FROM THE CRAWFORD COUNTY CIRCUIT COURT [NO. 17CV-15-395]
HONORABLE GARY COTTRELL, JUDGE
McCutchen and Sexton, by: Sam Sexton III, for appellant.
& Bennett, P.L.C., by: Justin Bennett, for appellee
Allstate Property and Casualty Insurance Company.
M. GLOVER, JUDGE.
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
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.
and Joy, individually and as the next friends of her
daughter, Taylor Brooks, filed a complaint against Flores,
Cummings, and Allstate. 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
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.
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. Rick filed a second notice of appeal on
August 20, in which he abandoned any pending but unresolved
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."
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 ...