{ "id": 5367352, "name": "Cleo HALL, as Personal Representative of the Estate of James A. Neasley, Deceased v. SUMMIT CONTRACTORS, INC., Henry Winberry, A J Winberry, Joe Parker, David Wall, Richard Carey, HRH Safety & Health Systems, Inc., and John Does 1-50", "name_abbreviation": "Hall v. Summit Contractors, Inc.", "decision_date": "2004-04-08", "docket_number": "03-709", "first_page": "609", "last_page": "616", "citations": [ { "type": "official", "cite": "356 Ark. 609" }, { "type": "parallel", "cite": "158 S.W.3d 185" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 16-56-125", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "317 Ark. 125", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443764 ], "weight": 2, "year": 1994, "pin_cites": [ { "parenthetical": "this court will not reverse in the absence of prejudice" }, { "parenthetical": "this court will not reverse in the absence of prejudice" } ], "opinion_index": 0, "case_paths": [ "/ark/317/0125-01" ] }, { "cite": "791 F. Supp. 763", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7410800 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "766" } ], "opinion_index": 0, "case_paths": [ "/f-supp/791/0763-01" ] }, { "cite": "60 S.W.2d 1020", "category": "reporters:state_regional", "reporter": "S.W.2d", "weight": 2, "year": 1933, "pin_cites": [ { "page": "1020-21", "parenthetical": "quoting 6 R.C.L., p. 309" } ], "opinion_index": 0 }, { "cite": "187 Ark. 537", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1431998 ], "year": 1933, "opinion_index": 0, "case_paths": [ "/ark/187/0537-01" ] }, { "cite": "6 Ark. 484", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727577 ], "year": 1845, "opinion_index": 0, "case_paths": [ "/ark/6/0484-01" ] }, { "cite": "112 Ark. 6", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1538793 ], "year": 1914, "opinion_index": 0, "case_paths": [ "/ark/112/0006-01" ] }, { "cite": "308 Ark. 201", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904278 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "203-04", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/ark/308/0201-01" ] }, { "cite": "312 Ark. 141", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1935046 ], "weight": 2, "year": 1993, "pin_cites": [ { "parenthetical": "emphasis added" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/ark/312/0141-01" ] }, { "cite": "53 S.W. 131", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1899, "opinion_index": 0 }, { "cite": "539 S.W.3d 123", "category": "reporters:state_regional", "reporter": "S.W.3d", "year": 1976, "opinion_index": 0 }, { "cite": "674 S.W.2d 737", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9948248 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/sw2d/674/0737-01" ] }, { "cite": "63 S.W.3d 332", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 9450670 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/sw3d/63/0332-01" ] }, { "cite": "Tenn. Code Ann. \u00a7 28-3-104", "category": "laws:leg_statute", "reporter": "Tenn. Code Ann.", "pin_cites": [ { "page": "(a)(1)" } ], "opinion_index": 0 }, { "cite": "345 Ark. 381", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 938989 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/345/0381-01" ] }, { "cite": "347 Ark. 105", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683213 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/347/0105-01" ] }, { "cite": "350 Ark. 268", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1404468 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/350/0268-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-56-202", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 } ], "analysis": { "cardinality": 668, "char_count": 13114, "ocr_confidence": 0.73, "pagerank": { "raw": 6.728139652686749e-08, "percentile": 0.40830662328189793 }, "sha256": "6d4cc58fdec5f7cab7ed92831ddc4ffa1020c19cba76a2ce0bec2dcec2c37a2d", "simhash": "1:98ded6853520a648", "word_count": 2110 }, "last_updated": "2023-07-14T17:43:53.781338+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Cleo HALL, as Personal Representative of the Estate of James A. Neasley, Deceased v. SUMMIT CONTRACTORS, INC., Henry Winberry, A J Winberry, Joe Parker, David Wall, Richard Carey, HRH Safety & Health Systems, Inc., and John Does 1-50" ], "opinions": [ { "text": "Tom Glaze, Justice.