{ "id": 6136806, "name": "May MORGAN v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY", "name_abbreviation": "Morgan v. Southern Farm Bureau Casualty Insurance", "decision_date": "2004-12-15", "docket_number": "CA 04-95", "first_page": "52", "last_page": "57", "citations": [ { "type": "official", "cite": "88 Ark. App. 52" }, { "type": "parallel", "cite": "200 S.W.3d 469" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "294 Ark. 173", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1895774 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/294/0173-01" ] }, { "cite": "245 Ark. 1029", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1606957 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/ark/245/1029-01" ] }, { "cite": "253 Ark. 620", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1627468 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/ark/253/0620-01" ] }, { "cite": "70 Ark. App. 114", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138459 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark-app/70/0114-01" ] }, { "cite": "322 Ark. 239", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447557 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/322/0239-01" ] }, { "cite": "306 Ark. 533", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900885 ], "weight": 2, "year": 1991, "pin_cites": [ { "parenthetical": "an applicant's misrepresentations about an authorized driver's record of moving traffic violations were material to the issuance of an automobile insurance policy" }, { "parenthetical": "an applicant's misrepresentations about an authorized driver's record of moving traffic violations were material to the issuance of an automobile insurance policy" } ], "opinion_index": 0, "case_paths": [ "/ark/306/0533-01" ] }, { "cite": "58 Ark.App. 293", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140989 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark-app/58/0293-01" ] }, { "cite": "76 Ark. App. 173", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139286 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark-app/76/0173-01" ] }, { "cite": "71 Ark.App. 162", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139109 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark-app/71/0162-01" ] }, { "cite": "133 S.W.3d 140", "category": "reporters:state_regional", "reporter": "S.W.3d", "year": 2003, "pin_cites": [ { "page": "143" } ], "opinion_index": 0 }, { "cite": "84 Ark. App. 121", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137859 ], "year": 2003, "pin_cites": [ { "page": "128" } ], "opinion_index": 0, "case_paths": [ "/ark-app/84/0121-01" ] } ], "analysis": { "cardinality": 542, "char_count": 10658, "ocr_confidence": 0.751, "pagerank": { "raw": 7.351004668085049e-08, "percentile": 0.44127437545586634 }, "sha256": "5592a3399ab08c3306a76cd388bc60858229b1be53efec00250a9e984fb9d56a", "simhash": "1:264ec624070897e4", "word_count": 1708 }, "last_updated": "2023-07-14T22:49:43.833679+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Vaught, Crabtree, and Roaf, JJ., agree.", "Stroud, C.J., and Hart, J., would deny the petition for rehearing." ], "parties": [ "May MORGAN v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY" ], "opinions": [ { "text": "Sam Bird, Judge.\nIn a previous opinion, May Morgan v. Farm Bureau Mutual Ins. Co. of Arkansas, 88 Ark. App. 52 (2004), we considered Morgan\u2019s appeal from the Faulkner County Circuit Court, which had granted summary judgment in favor of the appellee. We reversed the trial court, concluding that summary judgment was inappropriate because there was a fact issue remaining as to whether the appellant, May Morgan, had a criminal record. Appellee has now filed a petition for rehearing, in which it makes an argument that our original decision was erroneous. After carefully reconsidering the issues, we find that appellee\u2019s argument is persuasive. Therefore, we grant the petition for rehearing and issue this substituted opinion affirming the trial court\u2019s grant of summary judgment.