{ "id": 210147, "name": "Carlos ELAM v. HARTFORD FIRE INSURANCE COMPANY", "name_abbreviation": "Elam v. Hartford Fire Insurance", "decision_date": "2001-04-26", "docket_number": "00-900", "first_page": "555", "last_page": "571", "citations": [ { "type": "official", "cite": "344 Ark. 555" }, { "type": "parallel", "cite": "42 S.W.3d 443" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "251 Ark. 868", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1633400 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/ark/251/0868-01" ] }, { "cite": "323 Ark. 522", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1445697 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/323/0522-01" ] }, { "cite": "315 Ark. 79", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1910462 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/315/0079-01" ] }, { "cite": "335 Ark. 272", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 862797 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ark/335/0272-01" ] }, { "cite": "341 Ark. 548", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1257709 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/341/0548-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-704", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1996, "pin_cites": [ { "page": "(c)(3)" } ], "opinion_index": 0 }, { "cite": "246 Ark. 377", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604140 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/ark/246/0377-01" ] }, { "cite": "330 Ark. 687", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298587 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/330/0687-01" ] }, { "cite": "61 Ark. App. 165", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139507 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark-app/61/0165-01" ] }, { "cite": "820 S.W.2d 487", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9977730 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/sw2d/820/0487-01" ] }, { "cite": "307 Ark. 385", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902406 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/307/0385-01" ] }, { "cite": "309 Ark. 107", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906049 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "110" }, { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/ark/309/0107-01" ] }, { "cite": "Ark. Code Ann. \u00a7 23-89-209", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1987, "pin_cites": [ { "page": "(a)(3)" } ], "opinion_index": 0 }, { "cite": "628 S.W.2d 561", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1753684 ], "year": 1982, "pin_cites": [ { "parenthetical": "court held that a clause in a policy denying accidental death benefits where an insured's beneficiaries also received workers' compensation payment for the insured's death is a violation of public policy" } ], "opinion_index": 0, "case_paths": [ "/ark/275/0247-01" ] }, { "cite": "215 Ark. 247", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1464673 ], "year": 1982, "pin_cites": [ { "parenthetical": "court held that a clause in a policy denying accidental death benefits where an insured's beneficiaries also received workers' compensation payment for the insured's death is a violation of public policy" } ], "opinion_index": 0, "case_paths": [ "/ark/215/0247-01" ] }, { "cite": "312 Ark. 502", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1935132 ], "weight": 3, "year": 1993, "pin_cites": [ { "parenthetical": "court held that a provision of UIM policy calling for setoff for workers' compensation benefits was against public policy" }, { "parenthetical": "court held that a provision of UIM policy calling for setoff for workers' compensation benefits was against public policy" }, { "page": "513-14" } ], "opinion_index": 0, "case_paths": [ "/ark/312/0502-01" ] }, { "cite": "252 Ark. 624", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1630033 ], "weight": 3, "year": 1972, "pin_cites": [ { "parenthetical": "court held that a provision of UM coverage was invalid where it provided that any amount payable under that coverage because of bodily injury would be reduced by the amount paid, and the present value of all amounts payable, on account of such injury under any workers' compensation law" }, { "page": "631-32" } ], "opinion_index": 0, "case_paths": [ "/ark/252/0624-01" ] }, { "cite": "54 Ark. App. 79", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137521 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ark-app/54/0079-01" ] }, { "cite": "15 P.3d 1030", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 11165583 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/p3d/15/1030-01" ] }, { "cite": "533 S.E.2d 511", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "990 S.W.2d 621", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 11623195 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/sw2d/990/0621-01" ] }, { "cite": "326 Ark. 691", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12024334 ], "weight": 3, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/326/0691-01" ] }, { "cite": "327 Ark. 600", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 922601 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/327/0600-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-410", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 9, "year": 1996, "pin_cites": [ { "page": "(13)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 11-9-105", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1996, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "308 Ark. 74", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904387 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/308/0074-01" ] }, { "cite": "326 Ark. 1073", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12025908 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/326/1073-01" ] }, { "cite": "964 S.W.2d 199", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 377627, 377623 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/332/0182-01", "/ark/332/0148-01" ] }, { "cite": "332 Ark. 148", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 377623 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/332/0148-01" ] }, { "cite": "336 Ark. 101", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 51183 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/336/0101-01" ] }, { "cite": "339 Ark. 411", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 130721 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/339/0411-01" ] } ], "analysis": { "cardinality": 1087, "char_count": 32373, "ocr_confidence": 0.735, "pagerank": { "raw": 1.788402789167194e-07, "percentile": 0.7146128982809422 }, "sha256": "bc3f9f35a83242b712ceebb9d63e4e0196ac9aeb885f15bf3c9a395ed6822819", "simhash": "1:1550cfc4c86eb9b9", "word_count": 5267 }, "last_updated": "2023-07-14T20:48:00.616095+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Carlos ELAM v. HARTFORD FIRE INSURANCE COMPANY" ], "opinions": [ { "text": "JIM HANNAH, Justice.\nAppellants Carlos and Arbra Elam appeal the Franklin County Circuit Court\u2019s grant of summary judgment to Elam\u2019s employer\u2019s commercial automobile insurance carrier, Appellee Hartford Fire Insurance Company (Hartford), denying underinsured motorist insurance (UIM) coverage to Elam for injuries he sustained during his employment with Fred Dorwart d/b/a Mountain Ridge Farms. We reverse and remand.\nFacts\nOn November 3, 1995, Carlos Elam, a now sixty-three-year-old farm manager for Mountain Ridge Farms, was injured when he was struck by a trailer pulled by a truck as it was pulling away from Elam. According to Elam\u2019s various accounts of the incident, he was washing one of his employer\u2019s farm trucks when John Milam of Milam Heating and Air Conditioning Company drove up in his work truck and stopped to talk to Elam about installing some equipment on the farm. Milam remained in his truck while speaking with Elam, who was standing between Milam\u2019s truck and the farm truck. The trucks were close enough for Elam to touch both trucks at the same time. The men discussed the work to be done, and then, according to Elam, he turned back to the farm truck to continue washing it and Milam pulled away quickly. In doing so, Elam was hit by Milam\u2019s attached trailer that Elam did not see being pulled behind Milam\u2019s truck. However, as Hartford notes in its brief, Elam testified in his May 1999 deposition that he was actually reaching for the truck\u2019s door pull to get in when he was hit by Milam\u2019s trailer. Elam also argues in his brief that he was reaching for the door pull to get in the truck when he was hit.\nElam sustained injuries from the accident, and was treated by numerous doctors through his workers\u2019 compensation claim. While the doctors found that had sustained a work-related injury, he received differing disability ratings, one as high as 40 percent to the body as a whole, and one as low as 10 percent to the body as a whole. One of the treating physicians found him totally disabled from working, while another determined that with retraining, he could go back to some type of lighter work. Notably, all of the treating doctors found that, although not problematic before the injury, Elam suffered from spinal stenosis, or narrowing of the spine, and perhaps degenerative disc disease brought on by aging, which contributed to his post-injury back problems. He made a workers\u2019 compensation claim and received medical and indemnity benefits before settling his workers\u2019 compensation claim against Mountain Ridge Farms and its workers\u2019 compensation insurance carrier on January 29, 1997, for $30,000 plus an additional $5,987.60 for related expenses. The workers\u2019 compensation carrier, ITT Hartford Insurance Company (a different insurance division from Hartford, the appellee), also agreed to waive its subrogation rights. On December 10, 1997, Elam settled a third-party claim against Milam and his insurance carrier for $50,000, which represented the total available insurance from Milam, after providing the required notice to Hartford. Elam and his wife also setded a third-party claim under their own UIM policy with Southern Farm Bureau Casualty Insurance Company for $10,000 on April 23, 1998. Finally, Elam was found to be disabled by the Social Security Administration due to his injuries as he has been unable to work since the injury.