Appellate Practice

Eighth Circuit Reverses Judgment on Farm Bureau Vandalism Policy

Wilcox owned a rental property insured by Farm Bureau for fire and other perils. The tenants moved out in June 2004. In November 2004, Wilcox discovered a running faucet which caused extensive damage, and he submitted a claim. Farm Bureau filed this action seeking a declaration that coverage did not apply.

In Minnesota, fire insurance policies must provide a statutory minimum coverage. The insurer is not liable if the premises were vacant for 60 days or more. See Minn. Stat. § 65A.01, subd. 3. Insurers are able to provide more coverage if they want. Id. The Farm Bureau policy at issue had two provisions affecting vacancy. One provided that coverage was excluded for vandalism or malicious mischief if the premises were vacant for 30 days or more (“Vandalism Provision”). The other provided that, unless limited elsewhere in the policy, no coverage would apply to premises that were vacant for 180 days or more (“Vacancy Provision”).

Wilcox only raised the Vandalism Provision to the district court; he did not find the Vacancy Provision. The district court held that the 60-day vacancy provision of the Minnesota statute applied and granted summary judgment to Farm Bureau. In an uncharacteristic move, Wilcox prevailed by raising a new argument on appeal.

Appellate Practice

Arkansas Supreme Court Evades Review of Civil Justice Reform Act

Shipp was involved in a car wreck with Franklin and filed a lawsuit against him. Franklin filed a third-party complaint against Sanders, and Shipp amended her complaint to include Sanders as a defendant. Prior to trial, Shipp settled with Sanders. The remainder of the case proceeded to trial, with the jury finding Sanders 100% responsible for the accident.

On appeal, Shipp raised two constitutional challenges to the Civil Justice Reform Act. First, Shipp challenged the compensatory damages statute, which provides that the plaintiff can only present evidence of medical expenses that the plaintiff actually paid. See A.C.A. § 16-55-212. Shipp claims this statute violates the well-established collateral-source rule.

Second, Shipp challenged A.C.A. § 16-55-201, which provides that, for personal injury, the liability of each defendant is several only and not joint. Shipp claimed this statute improperly invades the power of the Arkansas Supreme Court to set rules of procedure.

The court decided not to address these questions on grounds of mootness. Because the jury returned a verdict finding Sanders 100% responsible, the case did not present joint tortfeasors to trigger analysis of these statutes. The jury verdict was affirmed.

Appellate Practice

Appellants in Three Cases Ordered to Follow the Abstracting Rules

LandsnPulaski, LLC v. Arkansas State Dept. of Correction, No. 06-1334, is an appeal from a grant of judgment on the pleadings. Rylwell, Inc. and Pulaski Lands, LLC v. Arkansas Development and Finance Authority, No. 07-334, is an appeal from a grant of summary judgment. City of Dardenelle, Arkansas v. City of Russellville, et al., No. 07-195, is an appeal from a grant of a motion to dismiss.

The Arkansas Supreme Court ordered rebriefing in each case for failure to abstract the relevant hearings. LandsnPulaski included a “summary” of the arguments in the abstract instead of the first-person rendering of testimony and argument called for by the rule, while Rylwell and Dardenelle placed transcripts of the relevant hearings in their respective addendums.

We have noted before the “Hobson’s Choice” presented by Rule 4-2(a)(5): “If the appellant’s attorney omits something from the abstract, the appellate court will not reach the issue,” the result being an inefficient “tendency . . . for the attorney to abstract virtually everything in the record, even material of marginal relevance to the issues on appeal.” John J. Watkins & Price Marshall, A Modest Proposal: Simplify Arkansas Appellate Procedure by Abolishing the Abstracting Requirement, 53 Ark. L. Rev. 37, 45-46 (2000).

These cases don’t present that dilemma, however. The portion of the transcript containing the hearing where the court granted dispositive relief is obviously a “material part[] of the testimony of the witnesses and colloquies between the court and counsel and other parties as [is] necessary to an understanding of all questions presented to the Court for decision,” Ark. Sup. Ct. R. 4-2(a)(5), and therefore must be abstracted.

The Court has made clear several times that including a transcript of a hearing in the addendum does not comply with the rule. See Hanners v. Giant Oil Co. of Arkansas, 369 Ark. 226 (2007) (transcript of summary judgment hearing should have been abstracted rather than included in the addendum); Calaway v. Dickson, 360 Ark. 463, 201 S.W.3d 931 (2005) (same with respect to transcript of Rule 11 hearing). Preparing a summary of the argument apparently does not suffice any more than including a transcript of the arguments in the Addendum would.