{ "id": 3664752, "name": "MEDICAL LIABILITY MUTUAL INSURANCE COMPANY v. ALAN CURTIS ENTERPRISES, INC., Alan Curtis, LLC, and Evergreene Properties of North Carolina, LLC, d/b/a Crestpark Inn of Forrest City", "name_abbreviation": "Medical Liability Mutual Insurance v. Alan Curtis Enterprises, Inc.", "decision_date": "2008-05-29", "docket_number": "07-991", "first_page": "525", "last_page": "531-B", "citations": [ { "type": "official", "cite": "373 Ark. 525" }, { "type": "parallel", "cite": "285 S.W.3d 233" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "373 Ark. 79", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3665313 ], "weight": 2, "year": 2008, "opinion_index": 0, "case_paths": [ "/ark/373/0079-01" ] }, { "cite": "356 Ark. 335", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5368795 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "342" }, { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/ark/356/0335-01" ] }, { "cite": "334 Ark 227", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1655429 ], "weight": 4, "year": 1998, "pin_cites": [ { "parenthetical": "Village Market II" }, { "parenthetical": "Village Market II" }, { "page": "229-30" }, { "page": "86-87", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/ark/334/0227-01" ] }, { "cite": "970 S.W.2d 243", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 703810, 703773 ], "year": 1998, "pin_cites": [ { "parenthetical": "Village Market I" } ], "opinion_index": 0, "case_paths": [ "/ark/333/0552-01", "/ark/333/0576-01" ] }, { "cite": "333 Ark 552", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 703810 ], "year": 1998, "pin_cites": [ { "parenthetical": "Village Market I" } ], "opinion_index": 0, "case_paths": [ "/ark/333/0552-01" ] }, { "cite": "341 Ark. 181", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1257719 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "186" }, { "page": "331" } ], "opinion_index": 0, "case_paths": [ "/ark/341/0181-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-22-308", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1999, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 23-79-209", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2004, "opinion_index": 0 }, { "cite": "19 Ark. 148", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725436 ], "year": 1857, "opinion_index": 0, "case_paths": [ "/ark/19/0148-01" ] }, { "cite": "366 Ark. 277", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3656804 ], "weight": 2, "year": 2006, "opinion_index": 0, "case_paths": [ "/ark/366/0277-01" ] }, { "cite": "52 S.W.3d 128", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 9488209 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/sw3d/52/0128-01" ] }, { "cite": "2 P.3d 510", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 11210762 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/p3d/2/0510-01" ] }, { "cite": "527 F. Supp.2d 896", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 4061904 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/f-supp-2d/527/0896-01" ] }, { "cite": "939 P.2d 766", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1997, "opinion_index": 0 }, { "cite": "65 Cal. Rptr.2d 366", "category": "reporters:state", "reporter": "Cal. Rptr. 2d", "year": 1997, "opinion_index": 0 }, { "cite": "16 Cal.4th 35", "category": "reporters:state", "reporter": "Cal. 4th", "case_ids": [ 1217909 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/cal-4th/16/0035-01" ] }, { "cite": "501 F. Supp.2d 1145", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 3535609 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/f-supp-2d/501/1145-01" ] }, { "cite": "309 F.3d 914", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11410007 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/f3d/309/0914-01" ] }, { "cite": "Ark. Code Ann. \u00a7 20-10-1201", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "341 Ark. 483", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1257764 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "489", "parenthetical": "emphasis added" }, { "page": "485", "parenthetical": "emphasis added" } ], "opinion_index": 1, "case_paths": [ "/ark/341/0483-01" ] }, { "cite": "329 Ark. 4", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 236188 ], "weight": 2, "year": 1997, "opinion_index": 1, "case_paths": [ "/ark/329/0004-01" ] }, { "cite": "340 Ark. 481", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1365197 ], "weight": 