Page:Clayborn v. Bankers Standard Insurance Co.pdf/2

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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.

1. 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.
2. 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.
3. 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.
4. 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 with-