DBTC Law Firm

Tort Litigation

Dancing to the Beat of Your Own Drum: Refining the Definitions of Assault and Battery

What happens when a nightclub is sued by a patron who was accidentally injured while he was being forcibly removed from the nightclub? One would expect that an insurance company would enter the picture to pay for the legal defense of the nightclub and for any judgment, if one is issued against the insured nightclub. However, that is not always the case.

The recent case of E B Mgmt. Co., LLC v. Houston Specialty Ins. Co., 2019 Ark. App. 294 (Ark. Ct. App. 2019), dealt with one such situation. In E B Management, a patron of a nightclub who wanted to play a drum accompaniment to the piano music paid the piano player $20.00 for the privilege. Once the music started and it was clear that the patron could not keep a beat on the drums, the piano player stopped the music. Incensed, the patron demanded the return of his $20.00, but the piano player refused. The nightclub’s bouncer then promptly removed the patron from the stage and threw him out the door of the establishment, causing the patron to hit his head on the concrete curb. A little more than a year later, the patron filed a negligence lawsuit against the nightclub and the bouncer.

While the nightclub’s commercial insurance policy had coverage limits of $1,000,000.00, it had a special exclusion that only allowed coverage of $100,000.00, including the costs of a legal defense, for any “assault and battery incident[s].” Claiming the negligence lawsuit was actually based upon an “assault and battery incident,” the insurance company refused to cover any legal fees, settlement amount, or judgment which commutatively exceeded $100,000.00. The nightclub, on the other hand, relied upon the allegations in the Complaint, which specifically claimed that the injury was caused by negligence rather than by an intent to commit harm or assault the patron. The determination of coverage was thus dependent upon whether the trial court found the events set forth in the Complaint to be “an assault and battery incident.”

Despite the fact that the terms “assault” and “battery” are well known legal terms and necessarily require an element of intent, the insurance policy at issue in E B Management utilized a unique definition of “assault and battery” defining it as any harmful or offensive contact, regardless of intent. In evaluating these competing definitions of an “assault and battery,” the trial court ignored the theory of liability alleged in the Complaint, which did not include any alleged intent, and instead focused on its interpretation of facts associated with the actions leading to the plaintiff’s injury. Applying the unique contract definition of “assault and battery” to those facts, the trial court concluded that the “assault and battery” limitation applied.

In spite of the dissenting judges’ strongly worded conclusion that the trial court had improperly “adjudicate[d] facts to justify its decision,” the majority of the Arkansas Court of Appeals affirmed the trial court’s ruling in favor of the insurance company and its limitation of coverage. In essence, the Arkansas Court of Appeals approved the insurance company’s contract definition of “assault and battery”in such a way as to deny full coverage and a legal defense to the nightclub.

There is a lesson to be learned from this situation. It is essential that businesses be familiar with the language of any liability insurance policy that they may have, paying particular attention to any defined terms in the policy that stray from the commonly understood meanings of the words utilized.


Shootout on Highway 65: Are Gunfights Covered Under an Auto Insurance Policy?

While it is true that one can insure just about anything, that does not mean that everything is insured. A man in Southeast Arkansas learned that lesson the hard way, after his auto insurance claim was denied following a gunshot injury that he received while driving on a highway.

The man was driving his vehicle on U.S. Highway 65 in Mitchellville, Arkansas, when an individual in a separate vehicle pulled up beside the man’s vehicle and shot him. The man was able to drive himself to the hospital to receive medical attention. Subsequently, he filed an uninsured motorist claim with his insurance company for his personal injuries and personal property damages. The insurance company denied the claim, citing a provision in the insurance policy that excluded injuries and damages that result from an “intentional act” and arguing that there was “no causal relationship or connection between [the man’s] claimed bodily injuries and property damage and the use of a motor vehicle.” In essence, it argued that the injuries and property damage did not “arise out of” the use of the motor vehicle, as is required under the terms of the policy. The man, on the other hand, asserted that a causal connection did exist and even though the shooter intentionally shot him, the man had no way of knowing that he was going to be shot and, therefore, it was an accident from his perspective. In addition, he argued that the terms “accident,” “arising out of a motor vehicle,” and “arising out of the use of” were not defined in the insurance policy and were susceptible to multiple reasonable interpretations.

