In re Special Task Force- Ark. R. Civ. P. 9 49 52 and Ark. R. App. P.-Civ. 8 , 2014 Ark. 340 ( 2014 )

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SUPREME COURT OF ARKANSAS
No.
IN RE SPECIAL TASK Opinion Delivered August 7, 2014
FORCE ON PRACTICE AND
PROCEDURE IN CIVIL
CASES – ARK. R. CIV. P. 9,
49, 52, AND ARK. R. APP. P.-
CIV. 8
PER CURIAM
Our Special Task Force on Practice and Procedure in Civil Cases submitted proposed
amendments to the Arkansas Rules of Civil Procedure and other rules affecting civil practice.
These rules were referred to the Committee on Civil Practice and published for comment.
See In re Special Task Force on Practice & Procedure in Civil Cases, 2014 Ark. 5 (per curiam); In
re Special Task Force on Practice & Procedure in Civil Cases – Final Report, 2014 Ark. 47 (per
curiam). Over forty comments were submitted. The Committee reviewed the proposed rules
and the comments and submitted a report to the court.
Three rule changes were proposed to address allocation of fault, including nonparty
liability, which arises under the provisions of Act 649 of 2003, codified at Ark. Code Ann.
§§ 16-61-201 and 16-61-202(c), as amended by Act 1116 of 2013. These rules, Ark. R. Civ.
P. 9, 49, and 52, seek to fill the procedural void resulting from procedural aspects of Act 649
that were struck on separation-of-powers grounds. See Johnson v. Rockwell Automation, Inc.,
2009 Ark. 241, 308 S.W.3d 135. The Committee on Civil Practice endorsed the rules as
proposed by the Task Force except for several changes to Rule 9 that were suggested by those
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who commented.1
We agree with the Task Force and the Civil Practice Committee that rules are needed
in this area. We accept the rules that they have proposed. As with any rules, if problems
surface or improvements are needed, the court will be receptive to addressing them, but these
rules are a good start. Accordingly, we adopt Arkansas Rules of Civil Procedure 9, 49, and
52, as set out below, and republish them. In order to give the bench and bar time to
acclimate to these changes and to allow our Committee on Model Jury Instructions–Civil
time to consider the impact of these changes on jury instructions, the effective date for the
1
Rule 9(h) is new. The underlined language was added by the Committee to the
language proposed by the Task Force.
(h) Allocation of Nonparty Fault; Notice. (1) In an action for personal injury, medical
injury, wrongful death, or property damage, a defending party seeking to allocate fault to a
nonparty pursuant to Ark. Code Ann. § 16-61-202(c) or any other statute providing a
substantive right to do so shall give notice as provided in paragraph (2) of this subdivision.
This requirement does not apply with respect to a nonparty who has entered into a settlement
agreement with the claimant.
(2) Notice shall be given in the initial responsive pleading, if the factual and legal basis
upon which fault can be allocated is then known, or in an amended or supplemental pleading
subject to the requirements and conditions of Rule 15 after the party discovers that
information. The pleading shall:
(A) sufficiently identify the nonparty to permit service of process, regardless whether
service can be made or the court has in personam jurisdiction over the nonparty; and
(B) state in ordinary and concise language facts showing that the nonparty is at fault
for the personal injury, medical injury, wrongful death, or property damage alleged by the
claimant.
(3) A party served with a pleading that identifies a nonparty pursuant to this subdivision
may, within thirty (30) days after service, file an amended pleading pursuant to Rule 15
stating a claim against the nonparty.
(4) A party may not seek to allocate fault to a nonparty pursuant to Rules 49(c) or
52(a)(2) except by compliance with this subdivision (h). This subdivision does not prohibit
a party from introducing evidence on any issue.
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amendments to Rules 9,2 49, and 52 shall be January 1, 2015.
The Task Force and Committee on Civil Practice also agreed to recommend a revision
to Ark. R. App. P.–Civ. 8 governing supersedeas bonds on appeal. We adopt this
amendment, effective immediately, and republish the rule as set out below.3
The Reporter’s Notes should be consulted for further explanation of the amendments
to all the rules we adopt today.
The Task Force recommended revisions to Ark. R. Civ. P. 3, 11, and 42, and
proposed a new Rule 11.1. In response to the comments received and considering its own
concerns, the Committee on Civil Practice made substantive changes to Rules 11 and 42.
