Calcagno v. Shelter Mutual Insurance , 55 Ark. App. 321 ( 1996 )

John Mauzy Pittman, Judge.

Paul Calcagno appeals from an order of the Garland County Circuit Court dismissing his complaint.¹ We find no error and affirm.

Summary judgment under Rule 56 of the Arkansas Rules of Civil Procedure is proper when there is no genuine issue as to a material fact and the moving party is entitled to summary judgment as a matter of law. Skaggs v. Johnson, 323 Ark. 320, 915 S.W.2d 253 (1996). All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Id. Where the operative facts of the case are undisputed, as here, we simply determine on appeal whether the appellee was entitled to summary judgment as a matter of law. Hertlein v. St. Paul Fire & Marine Ins. Co., 323 Ark. 283, 914 S.W.2d 303 (1996).

The facts are undisputed. Prior to January 1990, appellant applied for automobile insurance with appellee, Shelter Mutual Insurance Company, through its agent Bill Bledsoe. Appellant stated that he told Bledsoe that he wanted “full” coverage and that Bledsoe mentioned underinsured motorist coverage to him. Appellant was involved in a motor-vehicle accident on January 11, 1990, and first learned that he did not have underinsured motorist coverage when he sought to collect benefits. Appellant filed suit against Shelter Insurance on February 22, 1993, and later amended his complaint to include Bledsoe, asserting that Bledsoe was negligent and that as a matter of law he had an implied contract for underin-sured motorist coverage pursuant to Ark. Code Ann. § 23-89-209(a) (Supp. 1987).² Appellees filed a motion to dismiss stating, in part, that the action was barred by the statute of limitations.

Because we find that the cause of action is barred by the three-year statute of limitations for actions based on an implied contract, we do not reach appellant’s argument that it is the insurance agent’s responsibility to apprise a policyholder of underinsured motorist coverage. Ark. Code Ann. § 16-56-105(3) (1987).

In Flemens v. Harris, 323 Ark. 421, 915 S.W.2d 685 (1996), the court stated that the statute of limitations for an insurance agent’s negligence commences at the time the negligent act occurs, in keeping with the traditional rule in professional malpractice cases. Thus, appellant’s claim is barred by the three-year statute of limitations because the statute commenced when Bledsoe took appellant’s application for insurance prior to the January 11, 1990, accident. Appellant filed his suit in February 1993, which was after the statute had run. We find that the court was correct in dismissing the complaint.

Jennings, C.J., and Stroud, J., agree. Mayfield, Rogers, and Neal, JJ., dissent.

1 Appellees’ motion to dismiss was treated as one for summary judgment. Ark. R. Civ. P. 12(b)(6).

2 By virtue of Act 209 of 1991, this statute was amended to require that the policyholder reject in writing underinsured motorist coverage. Appellant purchased his policy prior to this requirement taking effect.