Summary
holding that the trial court's mention of the collateral source rule in excluding evidence was not applicable to issues on appeal where it was clear that the court based its exclusion on ground of irrelevancy
Summary of this case from Holt Bonding Co. v. First Federal Bank of ArkansasOpinion
Frank S. Hamlin, Little Rock, for appellants.
[303 Ark. 499-B] Wm. M. Griffin, Jr., Little Rock, for appellee.
[303 Ark. 499-A] SUPPLEMENTAL OPINION
[303 Ark. 499-B] HOLT, Chief Justice.
All parties requested a petition for rehearing.
The appellee, Arkansas Transport Company, Inc. (Transport), cross-appealed and asserted that the trial court had erred in directing a verdict in favor of the appellants, Larry Barnett, The Farmers Insurance Group of Companies (Farmers), and The Truck Insurance Exchange (Exchange), on the issue of fraud and the submission of punitive damages. The parties, in their briefs, did not direct us to a ruling on this issue nor did this court find a specific ruling in the record by the trial court relating to these issues; as a result, we declined to review Transport's cross-appeal.
Transport cites to its supplemental appendix for a showing that the trial court ruled on the appellants' motion for directed verdict on fraud and punitive damages. The appellants initially made the motion in issue, then later made a motion for directed verdict on negligence, followed by the trial court's granting of "the motion." Although we interpreted the trial court's action to be in reference to the motion for directed verdict on negligence, which directly preceded the ruling, on further examination of the record we now recognize that the trial court evidently meant to include the motion for directed verdict on fraud and punitive damages in its ruling as well. Even so, Transport's argument is unpersuasive on this issue.
In Storthz v. Commercial Nat'l Bank, 276 Ark. 10, 631 S.W.2d 613 (1982) (citing MFA Mutual Ins. Co. v. Keller, 274 Ark. 281, 623 S.W.2d 841 (1981)), we set forth the five elements of the tort cause of action in deceit. Proof of each element is necessary, and the elements are as follows:
1) A false representation made by the defendant. In the ordinary case, this representation must be one of fact.
2) Knowledge or belief on the part of the defendant that the representation is false--or, what is regarded as equivalent, that he has not a sufficient basis of information to make it. This element often is given the technical name [303 Ark. 499-C] of 'scienter".
3) An intention to induce the plaintiff to act or to refrain from action in reliance upon the misrepresentation.
4) Justifiable reliance upon the representation on the part of the plaintiff, in taking action or refraining from it.
5) Damage to the plaintiff, resulting from such reliance.
Transport asserts that the basic misrepresentation in this case was a representation to the insured that he had an insurance policy with a guaranteed rate for a year. Transport relies on letters dated March 8, 1985, and August 28, 1985, for its proposition that the Exchange made false representations with reference to the policy rates upon which it justifiably relied when it renewed its policy; however, the letter dated March 8 refers to a prior rate increase already in effect, and the letter dated August 28 merely contains observations and comments on the insurance coverage rates at issue. The evidence also reflects that the Exchange's Board of Governors did not approve the decision to increase the insurance rate until December 1985. Thus, the Exchange's decision in December could not have served as the basis of a false representation to Transport during its consideration of a policy renewal in September. In short, Transport has not met the threshold requirement of the first element of the cause of action; there was no false representation.
The appellants assert two points in their petition for rehearing; 1) that it should have been proper cross-examination to have asked Mr. Siegler, Transport's Chief Operating Officer, about his January 17 publication of an insurance surcharge, and 2) that a more complete, formal record was made relating to the relevancy of the insurance surcharge than this court originally considered and, consequently, the trial court's ruling should be addressed.
The appellants' first argument was thoroughly discussed in the text of the opinion, and arguments that are merely repetitious of those already considered by the court are inappropriate subjects for a petition for rehearing. Butler Mfg. Co. v. Hughes, 292 Ark. 198, 731 S.W.2d 214 (1987).
With regard to the appellants' second point, the appellants correctly point out, and the opinion reflects, that the insurance [303 Ark. 499-D] surcharge was proffered as an exhibit. Accordingly, the issue of the relevancy of the insurance surcharge was thoroughly discussed in this court's opinion and properly resolved. We declined, however, to speculate on the effect of the trial court's reference to the collateral source doctrine in making its decision to exclude the document. 798 S.W.2d 79. We will not do so now.