\nOn November 2, 1998, Elam filed a complaint against his employer\u2019s farm vehicle insurance carrier, Hartford, requesting payment under the UIM policy, taking into account the $50,000 and $10,000 already paid by the other automobile policies. He also alleged that workers\u2019 compensation and social security benefits could not be offset because they were collateral resources. Hartford had $1,000,000 in available coverage under the policy. Hartford answered on November 24, 1998, and denied coverage under the UIM policy, claiming that the policy specifically excludes coverage to employees who also recover workers\u2019 compensation benefits.\nOn August 26, 1999, Hartford filed its first motion for summary judgment, arguing several points. First, Hartford asserted that Elam\u2019s claim was barred under the exclusive-remedy doctrine of Arkansas\u2019s Workers\u2019 Compensation Act. Hartford next argued that the workers\u2019 compensation statutes do not allow claims by employees against their employer\u2019s UIM policies. Hartford further argued that Elam\u2019s claims were not covered under the UIM policy. Finally, Hartford argued that there was no evidence of fault by Milam as required to recover under the UIM policy.\nElam responded by filing his first amended complaint on September 24, 1999, adding an additional claim of bad faith against Hartford. Elam also filed a motion to compel discovery on that date, arguing that Hartford had refused to provide copies of Elam\u2019s claim file and other requested documentation, claiming privilege in declining to produce those documents. Finally, also on September 24, 1999, Elam filed a motion for summary judgment and a response to Hartford\u2019s motion for summary judgment. In his motion, Elam countered Hartford\u2019s allegations in its motion. Elam argued that the Arkansas Workers\u2019 Compensation Act does not bar a claim for UIM coverage under an employer\u2019s policy where workers\u2019 compensation benefits have already been paid. Elam notes that the claim against the UIM carrier is not a claim against an \u201cemployer\u201d as barred by the act. Elam also asserts that he fell within the policy requirements to be covered as an \u201coccupier\u201d of the farm truck because he was \u201cusing\u201d the vehicle at the time of his injury. Elam also argued that evidence of Milam\u2019s negligence was overwhelming.\nHartford filed its answer to Elam\u2019s first amended complaint on September 30, 1999, again denying coverage under the policy. On October 11, 1999, Hartford filed a motion for summary judgment on Elam\u2019s first amended complaint, incorporating its previous motion for summary judgment and adding the additional arguments for summary judgment on the bad-faith claim. Hartford contended that Elam could not prevail on the bad-faith claim without any facts in support, and that Elam\u2019s motion for discovery to \u201cdiscover\u201d facts to support the bad-faith claim was not a proper use of discovery where there were no other facts other than denial of coverage to support the bad-faith claim. Hartford also filed a response to Elam\u2019s motion for discovery.\nOn October 13, 1999, Hartford responded to Elam\u2019s motion for summary judgment and on November 1, 1999, Elam responded to Hartford\u2019s motion for summary judgment on Elam\u2019s first amended complaint. On that same date, Elam filed his second amended complaint, apparently clarifying two terms of the first amended complaint regarding any good-faith denial of Elam\u2019s claim. Hartford again denied the allegations in the second amended complaint on November 4, 1999, and filed a motion for summary judgment on the second amended complaint that same day.\nOn February 4, 2000, the trial court heard oral arguments from the attorneys on the motions for summary judgment and the motion to compel discovery. On April 13, 2000, the trial court issued its order denying Elam\u2019s motion for summary judgment and granting Hartford\u2019s motion for summary judgment. The trial court did not include any discussion about the basis for its decision, and it did not rule on Elam\u2019s motion to compel discovery. Elam filed his notice of appeal on May 10, 2000.\nStandard of Review\nThe parties filed opposing motions for summary judgment, agreeing that there are no genuine issues of material fact remaining. As we have oft stated, summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entided to judgment as a matter of law. Mashburn v. Meeker Sharkey Fin. Group, Inc., 339 Ark. 411, 5 S.W.3d 469 (1999). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. The moving party is entided to summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ark. R. Civ. P. 56; Estate of R. Donley v. Pace Indus., 336 Ark. 101, 984 S.W.2d 421 (1999). It is well settled that a trial court has wide discretion in matters pertaining to discovery, and thus we will reverse a trial court\u2019s ruling only when there has been an abuse of discretion. Wilson v. Neal, 332 Ark. 148, 964 S.W.2d 199 (1998); Parker v. Southern Farm Bureau Cas. Ins. Co., 326 Ark. 1073, 935 S.W.2d 556 (1996); Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992).\nElam argues five points on appeal. Elam first argues that the exclusive-remedy provision of the Arkansas Workers\u2019 Compensation Act, found at Ark. Code Ann. \u00a7 11-9-105(a) (Repl. 1996), does not bar his claim because he is not asserting a liability claim against his employer or workers\u2019 compensation insurance carrier as precluded under that statute, and case law from other jurisdictions that have faced this issue support allowing the UIM claim. Second, Elam argues that the Arkansas Workers\u2019 Compensation Act at Ark. Code Ann. \u00a7 11-9-410(13) (Repl. 1996), does not impliedly preclude UIM claims by an employee against his employer\u2019s UIM carrier. Next, Elam argues that his claims are covered under the UIM commercial automobile policy as specifically noted in the language of the policy and impliedly through the function of the policy. Elam also argues that there was ample evidence of the third-party tortfeasor\u2019s negligence as required to be shown under the UIM policy. Finally, Elam argues that Hartford\u2019s summary-judgment motion should not have been granted before the court ruled on Elam\u2019s motion to compel discovery because the motion to compel discovery raised issues of material fact that made summary judgment improper.\nIn response, Hartford counters Elam\u2019s claims point for point. Hartford argues that summary judgment was proper because, as a matter of law either under the Arkansas Workers\u2019 Compensation Act or under the terms of the policy, Elam could not recover UIM benefits. Furthermore, Hartford contends that the trial court did not err in failing to rule on the motion to compel discovery because Elam only added the claim for bad faith and sought the discovery in dispute after Hartford filed its original motion for summary judgment. Furthermore, Elam failed to plead facts in his first and second amended complaints sufficient to support a claim of bad faith or to trigger the requirements allowing discovery.\nI. The Exclusive Remedy Provision of the Arkansas Workers\u2019 Compensation Act and the Third-Party Liability Provision of the Arkansas Workers\u2019 Compensation Act\nThe first issue on appeal is whether Elam\u2019s workers\u2019 compensation claim was his exclusive remedy, barring any additional claims for insurance coverage involving his employer. The exclusive-remedy provision of the Act is found at Ark. Code Ann. \u00a7 11-9-105, which states in part:\n(a) The rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone otherwise entitled to recover damages from the employer, or any principal, officer, director, stockholder, or partner acting in his capacity as an employer, or prime contractor of the employer, on account of the injury or death, and the negligent acts of a coemployee shall not be imputed to the employer. No role, capacity, or persona of any employer, principal, officer, director, or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this chapter, and the remedies and rights provided by this chapter shall in fact be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have.\nThis provision clearly indicates that any claim for injury or death against an employer may only be brought under the Act, thus eliminating an employer\u2019s tort liability. According to the Act, an employee\u2019s remedy against his employer for injuries sustained on the job is to file a workers\u2019 compensation claim, and this remedy is exclusive as to the employer, as stated in the statute, and has only been extended by this court to the employer\u2019s workers\u2019 compensation insurance carrier. Cherry v. Tanda, 327 Ark. 600, 940 S.W.2d 457 (1997). The exclusivity provision of the Act mirrors the general purpose of the Act, which was to change the common law by shifting the burden of all work-related injuries from employers and employees and placing it on the consuming public, thus eliminating any need to prove fault. Brown v. Finney, 326 Ark. 691, 932 S.W.2d 769 (1996). This exclusive remedy favors both employers and employees. Id.