{
  "id": 1447535,
  "name": "Cynthia ALMOND v. CIGNA PROPERTY and CASUALTY INSURANCE COMPANY",
  "name_abbreviation": "Almond v. Cigna Property & Casualty Insurance",
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  "casebody": {
    "judges": [],
    "parties": [
      "Cynthia ALMOND v. CIGNA PROPERTY and CASUALTY INSURANCE COMPANY"
    ],
    "opinions": [
      {
        "text": "David Newbern, Justice.\n50-Off Stores, Inc. (50-Off), operates a retail store in which Cynthia Almond slipped, fell, and was injured. 50-Off is the named insured in a policy issued by Cigna Property and Casualty Insurance Company (Cigna). Coverage \u201cA\u201d of the policy insures 50-Off against liability claims resulting from its negligence. Coverage \u201cC\u201d reads, in part, as follows:\na. We will pay the medical expenses as described below for \u201cbodily injury\u201d caused by an accident:\n(1) On premises you own or rent;\n* * *\nb. We will make these payments regardless of fault. These payments will not exceed the applicable limit of insurance.\n* % *\nMs. Almond sued 50-Off in Monroe Circuit Court and recovered a judgment in the amount of $6,060. She also filed a claim with Cigna under coverage \u201cC.\u201d In response to the latter claim, Cigna paid Ms. Almond $1,328.25. Ms. Almond brought this action in Pulaski Circuit Court directly against Cigna, claiming her medical payments were in excess of the $5,000 policy limit under coverage \u201cC\u201d and thus Cigna owed her more than the amount paid. She argued she had standing to sue Cigna because she was a third party beneficiary of the insurance contract between 50-Off and Cigna.\nThe Trial Court entered summary judgment in Cigna\u2019s favor, ruling that Ms. Almond was no more than an incidental beneficiary of the policy. Among its responses to Ms. Almond\u2019s claim, Cigna pointed out to the Trial Court that the Monroe County judgment and all of Ms. Almond\u2019s medical bills resulting from the accident had been paid, and that Ms. Almond was seeking to recover twice for the same claim. We agree that even if Ms. Almond has standing as a third party beneficiary, an issue we do not decide today, she may not have a double recovery, so we affirm the summary judgment in favor of Cigna.\nA copy of the Monroe County judgment appears in the record in this case. While it is unsigned and not file-marked, Ms. Almond stipulates in her abstract that the judgment was entered. The judgment does not spell out the damage elements for which the $6,060 was awarded, but in a brief to the Trial Court in the case now before us, Cigna discussed the judgment entered against 50-Off in Monroe County and asserted, \u201cPlaintiff\u2019s medical bills have been fully and finally satisfied.\u201d Nothing of record shows that Ms. Almond denied that assertion or responded to it.\nIn its brief submitted to us, Cigna states:\nYet, Almond has already been compensated for the reasonable and necessary medical expenses that a Monroe County jury found to have been proximately caused by the accident in its rendition of a verdict in the amount of $6,060. ... It is undisputed that this amount has been paid to Almond and satisfied by Cigna under the liability portion of the policy.... Yet Almond is now asking this Court to give her the opportunity to seek a double recovery.\nIn her reply brief, Ms. Almond does not contest that statement but says that Cigna is not entitled to a \u201cset off\u2019 of the amount it has paid absent language in the insurance contract or a statutory provision allowing it.\nWe see a distinction between the set off or recoupment concept and that of double recovery. A set off may be had when a defendant has a claim against the plaintiff which does not arise out of the transaction which is the subject of the plaintiff\u2019s claim against the defendant. If the claim of the defendant arises from the same transaction, it may be called a recoupment. We discussed those concepts in Walker v. First Commercial Bank, N.A., 317 Ark. 617, 880 S.W.2d 316 (1994). See Ark. Code Ann. \u00a7 16-63-206 (1987). In this case, Cigna is not asserting a claim independently against Ms. Almond; it is defending on the double recovery principle, and Ms. Almond makes no response.\nThere are some instances in which, as a means of imposing a penalty, double, even treble, recoveries are permitted. See Lotz v. Cromer, 317 Ark. 250, 878 S.W.2d 367 (1991), and Dillon v. Resolution Trust Corp., 306 Ark. 173, 811 S.W.2d 765 (1991) (awarding double the amount of interest which was charged in violation of the Constitution\u2019s usury provision). See also Revels v. Knighton, 305 Ark. 109, 805 S.W.2d 649 (1991) and Arnold v. Lee, 296 Ark. 339, 756 S.W.2d 904 (1988) (trebling damages in tort actions for trespass). This case is not one of them, and we have often expressed our general disapproval of allowing a claimant to recover more than once for the same injury. See, e.g., Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993); Thomas Auto Co., Inc. v. Craft, 297 Ark. 492, 763 S.W.2d 651 (1989). We have expressed that principle in cases involving recoveries from insurance companies in dealing with an insurer\u2019s right to subrogation. See, e.g., Arkansas State Employees Ins. Advisory Comm. v. Estate of Manning, 316 Ark. 215, 870 S.W.2d 748 (1994); Shelter Mut. Ins. Co. v. Bough, 310 Ark. 21, 834 S.W.2d 637 (1992).\nThe record and briefs in this case leave us with no doubt that Ms. Almond\u2019s claim for medical payments under coverage \u201cC\u201d would, if honored, result in a double recovery. We have been cited to no law which would require or permit us to ignore the general policy of declining to allow such a recovery. If we were to do as Ms. Almond requests and hold that she had a right to the payments as a third party beneficiary it would, in these circumstances, amount to no more than an advisory opinion. We do not render advisory opinions. Saunders v. Neuse, 320 Ark. 547, 898 S.W.2d 43 (1995); Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994).\nWhile we do not reach the point on which the Trial Court decided this case, we may affirm for a different reason, West v. G.D. Scarle & Co., 317 Ark. 525, 879 S.W.2d 412 (1994); Register v. State, 313 Ark. 426, 855 S.W.2d 320 (1993); Hubbard v. The Shores Group, Inc., 313 Ark. 498, 855 S.W.2d 924 (1993), and we do so in this case.\nAffirmed.",
        "type": "majority",
        "author": "David Newbern, Justice."
      }
    ],
    "attorneys": [
      "Gary Eubanks & Associates, by: William Gary Holt and J. Gerard Schulze, for appellant.",
      "Friday, Eldredge & Clark, by: David D. Wilson, for appellee."
    ],
    "corrections": "",
    "head_matter": "Cynthia ALMOND v. CIGNA PROPERTY and CASUALTY INSURANCE COMPANY\n94-926\n908 S.W.2d 93\nSupreme Court of Arkansas\nOpinion delivered October 30, 1995\nGary Eubanks & Associates, by: William Gary Holt and J. Gerard Schulze, for appellant.\nFriday, Eldredge & Clark, by: David D. Wilson, for appellee."
  },
  "file_name": "0268-01",
  "first_page_order": 294,
  "last_page_order": 297
}