Appendix C Model Appellant's Brief
Library | Handling Appeals in Arkansas (2021 Ed.) |
This model brief conforms to the Rules of the Arkansas Supreme Court and Court of Appeals, and the Arkansas Rules of Appellate Procedure—Civil, in effect in January 2015.
The model was created in 2003 from the appellant's brief filed several years before in St. Paul Fire & Marine Insurance Company v. Griffin Construction Company., 338 Ark. 289, 993 S.W.2d 485 (1999). The model was updated in 2008 with the assistance of Kathryn H. Henry, in 2010 with the assistance of Barrett Moore, and in 2015 with the assistance of Kyle Burton, to conform the abstract, brief, and addendum to amended court rules.
DPM Jr
January 2015
ST. PAUL FIRE & MARINE INSURANCE COMPANY APPELLANT
v.
GRIFFIN CONSTRUCTION COMPANY APPELLEE
No. CV 98-990
Curtis L. Nebben (80106)
BASSETT LAW FIRM
P. O. Box 3618
Fayetteville, AR 72702-3618
(501) 521-9996
cnebben@mc2k. com
D. P. Marshall Jr.(90087)
BARRETT & DEACON
P. O. Box 1700
Jonesboro, AR 72403-1700
(870) 931-1700
pmarshall@barrettdeacon.com
I. ANY RELATED OR PRIOR APPEAL? None
II. BASIS OF SUPREME COURT JURISDICTION? See Section V.
(___) Check here if no basis for Supreme Court Jurisdiction is being asserted, or check below all applicable grounds on which Supreme Court Jurisdiction is asserted.
(1) ___ Construction of Constitution of Arkansas
(2) ___ Death penalty, life imprisonment
(3) ___ Extraordinary writs
(4) ___ Elections and election procedures
(5) ___ Discipline of attorneys
(6) ___ Discipline and disability of judges
(7) ___ Previous appeal in Supreme Court
(8) ___ Appeal to Supreme Court by law
III. NATURE OF APPEAL?
(1) ___ Administration or regulatory action
(2) ___ Rule 37
(3) ___ Rule on Clerk
(4) ___ Interlocutory appeal
(5) ___ Usury
(6) ___ Products liability
(7) ___ Oil, gas, or mineral rights
(8) ___ Torts
(9) ___Construction of deed or will
(10) x Contract
(11)___Criminal
A few months after Griffin Construction started renovating the historic Josiah Foster building in Fort Smith, the building burned down. Griffin had insured its financial interest in the renovation project with a builder's risk policy issued by St. Paul. The building was owned by another entity. After the fire, St. Paul paid Griffin almost three hundred thousand dollars for everything from earplugs to lost profits. But the parties disagreed over coverage for a custom elevator and staircase that were not destroyed by the fire, and Griffin filed this lawsuit seeking about $60,000.00 for that custom equipment.
Griffin eventually abandoned that claim, however, and asserted a right to $1.5 million—its estimate of the completed value of the Josiah Foster renovations. Griffin stood this claim on Arkansas's valued policy law. Ark. Code Ann. § 23-88-101. That statute liquidates damages, in cases of a total loss of real property by fire, at the full amount stated in a fire insurance policy. The Circuit Court rejected St. Paul's arguments that an estimated premium and floating coverage made this builder's risk policy open, not valued, and entered the Judgment that Griffin sought. St. Paul appeals.
IV. IS THE ONLY ISSUE ON APPEAL WHETHER THE EVIDENCE IS SUFFICIENT TO SUPPORT THE JUDGMENT? No.
V. EXTRAORDINARY ISSUES?
(x) appeal presents issue of first impression,
(___) appeal involves issue upon which there is a perceived inconsistency in the decisions of the Court of Appeals or Supreme Court,
(___) appeal involves federal constitutional interpretation,
(x) appeal is of substantial public interest,
(x) appeal involves significant issue needing clarification or development of the law, or overruling of precedent,
(x) appeal involves significant issue concerning construction of statute, ordinance, rule, or regulation.
VI. CONFIDENTIAL INFORMATION
(1) Does this appeal involve confidential information as defined by Section III (A)(l1) and VII (A) of Administrative Order 19?
___ Yes x No
(2) If the answer is "yes", then does this brief comply with Rule 4-1(d)?
___ Yes ___ No
1. Arkansas's valued policy law liquidates damages at "the full amount stated in the policy . . ." after a total loss of insured real property by fire. Ark. Code Ann. § 23-88-101. St. Paul issued its builder's risk policy to Griffin Construction for an estimated premium which, in turn, was based on the contractor's estimate of the total value of the planned renovations to the Josiah Foster building. Griffin Construction did not own the building. The policy limited coverage to Griffin's actual loss from a fire or another peril. Griffin had paid its estimated premium, and the contractor's partly completed renovations were totally destroyed in the fire. Does Arkansas's valued policy law embrace the builder's risk insurance that Griffin bought from St. Paul, entitling the contractor to recover the estimated value of the completed project?
2. I express a belief, based on a reasoned and studied professional judgment, that the one question in this appeal is jurisdictionally significant.
