{ "id": 6138480, "name": "CALDWELL TRUCKING SERVICE, INC. and James Caldwell v. NATIONAL INDEMNITY CO.", "name_abbreviation": "Caldwell Trucking Service, Inc. v. National Indemnity Co.", "decision_date": "1989-06-07", "docket_number": "CA 88-177", "first_page": "153", "last_page": "158", "citations": [ { "type": "official", "cite": "28 Ark. App. 153" }, { "type": "parallel", "cite": "771 S.W.2d 784" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "240 Ark. 420", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1727540 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/ark/240/0420-01" ] }, { "cite": "247 Ark. 281", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1600637 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/ark/247/0281-01" ] }, { "cite": "265 Ark. 468", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1665013 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/265/0468-01" ] }, { "cite": "263 Ark. 706", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672729 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/263/0706-01" ] }, { "cite": "265 Ark. 628", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1665008 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/265/0628-01" ] }, { "cite": "1 Ark. App. 159", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139734 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark-app/1/0159-01" ] }, { "cite": "3 Ark. App. 205", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6715352 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/ark-app/3/0205-01" ] }, { "cite": "11 Ark. App. 33", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6648633 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark-app/11/0033-01" ] } ], "analysis": { "cardinality": 443, "char_count": 8146, "ocr_confidence": 0.888, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.17488452029442644 }, "sha256": "b8b5d83c67899e3e198c4a00dbeb39eae9876637989505a9918ad5920ec1c0fe", "simhash": "1:9297d856c2be84d8", "word_count": 1324 }, "last_updated": "2023-07-14T20:10:20.618919+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Jennings and Rogers, JJ., dissent.", "Rogers, J., joins in this dissent." ], "parties": [ "CALDWELL TRUCKING SERVICE, INC. and James Caldwell v. NATIONAL INDEMNITY CO." ], "opinions": [ { "text": "Melvin Mayfield, Judge.\nThis is an appeal from a summary judgment holding the appellants, Caldwell Trucking Service, Inc. and James H. Caldwell, jointly and severally liable for additional insurance premiums for coverage of \u201ctruckmen-hired automobiles\u201d liability insurance. Appellants claim there are genuine issues of fact as to (1) coverage, (2) amount of premium due, and (3) which appellant is liable. We agree.\nAppellee\u2019s complaint alleges that \u201cDefendant is a domestic corporation\u201d and that on June 22, 1980, the appellee issued to \u201cJames H. Caldwell d/b/a Caldwell Trucking Service, Inc., at defendant\u2019s request\u201d an automobile liability and physical damage insurance policy No. BA 30 57 53. The complaint also alleges that pursuant to the terms of the policy the appellee conducted an audit on July 16, 1981, which reflected an \u201cearned premium of $29,960.00 during the term\u201d of the above policy. It is alleged that this amount has not been paid. Also, that on June 22, 1981, another policy, No. BA 33 74 04 was issued with \u201cdefendant\u2019s consent and agreement\u201d and under that policy an additional premium was due but the exact amount \u201cis unknown pending discovery.\u201d The judgment, however, was only for $29,960.00, plus interest and attorney\u2019s fees.\nThe pleadings, exhibits, discovery, and other matters in the record disclose the following information.\nThe policy issued by the appellee on June 22, 1980, was a basic automobile liability and physical damage insurance policy which covered a \u201c1979 Ford 1 /2 Ton.\u201d Mr. Caldwell requested that \u201chired auto coverage\u201d be added to this policy, for which he paid an additional premium of $1,790.00, but he informed appellee that no vehicles were being hired at the time. The company added endorsements to the policy which provided (1) for revisions in the premiums for the \u201c1979 Ford 1/2 Ton\u201d and hired autos; (2) that the radius of operations was \u201cover 200 miles;\u201d and (3) that the named insured was amended to read \u201cCaldwell Trucking Service, Inc.\u201d\nSubsequently, the insurance company conducted an audit and concluded that additional premiums of $26,235.00 were due for \u201chired autos.\u201d When appellants refused to pay the additional premiums, appellee filed this suit contending that certain truck drivers were \u201chired employees.\u201d Appellants contended the truck drivers were independent contractors who owned their own trucks and carried their own insurance. The policy endorsement involved provides that the meaning of the term \u201chired automobile\u201d is \u201can automobile not owned by the named insured which is used under contract in behalf of, or loaned to, the named insured\nIn response to interrogatories, the appellants said \u201cNo trucks were leased or rented. Individuals who owned trucks were hired for various jobs.\u201d During the period of time involved \u201cno employees drove trucks.\u201d The individuals hired were \u201cindependent truckers; they were not employees.