Consequently, we are publishing these rules for comment in a separate per curiam order. The
substantive change in proposed subsection (b)(5) of Rule 11 replaces the Rule 11.1 proposed
by the Task Force that provided for a certificate of expert consultation. There were an
overwhelming number of negative comments received from both the plaintiff and defense bar
regarding the Rule 11.1 and Ark. R. Evid. 702 proposals. Although an alternative to Rule
11.1 is being considered, we decline to adopt the proposed amendments to Rule 702.4 We
share the sentiment expressed in the comments and by the Civil Practice Committee that
Rule 702 should remain as is.
2
Arkansas Code Annotated § 16-61-207 is superseded pursuant to § 16-11-301 as a
result of this amendment to Rule 9 (see Reporter’s Note).
3
The amendments to Rule 8 result in Ark. Code Ann. § 16-55-214 and §§ 16-68-301
to -306 being superseded pursuant to § 16-11-301 (see Reporter’s Note).
4
See In re Special Task Force on Practice & Procedure in Civil Cases – Final Report, 2014
Ark. 47 (per curiam).
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The remaining rule change proposed by the Task Force concerns Ark. R. Civ. P. 3,
related to pre-suit notice for medical-malpractice cases. The Task Force, the Committee, and
those who responded with comments all had various issues with this proposal. The Civil
Practice Committee has submitted a revised proposal that is being published for comment in
a separate per curiam order.
Finally, we once again acknowledge the work performed by the members of the Task
Force in getting these rule changes off the ground. They have provided a valuable service to
this court and to the legal profession. As always, we are indebted to our Civil Practice
Committee and express our gratitude for its prompt response to the Task Force’s proposals.
I. Arkansas Rules of Civil Procedure
Rule 9. Pleading Special Matters.
...
(h) Allocation of Nonparty Fault; Notice. (1) In an action for personal injury, medical
injury, wrongful death, or property damage, a defending party seeking to allocate fault to a
nonparty pursuant to Ark. Code Ann. § 16-61-202(c) or any other statute providing a
substantive right to do so shall give notice as provided in paragraph (2) of this subdivision.
This requirement does not apply with respect to a nonparty who has entered into a settlement
agreement with the claimant.
(2) Notice shall be given in the initial responsive pleading, if the factual and legal basis
upon which fault can be allocated is then known, or in an amended or supplemental pleading
subject to the requirements and conditions of Rule 15 after the party discovers that
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information. The pleading shall:
(A) sufficiently identify the nonparty to permit service of process, regardless whether
service can be made or the court has in personam jurisdiction over the nonparty; and
(B) state in ordinary and concise language facts showing that the nonparty is at fault
for the personal injury, medical injury, wrongful death, or property damage alleged by the
claimant.
(3) A party served with a pleading that identifies a nonparty pursuant to this subdivision
may, within 30 days after service, file an amended pleading pursuant to Rule 15 stating a
claim against the nonparty.
(4) A party may not seek to allocate fault to a nonparty pursuant to Rules 49(c) or
52(a)(2) except by compliance with this subdivision (h). This subdivision does not prohibit
a party from introducing evidence on any issue.
Addition to Reporter’s Notes (2014 amendment): New subdivision (h) creates
the exclusive procedural mechanism for asserting the right to an allocation of nonparty fault
created by Ark. Code Ann. § 16-61-202(c), as amended by Act 1116 of 2013, § 3, or by any
other statute. Other states have placed similar provisions in their rules that govern the pleading
of special matters. E.g., Mich. Ct. Rule 2.112(k); Utah R. Civ. P. 9(l). Subdivision (h) draws
in part on those rules and on Section 2 of Act 649 of 2003, codified at Ark. Code Ann. § 16-
55-202, which was held unconstitutional on separation-of-powers grounds in Johnson v.
Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135.
Under subdivision (h), a defendant asserts a contribution claim for allocation of
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nonparty fault in an answer or amended answer. By contrast, a defendant seeking contribution
for damages may bring a third-party claim against a nonparty under Rule 14 or a cross-claim
against a co-party under Rule 13. The procedural section of the Uniform Contribution
Among Tortfeasors Act, Ark. Code Ann. § 16-61-207, is inconsistent with Rule 9(h) and in
some respects with Rules 13 and 14. Therefore, section 16-61-207 is superseded pursuant to
Ark. Code Ann. § 16-11-301.