\nThis is an appeal from a wrongful-death case. In January of 1997, James Arthur Neasley, a resident of Pulaski County, was working at the construction site of an apartment complex in Memphis, Tennessee. Appellee Summit Contrators was the contractor at the site. On January 16, Neasley was erecting trusses on the top of the building under construction when he fell to the ground and sustained injuries that required the removal of his kidney, partial removal of his colon, and exploratory abdominal surgery. Neasley died from complications from his injuries on February 7, 1997.\nOn November 12, 1999, Neasley\u2019s mother, appellant Cleo Hall, filed a wrongful- death suit in Pulaski County Circuit Court against Summit Contractors and a number ofjohn Doe defendants. By way of a second amended complaint, filed on October 30, 2000, Hall added HRH Safety and Health Systems (\u201cHRH\u201d) as a defendant. HRH had contracted with Summit Contractors to develop and implement a safety program at the construction site where Neasley was working at the time of his accident. A fourth amended complaint added breach-of-contract claims against HRH.\nOn November 14, 2001, HRH filed a motion for summary judgment, alleging, among other things, that because the accident and injuries occurred in Tennessee, Hall\u2019s action was barred by Tennessee\u2019s one-year statute of limitations governing wrongful-death lawsuits. HRH contended that Hall\u2019s initial complaint was time barred because she did not file her complaint until almost three years after Neasley\u2019s accident; her second amended complaint, adding HRH, was not filed until more than three and a half years after Neasley\u2019s death.\nThe trial court granted the summary-judgment motions filed by HRH and Summit, finding that Tennessee\u2019s one-year limitations period applied and barred Hall\u2019s action, rather than Arkansas\u2019 three-year statute of limitations governing wrongful-death claims. See Ark. Code Ann. \u00a7 16-56-202 (1987). Because Hall had outstanding claims against other defendants, she requested, and the trial court agreed to enter, an order certifying Hall\u2019s interlocutory appeal of the order granting summary judgment. See Ark. R. Civ. P. 54(b). Hall raises the following three points for reversal: 1) her claims against HRH and Summit are not barred by Tennessee\u2019s one-year statute of limitations; 2) her cause of action is not barred by the application of the Uniform Conflict of Laws Limitation Act, particularly \u00a7 16-56-202; and 3) her second amended complaint was not barred by the three-year statute of limitations provided by the Arkansas wrongful-death statute.\nOur standard of review for summary judgment cases is well established. Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Stephens v. Petrino, 350 Ark. 268, 86 S.W.3d 836 (2002); City of Barling v. Fort Chaffee Redev. Auth., 347 Ark. 105, 60 S.W.3d 443 (2001). The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. BPS, Inc. v. Parker, 345 Ark. 381, 47 S.W.3d 858 (2001).\nAs noted above, Hall challenges the trial court\u2019s finding that, under \u00a7 16-56-202, Tennessee\u2019s one-year statute of limitations was applicable, rather than Arkansas\u2019 three-year statute. Section 16-56-202 provides in pertinent part that, \u201cif a claim is substantially based... [u]pon the law of one (1) other state, the limitation period of that state shall apply.\u201d \u00a7 16-56-202(a)(l) (emphasis added). The Commissioners\u2019 Comment to this section notes that the Act \u201ctreats limitation periods as substantive, to be governed by the limitations law of a state whose law governs other substantive issues inherent in the claim. This is true whether the limitation period of the substantively governing law is longer or shorter than that of the forum\u2019s law.\u201d Comment to \u00a7 16-56-202. Thus, if Hall\u2019s claim was \u201csubstantially based\u201d on the law of Tennessee, under \u00a7 16-56-202, her claim would be barred by that state\u2019s one-year statute of limitations.\nTennessee\u2019s applicable statute of limitations is found in Tenn. Code Ann. \u00a7 28-3-104(a)(1), which provides that \u201c[actions for . . . injuries to the person\u201d shall be commenced within one year after the cause of action accrued. Tennessee cases have been clear for more than a century that this statute of limitations applies to wrongful-death actions. See Lynn v. City of Jackson, 63 S.W.3d 332 (Tenn. 2001); Gosnell v. Ashland Chemical, Inc., 674 S.W.2d 737 (Tenn. Ct. App. 1984); Jones v. Black, 539 S.W.3d 123 (Tenn. 1976); Whaley v. Catlett, 53 S.W. 131 (Tenn. 1899).