While the Arkansas Court of Appeals agreed with the insurance company that the shooting was “an intentional act, not an accident as contemplated in the policy,” the case primarily turned on the interpretation of the term “arising out of” in the insurance policy. As a general rule, in Arkansas, “[i]f the language of an insurance policy is unambiguous, [courts] give effect to the policy’s plain language . . .” Williams v. Allstate Prop. and Cas. Ins. Co., 2017 Ark. App. 45, *5 (Ark. App. 2017). However, “if the language is ambiguous, [courts] construe the policy liberally in favor of the [person holding the insurance policy] and strictly against the [insurance company].” Id. In Williams, the Arkansas Court of Appeals relied upon Arkansas Supreme Court precedent in holding that in the context of an uninsured motorist provision, the term “arising out of” means something that is “causally connected with” the subject of the provision. Based upon this interpretation, the Court of Appeals determined that the term “arising out of” was clear and unambiguous and had been appropriately applied in prior insurance cases.

The prior insurance cases included an Arkansas Supreme Court case in which the appellate court found that an accidental shooting involving two kids who discharged a gun they found stored in a vehicle did not arise out of the ownership, maintenance or use of the vehicle. There was also an Arkansas Court of Appeals case in which the appellate court held that uninsured motorist coverage was inapplicable in a case in which a driver was shot by his passenger after the driver pulled the vehicle to the side of the road due to his intoxicated passenger becoming ill.

Based upon the factual and legal analysis found in these two prior cases and an additional case involving a volunteer firefighter who was injured by an inadvertently slammed van door while at the scene of an automobile accident, the Arkansas Court of Appeals found the injuries that occurred as a result of the shooting on the highway “could have just as easily taken place outside of the vehicles.” Accordingly, the Arkansas Court of Appeals held that there was no causal connection between the vehicle’s use and the shooting and, therefore, it was appropriate for the insurance company to deny the man’s uninsured motorist claim.

In light of these decisions, one should not rely upon a standard auto insurance policy to cover unusual injuries, such as gunshot wounds. It is a safe bet that such injuries will not be covered by a standard auto insurance policy. If one has questions regarding what is and is not covered under a particular insurance policy, he or she should seek out professional guidance.

Katy bar the door! Union officials are prohibited from protesting in Walmart stores, but they are welcome to shop.

It is well known that there has been a “cold war” for decades between Walmart and labor unions. Walmart and the labor unions have engaged in both symbolic battles as well as legal battles to support their respective positions. This conflict has risen to the point of pop culture status, as Walmart opponents and celebrities have taken to the Internet to disparage Walmart and its customers. Walmart has won the most recent battle in this protracted legal war by prevailing in a civil trespass lawsuit that resulted in a permanent injunction against certain disruptive labor activities in Walmart stores and on other Walmart properties, including efforts to employ “flash mobs” as a form of protest.

Walmart has long adopted the position that unions are unnecessary in the context of Walmart’s company culture and that such unions would not serve the best interests of its associates and the company. The labor unions, on the other hand, have argued that it is in the best interests of those associates to collectively bargain with Walmart to seek improved pay and working conditions. Many of these arguments have played out under the guidance of the National Labor Relations Board, pursuant to the requirements of the National Labor Relations Act. However, in United Food and Commercial Workers International Union v. Walmart Stores, Inc., 2016 Ark. 397 (2016), the Arkansas Supreme Court recently found the National Labor Relations Act to be inapplicable in a trespassing case that Walmart brought in Benton County Circuit Court. In that case, the Arkansas Supreme Court upheld Walmart’s prohibition against labor union groups engaging in demonstrations and protests in Walmart stores and on other Walmart properties. While labor union groups are allowed to enter Walmart stores to shop or for other non-disruptive purposes, if such groups engage in the prohibited activities they may be held liable for trespassing. Generally, state laws that relate to labor and alleged unfair labor practices are preempted by the National Labor Relations Act. Despite this general rule, in United Food and Commercial Workers International Union, the Arkansas’s Supreme Court joined the ranks of various other state supreme courts by holding that the National Labor Relations Act does not preempt common law tort actions such as trespassing.