\nHartford argues that it is immune from suit because a workers\u2019 compensation claim is Elam\u2019s exclusive remedy for this work-related injury. While it is clear that Hartford was not the workers\u2019 compensation carrier, thus making that extension of the exclusive-remedy statute inapplicable here, the question turns on whether a suit against the employer\u2019s UIM carrier qualifies as a suit against the employer and, thus, is precluded under the statute. Elam notes that while the workers\u2019 compensation statute has an exclusive-remedy provision against an employer and workers\u2019 compensation carrier, it was not intended to be the exclusive source of compensation as evidenced by other provisions in the Act. Elam argues that here, Hartford actually stands in the shoes of the third-party tortfeasor against whom Elam may make a claim under the Act. He argues that he is not claiming that his employer was hable but instead, as required in a UIM case, he is claiming that a third party was liable.\nElam cites Philadelphia Indemnity Ins. Co. v. Morris, 990 S.W.2d 621 (Ky. 1999), in which the Kentucky Supreme Court held that an injured employee may make a claim for UIM benefits under a policy secured by his employer where the employee is an included insured, despite the exclusive-remedy provision of the Kentucky workers\u2019 compensation statute. That statute is quite similar to Arkansas\u2019s exclusive-remedy statute.\nIn Morris, the Kentucky Supreme Court found that a worker\u2019s UIM claim was not precluded where the worker\u2019s damages exceeded both the workers\u2019 compensation benefits he received and the policy-limit amounts he was paid by the third party\u2019s liability insurance. The Kentucky court found that the suit was a direct action against the UIM carrier as opposed to an action against the employer, and declined to extend the exclusive-remedy protection to anyone other than the employer or its workers\u2019 compensation carrier. The Kentucky court further found that payment made in performance of a contractual obligation is not payment of \u201cdamages,\u201d as it was voluntarily purchased by the employer to cover situations such as the one in this case. Other jurisdictions also recognize that UIM and UM (uninsured motorist) coverage purchased by an employer and claimed by an employee in a work-related accident is valid despite the language of exlusive-remedy statutes. See Levasseur v. Lowery, 533 S.E.2d 511 (N.C. 2000); Lieber v. ITT Hartford Insurance Center, Inc., 15 P.3d 1030 (Utah 2000). In Lieber, for example, the Utah Supreme Court found that an employee could make a claim for uninsured motorist (UM) benefits provided in a policy purchased by his employer despite tbe exclusive-remedy provision of Utah\u2019s workers\u2019 compensation statute. The Utah court reasoned that the exclusive-remedy doctrine applies only to an employee who has no viable claim that can be reduced to a judgment in a court of law or, in other words, against a third party who is not the employer or workers\u2019 compensation carrier. The Utah court found that because a UM claim could only be made where a viable claim existed against a third party, a UM claim was not a claim against the employer as excluded under the workers\u2019 compensation act. Any distinction between UM and UIM coverage on this issue is irrelevant.\nArkansas\u2019s appellate courts have not direcdy addressed this issue. The court of appeals has determined, however, that an employee may make a claim against his own UIM/UM carrier without bar by the exclusive-remedy provision of the Act. See Southern Farm Bureau Cas. Ins. Co. v. Pettie, 54 Ark. App. 79 (1996). This court has also held that it is against public policy to preclude recovery or allow a setoff of UIM/UM benefits to workers who have also received workers\u2019 compensation benefits. See Travelers Ins. Co. v. National Farmers Union Prop. & Cas. Co., 252 Ark. 624, 480 S.W.2d 585 (1972) (court held that a provision of UM coverage was invalid where it provided that any amount payable under that coverage because of bodily injury would be reduced by the amount paid, and the present value of all amounts payable, on account of such injury under any workers\u2019 compensation law); Shepherd v. State Auto Prop. & Cas. Ins. Co., 312 Ark. 502, 850 S.W.2d 324 (1993) (court held that a provision of UIM policy calling for setoff for workers\u2019 compensation benefits was against public policy); see also, O\u2019Bar v. MFA Mutual Ins. Co., 215 Ark. 247, 628 S.W.2d 561 (1982) (court held that a clause in a policy denying accidental death benefits where an insured\u2019s beneficiaries also received workers\u2019 compensation payment for the insured\u2019s death is a violation of public policy).\nThe reasoning for such holdings is evident in Travelers Ins., where this court stated:\nThe uninsured motorist legislation was passed long after adoption of the Workmen\u2019s Compensation Act. When we consider the basic purposes of the latter act, our belief that the legislature did not intend that the Uninsured Motorist Act be the means of discrimination against working people protected under the workmen\u2019s compensation laws is strengthened. . . . The right claimed by the [company issuing the policy providing for uninsured motorist coverage] would simply provide it with a windfall in the case of one covered by the workmen\u2019s compensation laws. The purpose of the Uninsured Motorist Act was to protect the insured, not the insurer.