\nClearly, the wrongful-death claim was substantially based on Tennessee law: the construction job where Neasley went to work was in Tennessee; Neasley, who lived in Arkansas, purposely went to Tennessee to take part in the construction job; the accident that caused Neasley\u2019s death took place in Tennessee; and any negligence that led up to that accident occurred in Tennessee. In sum, it is readily apparent that the lawsuit was substantially based on Tennessee law, and therefore subject to Tennessee\u2019s one-year statute of limitations.\nWe note that the Arkansas General Assembly repealed the Arkansas Limitations Act by enacting Act 310 of 1999; however, that change is of no import. Here, Neasley died in February of 1997. At the time when our state legislature repealed its Limitations Act (Act 310 was approved on February 25, 1999), Tennessee\u2019s one-year statute of limitations had already expired; Hall\u2019s wrongful-death claim was therefore time-barred in that state. This court has held that the legislature may retroactively increase the length of a statute-of-limitations period to cover claims already in existence, but it \u201cmay not expand a limitation period so as to revive a claim already barred.\u201d Chunn v. D\u2019Agostino, 312 Ark. 141, 847 S.W.2d 699 (1993) (emphasis added); Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992). In Johnson, supra, this court explained the reason for this rule as follows:\n[W]e have long taken the view, along with a majority of the other states, that the legislature cannot expand a statute of limitation so as to revive a cause of action already barred. Rhodes v. Cannon, 112 Ark. 6, 164 S.W.752 (1914); Couch v. McKee, 6 Ark. 484 (1845). In Wasson v. State ex. rel. Jackson, 187 Ark. 537, 60 S.W.2d 1020 (1933), this court wrote:\nIn most jurisdictions it is held that, after a cause of action has become barred by the statute of limitations, the defendant has a vested right to rely on that statute as a defense, and neither a constitutional convention nor the Legislature has power to divest that right and revive the cause of action. Where title to property has vested under a statute of limitation, it is not possible by an enactment to extend or revive the remedy since this would impair a vested right in the property.\nId. at 538, 60 S.W.2d at 1020-21 (quoting 6 R.C.L., p. 309).\nJohnson, 308 Ark. at 203-04 (emphasis added).\nAs noted above, \u00a7 16-56-202 was still in effect at the time of Neasley\u2019s accident and death. Therefore, because the claim was substantially based on Tennessee law, the Tennessee statute of limitations applied to the claim. Once that one-year statute of limitations expired in February of 1998, the defendants in this case had \u201ca vested right to rely on that statute as a defense,\u201d Johnson, supra, and the legislature\u2019s subsequent repeal of the Limitations Act could not revive a claim that was already time-barred.\nHall raises an alternative argument, contending that the \u201cunfairness\u201d exception found in \u00a7 16-56-204 should govern this case. That exception is as follows:\nIf a court of competent jurisdiction determines that the limitation period of another state, applicable under \u00a7\u00a7 16-56-202 and 16-56-203, is substantially different from the limitation period of this state and has not afforded a fair opportunity to sue upon, or imposes an unfair burden in defending against the claim, the limitation period of this state shall apply.\nHall argues that Tennessee\u2019s one-year statute of limitations is unfair, because it \u201cdoes not afford a reasonable opportunity to sue.\u201d\nIn support of her argument, Hall cites American General Fire & Casualty v. Wal-Mart Stores, Inc., 791 F. Supp. 763 (W.D. Ark. 1992). There, the parties agreed that the substantive law of Louisiana applied to the case, which triggered \u00a7 16-56-202. However, the federal district court pointed out that Louisiana had a one-year statute of limitations on product liability claims, whereas Arkansas\u2019 limitations period was three years; it further found that the \u201cunfairness\u201d exception in \u00a7 16-56-204 should apply, because the plaintiffs did not have a fair opportunity to sue within one year. The federal court noted the fact that the lawsuit was brought by the insurance company, as subrogee of an insured homeowner, against the manufacturer and the seller of an iron which caused a' house fire. The iron was purchased in Louisiana after being shipped there from Arkansas. The court observed that the investigation had to make its way not only through the plaintiff insurance company\u2019s internal processes, but also through investigations by both the manufacturer and the manufacturer\u2019s insurance carrier. The federal court held, \u201c[G]iven the number of steps involved in processing the claims of both plaintiffs insured and plaintiff, it is obvious that a considerable amount of time would inevitably pass before plaintiff could responsibly determine that a lawsuit was appropriate and then file that suit.