Notice under Rule 9(h) is necessary if a nonparty’s fault is to be considered by the trier
of fact. See 2014 Amendments to Rules 49 and 52. Under paragraph (h)(1), however, the
notice requirement does not apply if a nonparty has settled with the claimant. When there has
been a settlement, there is no need for notice in light of Ark. Code Ann. § 16-61-204(d),
which provides that “the remaining defendants are entitled to a determination by the finder
of fact of the released joint tortfeasor’s pro rata share of responsibility for the injured person’s
damages.”
Under paragraph (h)(2), notice must be given in the defending party’s original
responsive pleading, if the necessary information is then available, or in an amended or
supplemental pleading under Rule 15. Unlike former section 16-55-202, under which notice
could be given no later than 120 days before the trial date, paragraph (h)(2) contains no
deadline. Although Rule 15 allows amended and supplemental pleadings as a matter of right,
the court may, on motion, strike the amended or supplemental pleading or grant a
continuance if it determines that “prejudice would result or the disposition of the cause would
be unduly delayed.”
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Paragraph (h)(2)(A) requires that nonparties be identified in sufficient detail to permit
service of process, even though service cannot be made and the court lacks in personam
jurisdiction. This requirement guards against the practice of naming so-called “phantom
tortfeasors.” See Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000). Paragraph
(2)(B) parallels Ark. R. Civ. P. 8(a) in requiring the same fact pleading necessary in a
complaint. The requirement in former section 16-55-202— “a brief statement of the basis for
believing the nonparty to be at fault”—was uncertain in scope but well short of the fact-
pleading standard.
Paragraph (h)(3) permits any party, within 30 days after being served with a pleading
that identifies a nonparty, to amend his or her pleadings to assert a claim against the nonparty.
Paragraph (h)(4) makes plain that the procedure set out in subdivision (h) is the exclusive
method for allocation of nonparty fault under Rules 49(c) and 52(a)(2). It also emphasizes, as
should be clear from the context, that subdivision (h) has nothing whatsoever to do with the
admissibility of evidence. For example, defense counsel remain free to introduce evidence of
proximate causation with respect to a nonparty in the course of raising the so-called “empty
chair” defense.
Rule 49. Verdicts and Interrogatories.
...
(c) Allocation of Fault. (1) In an action for personal injury, medical injury, wrongful
death, or property damage, the jury shall determine the fault of all persons or entities,
including those not made parties, who may have joint liability or several liability for the
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alleged injury, death, or damage to property. However, the jury shall determine the fault of
a nonparty only if:
(A) the claimant entered into a settlement agreement with the nonparty, or a defending
party has given notice, as provided in Rule 9(h), that the nonparty was wholly or partially at
fault; and
(B) the defending party has carried the burden of establishing a prima facie case of the
nonparty’s fault.
(2) The jury shall allocate the fault, on a percentage basis, among those persons or
entities, including those not made parties, found to have contributed to the injury, death, or
property damage.
(3) Assessment of the percentage of a nonparty’s fault shall be used only for
determining the percentage of fault of the parties. A finding of fault shall not subject a
nonparty to liability in any action or be introduced as evidence of liability in any action.
Addition to Reporter’s Notes (2014 Amendment): Subdivision (c) implements
Ark. Code Ann. §§ 16-61-201 & 16-61-202(c), as amended by Act 1116 of 2013. It is based
in part on section 2 of Act 649 of 2003, codified at Ark. Code Ann. § 16-55-202(a), which
was invalidated on separation-of-powers grounds in Johnson v. Rockwell Automation, Inc., 2009
Ark. 241, 308 S.W.3d 135. A corresponding change has been made to Rule 52(a), which
applies in bench trials. Rule 9(h), cross-referenced in paragraph (1)(A), is the sole procedural
mechanism for asserting the right to an allocation of nonparty fault created by Ark. Code
Ann. § 16-61-202(c).
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Paragraph (1) of subdivision (c) provides that, if certain conditions are met, the jury
must determine “the fault of all persons and entities, including those not made parties, who may
have joint liability or several liability” for the alleged harm. The italicized language is taken from
Ark. Code Ann. § 16-61-201 and is intended to be coextensive with the statute. In tracking
the statutory language, the rule is neutral on questions as to its scope, e.g., whether the phrase
“may have joint liability or several liability” includes persons or entities who are immune from
suit or are beyond the court’s jurisdiction.
