# Clayborn v. Bankers Standard Insurance Co.

Supreme Court of Arkansas
348 Ark. 557
Kathleen A. CLAYBORN and Meranda F. Clayborn, A Minor v. BANKERS STANDARD INSURANCE COMPANY
Appeal from Johnson Circuit Court
No. 01-1225 --- Opinion delivered: May 9, 2002. [Petition for rehearing denied June 20, 2002.]
* Court Documents
* Opinion of the Court

## Syllabus

* MOTIONS – MOTION TO DISMISS – STANDARD OF REVIEW. – In reviewing the trial court's decision on a motion to dismiss under Ark. R. Civ. P. 12(b)(6), the supreme court treats the facts alleged in the complaint as true and views them in the light most favorable to the party who filed the complaint; in testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed; our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief; the supreme court looks to the underlying facts supporting an alleged cause of action to determine whether the matter has been sufficiently pled.
* STATUTES – CONSTRUCTION – STANDARD OF REVIEW. – Issues of statutory interpretation are reviewed de novo, as it is for the supreme court to decide what a statute means; in this respect, the supreme court is not bound by the trial court's decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal.
* STATUTES – CONSTRUCTION – APPLICABLE RULES. – The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language; when the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction; where the meaning is not clear, the supreme court looks to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject; the ultimate rule of statutory construction is to give effect to the intent of the General Assembly.
* ACTION – DIRECT-ACTION STATUTE – PROVIDES FOR DIRECT ACTIONS AGAINST INSURER IN EVENT THAT ORGANIZATION AT ​FAULT IS IMMUNE FROM SUIT IN TORT. – The direct-action statute, Ark. Code Ann. § 23-79-210 (Repl. 1999), only provides for direct actions against an insurer in the event that the organization at fault is immune from suit in tort.
* IMMUNITY – IMMUNITY FROM SUIT & FROM LIABILITY – DISTINGUISHED. – Immunity from suit is the entitlement not to stand trial, while immunity from liability is a mere defense to a suit.
* ACTION – NONPROFIT CORPORATIONS HAVE POWER TO SUE & BE SUED – LEGISLATURE NEVER PROVIDED NONPROFIT CORPORATIONS IMMUNITY FROM SUIT & LIABILITY. – Nonprofit corporations generally have the power to sue and be sued under Ark. Code Ann. § 4-33-302 (Repl. 2001); in addition, Ark. Code Ann. § 16-120-103 (Supp. 2001) provides that the tort liability immunity statute shall not be construed to limit liability of the nonprofit corporate entity itself for damages as a result of torts of its employees; had the legislature intended to provide nonprofit corporations immunity from both suit and liability, as it provided to various governmental entities in Ark. Code Ann. § 21-9-301 (Supp. 2001), it could have done so, but it did not.
* ACTION – DIRECT-ACTION STATUTE INAPPLICABLE – APPELLEE'S INSURED NEVER SHOWN TO BE IMMUNE FROM SUIT IN TORT. – Where appellee insurance company was sued under the direct-action statute for damages incurred by alleged acts of negligence by a nonprofit organization that was insured by appellee, Ark. Code Ann. § 23-79-210 was not applicable because there was nothing in the pleadings to show that appellee's insured was a nonprofit corporation that was immune from suit in tort; because no showing was made of such alleged immunity, appellant was precluded from bringing a direct action against appellee insurer; it was not controverted that the insured was a nonprofit corporation, but there is no authority to the effect that all nonprofit corporations, by virtue of their status as nonprofit corporations, are immune from suit for tort; in addition, appellant did not plead facts to suggest that the corporation was a nonprofit corporation that would be immune from suit.
* ACTION – NO ALLEGATION MADE THAT NONPROFIT CORPORATION WAS CHARITABLE ORGANIZATION – TRIAL COURT PROPERLY DETERMINED THAT ARK. CODE ANN. § 23-79-210 WAS INAPPLICABLE. – Appellant's argument that the nonprofit was a charitable organization and was therefore not subject to suit for tort, and thus, she should have been permitted to bring a direct action against appellee pursuant to Ark. Code Ann. § 23-79-210 was ​without merit; no allegations of fact were made in the pleadings that the nonprofit was or claimed to be a charitable organization; because there was no allegation in the pleadings that the nonprofit was a charitable organization, the trial court did not err when it determined that Ark. Code Ann. § 23-79-210 was inapplicable.
* IMMUNITY – CHARITABLE IMMUNITY FROM TORT LIABILITY – DISTINCTION EXISTS BETWEEN RIGHT TO SUE & POWER TO EXECUTE JUDGMENT. – The property of a charity cannot be sold under execution issued on a judgment rendered for the nonfeasance, misfeasance, or malfeasance of its agents or trustees; this charitable-immunity doctrine has become a rule of property; in addition, there is a distinction between the right to sue and the power to execute in satisfaction of the judgment; a charitable organization may have suit brought against it and may have a judgment entered against it, but such judgment may not be executed against the property of the charity.
* IMMUNITY – ARGUMENT THAT NONPROFIT WAS NOT SUBJECT TO SUIT FOR TORT BECAUSE IT WAS CHARITABLE ORGANIZATION MERITLESS – CHARITABLE ORGANIZATIONS ARE NOT ALTOGETHER IMMUNE FROM SUIT. – Even if facts had been pled to allege that the nonprofit was a charitable organization, the trial court's finding that Ark. Code Ann. § 23-79-210 does not apply would have still been affirmed because it has never been held that charitable organizations are completely immune from suit, but rather, only that they are immune from execution against their property.
Appeal from Johnson Circuit Court; Dennis Charles Sutteeld, Judge; affirmed.
Rush, Rush & Cook, by: David L. Rush, for appellant.
Ledbetter, Cogbill, Arnold & Harrison, LLP, by: E. Diane Graham and Rebecca D. Hattabaugh, for appellee.
[Opinion of the court by Justice RAY THORNTON. Justice ANNABELLE CLINTON IMBER not participating.]
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