This Arkansas Supreme Court case arose from a 2013 injunction that a trial court issued to prevent the labor union groups from entering on Walmart properties to engage in any “non-shopping activities.” The trial court issued the injunction after a union group organized multiple confrontational protests at various Walmart store locations in Arkansas. While the Arkansas Supreme Court found the injunction’s limitation of all “non-shopping activities” to be too broad, the Court upheld Walmart’s right to prohibit the labor union related groups from entering onto Walmart properties to engage in activities “such as picketing, patrolling, parading, demonstrations, ‘flash mobs,’ handbilling, solicitation, and manager confrontations.” United Food and Commercial Workers International Union, 2016 Ark. at *11. As a result of the Arkansas Supreme Court’s ruling, if labor union groups want to enter Walmart stores in Arkansas, they might have to exchange their protest signs for shopping carts.

The Poisoned Well: How a Court Can Fire Your Attorney Against Your Wishes

Arkansas’s rules of evidence and civil procedure attempt to balance the doctor-patient privilege with the attorney-client privilege. However, an Arkansas Supreme Court decision has found that a non-party doctor’s disclosure of patient information to his attorney may result in that attorney being prevented from representing the doctor’s medical partner and medical practice once a lawsuit has been filed.

In the 2012 case of Bulsara v. Watkins, 2012 Ark. 108, a malpractice suit was threatened against two doctors and their medical clinic. The two doctors consulted with their lawyer about the claims and subsequently the malpractice suit was filed, but only against one doctor and the medical clinic, leaving the other doctor out of the litigation. The lawyer who had consulted with all three defended the case in court where the defendant doctor and his medical practice won by jury verdict. The disappointed plaintiff moved for a new trial and to disqualify the defense lawyer. The trial court denied that motion, and plaintiff appealed to the Arkansas Supreme Court, arguing that he was prejudiced by the defense attorney having “inappropriate” communications with the non-party doctor in violation of the plaintiff’s doctor-patient privilege.

On appeal, a divided Arkansas Supreme Court reversed the trial court’s ruling, finding the plaintiff was prejudiced by the non-party doctor’s communication of private medical information to that doctor’s own attorney, because that attorney ended up defending the non-party doctor’s medical partner against the plaintiff’s medical malpractice action. The defendant argued that because the defense attorney was representing the two doctors and their clinic prior to the medical malpractice action being filed, they were collectively exercising their right to counsel regarding potential litigation. However, the majority of the Arkansas Supreme Court dismissed the defendant’s arguments. The Court determined that the non-party doctor’s right to counsel did not remove her obligation to protect confidential information obtained under the doctor-patient privilege, unless the doctor herself was sued or the patient consented to her communicating with defense counsel. In this case, the plaintiff clearly did not consent to such communications and only the doctor’s medical partner and the medical clinic were sued by the plaintiff, not the doctor herself. As a result, the Arkansas Supreme Court concluded that the plaintiff was entitled to a new trial.

In spite of rebuke of several dissenting Justices and the objection of defendant doctor, the Arkansas Supreme Court went well beyond holding that the plaintiff was entitled to a new trial; it effectively fired the defendant’s trial attorney from further representation. The majority held that the defense attorney who had prepared and tried the initial lawsuit should be prohibited from representing the defendant doctor in the subsequent re-trial. In essence, the Court held that the attorney’s communications with the non-party doctor before the litigation started, and the resulting access to confidential information had “poisoned the well” and would continue to prejudice the plaintiff if the attorney was allowed to participate in the re-trial of the case. The majority’s ruling compelled the trial court to prevent the attorney from representing the defendant doctor in the re-trial of the medical malpractice case.

With this ruling, it appears that Arkansas trial courts have the power to terminate an attorney’s representation of a defendant doctor without the client’s consent.

Discovery Process Required

Failing To Effectively Participate In Pretrial Discovery Can Lose Your Case, Regardless Of Its Merits.  In civil litigation, there are detailed rules which allow both sides to make extensive inquiry of the other side’s information, documents, and knowledge of the case. This can be done through written questions (“interrogatories”), requests for documents (“requests for production”), and questioning, taken before a reporter who transcribes the questions and answers, under oath (“depositions”). In many cases, especially in commercial and business litigation, the inquiries can seem overwhelming and take a vast amount of a client’s resources to truthfully, fully respond. Clients often resist this perceived offensive and costly intrusion into their knowledge and data bank. However, it is required, and courts will strictly enforce a party’s right to have this information. The Arkansas Supreme Court case of Ross Systems vs. AERT, decided in November 2011 (2011 Ark.473),determined that the defendant in business litigation had “thumbed its nose” at the court, flagrantly violating discovery rules, and as a result, the formal answer that it had filed in court was stricken, leaving it in default, and being denied the opportunity to contest the significant claims for damages that had been alleged against it for deceit, deceptive trade practices and breach of contract– regardless of what merit those defenses may have had.