2, "year": 2000, "opinion_index": 1, "case_paths": [ "/ark/340/0481-01" ] }, { "cite": "932 F. Supp. 1169", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3457572 ], "year": 1996, "opinion_index": 1, "case_paths": [ "/f-supp/932/1169-01" ] }, { "cite": "975 S.W.2d 782", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 11699718 ], "year": 1998, "opinion_index": 1, "case_paths": [ "/sw2d/975/0782-01" ] }, { "cite": "108 P.3d 469", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 1143512 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/mont/326/0174-01" ] }, { "cite": "828 N.E.2d 1092", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "opinion_index": 1 }, { "cite": "777 So. 2d 1034", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 11139043, 11139101 ], "year": 2000, "opinion_index": 1, "case_paths": [ "/so2d/777/1034-01", "/so2d/777/1034-02" ] }, { "cite": "Ark. Code Ann. \u00a7 16-22-308", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1999, "opinion_index": 1 }, { "cite": "Ark. Code Ann. \u00a7 23-79-209", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2004, "opinion_index": 1 }, { "cite": "2 P.3d 510", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 11210762 ], "year": 2000, "opinion_index": 1, "case_paths": [ "/p3d/2/0510-01" ] }, { "cite": "939 P.2d 766", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1997, "opinion_index": 1 }, { "cite": "501 F. Supp.2d 1145", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 3535609 ], "year": 2007, "opinion_index": 1, "case_paths": [ "/f-supp-2d/501/1145-01" ] }, { "cite": "309 F.3d 914", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11410007 ], "year": 2002, "opinion_index": 1, "case_paths": [ "/f3d/309/0914-01" ] }, { "cite": "299 Ark. 373", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888404 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "374" }, { "page": "597" } ], "opinion_index": 2, "case_paths": [ "/ark/299/0373-01" ] }, { "cite": "371 Ark. 240", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3490564 ], "weight": 2, "year": 2007, "pin_cites": [ { "parenthetical": "per curiam" }, { "parenthetical": "per curiam" } ], "opinion_index": 2, "case_paths": [ "/ark/371/0240-01" ] } ], "analysis": { "cardinality": 900, "char_count": 18823, "ocr_confidence": 0.782, "pagerank": { "raw": 8.62389905988314e-08, "percentile": 0.49067513202507174 }, "sha256": "8804931ab468ef0611ed0b89e1f98003a8e30cbd63a82ea5f57dad7fe53c604e", "simhash": "1:34e9de562061cd23", "word_count": 3073 }, "last_updated": "2023-07-14T21:24:36.449526+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Hannah, C.J., and Brown, J., dissent.", "Imber, J., not participating.", "FIannah, C.J., joins this dissent.", "Imber, J., not participating." ], "parties": [ "MEDICAL LIABILITY MUTUAL INSURANCE COMPANY v. ALAN CURTIS ENTERPRISES, INC., Alan Curtis, LLC, and Evergreene Properties of North Carolina, LLC, d/b/a Crestpark Inn of Forrest City" ], "opinions": [ { "text": "Tom Glaze, Justice.\nThe court accepted certification of a single question of Arkansas law submitted by the United States District Court for the Eastern District of Arkansas under Ark. Sup. Ct. R. 6-8, asking this court to address the following question: after the federal court granted an insurer a declaratory judgment that the insurer owed the insured no duty to defend or pay any judgment that resulted from claims asserted in a lawsuit against the insured, may the insurer rely on its reservation of rights letter to recoup its attorney\u2019s fees and costs it expended in defense of the lawsuit?\nThe relevant facts of this case are as follows. Norma Ferrell was a resident of the Crestpark Inn nursing home in Forrest City before she died at Baptist Memorial Hospital in 2004. The administrator of her estate filed suit against the company that owned Crestpark Inn \u2014 Evergreene Properties of North Carolina (Evergreene) \u25a0 \u2014 \u25a0 seeking damages based on six causes of action: (1) ordinary negligence; (2) wrongful death based on negligence; (3) negligence as defined by the Arkansas Medical Malpractice Act; (4) wrongful death based on the Arkansas Medical Malpractice Act; (5) violations of the Arkansas Long-Term Care Resident\u2019s Rights Statute, Ark. Code Ann. \u00a7 20-10-1201 et seq.; and (6) civil liability for conduct constituting felony neglect of an endangered or impaired adult.