{ "id": 6137519, "name": "FIREMEN'S INSURANCE COMPANY OF NEWARK, NEW JERSEY v. CADILLAC INSURANCE COMPANY and Eugene REDDICK", "name_abbreviation": "Firemen's Insurance Co. v. Cadillac Insurance Co.", "decision_date": "1984-11-28", "docket_number": "CA 84-175", "first_page": "89", "last_page": "93", "citations": [ { "type": "official", "cite": "13 Ark. App. 89" }, { "type": "parallel", "cite": "679 S.W.2d 821" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "382 U.S. 980", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6417699, 6417317, 6417800, 6417897, 6417197, 6417556, 6417109 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/us/382/0980-05", "/us/382/0980-03", "/us/382/0980-06", "/us/382/0980-07", "/us/382/0980-02", "/us/382/0980-04", "/us/382/0980-01" ] }, { "cite": "346 F.2d 245", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 863436 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/f2d/346/0245-01" ] }, { "cite": "269 F.2d 151", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1969988 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/f2d/269/0151-01" ] }, { "cite": "53 S.W.2d 422", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1932, "opinion_index": 0 }, { "cite": "186 Ark. 311", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721148 ], "year": 1932, "opinion_index": 0, "case_paths": [ "/ark/186/0311-01" ] }, { "cite": "276 Ark. 168", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1751533 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/276/0168-01" ] } ], "analysis": { "cardinality": 432, "char_count": 7297, "ocr_confidence": 0.865, "pagerank": { "raw": 8.033170121246803e-08, "percentile": 0.465515750146051 }, "sha256": "e3a690853fe3422c707acdeea82a78f14b944cc59b3530355c58d31bfa60a757", "simhash": "1:83e70db17f8fabf7", "word_count": 1129 }, "last_updated": "2023-07-14T22:52:11.493423+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Cooper and Cloninger, JJ., agree." ], "parties": [ "FIREMEN\u2019S INSURANCE COMPANY OF NEWARK, NEW JERSEY v. CADILLAC INSURANCE COMPANY and Eugene REDDICK" ], "opinions": [ { "text": "Donald L. Corbin, Judge.\nThe Gene Reddick family was injured September 27, 1980, in an automobile accident when their car was rear-ended by a vehicle driven by Dean Mainberger. Mainberger, apparently intoxicated, failed to stop at the scene of the accident. In March, 1982, the Reddicks sued Mainberger. Mainberger failed to appear for trial but was defended by counsel hired by appellee, Cadillac Insurance Company, his liability insurer. The Reddicks were awarded $3,979.66 compensatory damages and $17,500.00 punitive damages. Appellee denied liability for the judgment against Mainberger claiming that he had breached the cooperation clause of his liability insurance policy by failing to attend the trial. The Reddicks then brought suit against appellant, Firemen\u2019s Insurance Company, their uninsured motorist carrier, and appellee for the judgment. Appellant cross-claimed against appellee. A motion for summary judgment was granted in favor of the Reddicks against appellant for the amount of the j udgment. Appellant\u2019s cross-complaint against appellee for the amount awarded the Reddicks was heard by the court upon stipulations. The trial court found that Mainberger\u2019s failure to appear for trial constituted a material breach of his contract with appellee which substantially prejudiced its rights, justifying denial of coverage. The court further found that appellee had not waived its right nor was it estopped to deny coverage because of its actions at trial. We affirm.\nOn appeal, the trial court\u2019s findings will not be set aside unless they are clearly erroneous. A.R.C.P. Rule 52(a). We examine the evidence in the light most favorable to appellee and sustain the trial court\u2019s findings unless they are clearly against the preponderance of the evidence. Hvasta v. McGough, 276 Ark. 168, 633 S.W.2d 31 (1982). In examining appellant\u2019s points for reversal we cannot say that the trial court\u2019s findings were clearly against the preponderance of the evidence.\nAppellant first contends that the trial court erred in finding that Mainberger\u2019s failure to appear for trial was a material breach of his contract. Appellant relies on United States Fidelity & Guaranty Co. v. Brandon, 186 Ark. 311, 53 S.W.2d 422 (1932), as authority for the proposition that to constitute a breach of a cooperation clause an insured\u2019s failure to appear for trial must be shown to be a material breach. Under this theory, appellee had the burden of proving that Dean Mainberger\u2019s absence was deliberate or without good reason. We believe the evidence supports a finding that Mainberger lacked good reason for his absence from trial. A series of letters between Mainberger and appellee were introduced which demonstrated Mainberger\u2019s reluctance to appear in Arkansas. Appellee\u2019s concern that Mainberger would not cooperate was readily