The case presents an issue of first impression: no Arkansas appellate court has ever applied our valued policy statute to a builder's risk policy like the one Griffin Construction bought from St. Paul. Several other states have confronted this issue. And contrary to the judgment in this case, all other jurisdictions agree that this kind of statute does not control this kind of policy. The Arkansas Supreme Court needs to answer this question for our state.
Other Rule 1-2(b) factors also weigh in favor of our Supreme Court taking jurisdiction. This case turns on the construction of Ark. Code Ann. § 23-88-101. Our state's valued-policy jurisprudence needs to be clarified with a decision interpreting the reach of that statute. The potential extension of our valued policy law to builder's risk policies is of substantial public interest: this case is important to all the insurors who sell these policies, all the contractors who buy them, and the wider public who ends up paying for this expense of doing business.
For all these reasons, the Supreme Court should hear and decide this case.
By __________
Attorneys for Appellant St. Paul
A. Does The Valued Policy Law Control Griffin Construction's Insurance With St. Paul?
1. Did Griffin Buy A Valued Fire Insurance Policy?
American General Fire & Cas. Co. v. Buford, 716 S.W.2d 86 (Tex. App. 1986, writ refd n.r.e.)
Jones v. State Farm Fire & Casualty Co., 740 S.W.2d 708 (Mo. App. 1987)
2. Will Applying The Valued Policy Statute To Open Builder's Risk Policies Defeat The Statute's Purposes?
Tedford v. Security State Fire Ins. Co., 224 Ark. 1047, 278 S.W.2d 89 (1955)
Farmers' Home Mut. Fire Ass'n. v. McAlister, 171 Ark. 574, 285 S.W. 5 (1926)
3. Was The Uncompleted Part Of The Renovation Project Real Property Covered By The Statute?
Farm Bureau Mut. Ins. Co. v. Barnes, 228 Ark. 68, 305 S.W.2d 673 (1957)
Farmers Union Mut. Ins. Co. v. Denniston, 237 Ark. 768, 376 S.W.2d 252 (1964)
A. Cases
American Cent. Ins. Co. v. Antram, 38 So. 626 (Miss. 1905) ..............................................Arg 19
American Family Mut. Ins. Co. v. Doug Rose, Inc., 841 S.W.2d 698 (Mo. App. 1992)..................................Arg 6
American General Fire & Cas. Co. v. Buford, 716 S.W.2d 86 (Tex. App. 1986, writ refd n.r.e.) .....................passim
Averill v. Preferred Mut. Ins. Co., 441 S.E.2d 632 (S.C. 1994)................................................Arg 6
E.O. Barnett Bros. v. Western Assur. Co., 143 Ark. 358, 220 S.W. 465 (1920)....................................Arg 7,18,24
Farm Bureau Mut. Ins. Co. v. Barnes, 228 Ark. 68, 305 S.W.2d 673 (1957) ......................................Arg 26-28
Farmers' Home Mut. Fire Ass'n. v. McAlister, 171 Ark. 574, 285 S.W. 5 (1926).................................... Arg 2,22
Farmers Union Mut. Ins. Co. v. Denniston, 237 Ark. 768, 376 S.W.2d 252 (1964)...................................Arg 26-28
Jones v. State Farm Fire & Cas. Co., 740 S.W.2d 708 (Mo. App. 1987) ...................................... Arg 3,6,19,20
King v. Phoenix Ins. Co., 92 S.W. 892 (Mo. 1906) ................Arg 19,20
Minneapolis Fire & Marine Mutual Ins. Co. v. Fultz, 72 Ark. 365, 80 S.W. 576 (1904)..................................Arg 2
Phoenix Assur. Co. Ltd. v. Loetscher, 215 Ark. 23, 219 S.W.2d 629 (1949).................................... Arg 7,19
Rogers v. Tudor Ins. Co., 325 Ark. 226, 925 S.W.2d 395 (1996).................................................Arg 8
Seiz Co. v. Arkansas State Highway and Transp. Dep't, 2009 Ark. 361, 2009 WL 1740251 ............................ Arg 1,8
Sphere Drake Ins. Co. v. Bank of Wilson, 312 Ark. 540, 851 S.W.2d 430 (1993)..................................Arg 2,21,22
Tedford v. Security State Fire Ins. Co., 224 Ark. 1047, 278 S.W.2d 89 (1955)........................................passim
Weiss v. Central Flying Serv., Inc., 326 Ark. 685, 934 S.W.2d 211 (1996) .........................................Arg 25
White v. New Hampshire Ins. Co, 390 N.W.2d 313 (Minn. App. 1986).....................................Arg 6,14,15
B. Statutes
Ark. Code Ann. § 23-88-101 ...................................passim
Tex. Ins. Code Ann. art. 6.13 ............................... Arg 3,14
Minn. Stat. Ann. § 65A.08...................................Arg 14
Mo. Ann. Stat. § 379.140 .....................................Arg 3
C. Books
6 J. Appleman, Insurance Law and Practice § 3827 (1972 and 1993 Supp.).....................................Arg 6-7
1 L. R. Russ & T. F. Segalla, Couch on Insurance § 1.5 and § 1.37 (3d ed. 1997)................................ Arg 3,7
D. Miscellaneous
Note, Problems Arising Under Valued Policy Insurance Statutes, 12 Ark. L. Rev. 184...
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