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ARKANSAS COURT OF APPEALS

DIVISION II

No. CV-16-326

TYLER CARTER JOHNSON

 APPELLANT

V.

STATE FARM MUTUAL 

AUTOMOBILE INSURANCE 

COMPANY

 APPELLEE

Opinion Delivered: January 18, 2017

APPEAL FROM THE CRAIGHEAD

COUNTY CIRCUIT COURT, 

WESTERN DISTRICT

[NO. 16CV-15-584]

HONORABLE JOHN N. FOGLEMAN, 

JUDGE

AFFIRMED

WAYMOND M. BROWN, Judge

Appellant appeals from the circuit court’s order granting appellee’s motion to 

dismiss. His sole argument on appeal is that the circuit court erred in granting appellee’s 

motion to dismiss after finding a policy provision valid when that provision’s requirement 

is not part of the statutorily-mandated coverage. We affirm. 

I. Facts

On May 27, 2014, appellee issued a policy of automobile insurance to appellant’s 

grandmother, Sue Johnson. Appellant lived with his grandmother and therefore was 

covered by her policy with appellee.

1 On November 27, 2014, appellant was a passenger 

in an uninsured vehicle that was involved in an accident. Appellant did not immediately 

seek treatment, though he did eventually seek treatment.

 

1 Appellee stipulated below that appellant was an “insured.”
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2

On March 20, 2015, appellant made a claim for medical benefits under the 

medical-payments coverage of the policy. Appellee responded on March 26, 2015, 

advising appellant that it could not determine whether the treatment initiated with Curtis 

Chiropractic “almost 4 months [after the accident] is reasonable, necessary and solely 

related to the accident.” Accordingly, it advised appellant that the “terms of the policy 

require participation in an exam by physicians chosen and paid by us as often as we 

reasonably may require” and that “[r]efusing our request impairs our ability to determine 

what benefits are payable[,]” so it could not consider benefits under the medical-payments 

coverage without appellant’s recorded statement about the accident and an independent 

medical examination (IME).

2

 In a letter dated March 30, 2015, appellant advised appellee 

that he would be submitting medical bills to be reimbursed. 

In a letter dated April 8, 2015, appellee stated of appellant’s actions that:

It is questionable whether there has been compliance with the provision of the 

policy requiring the assistance and cooperation of the insured, by reason of 

allegations or evidence of 

 insured’s refusal to give pertinent information to the company

 insured’s refusal to assist in investigation 

 insured’s refusal to cooperate in giving and securing evidence[.]

Appellant was notified by letter dated May 5, 2015, that an IME had been scheduled for 

him on May 19, 2015. Appellant objected to the IME by letter dated May 11, 2015, 

asserting that such an examination “is not required under Arkansas’ med pay statute.” He 

also enclosed a medical authorization to obtain records from his service providers. 

 

2 Appellant gave a recorded statement on April 16, 2015.
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Appellee responded in a letter dated May 12, 2015, and advised that the “[s]tatute is silent 

on the issue of [IMEs], thus not allowing or disallowing them.” It further stated that 

appellant’s refusal to attend the exam or to delay its scheduling would impair appellee’s 

ability to determine what benefits were payable and that appellant’s failure to cooperate 

may cause appellee to deny his medical-payments claim. Appellant did not attend the 

scheduled IME; therefore, appellee notified him by letter on May 20, 2015, that it was 

unable to consider any outstanding or future benefits from appellant related to the 

November 27, 2014 accident. 

On August 18, 2015, appellant forwarded medical bills totaling $1,542.00 to 

appellee for payment. The medical bills were for a visit to NEA Baptist Clinic on 

December 14, 2014;3and visits to Curtis Chiropractic & Wellness Center between March 

23, 2015, and May 12, 2015.4

Appellant filed a complaint against appellee on September 15, 2015, for breach of 

contract.