As stated in paragraph (1)(A), the fault of a nonparty will be determined only if the
claimant has settled with the nonparty or the defending party has given the notice required
by Rule 9(h). Paragraph (1)(B) imposes another condition: “the defending party has carried
the burden of establishing a prima facie case of the nonparty’s fault.” In other words, the
defending party must produce sufficient evidence to warrant submission of the case to the
jury. Health Facilities Mgmnt. Corp. v. Hughes, 365 Ark. 237, 244–45, 227 S.W.3d 910, 917
(2006). Placing this burden on the defending party is consistent with Act 649. See Ark. Code
Ann. § 16-55-215 (Act 649 does not affect “existing law that provides that the burden of
alleging and proving fault is upon the person who seeks to establish fault.”).
Paragraph (2) is based on language in former section 16-55-202(a), and paragraph (3)
is taken from former section 16-55-202(c)(2) & (3).
Rule 52. Findings by the Court.
(a)(1) Effect. If requested by a party at any time prior to entry of judgment, in all
contested actions tried upon the facts without a jury, the court shall find the facts specially and
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state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule
58; and in granting or refusing interlocutory injunctions, the court shall similarly set forth the
findings of fact and conclusions of law that constitute the grounds of its action. Requests for
findings are not necessary for purposes of review. Findings of fact, whether based on oral or
documentary evidence, shall not be set aside unless clearly erroneous (clearly against the
preponderance of the evidence), and due regard shall be given to the opportunity of the
circuit court to judge the credibility of the witnesses. The findings of a master, to the extent
that the court adopts them, shall be considered as the findings of the court. If an opinion or
memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions
of law appear therein. Findings of fact and conclusions of law are unnecessary on decisions of
motions under these rules.
(2) Allocation of Fault. (A) In an action for personal injury, medical injury, wrongful
death, or property damage tried without a jury, the court shall determine the fault of all
persons or entities, including those not made parties, who may have joint liability or several
liability for the alleged injury, death, or damage to property. However, the court shall
determine the fault of a nonparty only if:
(i) the claimant entered into a settlement agreement with the nonparty, or a defending
party has given notice, as provided in Rule 9(h), that the nonparty was wholly or partially at
fault; and
(ii) the defending party has carried the burden of establishing a prima facie case of the
nonparty’s fault.
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(B) The court shall allocate the fault, on a percentage basis, among those persons or
entities, including those not made parties, found to have contributed to the injury, death, or
property damage.
(C) Assessment of the percentage of a nonparty’s fault shall be used only for
determining the percentage of fault of the parties. A finding of fault shall not subject a
nonparty to liability in any action or be introduced as evidence of liability in any action.
...
Addition to Reporter’s Notes (2014 amendment): The text of subdivision (a) has
been designated as paragraph (1) and paragraph (2) has been added. The latter implements
Ark. Code Ann. §§ 16-61-201 & 16-61-202(c), as amended by Act 1116 of 2013. It is based
in part on section 2 of Act 649 of 2003, codified at Ark. Code Ann. § 16-55-202(a), which
was invalidated on separation-of-powers grounds in Johnson v. Rockwell Automation, Inc., 2009
Ark. 241, 308 S.W.3d 135. A corresponding change has been made in Rule 49, which applies
to jury verdicts. For discussion, see the notes accompanying that rule.
II. Arkansas Rules of Appellate Procedure–Civil
Rule 8. Stay Pending Appeal.
...
(c) Supersedeas bond. (1) Whenever an appellant entitled thereto desires a stay on appeal,
he shall present to the court for its approval a supersedeas bond which shall have such surety
or sureties as the court requires. The bond shall be to the effect that appellant shall pay to
appellee all costs and damages that shall be affirmed against appellant on appeal; or if appellant
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fails to prosecute the appeal to a final conclusion, or if such appeal shall for any cause be
dismissed, that appellant shall satisfy and perform the judgment, decree or order of the circuit
court. However, the maximum bond that may be required in any civil action under any legal
theory shall be limited to twenty-five million dollars ($25,000,000), regardless of the amount
of the judgment.
(2) If a party proves by a preponderance of the evidence that the party who has posted
a bond in accordance with paragraph (1) of this subdivision (c) is purposely dissipating or
diverting assets outside of the ordinary course of its business for the purpose of evading
ultimate payment of the judgment, the court may enter orders as are necessary to prevent
dissipation or diversion, including requiring that a bond be posted equal to the full amount
of the judgment.
...
Addition to Reporter’s Note (2014 amendment): A second paragraph has been
added to subdivision (c) of the rule, and the original text designated accordingly. The second
paragraph and a new sentence at the end of the first paragraph are taken from section 17 of
Act 649 of 2003, codified at Ark. Code Ann. § 16-55-214. With the adoption of these
changes, the statute is superseded pursuant to Ark. Code Ann. § 16-11-301. Also superseded
are Ark. Code Ann. §§ 16-68-301 to -306, outdated provisions referenced in section 16-55-
214 that were enacted as part of the Civil Code of 1868.