\nAs a preliminary matter, although appellant\u2019s notice of appeal and the record filed with the clerk of this court show that the appellee is Farm Bureau Mutual Insurance Company of Arkansas (Farm Bureau Mutual), it is obvious from the parties\u2019 pleadings and the court\u2019s orders filed in the case, and it appears to be agreed by the parties, that the intended appellee is Southern Farm Bureau Casualty Insurance Company (Southern Farm Bureau), a fact also recognized in this court\u2019s previous opinion. To briefly explain, this action was originally commenced by May Morgan to recover benefits under an automobile insurance policy alleged to have been issued to her by Farm Bureau Mutual. When Farm Bureau Mutual answered, alleging that it did not issue the subject policy, but that it was issued, instead, by Southern Farm Bureau, Morgan amended her complaint to make Southern Farm Bureau the defendant and, simultaneously, moved to dismiss her complaint against Farm Bureau Mutual. Thereafter, Southern Farm Bureau filed its motion for summary judgment, and the court eventually entered its order granting summary judgment in favor of Southern Farm Bureau. Morgan appeals from that order. Therefore, in this substituted opinion, we take this opportunity to correct the style of the case to be \u201cMay Morgan v. Southern Farm Bureau Cas. Ins. Co.\u201d and to delete the name Farm Bureau Mutual Insurance Company of Arkansas as a party to this appeal. In this opinion, reference will be made to Southern Farm Bureau as the sole appellee, regardless of what name formerly identified the appellee.\nIn Cox v. Keahey, 84 Ark. App. 121, 128, 133 S.W.3d 140, 143 (2003), we recounted the well-settled standard of review for summary-judgment cases:\nThe moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is not a genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. [Alberson v. Automobile Club Interins. Exch., 71 Ark.App. 162, 27 S.W.3d 447 (2000)]. All proof submitted with a motion for summary judgment must be viewed in the light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. McWilliams v. Schmidt, 76 Ark. App. 173, 61 S.W.3d 898 (2001). Summary judgment is not appropriate where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ. Lee v. Hot Springs Village Golf Schs., 58 Ark.App. 293, 951 S.W.2d 315 (1997).\nThe facts giving rise to this appeal are that on September 25, 2002, May Morgan made application to Southern Farm Bureau for a policy of automobile insurance, insuring an automobile owned by her. The application contained questions asking whether the applicant or any member of her household had ever been arrested or convicted of a felony. Morgan answered both of those questions \u201cNo.\u201d Several months later, when Morgan made a claim for damages to the automobile resulting from a single-car collision, Southern Farm Bureau notified her that, because of her \u201cmisrepresentation of a material fact,\u201d the policy for which she applied would not be issued. Southern Farm Bureau also tendered to Morgan a check for the premium she had paid with her application. Morgan filed suit alleging a cause of action under the policy for damages to her car and a cause of action for damages on account of Southern Farm Bureau\u2019s bad faith in refusing to issue the insurance policy.\nSouthern Farm Bureau answered the complaint, alleging that Morgan had made material misrepresentations in her application for the insurance policy. Thereafter, Southern Farm Bureau filed its motion for summary judgment to which it attached, as exhibits, the depositions of May and Tommy Morgan and the affidavit of its underwriter.\nThe Morgans\u2019 depositions established that May knew that Tommy had an extensive criminal record, including a number of arrests, and at least one felony conviction for which he served a term in prison. In her deposition, Morgan admitted that she knew about Tommy\u2019s record when she completed the insurance application, but she stated that she \u201cwasn\u2019t thinking about it.\u201d Tommy Morgan was more succinct in his deposition, stating that his felony record was \u201cnone of their business,\u201d and that it was \u201csomething we don\u2019t go around telling\u201d because it presented problems that he eliminated by \u201cjust keep[ing] it to myself.\u201d The underwriter\u2019s affidavit stated that questions posed to applicants for insurance policies seek information that Southern Farm Bureau considers highly significant to the risk, that Southern Farm Bureau relies upon the answers given by the applicants in evaluating whether to accept the risk, and that Southern Farm Bureau would not have issued the policy \u201chad the truth of the criminal records of Tommy and May Morgan been revealed.\u201d\nMorgan\u2019s response to the motion alleged that because the underwriter was not a disinterested witness, his affidavit could be considered disputed, and that the materiality of the alleged misrepresentation was a genuine issue of material fact.\nThe trial court granted Southern Farm Bureau\u2019s motion for summary judgment, finding that Morgan intentionally and falsely misrepresented that she and her husband, Tommy Morgan, had never been arrested and that her husband had never been convicted of a felony, whereas their depositions revealed that both had been previously arrested and that Tommy Morgan had \u201can extensive criminal record which included several felony convictions.