Certain Underwriters at Lloyd's, London v. Bass , 2015 Ark. LEXIS 296 ( 2015 )

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SUPREME COURT OF ARKANSAS
No. CV-14-788
CERTAIN UNDERWRITERS AT Opinion Delivered APRIL 23, 2015
LLOYD’S, LONDON, SUBSCRIBING
TO POLICY NOS. LLG035083,
LLG041386, EQ6564A, EQ6564B, APPEAL FROM THE SALINE
EQ6564C, LCL002222, EQ6366A, COUNTY CIRCUIT COURT
EQ6366B, EQ6366C, EQ6366D, EQ6366E, [NO. 63CV-13-309]
EQA22264, EQA12036, LCP001820,
LCL003461, LCP002646, LLG034560, HONORABLE GARY ARNOLD,
LLG040476, LLG045650, LLG051521, JUDGE
LLG055843, LLG059178, EQA14445,
EQA14505, LSP510482, LSP511933,
LSP513021, LSP513885, 05SRT20094, REVERSED AND REMANDED.
05SRT20640, 05SRT21188, 05SRT21737,
05SRT20794, CP04265, CP04980,
CP05809, CP06776, CP06159, CP07113,
058204-004, 058204-005, 068204-003,
058170-027, 068170-012, 068170-013,
078170-009, 078170-010, 088170-010,
088170-011, 098170-003, 098170-004,
19618-08, 19618-09, 19618-10, 19618-11,
19511-08, 19511-09, 19511-10, AND
19511-11
APPELLANTS
V.
DAVID BASS; DONALD HUGHES;
LISTON HASEMAN, JR.; JOHN
KIMBROUGH; LEWIS JENKINS
TRUCKING, INC.; LEW THOMPSON &
SON, INC.; MOORE VALLEY FARMS,
INC.; JEREMY POE; FRANKLIN D.
POLLARD D/B/A THE REGENCY
LIMITED; BOBBY AND EARNESTINE
P OL LINS; ROBBY SUMME R S ;
TOMMIE WALKER AUCTION, INC.;
ADVADA WARD; LANCE WHITAKER;
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AND SHIRLEY WILLIAMS,
INDIVIDUALLY AND AS PLAINTIFF
CLASS REPRESENTATIVES
APPELLEES
PAUL E. DANIELSON, Associate Justice
This is an appeal from an order of the Saline County Circuit Court denying a motion
by appellants, Certain Underwriters at Lloyd’s, London, to intervene in a class-action suit filed
by appellees, David Bass; Donald Hughes; Liston Haseman, Jr.; John Kimbrough; Lewis
Jenkins Trucking, Inc.; Lew Thompson & Son, Inc.; Moore Valley Farms, Inc.; Jeremy Poe;
Franklin D. Pollard d/b/a The Regency Limited; Bobby and Earnestine Pollins; Robby
Summers; Tommie Walker Auction, Inc.; Advada Ward; Lance Whitaker; and Shirley
Williams, purchasers of surplus-lines insurance. Named as defendants were Michael Ellis
Alexander, Terry Lynn Burnett, Dianna Lynn Farish, John Archie Griggs, John Christopher
Hildebrand, James Robert Hill, Stephen Frederick Hoffmann, Michael Leon Johnson, Stanley
Guy Payne, Frances S. Shaddox, Roy Mack Shaddox, Richard Paul Simon, Russell Ellsworth
Short, and Jimmy Sutterfield, Arkansas licensed surplus-lines-insurance brokers.1 On appeal,
appellants argue that the circuit court erred in denying its motion to intervene because (1)
they are entitled to intervene as defendants to protect their contractual rights and their
financial, business, and legal interests; and (2) appellants are not too amorphous for
1
As denoted in the caption, appellants are Certain Underwriters who served as insurers
in sixty-three specific insurance contracts at issue in this case.
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intervention. This court has previously recognized a right to appeal from the denial of a
motion to intervene as a matter of right under Arkansas Rule of Appellate Procedure–Civil
2(a)(2) (2014). See Fort Smith Sch. Dist. v. Deer/Mt. Judea Sch. Dist., 2014 Ark. 486, 450
S.W.3d 239; Duffield v. Benton Cnty. Stone Co., Inc., 369 Ark. 314, 254 S.W.3d 726 (2007).
We reverse and remand.
The record reflects the following facts. On May 22, 2013, appellees filed a class-action
complaint for declaratory relief on behalf of themselves, individually and as class
representatives, against a group of licensed surplus-lines-insurance brokers who contracted
with appellants to place surplus-lines insurance.2 According to appellees, these defendant
brokers improperly placed contracts of insurance with persons who were not insurers
approved by the Arkansas Insurance Commissioner (“Commissioner”). Appellees prayed that
the circuit court declare that they have a right to treat, as voidable, contracts for placement
of surplus-lines insurance placed by defendant brokers between April 8, 2005, and March 18,
2011, with persons who were not approved or qualified as surplus-lines insurers by the
Commissioner. Appellees further requested that the circuit court order defendants to account
for and return to appellees all monies received by defendants for “the contracts in question.”