The last sentence of paragraph (c)(1) sets the maximum amount of a supersedeas bond
at $25 million, as did section 16-55-214. Like the statute, paragraph (c)(2) provides an
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exception when necessary to prevent the appellant from diverting or dissipating assets to evade
payment of the judgment.
BAKER and HART, JJ., dissent.
HOOFMAN, J., not participating.
KAREN R. BAKER, Justice, dissenting. I agree with Justice Hart’s dissent and I join
it. I write separately because I believe that the procedure followed by this court in the
adoption of the proposed amendments to Ark. R. Civ. P. 9, 49, 52, and Ark. R. App.
P.–Civ. 8 has failed to provide adequate notice to the bench, bar, and public prior to the
adoption of these sweeping changes to our rules. In two separate per curiams issued this same
date, we published for comment the recommendations for amendments to Ark. R. Civ. P.
3, 11, and 42 received from our Civil Practice Committee. Here, we should follow the same
procedure concerning the recommendations made by the committee for amendments to Ark.
R. Civ. P. 9, 49, 52, and Ark. R. App. P.–Civ. 8.
Prior to the adoption of these changes, the only notice to the bench, bar, and public
that this court was considering these changes was the publication of the Special Task Force’s
interim and final reports in two separate per curiams in January of this year. In re Special Task
Force on Practice & Procedure in Civil Cases, 2014 Ark. 5 (per curiam); In re Special Task Force on
Practice & Procedure in Civil Cases – Final Report, 2014 Ark. 47 (per curiam). While this
provided some notice of the Special Task Force’s recommendations, it is simply inadequate
to apprise the bench, bar and public that this court would adopt those recommendations as
to Ark. R. Civ. P. 9, 49, 52, and Ark. R. App. P. - Civ. 8.
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Further, there is no need for this court to consider the recommendations of the Special
Task Force and the proposed rule changes by the Civil Practice Committee in such a
piecemeal fashion. Instead, we should follow the same procedure for the proposed changes
to Ark. R. Civ. P. 9, 49, 52, and Ark. R. App. P.–Civ. 8 as is being employed for the
proposed changes to Ark. R. Civ. P. 3, 11, and 42.
Accordingly, I respectfully dissent.
HART, J., joins.
JOSEPHINE LINKER HART, Justice, dissenting. In Johnson v. Rockwell Automation,
Inc., 2009 Ark. 241, 308 S.W.3d 135, this court held that provisions of Act 649 of 2003 were
unconstitutional, stating that by “setting up a procedure to determine the fault of a nonparty
and mandating consideration of that nonparty’s fault in an effort to reduce a plaintiff’s
recovery,” the General Assembly “offend[ed] the principle of separation of powers.” That
opinion, however, failed to address other possible constitutional infirmities. Today, through
the votes of four justices—including three who decided Johnson—these same procedures now
rise, Phoenix-like, from the ashes. I, however, respectfully dissent from the promulgation of
these rules. First, the rules are unclear. Second, the rules are unfair. Third, the rules may not
survive further constitutional scrutiny. Fourth, there are other solutions.
As to clarity, Rule 49(c)(1) provides that “the jury shall determine the fault of all
persons or entities, including those not made parties, who may have joint liability or several
liability,” and Rule 49(c)(2) provides that the “jury shall allocate the fault, on a percentage
basis, among those persons or entities, including those not made parties, found to have
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contributed to the injury, death, or property damage.” Similar provisions are found in Rule
52(a)(2), which apply when the trial court sits as the finder of fact. Accordingly, in
determining fault, the finder of fact examines those “who may have joint liability or several
liability.” (Emphasis added.) If the nonparty is immune from suit, however, the nonparty will
not have joint or several liability. With the adoption of this rule, it is not clear whether the
finder of fact is to determine this nonparty’s fault or whether the nonparty’s fault is considered
despite the nonparty’s immunity. Further, these rules do not define what is meant by
“contributed to” the injury, death, or property damage and how this concept interacts with
our law of comparative fault. Also, Rule 49(c)(1)(B) and Rule 52(a)(2)(A)(ii) require that “the
defending party” must carry “the burden of establishing a prima facie case of the nonparty’s
fault.” Neither of these provisions, however, explain whether the evidence is to be viewed
in the light most favorable to the defending party or to the plaintiff. Nor do these provisions
explain whether the finder of fact weighs the evidence and the credibility of the evidence.