apparent from the correspondence. Appellee subsequently took actions to insure Mainberger\u2019s appearance. It was established that appellee provided transportation, accommodations and compensation for time off work in order to insure Main-berger\u2019s cooperation and consistently encouraged Main-berger to appear for trial explaining at length the consequences of any failure to do so. Mainberger\u2019s attitude throughout his contact with appellee prior to trial was one of reluctant cooperation at best. Examining these circumstances leading up to Mainberger\u2019s failure to appear for trial, we believe there was sufficient evidence to support the trial court\u2019s finding that Mainberger\u2019s absence was a material breach of the non-cooperation clause of the insurance policy.\nAppellant contends that the trial court erred in finding that Mainberger\u2019s failure to appear substantially prejudiced appellee\u2019s efforts to defend Mainberger. Appellee presented evidence that Mainberger\u2019s absence from trial prejudiced appellee\u2019s efforts to defend him. The amount of the award and, more significantly, its division between compensatory and punitive damages was presented as some indication of the jury\u2019s response to Mainberger\u2019s absence. In addition, Mainberger\u2019s attorney, admittedly an expert in insurance litigation and trial work, testified in detail and at length concerning the effect he felt Mainberger\u2019s absence had upon the jury. In reviewing this testimony, we believe the trial court could agree with his analysis.\nSimple logic and common sense would indicate the difficulty one would have in imagining the case in which a defendant\u2019s failure to appear for trial would not be prejudicial to his defense. The failure of a defendant to appear surely has an intangible effect upon the jury. Additionally, unexpected developments in the plaintiff\u2019s case cannot be rebutted or offset by the defendant\u2019s explanations. The defendant\u2019s absence leaves him open to unrebuttable innuendos and characterizations by the plaintiff. Inaccurate or exaggerated testimony by the plaintiffs cannot be properly challenged. See Beam v. State Farm Mutual Automobile Ins. Co., 269 F.2d 151 (6th Cir. 1959). Mainberger\u2019s attorney testified that he found himself faced with several of these situations because Mainberger was not there to assist in his own defense. We cannot believe the jury was not prejudiced against Mainberger as a result of his failure to appear in light of the evidence.\nFinally, appellant contends that the trial court erred in finding that appellee had not waived nor was estopped from denying liability by the actions of Mainberger\u2019s counsel at trial.\nAppellant contends that by admitting Mainberger\u2019s liability and failing to withdraw when Mainberger failed to appear, appellee had waived its right to deny liability for non-cooperation or was estopped to do so. The trial court specifically found that appellee had not waived its right to deny liability nor was it estopped to do so. We agree.\nThe pitfalls of withdrawal are well noted in insurance case law. Take for example, U.S. Fidelity & Guaranty Co. v. Brandon, supra, where the attorney representing the insured withdrew as counsel upon the defendant\u2019s failure to attend trial. The Court held there was no material breach and thereby made the insurer liable for judgment against which it had no opportunity to defend. Thus, we feel the option to withdraw was not in reality an option at all.\nWe think it a more logical rule that the insurer need not withdraw in order to preserve its defense of non-cooperation where the insured does not appear at trial. Any other rule would require the insurer to elect at its peril whether to proceed or withdraw, allowing it no recourse should it elect to withdraw and a later determination be made that there was no lack of cooperation. See DeRosa v. Aetna Insurance Co., 346 F.2d 245 (7th Cir. 1965), cert. denied, 382 U.S. 980 (1966).\nIn summary we find ample evidence to support the trial court\u2019s findings and therefore affirm.\nAffirmed.\nCooper and Cloninger, JJ., agree.", "type": "majority", "author": "Donald L. Corbin, Judge." } ], "attorneys": [ "Eichenbaum, Scott, Miller, Crockett, Darr \u00e9r Hawk, P.A. by: Leonard L. Scott and Frank S. Hamlin, for appellant.", "Matthews ir Sanders, P.A. by: Gail O. Matthews, for appellees." ], "corrections": "", "head_matter": "FIREMEN\u2019S INSURANCE COMPANY OF NEWARK, NEW JERSEY v. CADILLAC INSURANCE COMPANY and Eugene REDDICK\nCA 84-175\n679 S.W.2d 821\nCourt of Appeals of Arkansas Division II\nOpinion delivered November 28, 1984\n[Rehearing denied January 9, 1985.]\nEichenbaum, Scott, Miller, Crockett, Darr \u00e9r Hawk, P.A. by: Leonard L. Scott and Frank S. Hamlin, for appellant.\nMatthews ir Sanders, P.A. by: Gail O. Matthews, for appellees." }, "file_name": "0089-01", "first_page_order": 109, "last_page_order": 113 }