Actually, the discovery rules give a party several bites at the apple before serious sanctions are imposed, but this case illustrates that it is not a matter to be taken lightly. In this case, the plaintiff was required to spend a fair amount of time and money giving the defendant ample opportunity to make discovery responses. The first responses were deemed evasive and incomplete, and as required by the discovery rules, the plaintiff’s lawyer attempted to resolve the discovery issue through a letter. However, the defendant did not respond to that. Subsequently, the plaintiff filed a motion to compel responses to the discovery, again, a procedure contemplated by the discovery rules. A hearing resulted, in which the court directed that supplemental responses be filed within 21 days. Though responses were filed, it was alleged they provided little additional information.

At this point, the plaintiff filed a motion for sanctions (again, as permitted by the rules) for failure to comply with the court’s order. Though some additional material was provided the day before the hearing on that motion, the court found that even though a significant number of documents had been provided, the response was incomplete. The fact that they were not in the defendant’s possession was of no consequence, because the defendant made no effort to determine and specify which documents there were, had taken no steps to provide complete discovery, and was in essence “just thumbing its nose at the court’s order,” which was a flagrant discovery violation.  With the defendant’s answer stricken by the court, it was technically in default and had no right to further participate in the proceedings, giving the plaintiff a free shot to make its case without any opposing evidence.

Moral of the story: However bothersome discovery must be, courts take seriously a party’s obligations to participate in good faith in the discovery process.

Serious Illness Or Death After Being in a Toxic Environment Does Not Necessarily A Legal Claim Make

The recent case of Richardson vs. Union Pacific Railroad, 2011 Ark. App. 562, followed the developing Arkansas law that 1) proving the existence of known toxic substances brought into an area by the defendant, 2) which substances are known to cause sickness or death, 3) followed by the sickness or death of a claimant who was for an extended period in that area, is insufficient to make a claim for loss against that defendant. In this particular case, the lawsuit of a cancer-stricken railway employee, who had been exposed over a long period of time to workplace diesel fumes, creosote and pesticides, was dismissed as having an insufficient evidentiary basis.  The Court required specific linkage, through the use of expert testimony, to confirm both the actual level of exposure and a nexus between that particular exposure and the causation of the disease. Though experts were presented by the plaintiff, the expert testimony did not meet the standard required in Arkansas courts. Accordingly, what might appear to the layman as an obvious claim of liability for toxic poisoning must meet very stringent expert proof requirements in the Arkansas courts.

In addressing the admissibility of plaintiff’s proffered expert testimony, the Court first discussed the two-prong test a toxic-tort plaintiff must adduce as to causation: general and specific causation.  General causation addresses only whether a specific agent – in this case, diesel fumes and creosote, among others – can cause a particular illness.  Specific causation, on the other hand, requires a showing that the agent did, in fact, cause the particular plaintiff’s illness.  It was in the plaintiff’s attempt at showing specific causation that the expert testimony fell short, ultimately leading to the dismissal of the plaintiff’s claim.

The plaintiff’s claim was supported by the opinions of two highly credentialed expert witnesses.  One, an industrial hygiene expert, opined that the plaintiff was excessively exposed to diesel exhaust, herbicides and other substances during his employment at the railroad, relying upon anecdotal testimony and the result of the railroad’s carbon monoxide testing performed in July 1986.  The other expert testified that plaintiff’s exposure to diesel exhaust fumes, creosotes, herbicides and pesticides actually caused his cancer, citing to many medical journal articles in support of his opinions.  Simply, the Court found that these expert opinions lacked reliable analysis, failed to discuss the plaintiff’s actual exposure levels, and were not the result of a valid, reliable methodology.  Their opinions were excluded from being introduced at trial.