These questions, presumably, are left to be answered in later litigation and appeals.
As to the fairness of these rules, in some instances it does not make sense to allocate
fault to a nonparty when the nonparty’s fault is also the defendant’s fault, and in other
instances, it is unfair to shoulder the plaintiff with the brunt of the damages. These instances
include indivisible injuries or those involving a defendant and a nonparty who act in concert,
are in vicarious liability relationships, engage in intentional acts, or fail to prevent intentional
injury, and where the nonparty is immune from suit or manufactures a product beyond the
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reach of the courts.1
For an example of unfairness, consider an instance in which the nonparty has
committed a felony, such as a rape, and the defendant owed a duty to protect the plaintiff. It
would be the rapist, now incarcerated and without assets, who would account for the lion’s
share of fault. The plaintiff would bear the brunt of the damages. Consider also a situation
involving injuries sustained from the use of a product that was manufactured by an entity
beyond the reach of the courts, for instance, an overseas manufacturer. The plaintiff essentially
is without recourse, as the injured party can only pursue the retailer, whose fault is limited.
Rule 9(h)(2)(A) purports to give notice to the plaintiff through a pleading that shall
“sufficiently identify the nonparty to permit service of process, regardless whether service can
be made or the court has in personam jurisdiction over the nonparty.” The Reporter’s Notes
suggest that the purpose of the language is to guard against the “practice of naming so-called
‘phantom tortfeasors.’” This provision, however, does not address those tortfeasors beyond
the reach of the courts.
This all brings into play whether the rules would offend the Arkansas Constitution.
Our state constitution provides that “[e]very person is entitled to a certain remedy in the laws
1
I am mindful that Arkansas Code Annotated section 16-55-205(a) (Repl. 2005),
provides that “a party is responsible for the fault of another person or entity or for payment
of the proportionate share of another person or entity if both the party and the other person
or entity were acting in concert or if the other person or entity was acting as an agent or
servant of the party.” The rules, however, do not provide for this exception, and it is unclear
whether this statute would apply to nonparties. Moreover, “acting in concert” is narrowly
defined as “conscious[ ] agree[ment] . . . to commit the intentional tort.” Ark. Code Ann. §
16-55-205(b)(3).
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for all injuries or wrongs he may receive in his person, property or character.” Ark. Const.
art. II, § 13. Further, it provides that “no law shall be enacted limiting the amount to be
recovered for injuries resulting in death or for injuries to persons or property.” Ark. Const.
art. V, § 32. The rules do not even begin to address the implication of these constitutional
provisions; this is dangerous because these rules will, in practice, limit an injured party’s
recovery and provide no remedy in law to the injured party. Thus, in future appeals, this
court will face the unenviable task of considering the constitutionality of its own rules.
Likewise, the rules implicate provisions of the federal constitution, and a federal court opinion
already casts doubt upon the constitutionality of the rules. Billings v. Aeropres Corp., 522 F.
Supp. 2d 1121 (E.D. Ark. 2007). We should not adopt rules that cast further doubt on the
fairness of our rulemaking.
This court, guided by precedent, develops the common law from the facts presented
in each case; it is a deliberate and incremental process. In promulgating these rules, however,
this court has cast aside precedent, rejected the common-law process, and created new law,
stating that “these rules are a good start,” and “if problems surface or improvements are
needed, the court will be receptive to addressing them.” Today, we venture into quasi-
legislating by adopting rules drafted by an appointed, not elected, Special Task Force, and
vetted by an appointed, not elected, Committee on Civil Practice. Rather than create new
law out of whole cloth, we should allow the common law to develop over time, on a case-
by-case basis, driven by the facts. If we are not willing to do so, we should reexamine our
holding in Johnson and permit the General Assembly to make the law. At least then we could
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consider whether the General Assembly’s laws pass constitutional muster without the conflict
of interest that will arise when we are asked to address the same question about our rules.
Furthermore, in adopting this labyrinthine set of rules governing allocation of fault, we
venture into the creation of substantive law, not procedural law, and we, ourselves, violate
the dictates of separation of powers. Had the majority sought to effect a procedural rule, they
could have done so by providing a simple jury instruction advising the jury not to allocate to
the defendant the fault of any other entity and to allocate to the defendant only the fault
attributable to the defendant’s acts or omissions, thus avoiding the problems engendered by
the adoption of these rules.
BAKER, J., joins in this dissent.
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