Finally, appellees requested an award of attorney’s fees, prejudgment interest, and costs.
2
Arkansas law provides that when insurance coverage cannot be purchased from
licensed Arkansas insurers, surplus-lines insurance may be purchased from out-of-state
insurers, provided that the transaction proceeds through a licensed, Arkansas surplus-lines
broker. See Ark. Code Ann. § 23-65-305 (Repl. 2012).
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Appellants filed their first motion to intervene and brief in support on June 20, 2013,
and asserted that they had subscribed to multiple insurance policies issued to appellees during
the applicable time period.3 According to appellants, they had significant, recognized interests
in the lawsuit because appellees sought to void multiple insurance contracts to which
appellants subscribed as real parties in interest. In addition, appellants alleged in their motion
to intervene that
6. The disposition of this lawsuit will impair Underwriters’ interests in the
subject insurance contracts by determining Underwriters’ rights and obligations
without affording Underwriters the opportunity to defend their clear contractual
interests and leaving them with no independent remedy.
7. Because the Brokers are neither insurers nor parties to the contracts that the
Plaintiffs seek to invalidate, Underwriters, as actual parties to those contracts, face
separate and distinct obligations that are not adequately represented or protected by the
existing parties to this lawsuit.
8. Underwriters are necessary and indispensable parties to the adjudication of
this lawsuit because the Plaintiffs clearly seek to challenge the validity of contracts
between the Plaintiffs and Underwriters and, in effect, to extinguish Underwriters’
substantial interests in those contracts.
Filed simultaneously with the motion to intervene was appellants’ “Rule 24(c) Pleading,”
wherein they generally denied the allegation of the class-action complaint, including the
allegation that the insurance contracts were voidable.
3
According to counsel for appellants, Lloyd’s of London is not an insurer; rather, it is
a marketplace of insurers who are called underwriters, and they are members of Lloyd’s. The
underwriters can be individuals, or an entity such as a corporation, partnership, or LLC. The
underwriters form syndicates and participate to a different percentage in each syndicate, with
syndicates having a managing agent who acts on behalf of all the underwriters in the
syndicate.
4
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In their brief in support of the motion to intervene, appellants asserted that they were
entitled to intervention as a matter of right pursuant to Arkansas Rule of Civil Procedure
24(a)(2) because (1) their motion was timely; (2) they have a recognized interest in the
lawsuit; (3) the disposition of the lawsuit would impair appellants’ interests; (4) their interests
would not be adequately represented by the current parties; and (5) they were necessary
parties to the lawsuit.
Following the filing of the initial complaint, appellees filed two amended complaints.
In the first amended complaint, appellees alleged that defendants violated the Arkansas Surplus
Lines Insurance Act, as well as the Arkansas Deceptive Trade Practices Act, by placing
coverage with unapproved insurers. Appellees requested that defendants be ordered to pay
restitution and that they be awarded actual damages under Arkansas Code Annotated section
4-88-113(f), punitive damages, prejudgment interest, and costs.
After appellees filed a second amended complaint adding two additional plaintiffs,
appellants filed a renewed motion to intervene. Therein, appellants asserted that they
remained necessary and indispensable to the lawsuit and continued to have significant
recognized interests that would be impaired if they were not allowed to intervene.
Appellees filed a response and opposition to the renewed motion to intervene on
January 29, 2014. In it, appellees asserted that the only purpose of the motion was to create
diversity needed to support federal jurisdiction. Appellees also stated that their second
amended complaint did not implicate any interests of appellants, as appellees were not seeking
any relief against appellants nor had they alleged any wrongdoing on the part of appellants,
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and the defendant brokers adequately represent any remaining interests of appellants.
Appellees also argued that appellants’ decision to seek intervention as “Certain Underwriters
at Lloyd’s, London, Subscribing to [Enumerated Policies]” was an attempt to proceed under
a “cloak of anonymity” and demonstrated that the appellants were either “an unincorporated
association formed for the purpose of intervening” or “a collection of smaller unincorporated
associations.”
On March 19, 2014, appellees filed a third amended complaint for the purpose of
consolidating this case with two other overlapping class-action cases. The allegations of the
prior complaints were reiterated—primarily that appellants placed surplus-lines insurance with
unapproved insurers, and as a result, the defendant surplus-lines brokers were not permitted
to place insurance with appellants; thus, the subject policies were “materially nonconforming
insurance.”