\nTravelers Ins., 252 Ark. at 631-32. The court again in Shepherd noted the purpose behind UIM benefits, stating:\nUnderinsured motorist coverage was enacted in this state in 1987 to supplement benefits recovered from a tortfeasor\u2019s liability carrier. Ark. Code Ann. \u00a7 23-89-209 (1987). We have stated its purpose to be \u201cto provide compensation to the extent of the injury, subject to the policy limit.\u201d Clampit v. State, 309 Ark. 107, 110, 828 S.W.2d 593, 595 (1992).\nShepherd, 312 Ark. at 513-14.\nThis court, however, has denied recovery in a UM claim where the employee received workers\u2019 compensation benefits from a self-insured employer. In Gullet v. Brown, 307 Ark. 385, 820 S.W.2d 487 (1991), this court held that workers\u2019 compensation benefits were the exclusive remedy of an employee injured in the course of his employment by an uninsured motorist where the UM coverage was provided by the employer\u2019s self-insurance program. In Gullet, the deciding factor for this court was that the employer, Pulaski County, maintained a self-insured UM policy administered by Gallagher-Bassett Services, Inc., and that although such a claim sounded more in contract than in tort, our workers\u2019 compensation exclusive-remedy statute makes no exception for contractual claims.\nHowever, Gullett is distinguishable from the present case by virtue of the fact Elam\u2019s employer was not self-insured. Here, Elam\u2019s UIM claim was not one against a self-insured employer and, thus, a claim against his \u201cemployer\u201d as precluded under the workers\u2019 compensation exclusive-remedy doctrine. Instead, it was a claim against a third-party insurance carrier.\nThe General Assembly recognizes this distinction as indicated in its structure of the third-party liability provision of the Act, found at Ark. Code Ann. \u00a7 11-9-410. This statutory provision allows an injured employee to make a claim against a third party who is not the employer or workers\u2019 compensation carrier for injuries sustained on the job. The Arkansas Supreme Court has defined a third party under Ark. Code Ann. \u00a7 11-9-410 as \u201csome person or entity other than the first and second parties involved, and the first and second parties can only mean the injured employee and the employer or one liable under the compensation act.\u201d Zenith Ins. Co. v. VNE, Inc., 61 Ark. App. 165, 965 S.W.2d 805 (1998); Wilson v. Rebsamen Ins., 330 Ark. 687, 957 S.W.2d 678 (1997); Neal v. Oliver, 246 Ark. 377, 438 S.W.2d 313 (1969). Thus, under Ark. Code Ann. \u00a7 11-9-410, neither a workers\u2019 compensation carrier nor an employer can be a third party. Hartford argues that the only mention of UIM coverage in Ark. Code Ann. \u00a7 11-9-410 appears in the \u201csubrogation\u201d section of the statute, and that it only applies to the employer\u2019s or workers\u2019 compensation carrier\u2019s ability to make a claim against the employer\u2019s UM or UIM carrier. This section of Ark. Code Ann. \u00a7 11-9-410 states:\n(4) An employer or carrier who is liable for compensation under this chapter on account of injury or death of an employee shah be entitled to maintain a third party action against the employer\u2019s uninsured motorist coverage or underinsured motorist coverage.\n(5) The purpose and intent of this subsection is to prevent double payment to the employee.\nDespite Hartford\u2019s argument that this section impliedly precludes Elam\u2019s claim because it only mentions an employer\u2019s or workers\u2019 compensation carrier\u2019s ability to make a claim for UM or UIM benefits, the entire third-party liability statute indicates otherwise. First, in looking at Ark. Code Ann. \u00a7 11-9-410, it should be noted that the statute is split into three sections: (a) Liability Unaffected; (b) Subrogation; and (c) Settlement of Claims. The first section deals with the employee\u2019s ability and right to make a third-party claim and his employer\u2019s or carrier\u2019s right to subrogation. While this section does not specifically mention an employee\u2019s ability to make a UM or UIM claim against his employer\u2019s or any other UM or UIM policy, it also does not specifically preclude it. The second section, \u201cSubrogation,\u201d deals with the employer\u2019s or workers\u2019 compensation carrier\u2019s right to pursue a subrogation claim against any third parties whether the claimant pursues a separate claim. Most notable in this section is the language that an employer or carrier who is liable for workers\u2019 compensation benefits paid to an injured employee may maintain a \u201cthird party action\u201d against the employer\u2019s UM or UIM coverage. This language alone indicates that the legislature recognized that an employer\u2019s UM or UIM carrier is a \u201cthird party\u201d in these types of claims. As such, it is only reasonable that the employer\u2019s UM or UIM carrier is also a \u201cthird party\u201d in an injured employee\u2019s UM or UIM claim against that same carrier.