\u201d It is the appellants\u2019 contention that the vehicles for which the appellee is trying to charge a premium were owned by independent contractors and were not \u201chired automobiles\u201d as defined in the policy because they were not used \u201cunder contract\u201d with the appellants. It is claimed that the meaning of the term \u201cunder contract\u201d should be construed against the insurance company; that the term is ambiguous; and that its meaning should be decided by the fact finder, not by the court on a motion for summary judgment.\nAppellants argue that the meaning of the term \u201ccost of hire\u201d is also ambiguous and presents a question of fact which should not have been decided by summary judgment. According to a section of the insurance policy entitled \u201cTruckmen-Hired Automobiles,\u201d \u201cwhen used as a premium basis: \u2018cost of hire\u2019 means the amount incurred for hired automobiles, including the entire remuneration of each employee of the named insured engaged in the operation of such automobiles subject to an average weekly maximum remuneration of $100.\u201d Appellant\u2019s position is that there was no \u201cemployee of the named insured engaged in the operation of such vehicles\u201d since the truck drivers were independent contractors, not employees of the named insured.\nFinally, it is claimed that judgment should not have been entered against the appellant, James H. Caldwell, individually, because the endorsement providing for hired automobile coverage was issued to a corporation, Caldwell Trucking Service, Inc., and not James H. Caldwell individually.\nSummary judgment is an extreme remedy which should only be allowed when it is clear that there is no issue of fact to be litigated. Johnson v. Stuckey & Speer, Inc., 11 Ark. App. 33, 665 S.W.2d 904 (1984). Motions for summary judgment are governed by some well-established principles of law. In Walker v. Stephens, 3 Ark. App. 205, 626 S.W.2d 200 (1981), we summarized:\nOn such motions the moving party has the burden of demonstrating that there is no genuine issue of fact for trial and any evidence submitted in support of the motion must be viewed most favorably to the party against whom the relief is sought. Summary judgment is not proper where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable fnen might differ. Hendricks [Henricks] v. Burton, 1 Ark. App. 159, 613 S.W.2d 609 (1981); Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979); Braswell v. Gehl, 263 Ark. 706, 567 S.W.2d 113 (1978). The object of summary judgment proceedings is not to try the issues, but to determine if there are any issues to be tried, and if there is any doubt whatsoever the motion should be denied. Trace X Chemical, Inc. v. Highland Resources, Inc., 265 Ark. 468, 579 S.W.2d 89 (1979); Ashley v. Eisele, 247 Ark. 281, 445 S.W.2d 76 (1969). A motion for summary judgment cannot be used to submit a disputed question of fact to a trial judge. Griffin v. Monsanto Co., 240 Ark. 420, 400 S.W.2d 492 (1966).\n3 Ark. App. at 210.\nThe appellee contends that appellants\u2019 answers to discovery interrogatories admitted that Caldwell Trucking \u201coperated pursuant to lease agreements with the drivers\u201d and \u201cregardless of the relationship between appellants and the individuals driving the trucks, a cost of hire was incurred, coverage was provided, and a premium was contracted for and owed.\u201d We think appellee\u2019s statement overlooks certain provisions of the policy it issued and the fact that this is an appeal from a summary judgment. The appellants in response to discovery interrogatories also stated that \u201cNo trucks were leased or rented. Individuals who owned trucks were hired for various jobs.\u201d Operating pursuant to lease agreements with the drivers may not be the same as a vehicle \u201cunder contract ... or loaned to the named insured,\u201d which is the policy\u2019s definition of a \u201chired auto\u201d and the basis upon which the policy allows the additional premiums to be collected. So, we think an issue of fact was presented in this regard.\nThe same analysis applies to the term \u201ccost of hire\u201d used in the policy. That term is defined as \u201cthe amount incurred for hired automobiles\u201d and whether the appellants hired automobiles or drivers is an issue of fact in this case.\nAnd, surely, under the state of the record described above, it was a question of fact as to whether the corporation or James H. Caldwell the individual \u2014 either or both \u2014 owed any additional premiums due.\nWe reverse the summary judgment and remand for further proceedings consistent with this opinion.\nJennings and Rogers, JJ., dissent.", "type": "majority", "author": "Melvin Mayfield, Judge." }, { "text": "John E. Jennings, Judge,\ndissenting. I do not agree that the trial court erred in granting summary judgment in regard to either coverage or the amount of the premium due. Furthermore, I cannot agree that a question as to which appellant is liable has been raised, either in the trial court or on this appeal. I would affirm.\nRogers, J., joins in this dissent.", "type": "dissent", "author": "John E. Jennings, Judge," } ], "attorneys": [ "Larry J. Steele, for appellants.", "Wright, Lindsey & Jennings, for appellee." ], "corrections": "", "head_matter": "CALDWELL TRUCKING SERVICE, INC. and James Caldwell v. NATIONAL INDEMNITY CO.\nCA 88-177\n771 S.W.2d 784\nCourt of Appeals of Arkansas En Banc\nOpinion delivered June 7, 1989\nLarry J. Steele, for appellants.\nWright, Lindsey & Jennings, for appellee." }, "file_name": "0153-01", "first_page_order": 177, "last_page_order": 182 }