On appeal to the Arkansas Supreme Court, the plaintiff argued that it was error to require the plaintiff to prove, with a precise “parts-per-million measurement,” his exact exposure to toxic chemicals which he claims to have caused his cancer.  While not going so far as to require testimony describing with precise, mathematical proof the degree of exposure to toxic chemicals experienced by a plaintiff, the Supreme Court requires proof based upon reliable methodology that the plaintiff was exposed to levels of the harmful agent that is known to cause the kind of harm that the plaintiff claims to have suffered.  To that end, an expert’s causation testimony must demonstrate that the defendant’s emission probably – not possibly –  caused a particular plaintiff the kind of harm of which he or she complains.  Because the plaintiff produced no reliable evidence as to his actual exposure to diesel exhaust or benzene, his claim failed.

As a whole, the Richardson vs. Union Pacific Railroad case highlights Arkansas’s strict standards governing a plaintiff’s potential claim for damages based upon long-term exposure to a toxic tort.  While a showing that the toxic substance can cause the ailments complained of meets the general causation element of his claim, a plaintiff must meet the much higher burden of establishing specific causation by demonstrating that, under reliable scientific methodologies, the level of toxic agent to which the plaintiff was exposed often causes the general public similar injuries as those suffered by plaintiff and, specifically, that the toxic agent was the specific cause of plaintiff’s damages.

Accordingly, a very high and specific level of scientific proof must be adduced by a plaintiff to proceed in Arkansas courts on a toxic tort claim.  While finding an expert who is able to meet these highly technical and particularized standards is both difficult and expensive, it is nonetheless essential to a plaintiff who wishes to proceed and file a lawsuit on such a claim.

Misery loves company–but not in Arkansas Courts

In two recent decisions the Arkansas Supreme Court has ruled that where several persons’ actions may have contributed to a single injury, such as a multiple vehicle accident or where multiple medical personnel are involved in a bad treatment outcome, the claimant/plaintiff may sue just  a single defendant for the full amount of damages on the theory that the jury would only award damages caused by that defendant.  More importantly, the Court decided that the single defendant has no rights as to the other defendants to bring them into the lawsuit, or to sue them to share the blame and resulting losses, or to even get credit for amounts they have paid the claimant to settle out of the case.  This is an unintended aberration in the law, which puts the single, selected defendant at significant, unmitigated risk of paying the whole claim, even though others are liable and may have paid settlements; it also gives claimants/plaintiffs the ability to pile up and collect damages in excess of their losses by separately settling with some of the defendants, while suing just one.

Prior to 2003 civil defendants in a tort case were “jointly and severally” liable to an injured party.  If one of the defendants found to be at fault could not pay his share of the plaintiff’s verdict, another defendant could be required to pay the entire amount even if the payment exceeded the percentage of fault assigned to that defendant by the jury.   In an effort to resolve this perceived inequity, the Arkansas Legislature enacted the Civil Justice Reform Act of 2003.   This Act abolished “joint and several” liability and provided that liability was only “several” and that a defendant would only be responsible for his share of fault as determined by a jury.   The 2003 Act also contained a provision allowing the jury to consider the fault of non-parties to the case to properly determine the fault of the defendant in the case.   However, several years after the Act went into effect, the Arkansas Supreme Court declared the non-party fault provision unconstitutional as invading the rule-making authority of the Court.   Because of that defendants were left with the prospect of attempting to join other parties to the case for the jury to apportion fault among all potential responsible parties.

In Proassurance Indemnity Company, Inc. v. Pamela and Kenny Metheny (December 13, 2012) and St. Vincent Infirmary Medical Center and Catholic Health Initiatives v. Edgar Shelton and Clara Shelton (February 2013) the Arkansas Supreme Court ruled that a defendant does not have the right to have a jury apportion fault as to non-parties and defendants do not have a right to join additional parties to the case for contribution.   The Court reasoned that because liability is “several” only, a defendant has no right to join alleged co-tortfeasors as additional parties via a third-party complaint for contribution and indemnity.   Several dissenting opinions were filed in the Shelton decision, noting the problem that now exists when there are multiple tortfeasors but not all are sued by the plaintiff.    Presumably, if a defendant has a right of contractual indemnity with a non-party, that may allow the non-party to be joined to the case.  This an area of significant opportunity for plaintiffs/claimants represented by clever, knowledgeable lawyers, and of significant, increased risk and exposure for defendants and their insurers, whose ability to limit their losses to their proportion of fault has been arguably diminished by these rulings.  This will be a developing area of Arkansas law.