\nEvergreene was insured under two policies issued by Fireman\u2019s Fund Insurance Company of Ohio; in turn the policies were assigned to Medical Liability Mutual Insurance Company (MLMIC). These policies were \u201coccurrence\u201d based policies that only provided coverage during the period from January 15, 2000 until January 15, 2001. Evergreene notified MLMIC of the lawsuit filed by Ferrell\u2019s estate and MLMIC retained defense counsel. However, MLMIC sent a letter to Evergreene on March 2, 2006, outlining its position that it believed that coverage was lacking for various reasons and that it was providing \u201ca defense, under protest, for all claims within the policy limits of the policies.\u201d MLMIC\u2019s letter further stated that if it was determined that MLMIC had no duty to defend or indemnify Evergreene in the lawsuit, it reserved the right to \u201crecoup and seek reimbursement for any and all costs and expenses\u201d incurred in providing a defense to Evergreene.\nMLMIC filed an action in federal court on March 8, 2006, seeking a declaratory judgment that it owed Evergreene no duty to defend or indemnify it under the policies. The federal court granted MLMIC\u2019s motion for summary judgment, holding that there was no possibility that Ferrell\u2019s lawsuit could result in recovery of damages under MLMIC\u2019s policies based on the applicable limitations periods of the policies. The federal court then granted MLMIC a declaratory judgment stating that it owed no duty to defend or indemnity Evergreene or the management services company at Crestpark Inn. However, the federal court declined to answer one issue \u2014 whether MLMIC should be permitted to seek recoupment of the defense costs it had expended on behalf of Evergreene for Ferrell\u2019s lawsuit.\nIt appears that the majority of courts that have addressed this question have applied the following general approach to a reservation of rights such as the one at issue here: in the absence of an express agreement in an insurance contract, an insurer who defends a claim for which coverage did not exist is entitled to reimbursement costs for both the settlement amount and litigation expenses if the insurer: (1) timely and explicitly reserved its right to recoup the costs; and (2) provided specific and adequate notice of the possibility of reimbursement. See, e.g., United Nat\u2019l Ins. Co. v. SST Fitness Corp., 309 F.3d 914 (6th Cir. 2002); Cincinnati Ins. Co. v. Grand Pointe, LLC, 501 F. Supp.2d 1145 (D. Tenn. 2007); Buss v. Superior Court, 16 Cal.4th 35, 65 Cal. Rptr.2d 366, 939 P.2d 766 (1997). It also appears that courts that have followed this approach have employed the legal fictions of implied contract and quasi-contract and the equitable theory of unjust enrichment to allow recovery of attorney\u2019s fees. MLMIC similarly urges this court to allow it to recoup attorney\u2019s fees under a quasi-contract theory, but this has never been allowed in Arkansas.\nOther courts, applying what appears to be the minority approach, hold that unless there is an express agreement in the policy language authorizing reimbursement, a unilateral reservation of rights letter cannot create rights not contained within the insurance policy \u2014 namely reimbursement of costs and expenses prior to a declaratory judgment that determines there is no duty to defend or indemnify. See, e.g., Westchester Fire Ins. Co. v. Wallerich, 527 F. Supp.2d 896 (2007); Shoshone First Bank v. Pac. Employers Ins. Co., 2 P.3d 510 (Wyo. 2000); Tex. Ass\u2019n of Counties County Government Risk Mgmt. Pool v. Matagorda County, 52 S.W.3d 128 (2000). The question of which of these two approaches this court will adopt is irrelevant, however, because we have stated on numerous occasions that attorneys\u2019 fees are not allowed in Arkansas except where expressly provided for by statute. See, e.g., Harris v. City of Fort Smith, 366 Ark. 277, 234 S.W.3d 875 (2006). Arkansas has followed this common law rule or \u201cAmerican rule\u201d since before the Civil War. See Temple v. Lawson, 19 Ark. 148 (1857).