Simpson v. Fuller

Supreme Court of Arkansas

Simpson v. Fuller

665 S.W.2d 269, 281 Ark. 471, 1984 Ark. LEXIS 1994

CourtSupreme Court of Arkansas

DecidedMarch 5, 1984

DocketCR 83-275

StatusPublished

Cited by16 cases

This text of 665 S.W.2d 269 (Simpson v. Fuller) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Simpson v. Fuller, 665 S.W.2d 269, 281 Ark. 471, 1984 Ark. LEXIS 1994 (Ark. 1984).

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Opinions

Richard B. Adkisson, Chief Justice.

This is a medical malpractice action brought by appellant, Charity May Simpson, against appellee, Dr. Cullen Dale Fuller, Memorial Hospital of North Little Rock, and St. Paul Fire and Marine Insurance Company. The trial court dismissed the suit with prejudice because of appellant’s failure to notify appellee sixty days before filing suit pursuant to Act 709 of 1979 (codified at Ark. Stat. Ann. § 34-2617 [Supp. 1981]). Appellant admits her failure to comply with the sixty day notice of intent to sue, but she contends the notice requirement is constitutionally invalid. On appeal we affirm.

Appellant argues that this Court should apply a “strict scrutiny” test to determine the constitutionality of Ark. Stat. Ann. § 34-2617. As rationale for the application of a “strict scrutiny” test, appellant contends (1) that the right to pursue remedies in a court of law for injuries sustained to person or property should be deemed a “fundamental right” as established by the Constitution of Arkansas in Article 2, Section 13; (2) that Ark. Stat. Ann. § 34-2617 is in derogation of common law; and (3) that the statute confers upon tortfeasors who provide medical care a special privilege, or immunity, in violation of the Fourteenth Amendment to the Constitution of the United States and in violation of Article 2, Section 3 of the Constitution of Arkansas.

In Gay v.Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983) we rejected appellant’s argument that Act 709 be strictly construed. There we held that: “The statute in question [Act 709 of 1979] bears a fair and substantial relation to the object of the legislation, which is to encourage the resolution of claims without judicial proceedings, thereby reducing the cost of resolving claims and consequently the cost of insurance.”

A presumption exists that every act is constitutional. Before it will be held unconstitutional, the incompatibility between it and the constitution must be clear, and any doubts as to the validity must be resolved in favor of its constitutionality. Gay v. Rabon, supra; S. Cen. Dist. Pentecostal Ch. v. Bruce-Rogers, 269 Ark. 130, 599 S.W.2d 702 (1980).

We considered this identical notice issue in the case of Gay v. Rabon, supra, and applied a “rational basis” test, concluding that a legitimate state purpose was being served by the notice requirement of Act 709 of 1979. We see no reason to change that holding.

Affirmed.

Hickman, Purtle, and Hollingsworth, JJ., dissent.

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Richard B. Adkisson, Chief Justice.

This is a medical malpractice action brought by appellant, Charity May Simpson, against appellee, Dr. Cullen Dale Fuller, Memorial Hospital of North Little Rock, and St. Paul Fire and Marine Insurance Company. The trial court dismissed the suit with prejudice because of appellant’s failure to notify appellee sixty days before filing suit pursuant to Act 709 of 1979 (codified at Ark. Stat. Ann. § 34-2617 [Supp. 1981]). Appellant admits her failure to comply with the sixty day notice of intent to sue, but she contends the notice requirement is constitutionally invalid. On appeal we affirm.

Appellant argues that this Court should apply a “strict scrutiny” test to determine the constitutionality of Ark. Stat. Ann. § 34-2617. As rationale for the application of a “strict scrutiny” test, appellant contends (1) that the right to pursue remedies in a court of law for injuries sustained to person or property should be deemed a “fundamental right” as established by the Constitution of Arkansas in Article 2, Section 13; (2) that Ark. Stat. Ann. § 34-2617 is in derogation of common law; and (3) that the statute confers upon tortfeasors who provide medical care a special privilege, or immunity, in violation of the Fourteenth Amendment to the Constitution of the United States and in violation of Article 2, Section 3 of the Constitution of Arkansas.

In Gay v.Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983) we rejected appellant’s argument that Act 709 be strictly construed. There we held that: “The statute in question [Act 709 of 1979] bears a fair and substantial relation to the object of the legislation, which is to encourage the resolution of claims without judicial proceedings, thereby reducing the cost of resolving claims and consequently the cost of insurance.”

A presumption exists that every act is constitutional. Before it will be held unconstitutional, the incompatibility between it and the constitution must be clear, and any doubts as to the validity must be resolved in favor of its constitutionality. Gay v. Rabon, supra; S. Cen. Dist. Pentecostal Ch. v. Bruce-Rogers, 269 Ark. 130, 599 S.W.2d 702 (1980).

We considered this identical notice issue in the case of Gay v. Rabon, supra, and applied a “rational basis” test, concluding that a legitimate state purpose was being served by the notice requirement of Act 709 of 1979. We see no reason to change that holding.

Affirmed.

Hickman, Purtle, and Hollingsworth, JJ., dissent.

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665 S.W.2d 269, 281 Ark. 471, 1984 Ark. LEXIS 1994, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simpson-v-fuller-ark-1984.

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