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Byers v. Auto-Owners Insurance Co.11/21/2003
rson, as insured, using any vehicle or vehicles with the express or implied permission of the named insured, against loss from the liability imposed by law for damages arising out of the . . . use of the vehicle[.]
Ark. Code Section 27-29-713(b)(1987). The above statute, coupled with the adoption of the initial permission rule, leads this court to believe that Arkansas has a strong desire to give motorists who use its roads and highways broad protection in the event they are injured in a motor vehicle accident. Arkansas law fails to state, and we fail to find, that it makes any difference that the injured party was not a citizen of Arkansas. This extended safeguard for persons wrongfully injured on the roads of Arkansas is an effort to protect the interests of victims and to insure that there will be financially responsible persons available from whom they may seek damages. Here, Mrs. Honl was given express permission by Honl to drive and she, in turn, asked Klein to drive. Under Arkansas law, Klein was a permissive user of the minivan. Therefore, we find that the trial court's interpretation of Arkansas law was not in error. Point II is denied.
In order to fully address Auto-Owners' third point, a discussion of the procedural background to this case is necessary. Following the death of Patrick A. Duncan, Edna Byers filed a wrongful death action in the United States District Court for the Western District of Arkansas against Klein, who was defended by Auto-Owners with a reservation of rights. On October 31, 2001, Byers received a favorable judgment in that court. Prior to judgment being entered in the wrongful death action, Auto-Owners brought a declaratory judgment action in the Chancery Court for Weakley County, Tennessee, seeking a declaration as to its rights and obligations to Klein by virtue of its contract of automobile liability insurance issued to Stoker. Service was obtained on Byers.
On March 23, 2001, attorneys Clifton M. Smart, III, and Michael L. Johnson filed a petition to be admitted p ro hac vice to the Chancery Court of Tennessee, along with a motion and suggestions to dismiss the Tennessee declaratory judgment action. They argued that Byers did not have minimum contacts with the state of Tennessee sufficient to subject her to in personam jurisdiction, and that the doctrine of forum non conveniens was applicable. The petition, motion, and suggestions were also signed by Anthony Deal, an attorney from Memphis, Tennessee. Auto-Owners disputed the allegations in the Motion to Dismiss, contending that Byers had sufficient contacts with the State of Tennessee by virtue of her contact, communication, and claim for money damages against a Tennessee insurer within the State of Tennessee.
The Tennessee court never ruled on the Motion to Dismiss; however, Auto-Owners filed a Motion for Summary Judgment (which did not address the issue of in personam jurisdiction over Byers) in the Tennessee court. Notice of the summary judgment motion was given to the Tennessee attorney, Mr. Deal, but not to the Missouri attorneys, Mr.
Smart and Mr. Johnson. Byers did not defend the action, and the Tennessee Chancey Court entered summary judgment in favor of Auto-Owners after first finding that Auto-Owners did not have a duty to defend Klein or pay any judgment on his behalf because he was not considered an insured under the policy they issued. Significantly, the summary judgment did not address whether the Tennessee court had in personam jurisdiction over Byers.
The Missouri trial court found that the Tennessee court failed to rule on the issue of in personam jurisdiction of Byers and, therefore, she was free to raise that issue in the Missouri cour
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