5 The policy was not attached to the complaint. Appellee filed a combined 

motion to dismiss and answer to appellant’s complaint on October 15, 2015. Therein, 

appellee sought dismissal of appellant’s complaint as “premature” because he had failed to 

perform conditions precedent to filing the lawsuit; specifically, appellant had failed to 

submit to an IME. Appellee also pled affirmatively that appellant had failed to comply 

 

3 This visit occurred one month and thirteen days after the accident. 

4 These visits began four months and nine days after the accident. 

5 Appellant never expressly stated his cause of action, but he alleged that appellee 

failed to pay medical payments pursuant to the policy. 
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with the provisions of the policy to allow appellee to consider reimbursement of claimed 

medical expenses. 

Appellant responded to appellee’s motion to dismiss on October 29, 2015, asserting 

that 

Arkansas Code Annotated § 23-89-205 explains that an insurer may exclude the 

medical payment benefits to an insured when the insured’s conduct contributed to 

the injury he or she sustained by causing injury to himself intentionally or causing 

injury while in the commission of a felony or while seeking to elude lawful 

apprehension or arrest by a law enforcement official. The legislature set forth only these 

specific exclusions.

6

Appellant argued that appellee’s policy “provides an additional requirement that the 

insured must be examined as reasonably often as State Farm may require by physicians 

chosen and paid by State Farm. This policy was not entered into by plaintiff, but rather by 

Sue Johnson, plaintiff’s grandmother. Thus, plaintiff did not contract this additional term of the 

policy with defendant.”

7 He therefore argued that appellee’s policy provision created a 

requirement not found in the statute, that was contrary to legislative intent, and which did 

not apply to him. 

Appellee replied to appellant’s response on November 5, 2015, and noted therein 

that the policy agreement provided that an insured had a duty to cooperate with appellee 

and that a person making a claim under medical-payments coverage must be examined as 

reasonably often as appellee may require by physicians chosen and paid by appellee; that 

appellee requested an examination of appellant on May 19, 2015, which appellant failed to 

 

6

(Emphasis added.)

7

(Emphasis added.)
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appear for; and that it subsequently notified appellant that it was unable to consider 

payment of any outstanding or future claims based on appellant’s refusal to submit to an 

IME. Appellee asserted that though appellant was contending that he did not enter into 

the contract and did not bargain for the IME provision, appellant had the same obligations 

to cooperate with the terms of the policy as if he were a named insured. 

On December 15, 2015, appellee filed a motion for summary judgment in which it

stated that it was “convert[ing] its Motion to Dismiss into a Motion for Summary 

Judgment.”

8

In its separate brief in support, filed contemporaneously, appellee restated its 

arguments from its motion to dismiss, namely that appellant’s complaint should be 

dismissed as premature where appellant had failed to cooperate with appellee’s 

investigation. Appellee attached a copy of the policy to its brief in support of its motion 

for summary judgment. This was the only copy before the circuit court. It further asserted 

that appellant should not be allowed to seek benefits under its policy of insurance while at 

the same time arguing that he should not be bound by the provisions of the policy. 

Appellant responded on December 23, 2015, by restating his previous argument 

that the IME requirement was an additional requirement imposed by appellee in its policy,

which was contrary to legislative intent, and that his documentation of his medical bills, 

which he submitted to appellee, was sufficient and “reasonable proof of the amount of 

medical expenses[.]” He also reasserted that he did not enter into the contract and did not 

 

8 Appellee’s motion to dismiss and reply to appellant’s response to its motion to 

dismiss were incorporated therein by reference as if fully set forth word for word.
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contract for the additional requirement of the policy, with the implication appearing to be 

that the provision should not apply to him.9

A hearing was held on the matter on January 16, 2016, at the conclusion of which,

the circuit court granted appellee’s motion to dismiss. On January 19, 2016, the circuit 

court entered an order dismissing the matter without prejudice “as premature due to 

[appellant’s] failure to cooperate with [appellee’s] investigation of [appellant’s] claims 

pursuant to the terms of the policy.” This timely appeal followed. 

