64-122(a), the Workers' Compensation Act, § 11-9-
whichlimitsthe apportionmentoffaultto 101 et seq. Billings v.Aeropres Corp., 522
an individual or entity from whom the F. Supp. 2d 1121 (E.D. Ark. 2007).
16-55-203. Increase in percentage of several share.
CASE NOTES
Uncollectable Judgment. citizen ofthe State ofArkansas under 28
Court rejected a tractor manufacturer's U.S.C.S. § 1332(c)(1); and (3) while the
claim that the executor of a decedent's seller might be judgment-proof, but that
estate fraudulently joined a non-diverse did not dictate a findingthatthe executor
tractorsellerinhertortactionagainstthe had no intention to take a judgment
manufacturer and the seller and re- against it as there might be liability in-
manded the executor's action to state suranceorotherassetsfromwhichajudg-
csceooluulrrettr dbweeatcsearubsmaeisnee(d1d)ottnhhae§t c4tl-ha8ei6-mA1r0ak2ga,anisananssdt Sttuhh-ee mseelnletr'scocuolrdpobreatceolslteacttuesd,, ianndspeitveenofwitthhe
preme Court would find that the seller, a thevirtualabolitionofjointliabilityunder
corporation with a revoked charter, could Arkansas law, an uncollectible judgment
besued;(2)therewasnobasisforconclud- against one defendant might serve to in-
ingthatthestateoftheseller'scitizenship crease the amount collectible on a judg-
would be changed by revocation of its mentagainstanotherdefendantpursuan—t
charter as the seller had been incorpo- tothis section.—Davisv. CNHAm. LLC,
ratedbythe State ofArkansas, andtothe F. Supp. 2d , 2008 U.S. Dist. LEXIS
extent it had any citizenship, it was a 25774 (W.D. Ark. Mar. 17, 2008).
16-55-206. Standards for award of punitive damages.
In orderto recoverpunitive damages from a defendant, aplaintiffhas
the burden of proving that the defendant is liable for compensatory
damages and that either or both of the following aggravating factors
were present and relatedto theinjuryforwhich compensatorydamages
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 ofconduct for the
purpose ofcausing injury or damage.
History. Acts 2003, No. 649, § 9. ingsetouttoreflectagrammaticalcorrec-
Publisher's Notes. This section is be- tion.
16-55-207 PRACTICE, PROCEDURE, AND COURTS
CASE NOTES
Analysis trade practices in connection with the
supplier's refusal to honor its rebate pro-
In General. gram forthe retailer's customers, and the
Conduct Not Warranting Punitive Dam- claims requiring any knowing or inten-
ages. tional wrongful act failed, and no reason-
Relevant Evidence. ablejurycouldfindthatthesupplieracted
with malice or an intent to harm the
In General. retailer, the retailer was not entitled to
Where aninsurance carrierfirstsought pursue punitive damages under this sec-
to compel arbitration, then filed for de- tion, especially since the standard under
claratory relief, and where it allegedly this section had to be met by clear and
instructed its appraisers to deny or limit convincing evidence as required by § 16-
the value ofhail claims, the insurer was 55-207. Curtis Lumber Co. v. La. Pac.
granted judgment dismissing a claim for Corp., 618 F.3d 762 (8th Cir. 2010).
fraudulent misrepresentation, but claims
Relevant Evidence.
for bad faith and punitive damages sur-
v—8i0v3eF2d.9.SM(uNopospvs..2vd1.,A—2m00,.62)A0.l0t6erUn.aSt.ivDeisItn.s.LCEoXrpI.S, binygIgnervaainndteeignnlcgieagoemfnocpteriicooanrseid,nrilaviitmrniignaelwhacinoluderetixnectrloruxedid--
cated offenses because theywere relevant
Conduct Not Warranting Punitive underArk. R. Evid. 401 tothe determina-
Damages. tion of whether punitive damages under
Where plaintiffretailer sued defendant this section were warranted. Yeakley v.
supplier on claims offraud and deceptive Doss,370Ark. 122,257S.W3d895(2007).
16-55-207. Burden of prooffor award of punitive damages.
CASE NOTES
Analysis Burden ofProof.