\u201d The court relied on Ferrell v. Columbia Mut. Casualty Ins. Co., 306 Ark. 533, 816 S.W.2d 593 (1991) (an applicant\u2019s misrepresentations about an authorized driver\u2019s record of moving traffic violations were material to the issuance of an automobile insurance policy) as authority for the proposition that misrepresentations about one\u2019s arrest or criminal records are material to the risk.\nMorgan appeals the trial court\u2019s grant of summary judgment, raising two points: (1) the trial court erred in accepting the affidavit of appellee\u2019s employee as uncontroverted; and (2) the trial court erred in finding a material misrepresentation of fact in the absence of proof of materiality.\nMorgan is clearly wrong on her first point for reversal, that the trial court erred in accepting the agent\u2019s affidavit as uncontroverted. It is well settled that uncontroverted affidavits filed in support of a motion for summary judgment are accepted as true for purposes of the motion. Alexander v. Flake, 322 Ark. 239, 910 S.W.2d 190 (1995); Inge v. Walker, 70 Ark. App. 114, 15 S.W.3d 348 (2000). Morgan cites two cases, Motors Ins. Corp. v. Tinkle, 253 Ark. 620, 488 S.W.2d 23 (1972) and Old Republic Ins. Co. v. Alexander, 245 Ark. 1029, 436 S.W.2d 829 (1969), for the proposition that the testimony of an interested witness is never considered to be uncontroverted. Those cases are distinguishable, however, because there the supreme court was considering the weight to be given to the testimony of an interested witness at trial and not in the context of an affidavit in support of a motion for summary judgment.\nWe also disagree with Morgan on her second point, that the trial court erred in finding a material misrepresentation of fact in the absence of proof of materiality. As already noted, the underwriter\u2019s affidavit established that, in assessing the risk and deciding whether to issue a policy, Southern Farm Bureau relied upon the information provided by applicants in their responses to questions about their arrest and criminal records. Except for her unsupported assertion that there exists a genuine issue as to a material fact, Morgan presented to the trial court neither a contradictory affidavit nor authority for her argument that such misrepresentations are not material.\nMorgan cites Brooks v. Town & Country Mut. Ins. Co., 294 Ark. 173, 741 S.W.2d 264 (1987), in arguing that the materiality of a misrepresentation is a question of fact. Flowever, Morgan\u2019s reliance on Brooks is misplaced. In Brooks, the supreme court held that the trial court, sitting as fact-finder, had erred in finding, in the absence of any evidence, that a material misrepresentation of fact had occurred when Mrs. Brooks failed to reveal in her homeowner policy application that she had experienced a previous fire loss. Unlike the case now before us, Brooks involved an appeal from a verdict after trial and was not an appeal from a grant of summary judgment. But more importantly, in the case at bar, which is a summary-judgment case, there was proof before the court in the form of the underwriter\u2019s affidavit that the false information that Morgan provided was significant to Southern Farm Bureau in its assessment of the risk to be assumed, and material to its decision of whether to issue the policy.\nFinding no merit in either of appellant\u2019s points on appeal, we hold that the trial court\u2019s grant of summary judgment was appropriate.\nAffirmed.\nVaught, Crabtree, and Roaf, JJ., agree.\nStroud, C.J., and Hart, J., would deny the petition for rehearing.\nSimultaneously with May Morgan\u2019s application for the automobile insurance policy with Southern Farm Bureau, an application to Farm Bureau Mutual was being completed by her husband,Tommy Morgan, for a homeowner\u2019s insurance policy on their home. However, this appeal relates only to the automobile policy.", "type": "majority", "author": "Sam Bird, Judge." } ], "attorneys": [ "Phil Stratton, for appellant.", "Andy Lee Turner, for appellee." ], "corrections": "", "head_matter": "May MORGAN v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY\nCA 04-95\n200 S.W.3d 469\nCourt of Appeals of Arkansas\nSubstituted Opinion on Grant of Rehearing December 15, 2004\nPhil Stratton, for appellant.\nAndy Lee Turner, for appellee.\nOriginal opinion delivered October 6, 2004. STROUD, C.J., and HART, J., would deny rehearing." }, "file_name": "0052-01", "first_page_order": 76, "last_page_order": 83 }