II. Standard of Review

Appellee argues on appeal that the circuit court erroneously granted its motion to 

dismiss, instead of its motion for summary judgment, and that the correct standard of 

review for this court is the standard of review for the grant of a motion for summary 

judgment. This court notes that appellee said below that both motions were “really the 

same thing” and that the “only purpose” it had in filing the motion for summary 

judgment was to attach the insurance policy. It is well settled that when a circuit court 

considers matters outside the pleadings, the appellate court will treat a motion to dismiss as 

one for summary judgment.10 Because the actual policy was not attached to appellee’s 

motion to dismiss and was not attached to any other document prior to and until 

appellee’s motion for summary judgment, it is clear to this court that the circuit court 

 

9 Appellant never expressly stated in any of his pleadings that the provisions of the 

policy do not or should not apply to him, only that he was not a party to the contract and 

did not contract for the additional term. 

10 Rowe v. Hobbs, 2012 Ark. 244, at 5, 410 S.W.3d 40, 43 (citing Koch v. Adams, 

2010 Ark. 131, 361 S.W.3d 817).
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considered matters outside the pleadings in making its ruling. We therefore treat the 

court’s order as granting a motion for summary judgment.

On appeal, we determine if summary judgment was appropriate based on whether 

the evidentiary items presented by the moving party in support of the motion leave a 

material question of fact unanswered.11 The burden of sustaining a motion for summary 

judgment is always the responsibility of the moving party.12 Once the moving party has 

established prima facie entitlement to summary judgment by affidavits, depositions, or 

other supporting documents, the opposing party must meet proof with proof and 

demonstrate the existence of a material issue of fact.13 We view the evidence in the light 

most favorable to the party against whom the motion was filed, resolving all doubts and 

inferences against the moving party.14

III. Statute

Arkansas Code Annotated section 23-89-202 states that “[e]very automobile 

liability insurance policy covering any private passenger motor vehicle issued or delivered 

in this state shall provide minimum medical and hospital benefits . . . under policy 

provisions . . . to the named insured and members of his or her family residing in the same 

 

11 Madden v. Mercedes-Benz USA, Inc., 2016 Ark. App. 45, at 4, 481 S.W.3d 455, 

458.

12 Id. (citing New Maumelle Harbor v. Rochelle, 338 Ark. 43, 991 S.W.2d 552 (1999)).

13 Id.

14 Cent. Oklahoma Pipeline, Inc. v. Hawk Field Servs., LLC, 2012 Ark. 157, at 8, 400 

S.W.3d 701, 707 (citing Harrisburg Sch. Dist. No. 6 v. Neal, 2011 Ark. 233, 381 S.W.3d 

811).
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household injured in a motor vehicle accident.”

15 Those benefits are to include “[a]ll 

reasonable and necessary expenses for medical, hospital, nursing . . . incurred within 

twenty-four (24) months after the automobile accident, up to an aggregate of five 

thousand dollars ($5,000) per person[.]”

16 Arkansas Code Annotated section 23-29-208 

states that “[b]enefits for any period are overdue if not paid within thirty (30) days after the 

insurer received reasonable proof of the amount of all benefits accruing during that 

period.”

17 Appellee’s policy with appellant’s grandmother provides the above-referenced 

provisions, which are required to be offered by statute.18

Appellant argues that appellee’s medical-payment-coverage provisions constitute an 

additional exclusion to the policy beyond that intended by the legislature. Arkansas Code 

Annotated section 23-89-205 states that “[a]n insurer may exclude benefits to any insured, 

or to his or her personal representative, under a policy required by § 23-89-202, when the 

insured’s conduct contributed to the injury he or she sustained in any of the following 

ways: (1) Causing injury to himself or herself intentionally; or (2) Causing injury while in 

the commission of a felony or while seeking to elude lawful apprehension or arrest by a 

law enforcement official.”

19 Referring to a predecessor section of an Arkansas statute that 

 

15 Ark. Code Ann. § 23-89-202 (Repl. 2014).

16 Ark. Code Ann. § 23-89-202(1).

17 Ark. Code Ann. § 23-89-208(b) (Repl. 2014) (emphasis added).

18 Arkansas Code Annotated section 23-89-203(a) permits an insured to reject one 

or more of the coverages listed in Arkansas Code Annotated section 23-89-202, including 

medical and hospital benefits. 