Appellants again renewed their motion to intervene on April 8, 2014, and a hearing
on the motion to intervene was held on May 15, 2014. At that hearing, appellants explained
that the underlying action involved multiple insurance policies consisting of thirty-three
different syndicate numbers, with those syndicates consisting of thirty or forty thousand
individual names. But, appellants stated that it is common practice in the insurance field to
use the shorthand “Underwriters at Lloyd’s,” and that if you have a policy number, it can be
tracked down and the underwriters identified. Appellants argued that they were entitled to
intervene as a matter of right but also noted that they had requested that they be allowed to
intervene permissively.
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Appellees argued that intervention was not warranted, in part, because it is only the
brokers, not the insurers, who are charged with, and violated, the statutory requirements for
surplus-lines insurance. According to appellees, it was the brokers sued in the underlying
complaint that took appellees’ money and misused it and, as a result, appellees are entitled to
restitution, which is not grounded in contracts, policies, or rescission. Appellees also argued
that appellants could not intervene because they were an unincorporated association or
artificial designation not capable of suing or being sued in Arkansas. Finally, appellees argued
that appellants had failed to present any Rule 24 proof demonstrating that they are entitled
to intervene as a matter of right.
On May 21, 2014, the circuit court entered an order denying appellants’ motion to
intervene, finding that appellees’ argument regarding appellants’ amorphous nature was
persuasive and further noting that appellees’ other arguments opposing intervention were also
persuasive. Appellants timely filed a notice of appeal.
I. Standard of Review
Appellants raise a threshold question of which standard of review applies when
reviewing an order denying intervention as a matter of right. It is undisputed that an order
denying permissive intervention is reviewed under an abuse-of-discretion standard. Billabong
Prods., Inc. v. Orange City Bank, 278 Ark. 206, 644 S.W.2d 594 (1983). But, in Medical Park
Hospital v. Bancorp South Bank of Hope, 357 Ark. 316, 166 S.W.3d 19 (2004), this court
recognized that we have never articulated a standard of review for denial of a motion to
intervene as a matter of right when timeliness was not the issue to be resolved. Although we
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recognized in that case that no standard of review had yet been announced, we declined to
announce a standard because neither party addressed the issue of the appropriate standard, and
the court’s ultimate decision would have been the same whether it applied an abuse-of-
discretion standard or reviewed the case de novo. Id.; see also Fort Smith Sch. Dist., 2014 Ark.
486, 450 S.W.3d 239; Hunter v. Runyan, 2011 Ark. 43, 382 S.W.3d 643; DeJulius v. Sumner,
373 Ark. 156, 282 S.W.3d 753 (2008).
In the instant case, appellants assert that this court should employ a de novo review to
the question whether the circuit court erred in denying their motion to intervene as a matter
of right. In support, appellants argue that the question presented in a case such as this one is
more akin to a question of law, which this court reviews de novo. We agree.
Notably, our law is very clear that intervention as a matter of right cannot be denied
if a party meets all three requirements for intervention as set forth in Rule 24(a)(2). Pearson
v. First Nat’l Bank of DeWitt, 325 Ark. 127, 924 S.W.2d 460 (1996). Thus, if the factors are
satisfied, then a circuit court has no discretion to deny intervention. Moreover, although this
court has never specifically announced a standard of review for this issue, we have in two
prior appeals seemingly applied a de novo standard. See UHS of Ark., Inc. v. City of Sherwood,
296 Ark. 97, 752 S.W.2d 36 (1988) (no standard of review cited but review appears to be de
novo because factors favoring appellant were weighed against inconvenience to appellee);
Billabong Prods., 278 Ark. 206, 644 S.W.2d 594 (abuse of discretion applied to permissive
intervention; no standard of review cited for denial of intervention of right, but court
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appeared to apply de novo standard because we held appellant’s claimed interest was
insufficient to allow intervention as a matter of right).
Finally, although there is a split of authority among the jurisdictions on the appropriate
standard of review, we are more persuaded by those courts that have adopted a de novo
review. The Mississippi Supreme Court in Madison HMA, Inc. v. St. Dominic-Jackson Memorial
Hospital, 35 So. 3d 1209 (Miss. 2010), clarified its standard of review and stated that its Rule
24, its comment, and the underlying purposes of the rule clearly demonstrated that a de novo
standard of review applied to all intervention-of-right judgments, as the abuse-of-discretion
standard deviated greatly from the court’s historical de novo review of questions of law. The
court also noted that the use of the word “shall” in the rule indicated that the trial court has
little, if any, discretion in the matter. Id. at 1214. Similarly, the Connecticut Supreme Court
clarified its standard of review and determined that a de novo standard of review was more
consistent with the nature of the relevant inquiry taken to evaluate a claim of intervention as
a matter of right. Kerrigan v. Comm’r of Pub. Health, 904 A.2d 137 (Conn. 2006); see also Fox
v. Tyson Foods, Inc., 519 F.3d 1298 (11th Cir. 2008); Trans Chem. Ltd. v. China Nat’l Mach.
