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Holman v. Flores

Court of Appeals of Arkansas, Division II

May 9, 2018

RICK HOLMAN APPELLANT
v.
ANNA MARIE FLORES, KENNETH CUMMINGS, AND ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY APPELLEES

          APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT [NO. 17CV-15-395] HONORABLE GARY COTTRELL, JUDGE

          McCutchen and Sexton, by: Sam Sexton III, for appellant.

          Benson & Bennett, P.L.C., by: Justin Bennett, for appellee Allstate Property and Casualty Insurance Company.

          DAVID M. GLOVER, JUDGE.

         Rick Holman appeals the Crawford County Circuit Court's grant of summary judgment to appellee Allstate Property and Casualty Insurance Company (Allstate) on his claims of negligent infliction of emotional distress and outrage. On appeal, Rick argues this court (1) should declare the tort of negligent infliction of emotional distress to be a viable claim in the present scenario; (2) should hold the tort of outrage to be a valid claim under the facts of this case; and (3) should hold Allstate's insurance policy covers damages for emotional harm under the policy definition of "bodily injury." We affirm the grant of summary judgment.

         Procedural History

         On July 5, 2015, at approximately 2:40 a.m., Rick, his wife, Joy, four of their children, and their daughters' friend were asleep in the Holman home when Anna Marie Flores, who was believed to be intoxicated, drove a vehicle owned by Kenneth Cummings into the home, causing damage.

         Rick and Joy, individually and as the next friends of her daughter, Taylor Brooks, filed a complaint against Flores, Cummings, and Allstate.[1] It is undisputed Rick suffered no physical injury as a result of the incident, but Joy and Taylor alleged they sustained physical injuries. The claims of Joy and Taylor against Flores included negligence and willful and wanton conduct in the operation of a motor vehicle while impaired; their claims against Cummings included negligent entrustment and negligence in allowing Flores access to his keys. Rick's claims against Flores and Cummings were for negligent infliction of emotional distress and outrage (intentional infliction of emotional distress).

         Allstate moved for partial summary judgment against Rick; in an order filed May 15, 2017, the circuit court granted Allstate's motion for summary judgment as to Rick's claim for negligent infliction of emotional distress but denied it as to his claim for outrage. After a motion to reconsider by Allstate, the circuit court issued a new order on July 12, 2017, dismissing with prejudice both of Rick's claims against Allstate. On July 19, 2017, the circuit court entered an order of dismissal with prejudice of the claims of Joy and Taylor against Allstate. However, this order specified that it did not in any way affect or dismiss the claims of Joy, Taylor, or Rick against Flores and Cummings.

         On August 11, 2017, Joy and Taylor moved to dismiss without prejudice their causes of action against Flores and Cummings; Rick filed a separate notice of appeal the same day. An order was filed on August 18 dismissing without prejudice the causes of action of Joy and Taylor against Flores and Cummings.[2] Rick filed a second notice of appeal on August 20, in which he abandoned any pending but unresolved claims.

         Deposition Testimony

         In his April 20, 2016 deposition, Rick agreed he suffered no physical injuries when Flores crashed into his home on July 5, 2015. However, he claimed emotional distress from the incident because of memories of a March 5, 1999 wreck in which he drove up on the burning remains of a motor-vehicle accident where his mother, his 18-month-old daughter, and his nephew were burned to death, and his oldest daughter remained in a coma for 30 days after the accident. Rick said the memories of the 1999 accident came flooding back to him when Kimberly, one of his daughters, came up to him after the 2015 incident, hugged him, and said, "Daddy, I almost died." Rick said he now saw his mother's truck every night in his dreams, sleeping was "rough" because his mind began to race at night, and not a day went by that he did not think about the 1999 accident. However, he and Joy had not considered moving. After the 1999 accident, Rick saw two therapists one time each. Rick did not continue with therapy because he did not believe he needed to talk to the therapists, and he did not want drugs. Rick stated he had continued to work regularly since the 2015 accident, and he still "did everything he was supposed to do."

         Standard of Review

         Summary judgment should be granted only when it is clear there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Cesena v. Gray, 2009 Ark.App. 143, 316 S.W.3d 257. Once a moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Patrick v. Tyson Foods, Inc., 2016 Ark.App. 221, 489 S.W.3d 683. On appeal, viewing the evidence in the light most favorable to the nonmoving party and resolving all doubts and inferences against the moving party, we determine if summary judgment was appropriate based on whether the moving party's evidence in support of its motion leaves a material fact unanswered. Cesena, supra. Our appellate review is not ...


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