\nThere appear to be only two possible Arkansas statutes that could remotely entitle MLMIC to recoup attorneys fees under the scenario presented: Ark. Code Ann. \u00a7 23-79-209 (Repl. 2004) or Ark. Code Ann. \u00a7 16-22-308 (Repl. 1999). Section 23-79-209, entitled \u201cAllowance of attorney fees in suits to terminate, modify, or reinstate policy,\u201d provides in pertinent part:\n(a) In all suits in which the judgment or decree of a court is against a life, property, health and accident, or liability insurance company, either in a suit by it to cancel or lapse a policy or to change or alter the terms or conditions thereof in any way that may have the effect of depriving the holder of the policy of any of his rights thereunder, or in a suit for a declaratory judgment under the policy, or in a suit by the holder of the policy to require the company to reinstate the policy, the company shall also be liable to pay the holder of the policy all reasonable attorneys\u2019 fees for the defense or prosecution of the suit, as the case may be.\nIn Newcourt Financial, Inc. v. Canal Ins. Co., 341 Ark. 181, 186, 15 S.W.3d 328, 331 (2000), the court noted that:\n[f]rom its plain language section 23-79-209 applies to actions where judgment is ultimately rendered against certain insurance companies in suits initiated by the companies. It specifically includes a declaratory-judgment action. It also applies to suits filed by holders [insureds] of policies seeking to reinstate a canceled policy.\nHowever, there is no provision for the award of attorneys fees to the insurer under this section. The General Assembly made specific allowance only for the holder (the insured) of the policy.\nOur decisions in Village Market, Inc. v. State Farm General Insurance Co., 333 Ark 552, 970 S.W.2d 243 (1998) (Village Market I) and Village Market, Inc. v. State Farm General Insurance Co., 334 Ark 227, 975 S.W.2d 86 (1998) (Village Market II) (per curiam) are instructive here. In Village Market I, the court held that where an insurance company is the prevailing party in a breach-of-contract action with an insured, it may be awarded an attorney\u2019s fee under \u00a7 16-22-308. However, in Village Market II, we granted the insured\u2019s petition for rehearing and held that there was no statutory authorization for an insurer to recover attorney\u2019s fees as the prevailing party in an action where the insured sought recovery for a claim under his or her policy. The court admitted that it had not fully considered \u201cthe fundamental principle that attorney\u2019s fees are not awarded unless expressly provided for by statute or rule\u201d and reversed itself on this point, stating as follows:\nIn considering and applying the foregoing statutory principles, we first read the plain language of \u00a7 23-79-208, which provides for attorney\u2019s fees in actions between policyholders and insurance companies. That statute allows attorney\u2019s fees to insureds under prescribed circumstances, but omits any reference for such fee awards to insurers. Next, in reading \u00a7 16-22-308, that statute never mentions insurance policies and never expressly provides attorney\u2019s fees for either insureds or insurers. Because attorney\u2019s fees are awarded only when expressly allowed by statute or rule, the silence of such fee awards to insurers in\u00a7\u00a7 16-22-308 and 23-19-208 can only be interpreted to mean that the General Assembly never intended that attorney\u2019s fees be awarded to insurers when an insured has filed an action seeking recovery for a claim under his or her policy.\nId. at 229-30, 975 S.W.2d at 86-87 (internal citations omitted)(additional emphasis added). While Village Market II involved two insurance statutes that are not directly applicable here, it is significant that the court held that the General Assembly\u2019s silence reflected an intent to disallow the award of attorney\u2019s fees to insurers.\nIn the present case, \u00a7 23-79-209 only provides an attorney\u2019s fee to the insured in a declaratory judgment action. The only other possible statutory provision that could possibly allow MLMIC to recoup attorney\u2019s fees is under \u00a7 16-22-308, which states:\nIn any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney\u2019s fee to be assessed by the court and collected as costs.\nHere, there is no breach of contract at issue or other applicable provision within the plain language of \u00a7 16-22-308 that would allow for an insurer to recoup attorney\u2019s fees.\nWe have often stated that Arkansas public policy is best evidenced by its statutes. See, e.g., State Farm Mut. Auto. Ins. Co. v. Henderson, 356 Ark. 335, 342, 150 S.W.3d 276, 280 (2004). It is a fundamental principle of Arkansas law that attorney\u2019s fees are awarded only when expressly allowed by statute or rule, and the General Assembly\u2019s silence on the award of attorneys fees reflects our state\u2019s public policy on the subject. As we have often pointed out, it is for the General Assembly, not the courts, to establish public policy. See, e.g., Carmody v. Raymond James Fin. Servs., Inc., 373 Ark. 79, 281 S.W.3d 721 (2008). Accordingly, we hold that without statutory or rule authority allowing for such, an insurer may not recoup attorney\u2019s fees under a unilateral reservation of rights.