Imp. & Exp. Corp., 332 F.3d 815 (5th Cir. 2003); Securities & Exch. Comm’n v. Homa, 17 F.
App’x 441 (7th Cir. 2001); Stevenson v. Rominger, 905 F. Supp. 836 (E.D. Wash. 1995).
In light of the forgoing, we hold that an appeal from an order denying intervention as
a matter of right is reviewed de novo. De novo review means that the entire case is open for
review. See ConAgra, Inc. v. Tyson Foods, Inc., 342 Ark. 672, 30 S.W.3d 725 (2000). With
this settled, we turn now to the issues on appeal.
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II. Amorphous Nature of Appellants
Although appellants address the issue of whether they established the three
requirements for intervention as a matter of law as their first point on appeal, it is necessary
for us to first review the circuit court’s ruling that appellants were too amorphous to allow
intervention. Appellants argue that the circuit court erred in so ruling because their use of
shorthand to identify the underwriters by reference to policy numbers clarified that all
members of the relevant syndicates were being sued individually. According to appellants,
the term “Underwriters,” along with the policy number, is a reference to the various persons
or entities who subscribe to policies as part of a Lloyd’s syndicate.
Appellees counter that the circuit court correctly held that appellants were too
amorphous for intervention and, moreover, that appellants have forfeited any chance to
remedy any defects in their pleadings. According to appellees, the party designation of
“Certain Underwriters at Lloyd’s, London subscribing to [specified policies]” was insufficient,
was tantamount to an attempt to proceed anonymously, and is demonstrative of the fact that
the names of those “Certain Underwriters” were never offered into the record. Appellees
aver that it was proper for the circuit court to deny intervention on this basis where the
record does not contain the names of the alien individuals and corporations who assert that
they insured appellees’ policies. Moreover, appellees argue that there is no statute that gives
“Certain Underwriters” the capacity or personhood necessary to proceed as intervenors.
This court has discussed the concept of a group being amorphous in the context of
class-certification appeals and has made clear that a class must be susceptible to definition and
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cannot be amorphous or imprecise. Teris, LLC v. Chandler, 375 Ark. 70, 289 S.W.3d 63
(2008). Such a rule requires that a class be defined with precision. In the instant case,
appellees argue that appellants’ attempt to proceed as “Certain Underwriters” rendered
appellants amorphous in the sense that no one, not the parties or the court, knew the names
of the actual insurers. But, appellees also argued, in this same vein, that it would be unduly
burdensome to allow appellants to intervene when the names of the individuals amounted to
thirty or forty thousand.
Turning first to the issue of ascertaining the names of the insurers, appellees cite to the
case of Doe v. Weiss, 2010 Ark. 150, in support of their claim. In that case, this court affirmed
the circuit court’s order denying a request by the plaintiffs to proceed anonymously. The
plaintiffs, who were undocumented aliens, filed suit using pseudonyms against the director of
the Department of Finance and Administration challenging the constitutionality of a statute
requiring, among other things, proof of an individual’s social security number and lawful
immigration status before issuing a driver’s license or identification card to that person. This
court concluded that the circuit court did not abuse its discretion in finding that the appellants
did not provide a sufficient reason to permit the use of pseudonyms to overcome the prejudice
that the State would incur trying to defend an action against an anonymous party. Id.
Clearly, the decision in Doe is inapposite. Appellants have never sought to proceed
anonymously, despite appellees’ repeated assertions that appellants were attempting to proceed
under a “cloak of anonymity.” Moreover, nothing in Doe speaks to appellees’ contention that
“Certain Underwriters” is an unincorporated association not capable of suing or being sued
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in Arkansas courts. It is true that an unincorporated association cannot, in the absence of a
statute authorizing it, be sued in its societal or company name, but all the members must be
made parties, since such bodies have, in the absence of statute, no legal entity distinct from
that of their members. Baskins v. United Mine Workers of Am., 150 Ark. 398, 234 S.W. 464
(1921). In Curators of Central College v. Bird, 148 Ark. 323, 229 S.W. 730 (1921), this court
explained that suits must be instituted or defended by persons, either natural or artificial.
Here, appellees aver, without any proof, that “Certain Underwriters” is an unincorporated
association, but this allegation is contrary to the evidence.
During the hearing, counsel for appellants stated that the underlying action involved
sixty-three insurance policies that were made up of thirty-three different syndicates, with
those syndicates consisting of an estimated thirty or forty thousand individual names. As
appellants pointed out, however, they attached to their motions to intervene affidavits of
defendant brokers who actually dealt with appellees. Therein the defendant brokers averred
that they had identified each of the policies at issue and all of the syndicates on those policies.
The defendant brokers further averred that they had access to a list of the subscribers,
otherwise known as the underwriters, and that they believed this information had been
produced by counsel during discovery at appellees’ request.