\nHartford argues that the \u201cstrict construction\u201d requirements of the act require that the legislature\u2019s failure to mention UM or UIM recovery by the claimant impliedly precludes such claims. However, this court recognizes its duty to strictly construe workers\u2019 compensation statutes pursuant to Ark. Code Ann. \u00a7 11-9-704(c)(3) (Repl. 1996). See Hapney v. Rheem Mfg. Co., 341 Ark. 548, 26 S.W.3d 771 (2000); Lawhon Farm Servs., 335 Ark. 272, 984 S.W.2d 1. Strict construction means narrow construction and requires that nothing be taken as intended that is not clearly expressed. Id. (citing Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993)). The doctrine of strict construction requires this court to use the plain meaning of the language employed. Holaday v. Fraker, 323 Ark. 522, 915 S.W.2d 280 (1996). Arkansas Code Annotated \u00a7 11-9-101 (Repl. 1996) states that the purpose of the workers\u2019 compensation law is to provide benefits \u201cto all legitimately injured workers who suffer an injury or disease arising out of and in the course of their employment. ...\u201d Taken at face value, Hartford\u2019s argument would require this court to find that there has been no specific exclusion against a claim by an employee against his employer\u2019s UM or UIM carrier, and further this court would have to find that the legislature recognized in the \u201csubrogation\u201d section of Ark. Code Ann. \u00a7 11-9-410 that a claim against an employer\u2019s UM or UIM carrier was a \u201cthird party\u201d claim. This not only defeats Hartford\u2019s argument under this section of the Act, but also under the exclusive-remedy provision of the Act.\nFurthermore, the underlying purpose for UM/UIM benefits remains the same whether purchased by the employer for the benefit of its employees or by the employee for his own personal benefit \u2014\u2022 UIM coverage was enacted to supplement benefits recovered from a tortfeasor\u2019s liability carrier, and to find that an employee could not benefit from the policy under which he is a recognized insured would result in \u201cdiscrimination\u201d against a workers\u2019 compensation claimant and a windfall to the UIM or UM carrier who received benefits on a policy under which it would not have to pay. Also, the viability of a workers\u2019 compensation case may be harder to prove, as here, where the claimant had some pre-existing injuries for which workers\u2019 compensation would not pay, but which could be covered by the third party, and thus the UIM or UM insurance, if shown to be aggravated by the accident due to the third party\u2019s negligence.\nThis is a direct action against Hartford, the UIM carrier, a third-party insurance carrier and not an action against the employer. We hold that this claim for UIM benefits from the employer\u2019s UM/ UIM insurance carrier is not barred by the exclusive-remedy provision of the Arkansas Workers\u2019 Compensation Act, and we declin\u00e9 to extend the exclusive-remedy protection in this situation. We also hold that the third-party liability provision of the Act, found at Ark. Code Ann. \u00a7 11-9-410, does not preclude a claim by Elam against Hartford.\nII. The Terms of the UIM Policy\nBecause the Arkansas Workers\u2019 Compensation Act is not a bar to Elam\u2019s claim for UIM coverage under his employer\u2019s UIM policy with Hartford, the court must next consider whether Elam qualified as an insured under the policy and whether he is entitled to UIM benefits pursuant to the provision of the policy. First at issue is whether Elam was an insured covered under the policy. If so, the second issue is whether there was sufficient evidence of Milam\u2019s \u201cnegligence\u201d to trigger coverage of an insured under the policy.\nA. Elam\u2019s Status as an Insured\nFirst at issue is whether Elam is considered an insured under the terms of the UIM provision of the Hartford insurance policy. While Hartford argues that it is excused from payment under the liability section of the policy in cases in which the insured must pay workers\u2019 compensation benefits, Hartford ignores the fact that this is not a claim for liability insurance against the employer, but is a direct claim against Hartford as the insurer for a UIM claim by one of its insured. As such, the only applicable section for a determination of coverage is the specific section entitled \u201cArkansas Uninsured and Underinsured Motorists Coverage.\u201d This section of the policy specifically notes that \u201cthis endorsement modifies insurance provided under the following: business auto coverage form....\u201d This is of particular note because the Arkansas UIM and UM coverage section changes the definition regarding who qualifies as an insured from that mentioned previously in the general business auto coverage form for liability insurance for the employer.