\nCertified question answered.\nHannah, C.J., and Brown, J., dissent.\nImber, J., not participating.", "type": "majority", "author": "Tom Glaze, Justice." }, { "text": "Robert L. Brown, Justice,\ndissenting. I disagree with the majority opinion for three reasons. First, the majority decides the certified question on a ground not briefed by either party, no doubt because neither party considered the majority\u2019s reasoning as being applicable to the question before us. What this means is that the losing party will quickly petition this court for rehearing to brief whether the American Rule is germane to the question at hand because it has not had an opportunity to argue that point. Clearly, a better course for the majority to take, since it believes the American Rule has some pertinence, is to request briefs on whether the American Rule is apposite to the certified question.\nThe second reason I disagree with the majority is that it has decided the issue on a rule that no other jurisdiction has employed, though it appears that virtually every state in the union, other than Alaska, has adopted the American Rule. That should be a clear signal to the majority that the American Rule should not be invoked in this context. For example, courts in California, Florida, Illinois, Montana, Texas, and Wyoming, among others, as well as multiple federal courts have decided the question before us, either in favor of the insurance company or against it. Our research has disclosed that no state court or federal court has based its reservation-of-rights decision on the American Rule, or even discussed it. See, e.g., Buss v. Superior Court of Los Angeles County, 939 P.2d 766 (Cal. 1997); Colony Ins. Co. v. G & E Tires & Service, Inc., 777 So. 2d 1034 (Fla. Dist. Ct. App. 2000); Gen. Agents Ins. Co. of Am., Inc. v. Midwest Sporting Goods Co., 828 N.E.2d 1092 (Ill. 2005); Travelers Cas. & Sur. Co. v. Ribi Immunochem Research, Inc., 108 P.3d 469 (Mont. 2005); Matagorda County v. Texas Ass\u2019n of Counties County Gov\u2019t Risk Mgmt. Pool, 975 S.W.2d 782 (Tex. Ct. App. 1998); Shoshone First Bank v. Pac. Employers Ins. Co., 2 P.3d 510 (Wyo. 2000); Cincinnati Ins. Co. v. Grande Pointe, LLC, 501 F. Supp. 2d 1145 (E.D. Tenn. 2007); United Nat\u2019l Ins. Co. v. SST Fitness Corp., 309 F.3d 914 (6th Cir. 2002); Knapp v. Commonwealth Land Title Ins. Co., Inc., 932 F. Supp. 1169 (D. Minn. 1996).\nAnd, finally, I dissent because the American Rule simply does not control the certified question. The American Rule applies to claims for attorney\u2019s fees by prevailing litigants. American Jurisprudence states the rule succinctly: \u201cMany states generally follow the \u2018American Rule,\u2019 which provides that absent statutory authority or a contractual agreement between the parties, each party to litigation must bear its own attorney\u2019s fees and may not recover those fees from an adversary.\u201d 20 Am. Jur. 2d Costs \u00a7 55 (2005).\nArkansas case law agrees: \u201cThis court follows the American rule, which requires every litigant to bear his or her attorney\u2019s fees, absent a state statute to the contrary. Lake View Sch. Dist. No. 25 v. Huckabee, 340 Ark. 481, 10 S.W.3d 892 (2000); Love v. Smackover Sch. Dist., 329 Ark. 4, 946 S.W.2d 676 (1997).\u201d Fox v. AAA U-Rent It, 341 Ark. 483, 489, 17 S.W.3d 481, 485 (2000) (emphasis added).\nWhat we have under the facts leading to the certified question is not a prevailing litigant seeking to recover attorney\u2019s fees from the losing litigant. Again, that is when the American Rule applies. What we have here is a question of whether an implied contract was formed by MLMIC\u2019s reservation of rights. That reservation, according to MLMIC, obligated Evergreene to reimburse MLMIC for costs and attorney\u2019s fees spent by it to defend Evergreene against multiple claims, including wrongful death, brought by the Ferrell Estate, a third party. Whether an implied contract was formed to reimburse costs advanced in defense of a third-party claim is a far cry from the issue of payment of costs to a prevailing litigant, which is the subject of the American Rule. Simply put, that rule has no relevancy to the certified question before us.