Accordingly, we agree with appellants that their mere use of the shorthand reference
“Certain Underwriters” to describe the numerous insurers of these policies did not render
them amorphous such that it was proper for the circuit court to deny their motion to
intervene as a matter of right.
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III. Rule 24(a)(2) Requirements
We turn now to the three requirements of Rule 24(a)(2), which must be demonstrated
when a party seeks to intervene as a matter of right. Appellants argue that the circuit court
erred in denying their motion to intervene as a matter of right because they are necessary
parties to the suit between appellees and defendants below. Moreover, appellants assert that
they satisfy the three requirements for intervention as a matter of right because (1) they have
a recognized interest in the subject matter of the lawsuit; (2) the disposition of the lawsuit may
impair their interests; and (3) their interests in the lawsuit are not adequately represented by
the existing parties.
Appellees counter that appellants never met their burden of proving that they were the
insurers of the appellees’ policies, or that the lawsuit between appellees and defendants would
affect their interests. According to appellees, appellants failed to prove that they were parties
to the insurance contracts with the plaintiffs and offered no proof that appellants and the
insurers were the same. Appellees further assert that their complaint did not give rise to an
interest or threaten any impairment to appellants, particularly where they abandoned their
claim for a declaratory judgment and now sought an award of restitution by the defendant
brokers who violated applicable statutory law by placing the surplus-lines insurance with
unapproved companies.
Intervention as a matter of right is governed by Rule 24(a), which states as follows:
(a) Intervention of Right. Upon timely application anyone shall be permitted to
intervene in an action: (1) when the statute of this state confers an unconditional right
to intervene; or (2) when the applicant claims an interest relating to the property or
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transaction which is the subject of the action and he is so situated that the disposition
of the action may as a practical matter impair or impede his ability to protect that
interest, unless the applicant’s interest is adequately represented by existing parties.
Ark. R. Civ. P. 24(a)(1)–(2) (2014). Thus, this court has held that when a petitioner seeks
to intervene as a matter of right pursuant to Rule 24(a)(2), he must satisfy three requirements:
(1) that he has a recognized interest in the subject matter of the primary litigation, (2) that his
interest might be impaired by the disposition of the suit, and (3) that his interest is not
adequately represented by existing parties. Med. Park Hosp., 357 Ark. 316, 166 S.W.3d 19;
Billabong Prods., Inc., 278 Ark. 206, 644 S.W.2d 594. This court has further held that, if a
party meets all three factors under Rule 24(a)(2), intervention as a matter of right cannot be
denied. Pearson, 325 Ark. 127, 924 S.W.2d 460.4
The crux of appellants’ argument and, in fact, their point made throughout the
intervention process, is that the insurance contracts at issue in this case are not contracts
between appellees and the defendant brokers; rather, they are contracts between appellees and
appellants, the underwriters. Although appellees assert that appellants never proved that they
are the actual insurers, such an argument is unavailing when, as we previously stated, the
defendant brokers submitted affidavits identifying the syndicates who subscribed to the policies
and explaining the process for identifying each underwriter who is a member of those
syndicates.
4
The question whether a party timely sought intervention under Rule 24(a) is usually
treated as a threshold inquiry. See Kelly v. Estate of Edwards, 2009 Ark. 78, 312 S.W.3d 316.
In the present case, however, appellees have abandoned any argument they raised below that
appellants did not timely seek to intervene here.
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It is clear under Arkansas law that a policy of insurance is a contract between an insurer
and an insured, designating the coverage to be provided pursuant to the parties’ agreed-upon
terms. Shelter Gen. Ins. Co. v. Williams, 315 Ark. 409, 867 S.W.2d 457 (1993). The
underlying class action seeks to have those contracts voided on the basis that the defendant
brokers placed the surplus-lines insurance with unapproved insurers. Although appellees
would have us focus on the alleged conduct of the brokers, we cannot ignore the fact that the
end result sought by appellees focuses on the validity of the contracts themselves. Likewise,
the fact that appellees now seek the remedy of restitution instead of a declaratory judgment
does not negate the interests that appellants have in contracts to which they are parties. Thus,
we are persuaded that appellants demonstrated that they have an interest in the subject matter
of the litigation.
We must next determine whether appellants have an interest that might be impaired
by the disposition of appellees’ lawsuit if it proceeds without appellants. Generally, if a person
seeking intervention will be left with the right to pursue his own independent remedy against
the parties, regardless of the outcome of the pending case, then he has no interest that needs
protecting by intervention of right. Billabong Prods., Inc., 278 Ark. 206, 644 S.W.2d 594.