19 Ark. Code Ann. § 23-89-205(1) & (2) (Repl. 2014).
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is virtually identical to what is now Arkansas Code Annotated section 23-89-202, our 

supreme court has stated “[w]e do not read into this section any legislative intention to 

prohibit other exclusions from coverage.”

20

Looking to the language of appellee’s policy with appellant’s grandmother, the 

following appears under the section headed “Insured’s Duties”:

A person making a claim under:

a. Medical Payments Coverage . . . must:

(2) be examined as reasonably often as we may require by physicians chosen and 

paid by us. . . .

(3) provide written authorization for us to obtain:

(a) medical bills;

(b) medical records; 

(c) age, salary, and employment information; and 

(d) any other information we deem necessary to substantiate the claim.21

It is settled Arkansas law that an insurer may contract with its insured upon 

whatever terms the parties may agree, so long as those terms are not contrary to statute or 

public policy.22 Our law regarding the construction of insurance contracts is well settled.23

 

20 Aetna Ins. Co. v. Smith, 263 Ark. 849, 853, 568 S.W.2d 11, 13 (1978).

21 (Emphasis in original.)

22 Shelter Mut. Ins. Co. v. Goodner, 2015 Ark. 460, at 5, 477 S.W.3d 512, 515 

(citing Pardon v. S. Farm Bureau Cas. Ins. Co., 315 Ark. 537, 868 S.W.2d 468 (1994) 

(citing Aetna Ins. Co. v. Smith, 263 Ark. 849, 568 S.W.2d 11 (1978))).
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The language in an insurance policy is to be construed in its plain, ordinary, and popular 

sense.24 Different clauses of an insurance contract must be read together and the contract 

construed so that all of its parts harmonize.25

Insurance terms must be expressed in clear and unambiguous language.26 If the 

language of the policy is unambiguous, we will give effect to the plain language of the 

policy without resorting to the rules of construction.27 On the other hand, if the language 

is ambiguous, we will construe the policy liberally in favor of the insured and strictly 

against the insurer.28 Language is ambiguous if there is doubt or uncertainty as to its 

meaning and it is fairly susceptible to more than one reasonable interpretation.29 Whether 

the language of the policy is ambiguous is a question of law to be resolved by the court.30

The terms of an insurance contract are not to be rewritten under the rule of strict 

 

23 Farmers Ins. Exch. v. Bradford, 2015 Ark. App. 253, at 4, 460 S.W.3d 810, 813 

(citing McGrew v. Farm Bureau Mut. Ins. Co., 371 Ark. 567, 268 S.W.3d 890 (2007); Elam 

v. First Unum Life Ins. Co., 346 Ark. 291, 57 S.W.3d 165 (2001)).

24 Id. (citing Norris v. State Farm Fire & Cas. Co., 341 Ark. 360, 16 S.W.3d 242 

(2000)).

25 Id. (citing Philadelphia Indem. Ins. Co. v. Austin, 2011 Ark. 283, 383 S.W.3d 815).

26 Corn v. Farmers Ins. Co., 2013 Ark. 444, at 9, 430 S.W.3d 655, 660 (citing 

Castaneda v. Progressive Classic Ins. Co., 357 Ark. 345, 351, 166 S.W.3d 556, 560 (2004)).

27 Id. (citing Castaneda, 166 S.W.3d at 560).

28 Id., at 9, 430 S.W.3d at 660–61 (citing Castaneda, 357 Ark. at 351, 166 S.W.3d 

at 560–61).

29 Id. at 9, 430 S.W.3d at 661 (citing Castaneda, 357 Ark. at 351, 166 S.W.3d at 

561).