\u201d American General, 791 F. Supp. at 766.\nHere, the only investigation required by Arkansas law is the general investigation required by Ark. R. Civ. P. 11. Hall makes no argument that she would have been unable to conduct such an investigation within one year of Neasley\u2019s death, or even asserts any facts that would indicate that she encountered any kind of substantial barriers to instituting suit within one year; instead, she simply asserts that Tennessee\u2019s one-year statute of limitations is unfair and does not afford a reasonable opportunity to sue. However, this bald assertion of \u201cunfairness,\u201d with no evidence to support it, is insufficient to warrant reversal. See Mikel v. Hubbard, 317 Ark. 125, 876 S.W.2d 558 (1994) (this court will not reverse in the absence of prejudice).\nFinally, Hall argues that her second amended complaint is not barred by the three-year statute of limitations, because she properly utilized Arkansas\u2019 \u201cJohn Doe statute,\u201d Ark. Code Ann. \u00a7 16-56-125 (1987), to toll the statute of limitations as to HRH. Hall filed her second amended complaint, naming HRH for the first time, on October 30, 2000. On appeal, she argues that she did not discover the identity of HRH until she received answers to interrogatories and requests for production of documents from Summit on August 2, 2000. Because she amended her complaint to substitute HRH for one of the John Doe defendants within the ninety days allotted by \u00a7 16-56-125, she claims, the second amended complaint was timely as to HRH. Of course, for this argument to have any merit, this court would have to apply Arkansas\u2019 three-year statute of limitations. As discussed above, however, Tennessee\u2019s one-year statute of limitations governs this case, and therefore, Hall\u2019s second amended complaint naming HRH was filed well outside of the applicable time limits.\nAffirmed.\nSummit Contractors adopted HRH\u2019s summary-judgment motion.\nHall raises an argument that the Limitations Act does not bar her claim, citing \u00a7 16-56-202(a)(2) in support. That section provides that, if a claim is substantially based \u201c[u]pon the law of more than one (1) state, the limitation period of one (1) of those states, chosen by the law of conflict of laws of this state, shall apply.\u201d However, her claim is not substantially based on the law of more than one state; as discussed above,it is substantially based on the law of Tennessee. Further, she makes no genuine argument that her claim is substantially based on Arkansas law; rather, she simply states that Neasley\u2019s death \u201cis potentially governed by the laws to two states \u2014Tennessee, where the negligence occurred, and Arkansas, where Neasley resided and where his estate was probated.\u201d However, she offers no convincing argument or authority that would explain why a wrongful-death action that accrued as the result of an accident in Tennessee would be \u201csubstantially based\u201d on Arkansas law.", "type": "majority", "author": "Tom Glaze, Justice." } ], "attorneys": [ "Eugene J. Mazzanti, for appellant.", "Anderson, Murphy & Hopkins, L.L.P., by: ScottD. Provencher, for appellee HRH Safety and Health Systems.", "Wright, Lindsey & Jennings LLP, by: Alston Jennings, Jr., for appellee Summit Contractors." ], "corrections": "", "head_matter": "Cleo HALL, as Personal Representative of the Estate of James A. Neasley, Deceased v. SUMMIT CONTRACTORS, INC., Henry Winberry, A J Winberry, Joe Parker, David Wall, Richard Carey, HRH Safety & Health Systems, Inc., and John Does 1-50\n03-709\n158 S.W.3d 185\nSupreme Court of Arkansas\nOpinion delivered April 8, 2004\nEugene J. Mazzanti, for appellant.\nAnderson, Murphy & Hopkins, L.L.P., by: ScottD. Provencher, for appellee HRH Safety and Health Systems.\nWright, Lindsey & Jennings LLP, by: Alston Jennings, Jr., for appellee Summit Contractors." }, "file_name": "0609-01", "first_page_order": 633, "last_page_order": 640 }