\nIn short, the majority follows neither the majority position nor minority position, as briefed by the parties. Rather, it blazes a new trail and forces adherence to a rule that no other court has seen fit to apply under these circumstances. The upshot of this is that insurance carriers will be forced to defend all uncovered claims and incur that expense based on an insured\u2019s demand without hope of reimbursement. That runs directly counter to the prevailing view in most states. In addition, the majority leaves unanswered the issue of whether costs other than attorney\u2019s fees may be recouped by MLMIC.\nFor these reasons, I respectfully dissent.\nFIannah, C.J., joins this dissent.\nTo clarify further, MLMIC does not sue for its attorney\u2019s fees incurred in its declaratory-judgment action brought against Evergreene where it prevailed. It claims attorney\u2019s fees and costs for hiring counsel to defend Evergreene against an uncovered claim brought by the Ferrell Estate.\nThe majority opinion cites to Arkansas statutes that all refer to situations where the issue is recovery of attorney\u2019s fees between litigants. See Ark. Code Ann. \u00a7 23-79-209 (Repl. 2004) and Ark. Code Ann. \u00a7 16-22-308 (Repl. 1999). Again, that is not the fact situation before this court.", "type": "dissent", "author": "Robert L. Brown, Justice," }, { "text": "SUPPLEMENTAL OPINION ON DENIAL OF REHEARING\nJUNE 26, 2008\nTom Glaze, Justice.\nOn October 4, 2007, we accepted certification of a question of Arkansas law submitted by the United States District Court for the Eastern District of Arkansas, requesting this court to answer whether an insurer can rely on a unilateral reservation of rights to recoup attorney\u2019s fees expended in defense of the insured, following a declaratory judgment that determined the insurer did not owe a duty to defend or indemnify the insured. Med. Liab. Mut. Ins. Co. v. Alan Curtis Enters., Inc., 371 Ark. 240, 264 S.W.3d 545 (2007) (per curiam). We issued an opinion on May 29, 2008, holding that, under Arkansas law, an insurer may not recoup attorney\u2019s fees under a unilateral reservation of rights without statutory or rule authority. Med. Liab. Mut. Ins. Co. v. Alan Curtis Enters., Inc., 373 Ark. 525, 285 S.W.3d 233 (2008). Medical Liability Mutual Insurance Company (MLMIC) has filed a petition for rehearing and to vacate the opinion, asserting that the opinion was moot because the parties settled the underlying case.\nWe first note the lack of timeliness to MLMIC\u2019s motion to withdraw the certified question. The certified question was submitted to the court on September 26, 2007, and MLMIC filed its motion to withdraw the question the day before we issued our answer. Second, under Ark. Sup. Ct. R. 6-8(a)(l), this court has the discretion to accept certified questions from a federal court when it appears that there is no controlling precedent on an issue under Arkansas law. Our decision on the certified question of whether attorney\u2019s fees can be recouped by an insurer under a unilateral reservation of rights established precedent that will prevent future litigation. \u201cWhere considerations of public interest or prevention of future litigation are present,\u201d this court may, at its discretion, \u201celect to settle an issue, even though moot.\u201d Owens v. Taylor, 299 Ark. 373, 374, 772 S.W.2d 596, 597 (1989). Accordingly, we deny MLMIC\u2019s petition.\nImber, J., not participating.", "type": "rehearing", "author": "Tom Glaze, Justice." } ], "attorneys": [ "Williams & Anderson, PLC, by: Jess Askew III and BonnieJohnson, for petitioner.", "Bequette & Billingsley, P.A., by: Keith I. Billingsley, for respondents." ], "corrections": "", "head_matter": "MEDICAL LIABILITY MUTUAL INSURANCE COMPANY v. ALAN CURTIS ENTERPRISES, INC., Alan Curtis, LLC, and Evergreene Properties of North Carolina, LLC, d/b/a Crestpark Inn of Forrest City\n07-991\n285 S.W.3d 233\nSupreme Court of Arkansas\nOpinion delivered May 29, 2008\n[Rehearing denied June 26, 2008.]\nWilliams & Anderson, PLC, by: Jess Askew III and BonnieJohnson, for petitioner.\nBequette & Billingsley, P.A., by: Keith I. Billingsley, for respondents.\nBROWN, J., would grant rehearing. IMBER, J., not participating." }, "file_name": "0525-01", "first_page_order": 551, "last_page_order": 559 }