\nSection B of the UM/UIM policy states:\nB. Who is an insured?\n1. You\n2. If you are an individual, any \u201cfamily member\u201d.\n3. Anyone else \u201coccupying\u201d a covered \u201cauto\u201d or a temporary substitute for a covered \u201cauto\u201d. The covered \u201cauto\u201d must be out of service because of its breakdown, repair, servicing, loss or destruction.\n4. Anyone for damages he or she is entitled to recover because of \u201cbodily injury\u201d sustained by another \u201cinsured\u201d.\nElam may qualify as an \u201cinsured\u201d who is defined as \u201canyone else\u201d occupying a \u201ccovered auto\u201d under section B(3).\u201d Under this provision, Elam must show that he was \u201coccupying\u201d the vehicle. \u201cOccupying\u201d is defined on the third page of the UM/UIM policy as meaning \u201cin, upon, getting in, on, out or off.\u201d In this case, an issue argued by Hartford was whether Elam\u2019s act of washing the vehicle qualifies as \u201cin, upon, getting in, on, out or off.\u201d Certainly, Elam\u2019s varying testimony as noted above indicates that he was at least washing the vehicle, and perhaps even attempting to get into the vehicle to move it when he was injured. At the very least, Elam\u2019s activities when he was hit centered on washing the truck as he was directed to do by his employer. While Elam argues that case law would support a finding that working around the vehicle was sufficient to qualify under this definition of \u201coccupying,\u201d the fact that he gave somewhat differing accounts of the accident could create an issue of fact for a jury, thus rendering summary judgment improper in this case. Certainly, Elam impliedly argues that by law he is entitled to recovery because his actions have qualified, at least in other jurisdictions, as \u201coccupying\u201d the vehicle. Hartford responds that the plain language of the \u201coccupying\u201d definition would exclude coverage to Elam. Because this matter leaves a question of fact open for interpretation, this matter was not proper for summary judgment.\nB. Evidence of Milam\u2019s Negligence\nNext, in order to recover under the UIM policy, Elam has to show that he was \u201clegally entitled to recover from the owner or operator of\u2019 an underinsured vehicle. Ark. Code Ann. \u00a7 23-89-209(a)(3) (Repl. 1999). In Hettel v. Rye, 251 Ark. 868, 475 S.W.2d 536 (1972), this court held that the policy requirement that an insured must be legally entitled to recover from an uninsured motorist is intended only to require a showing of fault on the part of the uninsured motorist. This is particularly true in such a case where the tortfeasor\u2019s insurance company settled the case without any court finding of liability.\nAgain, summary judgment was improper because the UIM carrier certainly has the right to litigate the tortfeasor\u2019s negligence in order to attempt to reduce or eliminate its liability Hartford argues that Elam alleged no facts to show that Milam was negligent. However, Elam did allege that Milam pulled his truck and trailer up very close to Elam and that he pulled away in a rushed manner. These allegations alone present a genuine issue of fact for the jury to determine whether Milam was negligent and whether Elam was contributorily negligent in this case.\nC. Implication that the Policy is Available even in Workers\u2019 Compensation Cases\nFinally, it should be noted that the UIM/UM policy in section D \u201cLimit of Insurance\u201d notes that Hartford specifically claims the right of reduction of payments for \u201call sums paid or payable under a workers\u2019 compensation, disability benefits or similar law....\u201d Whether this clause is valid under Arkansas law is not at issue here, but clearly, Hartford anticipated that a workers\u2019 compensation claimant or employee of the named insured employer may make a claim under the UIM/UM provision of the policy\nIII. The Motion to Compel Discovery\nOn this final issue, Elam argues that the trial court erred in fading to grant its discovery request to compel Hartford to produce certain documents, including Elam\u2019s claim file, before granting summary judgment. Because this court has found that summary judgment was not proper, the trial court\u2019s failure to address Elam\u2019s motion to compel discovery is moot at this time.\nReversed and remanded.", "type": "majority", "author": "JIM HANNAH, Justice." } ], "attorneys": [ "William A. Hill, P.A., by: William A. Hill, for appellant.", "Kilpatrick, Aud & Williams, by: Gene Williams, for appellee." ], "corrections": "", "head_matter": "Carlos ELAM v. HARTFORD FIRE INSURANCE COMPANY\n00-900\n42 S.W.3d 443\nSupreme Court of Arkansas\nOpinion delivered April 26, 2001\n[Petition for rehearing denied May 24, 2001.]\nWilliam A. Hill, P.A., by: William A. Hill, for appellant.\nKilpatrick, Aud & Williams, by: Gene Williams, for appellee." }, "file_name": "0555-01", "first_page_order": 589, "last_page_order": 605 }