{ "id": 8724694, "name": "W. W. STURGEON v. AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS, GEORGIA", "name_abbreviation": "Sturgeon v. American Family Life Assurance Co.", "decision_date": "1979-10-24", "docket_number": "CA 79-128", "first_page": "1040", "last_page": "1044", "citations": [ { "type": "official", "cite": "266 Ark. 1040" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "539 S.W. 2d 632", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1969, "opinion_index": 0 }, { "cite": "246 Ark. 594", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604011 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/ark/246/0594-01" ] }, { "cite": "251 Ark. 1036", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1633285 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/ark/251/1036-01" ] }, { "cite": "264 Ark. 647", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1668715 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/264/0647-01" ] }, { "cite": "379 U.S. 148", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11729461 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/us/379/0148-01" ] }, { "cite": "264 Ark. 680", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1668903 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/264/0680-01" ] }, { "cite": "243 Ark. 656", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723010 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/ark/243/0656-01" ] }, { "cite": "241 Ark. 620", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1724108 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/ark/241/0620-01" ] }, { "cite": "248 Ark. 1182", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1597777 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/ark/248/1182-01" ] } ], "analysis": { "cardinality": 522, "char_count": 7060, "ocr_confidence": 0.693, "pagerank": { "raw": 9.505882454708161e-08, "percentile": 0.5192744827980319 }, "sha256": "e553db70e8731cea2ab74e0536112dad6c341af2c2cadd26f5689f002feba3c6", "simhash": "1:30f764d57516b4b6", "word_count": 1237 }, "last_updated": "2023-07-14T22:44:50.628261+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "W. W. STURGEON v. AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS, GEORGIA" ], "opinions": [ { "text": "David Newbern, Judge.\nThis case was appealed to the Arkansas Supreme Court and assigned to the Court of Appeals pursuant to Supreme Court Rule 29(3).\nWe are asked to decide whether an order characterizing a complaint as one in contract and not in tort is a final order and thus whether it is appealable. The complaint was stated iii several paragraph, altrgdsig these theories i\u00bb the alternative. If we say the \u00a9'\u00ab\u00ab\u00a1let' C uppoakble, then we are asked to decide the closely related q\u00edvwtion whether the complaint staler! a cause of action ire tort, and whether objections to in-tmugatories and requests \u00abhr adns\u00edRaion healing on punitive damages should hwo Mon Portioned.\nMr. Sturgeon. tk> \u00bbppriknt, \u00a1nirchasod a cancer insurance policy from the' appellee insurance oornprniy. The complaint alleges tb*\u00bb a?\u00abents of the (company told Mr. Sturgeon the policy wmtM \u00a1.ny if he were diagnosed as having cancer regardless of other benefits he might have. Mr. Stusgeon was hospiniwed with cancer of the krym*. On several occasions his \u00edw^?hnl\u00ed\u00abadon and treatment occurred at a Veterans\u2019 Adminfctxntiw 1 \u00abrtpital, The company refused to \u00a1say, and Mr. Sturgeon contends he fias causes of action against tine company W b\u00bb.v#wh of contract and alternatively for the tort of deceit. }P\\ esnsuably m 'Connection with Ms claim for punitive damage\u00bb under his tort theory, Mr. Sturgeon submitted several inteJ\u2019S\u2019wfv^'oi\u00ed\u00bb;? and requests for admission dealing with the financEa! rendition of the company. The company objected, nod tM court held a hearing on the mattes\u2019.\nThe hearing result'' o\u00ed in ,?m ordos by the court; saying Mr. Sturgeon\u2019s complaint war *.\\vi in contact and \u00bb\u00bbot in tort. It also sustained the objects *8 to the inteirogatovks and requests for admission. Wv (add the ogv\u00a1b\u00bf' ekux'aeieriring the complaint as one in coni sm\u2019 and not in tort is appealable. We do not decide whether tfw dbo-may order was appealable, but we presume that because we \u00ablo Chid Ms. \u00a1Itwgecm has stated a cause of action ftwr deceit, tine part of the order denying the discovery requests will be sexeriderod upon remand.\nThe question of finality of ten ordos, and thus its appealabilisy, is selbhtn easy. \u2018W Asbm\u00ab\u00bbs Supreme Court has been fairly consistent, at least in the; language It has used to describe an appealable ond-or. V has said, Va judgment, to be final, must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy.\u201d McConnel & Son v. Sadle, 248 Ark. 1182, 455 S.W. 2d 880 (1970). That language is typical of the Arkansas cases, some of which are cited later in this opinion. The part of that disjunctive statement we believe to have been overlooked by the appellee is the last part. When an order, as a practical matter, concludes the rights of the parties to the subject matter in controversy, it is appealable. The order in this case clearly had the effect of dismissing the appellant\u2019s tort claim and thus concluding his rights on that matter.\nEach of the cases cited by the appellee is distinguishable. In Worth Insurance Co. v. Patching, 241 Ark. 620, 410 S.W. 2d 125 (1966), the court refused to allow a defendant to file a third party claim. That decision did not conclude any rights as between the parties to that action. In Johnson v. Johnson, 243 Ark. 656, 421 S.W. 2d 605 (1968), the court had only denied a defendant\u2019s motion to dismiss, thus leaving unresolved the issues the defendant would have had the court conclude. In Burney v. Hargaraves, Judge, 264 Ark. 680, 573 S.W. 2d 912 (1978), the court again, rather than dismissing the claim, refused to enter a default judgment, thus leaving alive issues the plaintiff would have had concluded. In McConnel & Son v. Sadle, supra, the court had decided only one issue of several necessary to determine the outcome of a workers\u2019 compensation claim. No aspect of the claim had been dismissed.\nCertainly it could be argued that in each of these cases, and indeed in any case, where something has been decided it may affect some right of a party and be final to that extent. Yet if all interlocutory decisions were appealable, litigation would be truly interminable. That is the problem the U.S. Supreme Court wrestled with in Gillespie v. U.S. Steel Corp,. 379 U.S. 148, 85 S.Ct. 308 (1964). The Supreme Court in that case recognized that there could be equally strong arguments on both sides of such cases.\nWe might have more difficulty with this case were it not for a remarkably similar case decided by the Arkansas Supreme Court just last year. In Findley v. Time Insurance Co., 264 Ark. 647, 573 S.W. 2d 908 (1978), an insured sued his insurer. Part of the complaint was in tort. The trial court sustained a demurrer to the tort claim, leaving the remainder of the case untried. In holding the order of dismissal of the tort claim appealable, the court simply cited Ark. Stat. Ann., \u00a7 27-2101(2) (Supp. 1977), now (Repl. 1979), which says, in part:\nThe Supreme Court shall have appellate jurisdiction over the Final orders, judgments and determinations of all inferior courts of the State, in the following cases and no other:\n# * * i\u00bb\nSecond: In an order affecting a substantial right made in such action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action; and when such order grants or refuses a new trial, or when such order strikes out an answer, or any part \u00f3f an answer, or any pleading in an action.\nWe hold this case is at least analogous to the Findley Case and that the statute is equally controlling here. The order in the case before us was tantamount to the dismissal in Findley and to the striking out of a pleading or part of a pleading mentioned in the statute.\nThe appellant has stated a cause of action in tort. Unlike the plaintiff in the Findley Case who was suing his insurer for \u201cbad faith\u201d resulting from its failure to pay an allegedly valid claim, Mr. Sturgeon has filed a complaint which we find to contain all the elements of the cause of action for deceit, a well recognized common law tort. See, e.g., Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W. 2d 518 (1972), and Cockrum v. Pattillo, 246 Ark. 594, 539 S.W. 2d 632 (1969). See also, Prosser, Law of Torts, p. 685 (4th ed., 1971).\nAlthough problems may or may not arise later in this case with respect to the need for or desirability of an election between the remedies Mr. Sturgeon has sought, we find no reason for the court to have dismissed the tort claim at this stage of the litigation.\nReversed and remanded.\nWe use the term \u201ccause of aclioo\u201d \u00ed-uihei tbsn \u201cclaim upon which relief may be recovered\u201d because tru case was filed Jour before July 1,1979, the effective date of tl-e Arkause . '\"les of Civil t \u25a0oee joro.", "type": "majority", "author": "David Newbern, Judge." } ], "attorneys": [ "Schieffler & Tates, for appellant.", "David Solomon, for appellee." ], "corrections": "", "head_matter": "W. W. STURGEON v. AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS, GEORGIA\nCA 79-128\nOpinion delivered October 24, 1979\nand released for publication November 16, 1979\nSchieffler & Tates, for appellant.\nDavid Solomon, for appellee." }, "file_name": "1040-01", "first_page_order": 1066, "last_page_order": 1070 }