Where plaintiffretailer sued defendant
In General. supplier on claims offraud and deceptive
Burden ofProof. trade practices in connection with the
supplier's refusal to honor its rebate pro-
In General. gram forthe retailer's customers, and the
Where aninsurance carrierfirstsought claims requiring any knowing or inten-
to compel arbitration, then filed for de- tional wrongful act failed, and no reason-
claratory relief, and where it allegedly ablejurycouldfindthatthesupplieracted
instructed its appraisers to deny or limit with malice or an intent to harm the
the value ofhail claims, the insurer was retailer, the retailer was not entitled to
granted judgment dismissing a claim for pursue punitive damages under § 16-55-
fraudulent misrepresentation, but claims 206, especially since § 16-55-206' s stan-
for bad faith and punitive damages sur- dard had to be met by clear and convinc-
v—ived. Moss v. A—m.Alternative Ins. Corp., ing evidence as required by this section.
F. Supp.2d , 2006 U.S. Dist. LEXIS Curtis Lumber Co. v. La. Pac. Corp., 618
80329 (Nov. 1, 2006). F.3d 762 (8th Cir. 2010).
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
GENERAL PROVISIONS 16-55-212
CASE NOTES
Cited: Holiday Inn Franchisi—ng v. Ho-
—telAssocs., 2011Ark. App. 147, S.W.3d
(2011).
16-55-211. Bifurcated proceeding.
RESEARCH REFERENCES
Ark. L. Rev. Note, To Truly ReformWe 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 preme Court did not "prescribe" subsec-
tion (b), and (2) the Arkansas Supreme
Constitutionality. Courtwould, ifpresentedwiththeinstant
Plain Error Review. motion, find that subsection (b) violated
Ark. Const., Art. V, § 32 as theArkansas
Constitutionality. Supreme Court had held that a personal
Allegedly injured driver brought suit injury plaintiffwas entitled, assuming a
against another motorist, who then successful showing ofliability, to recover
brought suit against a third party; the the payments made (orwritten off) onher
jury determined that the third party was behalfby a collateral source, but subsec-
100percentatfault. Theallegedlyinjured tion (b) would prevent her from doing
driver attacked the constitutionality of that. Burns v. Ford Motor Co., 549 F.
§ 16-55-201andthissection;however,the Supp. 2d 1081 (W.D. Ark. 2008).
supreme court refused to consider the Medical costs provision, subsection (b)
arguments because the supreme court ofthis section, violated separationofpow-
consideredthemattertobe moot. Shippv. ersunderArk. Const.,Art. 4, § 2 andArk.
Franklin, 370 Ark. 262, 258 S.W.3d 744 Const., Amend. 80, § 3, because rules re-
(2007). gardingtheadmissibilityofevidencewere
Court granted plaintiffs motion chal- within the province ofthe supreme court.
lengingtheArkansas CivilJusticeReform Thomas v. Rockwell Automation, Inc.,
Act of2003, subsection (b) ofthis section, 2009Ark. 241, 308 S.W.3d 135 (2009).
and allowed plaintiff to introduce evi-
dence of the amounts billed to her for Plain Error Review.
medical services necessitated by the inju- InlightoftheArkansas court's decision
ries that were the subject ofher lawsuit, in Johnson v. Rockwell Automation, Inc.,
regardless of any discount that she had 2009 Ark. 241, 308 S.W.3d 135 (2009), a
received on those amounts because (1) if districtcourterredbylimitingthepresen-
theArkansas SupremeCourtwereconsid- tation of evidence relating to damages
ering the constitutionality of subsection basedonsubsection(b)ofthissection, and
(b), it would hold that subsection (b) in- because acourthadto considerthelaw at
fringedonitsconstitutionalprerogativeto the time of appeal when reviewing for
prescribe rules of evidence under Ark. plain error, the error was clear. But the
Const., Amend. 80, § 3, and was, there- error did not affect plaintiffparents' sub-
fore, unconstitutional because subsection stantial rights; the objectionable portions
(b) would, ifenforced, work a reversal of of the closing argument related to the
the collateral source rule that had been failure ofplaintiffs to support their claim
recognized and approvedbytheArkansas for damages, as well as any evidence pre-
Supreme Court, yet the Arkansas Su- sented concerning the financial aspects of
16-55-213 PRACTICE, PROCEDURE,AND COURTS 8
theirdaughter's care andtreatment,were trician on liability. Csiszer v. Wren, 614
rendered irrelevant by the jury's verdict F.3d 866 (8th Cir. 2010).
in favor ofdefendant hospital and obste-
16-55-213. Venue.
