Whether Little Rock has sufficiently proven that it doesn't have insurance is at the crux of a matter before the Arkansas Supreme Court involving a ruling in a lawsuit that seeks damages against the city in the death of a 7-year-old.
On the two-year anniversary of Le Yang's death, attorney Carter Stein of McMath Woods P.A. argued Thursday before the Supreme Court that the city needed to produce an affidavit stating that it did not have insurance.
Under state law, if the city had insurance, it could be held liable or sued for damages in the case; otherwise, it is immune.
"We contend that the record is void of necessary proof," Stein told the justices.
City Attorney Tom Carpenter argued that city officials had told Stein that the city did not have insurance.
Carpenter said the court should reverse and remand Pulaski County Circuit Judge Tim Fox's ruling not to grant qualified immunity for city employees named in the case. The city had requested that the lawsuit be dismissed, saying that those city officials should be granted qualified immunity from a legal claim of negligence.
Stein represents Dayong Yang, the father of Le Yang and the husband of the late Jinglei Yi. Yi and Le drowned Jan. 14, 2013, after the sport utility vehicle that Yi, 39, was driving hit a patch of ice and careened into a pond off Cooper Orbit Road.
Yi called 911 from inside the SUV and spoke with a Metropolitan Emergency Medical Services operator for about 12 minutes until her car submerged. But a city dispatcher, Candace Middleton, failed to input the call into the Computer Aided Dispatch System, so police and fire crews didn't know about the emergency call until they were notified by a supervisor, according to the lawsuit.
Rescue crews from the Little Rock Fire Department arrived at the pond 31 minutes after Yi's first call and did not enter the water for another 12 minutes. Yi died that day, and Le suffered severe brain damage. He died about two years later on Jan. 19, 2015.
Yang sued the city, the Police Department, MEMS and Middleton on Aug. 8, 2013, on behalf of Le, seeking damages for Yi's death and Le's injuries, and alleging negligence by the city in training and hiring Middleton. The city disputed the claims of systematic problems with the 911 system.
On Dec. 4, 2015, Fox refused to dismiss the lawsuit after the city filed a motion seeking a judgment in its favor. Fox's order did not contain an explanation for his decision. In his order, Fox denied the city's request seeking dismissal of the negligence claims, but granted dismissal requests from city employees and departments regarding punitive damages and constitutional rights violations.
Later that month, the Arkansas Supreme Court agreed to hear the city's appeal of Fox's decision on the negligence claims. Briefs were filed by each side in 2016, and oral arguments were Thursday.
At the hearing, Stein and Carpenter agreed that under state law the immunity was conditional, based on whether the city has insurance. But they disagreed on whether the city has proven that it didn't have insurance.
Justices asked Stein about the research he had done in his more than three years on the case and why the city's statement that it did not have insurance was not sufficient for him.
Stein said city officials had at one point indicated that they had access to the Arkansas Municipal Defense Fund and that the city's statement that it did not have insurance was not clear. He cited a previous court case -- Helena-West Helena School District v. Monday -- as having required an affidavit stating that a city did not have insurance.
Carpenter said the Yang case is not similar enough to any others presented by Stein to be used in court. Carpenter said the city had been clear about its lack of insurance and that should be sufficient.
Metro on 01/20/2017