APPEAL
FROM THE PRAIRIE COUNTY CIRCUIT COURT, NORTHERN DISTRICT
[59NCV-16-33] HONORABLE TOM HUGHES, JUDGE
James,
Carter & Priebe, LLC, by: Daniel R. Carter and Paul J.
James, for appellant.
Friday, Eldredge & Clark, LLP, by: James C. Baker, Jr.,
and Kimberly D. Young, for separate appellee Federated Rural
Electric Insurance Exchange.
Anderson, Murphy & Hopkins L.L.P., by: Randy P. Murphy
and Brandon T. Cole, for separate appellee Auto-Owners
Insurance Company.
OPINION
ROBERT
J. GLADWIN, JUDGE
Appellant
George Konecny appeals the denial of his uninsured-motorist
benefits—specifically arguing that the Prairie County
Circuit Court erred in granting summary judgment to his
insurers, appellees Federated Rural Electric Insurance
Exchange ("Federated") and Auto-Owners Insurance
Company ("Auto-Owners") and in denying his
cross-motion for summary judgment. We hold that there is no
merit to appellant's arguments and affirm the circuit
court's order.
I.
Facts
On
August 15, 2014, Konecny, an employee of Arkansas Electric
Cooperative Corporation ("AECC"), was driving an
AECC pickup truck northbound on Highway 11 in Prairie County
when he encountered a Jeep towing another Jeep in the center
of the highway. The Jeep, which was making a u-turn in the
center of the highway, caused Konecny to swerve to avoid a
collision and to leave the highway. As he veered off the
highway on the west side shoulder, he struck a culvert,
continued, traveling northwest outside the traffic lane, and
hit two trees before coming to a final rest.
It is
undisputed that there was no physical contact between the
truck operated by Konecny and the Jeep. It also is undisputed
that the Jeep left the scene immediately after the incident,
and neither the Jeep nor its driver were ever identified.
Michael
Livesay witnessed Konecny's accident and saw the driver
of the Jeep leaving the accident scene. Arkansas State Police
officer Kris McCrea investigated the wreck. Officer
McCrea's investigation confirmed that on the basis of the
evidence left at the scene, the actions of the Jeep caused
Konecny's vehicle to leave the highway. Officer
McCrea's investigation confirmed that the Jeep left the
scene and corroborated Livesay's statement.
The
cause of the wreck is not disputed—the fleeing Jeep
caused the wreck but did not hit Konecny's automobile. It
is also undisputed that the driver and owner of the Jeep did
not file a certificate in accordance with Arkansas Code
Annotated section 27-19-503 (Repl. 2014), certifying that at
the time of the occurrence, the Jeep and its motorist were
operating with the minimum amount of insurance required by
law.
At the
time of the wreck, there were two insurance policies in
effect that provided uninsured-motorist coverage to Konecny,
one with appellee Federated and one with appellee
Auto-Owners. Both appellees moved for summary judgment
arguing that each was entitled to summary judgment because
the uninsured-motorist provision required that the insured
provide proof that the other vehicle was uninsured and
further that contact with a hit-and-run driver was a
condition precedent to coverage. Konecny responded to the
motions by arguing (1) there was a statutory presumption that
the fleeing driver was uninsured, and under the terms of the
policies, he was entitled to coverage; (2) there were facts
in dispute with respect to coverage of the other driver; and
(3) the contact requirement of the insurance policies
violates Arkansas public policy.
Konecny
filed a cross-motion for summary judgment against both
appellee insurers. The basis for his cross-motion was that
there is a statutory presumption that the fleeing driver was
uninsured and that he was entitled to coverage under the
terms of the policies.
After a
hearing on June 6, 2018, the circuit court granted both
appellee insurers' motions for summary judgment. The
circuit court found that the plain language of both policies
required physical contact before the uninsured-motorist
provision of the policies was applicable. An order was filed
on July 30 granting the summary-judgment motions of the
appellee insurers and denying Konecny's cross- motion for
summary judgment. Konecny filed a timely notice of appeal on
August 28, 2018.
II.
Standard of Review and Applicable Law
On
appellate review, the court determines if summary judgment
was appropriate after considering whether the evidentiary
items presented by the moving party in support of the motion
leave a material fact unanswered. Jegley v. Picado,
349 Ark. 600, 610, 80 S.W.3d 332, 335-36 (2002); Nash v.
Am. Nat'l Prop. & Cas. Co., 98 Ark.App. 258,
260, 254 S.W.3d 758, 759 (2007). The moving party bears the
burden of sustaining a motion for summary judgment.
Nash, supra. Summary judgment is no longer
viewed by the court as a drastic remedy; rather, it is simply
viewed as one of the tools in the circuit court's
efficiency arsenal. Marlar v. Daniel, 368 Ark. 505,
507, 247 S.W.3d 473, 475 (2007). Summary judgment is
appropriate when it is clear that there are "no genuine
issues of material fact" to be litigated, and the moving
party is entitled to judgment as a matter of law. Nash v.
Hendricks, 369 Ark. 60, 68, 250 S.W.3d 541, 546-47
(2007). The purpose of summary judgment is not to try issues
but to ...