30 Id.
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construction against the company issuing it so as to bind the insurer to a risk which is 

plainly excluded and for which it was not paid.31

Contrary to appellant’s argument, it is clear from a plain reading of the language of

the policy’s “Insured’s Duties” section that the section is not an exclusion, but an outline 

of the requirements by which an insured must abide when making a claim. Said section 

provides that appellee may request an IME if necessary to substantiate an insured’s claim. 

As previously discussed, such a request is not prohibited by statute. We cannot find that it 

was unreasonable for appellee to request an IME for the purpose of determining if the 

injuries for which appellant was treated were caused by the November 27, 2014 accident.

In Roy v. Farmers & Merchants, our supreme court stated that “‘reasonable proof of benefits 

means more than proof of a charge or loss.”

32 While appellant provided medical bills 

showing that he had been treated for injuries and the amount thereof, the appellee had a 

right to question whether such evidence constitutes “reasonable proof” that the injuries 

for which he was treated were caused by the November 27, 2014 accident. 

Given that appellant waited just under one month to seek initial medical treatment 

and then waited an additional three months before seeking treatment from a chiropractor, 

and because appellant failed to undergo the IME—a term of the contract when filing a 

medical claim—we cannot find that the circuit court abused its discretion in finding that 

appellant’s lawsuit is premature.

 

31 Id.

32 307 Ark. 213, 216, 819 S.W.2d 2, 3 (1991).
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We must also address a related argument that appellant makes in his brief before 

this court:

As indicated previously, State Farm’s policy provides an additional requirement that 

the insured must be examined as reasonably often as State Farm may require by 

physicians chosen and paid by State Farm. This policy was not entered into by 

Tyler, but rather by his grandparents who he was residing with. Thus, Tyler did 

not contract this additional requirement of the policy with State Farm.

In making this additional argument relating to the alleged impropriety of appellee’s IME

provision, appellant implies that he should not have to abide by the provision when he 

states that he did not enter into the contract with appellee and was not a party to the 

contract.

The policy under which appellant brings his claim defines “insured” as “you and 

resident relatives[.]” An insured and an insurer—when the latter has accepted the terms 

and conditions of a policy with the latter—have “a contract between them, and, being in 

violation of no principle of law, nor in contravention of the policy of the law, must be 

enforced according to its terms and meaning; and the courts have the right neither to 

make contracts for parties nor to vary their contracts to meet and fulfill some notion of 

abstract justice, and still less of moral obligation.”

33 In Modern Woodmen of America v. 

Seargeant, our supreme court stated that “[t]he parties made their own contract, which is 

free from ambiguity, and necessarily must be enforced according to its terms. The 

beneficiaries must stand in the shoes of the insured, and will be bound by the terms of the 

 

33 Inter-State Bus. Men’s Acc. Ass’n v. Nichols, 143 Ark. 369, 364, 220 S.W. 477, 478 

(1920) (quoting Standard Life & Acc. Ins. Co. v. Ward, 65 Ark. 295, at 298, 45 S.W. 1065, 

1066; citing Maryland Casualty Co. v. Chew, 92 Ark. 276, at 283, 122 S.W. 642; Amer. 

Nat’l. Ins. Co. v. Otis, 122 Ark. 219, 183 S. W. 183 (1916)).
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policy issued[.]”

34 Appellant cannot seek damages under the contract—his grandmother’s 

policy through which he is an unnamed insured—and argue that certain terms of the 

contract should not apply to him because he did not enter into the contract personally. 

Affirmed. 

GLOVER and WHITEAKER, JJ., agree.

Henry Law Firm, PLC, by: Megan Henry, for appellant.

Snellgrove, Langley, Culpepper, Williams & Mullally, by: J. Chad Owens, for appellee.

 

34 Modern Woodmen of Am. v. Seargeant, 188 Ark. 1098, 1102, 69 S.W.2d 397, 399 

(1934) (quoting Craig v. Golden Rule Life Ins. Co., 184 Ark. 48, 41 S.W.(2d) 769, 771

(1931); Mutual Life Ins. Co. v. Hynson, 171 Ark. 218, 283 S.W. 357 (1926)).