CASE NOTES
— —
Analysis denied,—Ark. S.W.3d 2010Ark.
,
LEXIS 224 (Apr. 22, 2010).
Construction. ImproperVenue.
ImproperVenue.
Trial court properly dismissed a per-
Construction. sonal representative's wrongful death ac-
Giventhepast-tenselanguage insubdi- tion for improper venue because under
vision(a)(1)ofthis sectionreferringtothe § 16-60-112(a)andsubdivision(a)(3)(A)of
county"inwhich a substantial part ofthe this section, venue was proper where a
events or omissions giving rise to the tenant resided at the time ofdeath from
claim occurred," the Arkansas Supreme carbonmonoxidepoisoning; suchaninter-
CourtconstruestheArkansasGeneralAs- pretation harmonized both statutes and
sembly's use ofthe past tense in subdivi- avoided the disfavored result ofrepeal by
sions (a)(2)(A) and (a)(3)(A) to mean that implication.Wrightv. CenterpointEnergy
venueisfixedwheretheplaintiffordefen- Res. Corp., 372 Ark. 330, 276 S.W.3d 253
dant resided at the time of the events (2008).
givingrisetothecauseofaction. Wrightv. Where a writ ofprohibition entered in
Centerpoint Energy Res. Corp., 372 Ark. the court's prior decision required the cir-
330, 276 S.W.3d 253 (2008). cuit courtto dismiss the representative of
Subsection (a) of this section repealed theArkansasconsumersfromthecase, no
by implication an older venue statute, basis existed for venue over the only re-
§ 16-60-116(a): subsection (a) established maining named plaintiff; venue was not
a new general rule for venue different proper under either subdivision (a)(3)(A)
from the former rule, creating an irrecon- orsubsection(b)(1) ofthis sectionbecause
cilable conflict, and the subsection's refer- the remaining plaintiffwas a resident of
enceto"all civil actions"demonstrated an Texas. Centerpoint Energy, Inc. v. Miller
intent to adopt a newvenue scheme. Dot- County Circuit Court, 372 Ark. 343, 276
son v. City of Lowell, 375 Ark. 89, 289 S.W.3d 231 (2008).
S.W.3d 55 (2008). Dismissal for improper venue under
Because an insurer was the first party Ark. R. Civ. P. 12(b)(3) of a complaint
to file suit, and it chose to do so in the alleging fraud in the inducement of con-
countyin which it had its principal office, tract was not erroneous because forum-
pursuant to subsection (a) ofthis section, selection clauses designated Kansas as
a circuitjudge erred by applying the doc- governing law and in both Arkansas and
trineofforumnonconveniensunder§ 16- Kansas a party had to plead fraud in the
4-101(D), effectively overruling the insur- inducement of a forum-selection clause
er's choice of venue. Farm Bureau Mut. itselfto avoid its application. Provence—v.
Ins. Co.—of Ark. v—. Gadbury-Swift, 2010 Nat'l Ca—rriers, Inc., 2010 Ark. 27,
Ark. 6, S.W.3d (2010). S.W3d (2010).
Subsection(e)ofthissectionwasconsti- Dismissal of a medical malpractice
tutionalunderArk. Const.Art. 4, § 2 and claim against out-of-county service pro-
did not conflict with the rules of civil vidersforlackofpropervenue,underArk.
procedure because venue was a matter R. Civ. P. 12(b)(3), was proper where the
that lay within the province ofthe Gen- patientreceivedtreatmentfromproviders
eral Assembly. Clark v. Jo—hnson Reg—! in two different counties and, under sub-
Med. Ctr., 2010 Ark. 115, S.W.3d section (e) of this section, each provider
(2010), r—ehearing— d—enied, Cl—ark v. had to be sued in the county where the
Johnson, Ark. , S.W.3d , 2010 services were provided. Clark v.—Johnson
Ark. LEXIS223 (Apr. 22, 2010),rehearing Reg'l Med. Ctr., 2010Ark. 115, S.W.3d