This is the key determination to be made when considering the second requirement for
intervention as a matter of right. In discussing this issue, the court of appeals explained that
intervention of right by a son in his parents’ divorce case was warranted, stating as follows:
Clearly, appellee had an interest in the real property of his parents that was not
adequately represented by either of his parents in their divorce proceeding. It is also
apparent that appellee’s interest in the property would be impaired by the public
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auction of his parents’ property following their divorce. If the thirty-eight-acre parcel
of land had been sold at public auction, appellee would not have been left with a
remedy against his parents. Therefore, appellee adequately demonstrated that he was
entitled to intervene as a matter of right.
Bradford v. Bradford, 52 Ark. App. 81, 89–90, 915 S.W.2d 723, 728 (1996). Similarly, in UHS
of Ark., Inc., 296 Ark. 97, 752 S.W.2d 36, a case relied on by appellants in support of their
assertion that their interests will be impaired if they are not allowed to intervene, this court
held that the appellant should have been allowed to intervene in a declaratory-judgment
action regarding the applicability of an amendment to a statute. In so ruling, this court noted
that it was obvious that the appellant’s interest was not adequately represented, as the
appellant contended that a provision of the act was unconstitutional but none of the original
parties on either side of the case had any interest in finding the legislation unconstitutional.
Id.
In the present case, it may be true that the brokers have interests in proving that
appellants were approved to insure risks in Arkansas. But, the defendant brokers do not have
the same compelling interests in proving the validity of each of the insurance contracts.
Moreover, appellants’ ability to take any further action on those contracts may be impaired.
As such, appellants have satisfied the second requirement under Rule 24(a)(2) that they have
sufficient interests that may be impaired if they are not allowed to intervene.
We turn now to the final requirement under Rule 24(a)(2) to determine whether
appellants’ interests are adequately represented by another party. This court has held that the
party opposing intervention bears the burden of persuasion to demonstrate that the
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intervenor’s interests are adequately represented by existing parties. Matson, Inc. v. Lamb &
Assocs. Packaging, Inc., 328 Ark. 705, 947 S.W.2d 324 (1997). Appellees, in opposing
appellants’ claim that the broker defendants do not adequately represent their interests, point
to the fact that appellants’ counsel are the same counsel representing the defendant brokers,
and that appellants and the defendant brokers have raised the same defenses to the complaint.
Appellants counter that the defendant brokers are neither insurers nor parties to the insurance
contracts that appellees seek to invalidate and that the brokers are mere middlemen or
intermediaries between the contractual parties and, thus, do not adequately protect their
interests.
In support of their argument that their interests are not identical to those of the
defendant brokers, appellants cite to this court’s decision in Matson. There, the plaintiffs filed
suit against their contractor’s surety, rather than their contractor, alleging claims for
construction defects and breach of contract. This court held that the contractor should
properly be allowed to intervene, noting that while the surety and the contractor shared
counsel and had the same interest in disputing any breach of contract “at this stage of the
proceedings, it [was] apparent that their interests would diverge if [the plaintiffs] were able to
demonstrate that [the contractor] breached the construction contract.” Id. at 710, 947 S.W.2d
at 326. The court further noted that there was an indemnity agreement between the
contractor and the surety and, thus, the contractor’s interest in asserting the obligations of the
construction contract were not the same as the surety’s. Id.
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Here, the primary goal of the defendant brokers is to prove that they acted in
conformity with the applicable statutory provisions governing the placement of surplus-lines
insurance. Appellants, on the other hand, have an interest in defending their legal status as
an approved insurer with regard to their past, present, and future contracts for insurance issued
in this state. Simply because appellants and defendant brokers have some similar interests does
not mean that all of appellants’ interests in the contracts are protected by the defendant
brokers.
As demonstrated by our decision in Matson, it is not enough for appellees to rely on
the fact that appellants and the defendant brokers have the same counsel and similar defenses
when it is appellees that bear the burden of persuasion in this instance. Thus, we agree with
appellants that their interests, which include proving that they are approved insurers and that
all policies issued are valid, are ultimately different than the defendant-brokers’ interests when
their ultimate goal is to deny any personal liability for premiums paid to appellants to procure
insurance.
Having determined that the circuit court erred in denying appellants’ motion to
intervene as a matter of right, it is not necessary for us to address appellants’ alternative
argument that the circuit court erred in denying their motion for permissive intervention.
Lastly, we note that there is no merit to appellees’ claim that this court should summarily
affirm the circuit court’s denial of intervention on the basis that appellants failed to challenge
all the grounds for denial of intervention. More specifically, appellees assert that they raised
two independent grounds in opposition to appellants’ motion, namely that appellants failed
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to rebut their argument that it would be “unduly burdensome” to add defendants to the
instant litigation and that it was too late to amend deficiencies in appellants’ intervention
motions and pleadings. In support, appellees cite to this court’s decision in Evangelical
Lutheran Good Samaritan Society v. Kolesar, 2014 Ark. 279, holding that when a circuit court
bases its decision on more than one independent ground, and the appellant challenges fewer
than all those grounds on appeal, we will affirm without addressing any of the grounds.
