Roeder v. United States of Am. , 2013 Ark. LEXIS 527 ( 2013 )

Cite as 2013 Ark. 451
SUPREME COURT OF ARKANSAS
No. CV-13-955
THERESA ROEDER, AS THE Opinion Delivered NOVEMBER 7, 2013
ADMINISTRATRIX OF THE ESTATE
OF ESTHER KAY ROEDER,
DECEASED, AND ON BEHALF OF THE
WRONGFUL DEATH BENEFICIARIES
OF ESTHER KAY ROEDER; TARA REQUEST TO CERTIFY QUESTION
ROEDER, AS THE ADMINISTRATRIX OF LAW FROM THE UNITED STATES
OF THE ESTATE OF BRUCE WAYNE DISTRICT COURT FOR THE
ROEDER, AND ON BEHALF OF THE WESTERN DISTRICT OF ARKANSAS,
WRONGFUL DEATH BENEFICIARIES HOT SPRINGS DIVISION
OF BRUCE WAYNE ROEDER; AND
TARA ROEDER, AS THE CERTIFIED QUESTION ACCEPTED.
ADMINISTRATRIX OF THE ESTATE
OF DEBORAH BUSBY ROEDER, AND
ON BEHALF OF THE WRONGFUL
DEATH BENEFICIARIES OF DEBORAH
BUSBY ROEDER
PETITIONERS
V.
UNITED STATES OF AMERICA; JAMES
S. WATSON, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; GLORIA
MAPLES CHRISMER, IN HER
INDIVIDUAL AND OFFICIAL
CAPACITY; NORMAL L. WAGONER,
IN HIS INDIVIDUAL AND OFFICIAL
CAPACITY; JAMES B. KOZIK, IN HIS
INDIVIDUAL AND OFFICIAL
CAPACITY; AND JOHN DOES 1–5, IN
THEIR INDIVIDUAL AND OFFICIAL
CAPACITY
RESPONDENTS
PER CURIAM
Cite as 2013 Ark. 451
In accordance with section 2(D)(3) of amendment 80 to the Arkansas Constitution and
Rule 6-8 of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas,
the Honorable Susan O. Hickey, of the United States District Court for the Western District
of Arkansas, Hot Springs Division, filed a certification order with our clerk on October 1,
2013. The certifying court requests that we answer a question of law that may be
determinative of a cause now pending in the certifying court, and it appears to the certifying
court that there is no controlling precedent in the decisions of the Arkansas Supreme Court.
After a review of the certifying court’s analysis and explanation of the need for this court to
answer the question of law presently pending in that court, we accept certification of the
following question, as herein formulated:
Whether “malicious” conduct, under Ark. Code Ann. § 18-11-307(1), includes
conduct in reckless disregard of the consequences from which malice may be inferred.
We note that the question of the correct statutory interpretation of “malicious” was
raised in Carr v. Nance, 2010 Ark. 497, 370 S.W.3d 826, but this court declined to address it
because the jury was never instructed on malice and returned a general verdict form. This per
curiam order constitutes notice of our acceptance of the certification of the question of law.
For purposes of the pending proceeding in this court, the following requirements are imposed:
A. Time limits will be calculated from the date of this per curiam order
accepting certification. The plaintiffs in the underlying action, Theresa Roeder, as the
Administratrix of the Estate of Esther Kay Roeder, deceased, and on behalf of the
wrongful death beneficiaries of Esther Kay Roeder; Tara Roeder, as the Administratrix
of the Estate of Bruce Wayne Roeder, and on behalf of the wrongful death
beneficiaries of Bruce Wayne Roeder; and Tara Roeder, as the Administratrix of the
Estate of Deborah Busby Roeder, and on behalf of the wrongful death beneficiaries
of Deborah Busby Roeder, are designated the moving parties and will be denoted as
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Cite as 2013 Ark. 451
the “Petitioners,” and their brief is due thirty days from the date of this per curiam; the
defendants, United States of America; James S. Watson, in his individual and official
capacity; Gloria Maples Chrismer, in her individual and official capacity; Normal L.
Wagoner, in his individual and official capacity; James B. Kozik, in his individual and
official capacity; and John Does 1–5, in their individual and official capacity, shall be
denoted as “Respondents,” and their brief shall be due thirty days after the filing of
Petitioners’ brief. Petitioners may file a reply brief within fifteen days after
Respondents’ brief is filed.
B. The briefs shall comply with this court’s rules as in other cases except for
the briefs’ content. Only the following items required in Arkansas Supreme Court
Rule 4-2(a) shall be included:
(3) Points on appeal which shall correspond to the certified question of
law to be answered in the federal district court’s certification order.
(4) Table of authorities.
(6) Statement of the case which shall correspond to the facts relevant to
the certified question of law as stated in the federal district court’s certification
order.
(7) Argument.
(8) Addendum.
(9) Cover for briefs.
C. Oral Argument will only be permitted if this court concludes that it will be
helpful for presentation of the issue.
D. Arkansas Supreme Court Rule 4-6 with respect to amicus curiae briefs will
apply.
E. This matter will be processed as any case on appeal.
F. Rule XIV of the Rules Governing Admission to the Bar shall apply to the
attorneys for the Petitioners and the Respondents.
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Cite as 2013 Ark. 451
Pursuant to Arkansas Supreme Court Rule 6-8(d), we request that the parties include
in an addendum the following pleadings: the complaint; the answer, if any; the motion for
summary judgment; and any responses, replies, and briefs in support thereof. In addition, if
the parties believe that any additional pleadings will be useful to our understanding of the legal
issues presented in this certified question, those pleadings should be included as well.
Certified question accepted.
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