Appellees are simply incorrect that appellants failed to address the argument that
adding appellants would be unduly burdensome to appellees. Appellants spend a great portion
of their brief discussing their role as necessary parties as they are the parties to the insurance
contract and, thus, it cannot be unduly burdensome to add them. Further, appellants discuss
at length that there was no deficiency in the way they sought to intervene. Appellees’
argument on this point is simply unavailing.
Reversed and remanded.
BAKER and HART, JJ., concur.
JOSEPHINE LINKER HART, Justice, concurring. I concur in the result, but write
separately for two reasons. First, I disagree with the majority’s conclusion that the proper
standard of review should be de novo. Second, the majority fails to address all of the reasons
why the circuit court denied the Underwriters’ motion to intervene.
The standard of review should be abuse of discretion. It is black-letter law that
judicial discretion means:
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discretion bounded by rules and principles of law, and not arbitrary, capricious, or
unrestrained. It is not the indulgence of judicial whim, but the exercise of judicial
judgment, based on facts and guided by law or the equitable decision or what is just
and proper under the circumstances. It is legal discretion to be exercised in discerning
the course prescribed by law and is not to give effect to the will of the judge, but to
that of the law ... A liberty or privilege to decide and act in accordance with what is
fair and equitable under the peculiar circumstances of the particular case, guided by
the spirit and principles of the law.
Black's Law Dictionary 467 (6th ed. 1990). This standard of review does not give the circuit
court carte blanche or shield a circuit court’s decision from review. This court has held that
a clearly erroneous interpretation or application of a law or rule will constitute a manifest
abuse of discretion. Little Rock Wastewater Util. v. Larry Moyer Trucking, Inc., 321 Ark. 303,
902 S.W.2d 760 (1995); see Shelton v. State, 2009 Ark. 388, 326 S.W.3d 429 (decision to
grant a mistrial on the basis of overruling necessity reversed).
Contrary to the majority’s assertions, I believe that a standard of review has already
been established. In Hunter v. Runyan, 2011 Ark. 43, 382 S.W.3d 643, this court stated:
Permissive intervention is a matter within the circuit court's discretion and is
subject to the abuse-of-discretion standard of review. Billabong Prods., Inc. v. Orange
City Bank, 278 Ark. 206, 644 S.W.2d 594 (1983). When intervention of right is at
issue, however, our standard of review has not been set forth when the denial is based
on the failure to meet the requirements of Rule 24 rather than on the untimeliness
of the motion. DeJulius [v. Sumner, 373 Ark. 156, 159-60 n 3, 282 S.W.3d 753, 755
n. 3 (2008)]. There are no issues of timeliness raised in the present appeal. The parties
in the present case have agreed, without briefing the issue, that the appropriate
standard of review to be applied here is abuse of discretion. We are hesitant to set
forth a standard of review when the parties on appeal have not addressed the issue.
However, to remain consistent with our approach in DeJulius, we will apply the
abuse-of-discretion standard in reviewing these two motions.
Id. at 18, 382 S.W.3d at 653. The doctrine of stare decisis requires that we continue to apply
the abuse-of-discretion standard. Furthermore, there is no dispute that a circuit court’s
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decision regarding the timeliness of filing a motion to intervene as a matter of right is
reviewed under the abuse of discretion standard. Cupples Farms P’ship v. Forrest City Prod.
Credit Ass’n, 310 Ark. 597, 839 S.W.2d 187 (1992). There is nothing to be gained by
dividing the standard of review—reviewing decisions involving timeliness of a motion for
an abuse of discretion and the content of the motion de novo. If we must resort to
persuasive authority, the Arkansas Court of Appeals has concluded that the standard of
review is not an open question. Christian v. McVesting, LLC, 2014 Ark. App. 509, 443
S.W.3d 578; Winn v. Bonds, 2013 Ark. App. 147, 426 S.W.3d 533; Bradford v. Bradford, 52
Ark. App. 81, 915 S.W.2d 723 (1996).
The abuse-of-discretion standard for all parts of Rule 24 would be consistent with
how we review the application of the ministerial aspects of the Arkansas Rules of Civil
Procedure. Where this court has opined on the standard of review, it has, with very few
exceptions, uniformly reviewed the circuit court’s actions under an abuse-of-discretion
standard. See Ward v. Dapper Dan Cleaners and Laundry, Inc., 309 Ark. 192, 828 S.W.2d 833
(1992) (Rule 11); T.H. Epperson & Son, Inc. v. Robinson, 274 Ark. 142, 622 S.W.2d 668
(1981) (Rule 15); Carpetland of N.W. Ark., Inc. v. Howard, 304 Ark. 420, 803 S.W.2d 512
(1991) (Rule 18); Yamauchi v. Sovran Bank/Central South, 309 Ark. 532, 832 S.W.2d 241
(1992) (Rule 19); Cheqnet Systems, Inc. v. Montgomery, 322 Ark. 742, 911 S.W.2d 956 (1995)
(Rule 23); S. Coll. of Naturopathy v. State ex rel. Beebe, 360 Ark. 543, 203 S.W.3d 111 (2005)
(Rule 33); Calandro v. Parkerson, 333 Ark. 603, 970 S.W.2d 796 (1998) (Rule 37); Bolden v.
Carter, 269 Ark. 391, 602 S.W.2d 640 (1980) (Rule 40); Ballard Group, Inc. v. BP Lubricants
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USA, Inc., 2014 Ark. 276, 436 S.W.3d 445 (Rule 41); Mo. Pac. R.R. Co. v. Ark. Sheriff’s
Boys’ Ranch, 280 Ark. 53, 655 S.W.2d 389 (1983) (Rule 42); Goodwin v. Harrison, 300 Ark.
474, 780 S.W.2d 518 (1989) (Rule 47); Zhan v. Sherman, 323 Ark. 172, 913 S.W.2d 776
(1996) (Rule 54); Cammack v. Chalmers, 284 Ark. 161, 680 S.W.2d 689 (1984) (Rule 55);
Schrader v. Bell, 301 Ark. 38, 781 S.W.2d 466 (1989) (Rule 59); Stautzenberger v.
Stautzenberger, 2013 Ark. 148, 427 S.W.3d 17 (Rule 60); Chapin v. Stuckey, 286 Ark. 359,
692 S.W.2d 609 (1985) (Rule 66). The notable exceptions are Rule 12, Rule 56, and Rule
65—but only Rule 65 is subject to de novo review. That standard of review is attributable
to the fact that seeking an injunction is a request for equitable relief. Cases that sound in
equity are always reviewed de novo. See, e.g., Foust v. Montez-Torres, 2015 Ark. 66, ___
S.W.3d ___. In short, the standard of review should be abuse of discretion.
Second, the majority fails to address all of the reasons why the circuit court denied the
Underwriters’ motion to intervene. The appellees made this very point during oral
arguments. The circuit court denied intervention, finding as follows:
The Court finds Plaintiffs’ arguments regarding the amorphous nature of the
applicant for intervention persuasive.
The other argument of Plaintiffs’ counsel against the motion to intervene are
also persuasive and contribute to this decision.
Accordingly, all of the reasons articulated by the appellees must be addressed by the
Underwriters on appeal or the circuit court’s order must be summarily affirmed. See United
Food & Commercial Workers Int’l Union v. Wal-Mart Stores, Inc., 2014 Ark. 517, 451 S.W.3d
584.
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I summarize the appellees’ arguments to the circuit court as follows:
1. Suits against an unincorporated association under Rule 23.3 require a named
representative member and recoverable common assets. The plaintiffs assert that no
underwriter has stepped forward to serve as representative.
2. Allowing intervention by “Certain Underwriters” would leave the Court with no
one against whom to enforce its orders, and would be a wholesale violation of the
preference for open courts. The plaintiffs claim that allowing intervention would be
allowing them to litigate under a “cloak of secrecy.”
3. No statute gives the Underwriters capacity to intervene this way. The plaintiffs
argue that the Underwriters’ misplaced their reliance on Lewelling v. Manufacturing
Wood-Workers’ Underwriters, 140 Ark. 124, 215 S.W. 258 (1919), for the proposition
that a statute (there Act 157 of 1915) could confer upon an unincorporated associate
the capacity to be sued. 4. The Underwriters cannot be “defendants” if we have not
made claims against them. The plaintiffs argue that the Underwriters have not
established that they are subject to pay a potential judgment, directly or indirectly.
Neither the Underwriters, nor the majority, directly address these arguments.
Nonetheless, the first two arguments are fairly well covered as the Underwriters challenge
the circuit court’s finding that, as a group, the Underwriters were “too amorphous” to be
allowed to intervene. I am likewise satisfied that the third argument is covered by the
Underwriters’ extensive discussion of their right to intervene as granted by Rule 24. The
fourth argument, is more difficult to dispose of, though not because of its persuasiveness. I
have decided that it is subsumed by the Underwriters’ argument concerning its right to
intervene. In essence, they contend that their right to intervene is not controlled by
appellees, so the appellees’ failure to make them defendants is of no moment.
BAKER , J., joins.
Friday, Eldredge & Clark, LLP, by: David D. Wilson;
Clark S. Brewster, PLLC, by: Clark S. Brewster; and
Fields Howell, by: Paul L. Fields, Jr., and Gregory L. Mast, for appellants.
Ludwig Law Firm, PLC, by: Gene A. Ludwig and Ryan K. Culpepper, for appellees.
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