NAT. PROP. AND CAS. CO.

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1 Cite as 472 S.W.3d 137 (App. 2015) Arkansas Code Annotated section (a) (Repl. 2006) allows for the execution of a proceeding, judgment, or the like. Blacks Law Dictionary, 1639 (10th ed. 2014). The circuit court effectively barred the executive branch from proceeding on the judgments of execution, and it recognized that fact when it stated in the order that it was staying the executions. As the circuit court did not have jurisdiction to issue a stay, we grant the petition for writ of certiorari and issue a writ removing the stay of executions issued by the circuit court. See Juvenile H. v. Crabtree, , 833 S.W.2d 766 (1992) (issuing a writ of certiorari for an act by a circuit court in excess of its jurisdiction); see also Dep t of Human Servs. v. Collier, , 95 S.W.3d 772 (2003) (issuing a writ of certiorari when an appeal could not be had due to time constraints). The remainder of the circuit court s order that does not conflict with the removal of the stay is not affected by this writ. [3] S 4 In their response to the petition, the prisoners made a conditional request for a stay from this court in which they asked this court to issue a stay if we determined that the one issued by the circuit court was invalid. Pursuant to our decision in Singleton, supra, we may enter a stay of execution pending the resolution of a competent judicial proceeding, if we determine that the action in circuit court is a competent judicial proceeding. 1 In that case, we explained that we will issue a stay of execution when a constitutional claim pending in a lower court (1) only recently ripened; (2) is bona fide and not frivolous; and (3) cannot be resolved before the execution date. The prisoners filed their complaint immediately after Act 1096 was enacted, the complaint contains bona fide constitutional claims, and the first executions are set for October 21, We hold that all three of the necessary elements are present in this case. Therefore, we grant the request and stay the executions pending the resolution of the litigation currently pending in the Pulaski County Circuit Court. See Davis v. Hobbs, , 2010 WL On October 15, 2015, the prisoners filed a motion to lodge supplemental record. That motion is hereby granted. Petition for writ of certiorari granted; writ issued; stay of executions granted; motion to lodge supplemental record granted. Brill, C.J., and Danielson, J., would deny petition for writ of certiorari without prejudice. Wood, J., would grant petition for writ of certiorari and deny request for stay of executions., 2015 App. 534 Ernest Warren FARR, Jr., Debbie Holmes, and Jo Ann Farr, Appellants v. AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY, Appellee. No. CV Court of Appeals of Arkansas, DIVISION IV. Opinion Delivered September 30, 2015 Background: Insureds brought action against insurer to recover for breach of a sentence of death to be stayed by any competent judicial proceeding.

2 SOUTH WESTERN REPORTER, 3d SERIES contract and bad faith for failing to pay claim for theft of boat and trailer titled in name of insured s mother. The Circuit Court, Garland County, Marcia R. Hearnsberger, J., entered summary judgment in favor of insurer. Insureds appealed. Holding: The Court of Appeals, Kenneth S. Hixson, J., held that insured s false statement denying other insured s felony conviction voided policy. Affirmed. 1. Insurance O2996 Insured s false statement denying that any member of household had felony conviction was material and voided watercraft insurance policy on boat and trailer that allegedly were stolen; application contained instruction not to bind coverage if answer was Yes, and insurer would not have accepted risk if it had known about other insured s conviction. 2. Insurance O2958, 2960 Material misrepresentation made on an application for an insurance policy and relied on by the insurance company will void the policy; the materiality of the misrepresentation goes to whether or not the insurer, with knowledge of the true facts, would have accepted the risk and issued the policy. 3. Contracts O93(2) One who signs a contract, after an opportunity to examine it, cannot be heard to say that she did not know what it contained. 4. Insurance O3096(1) Insurer will not be allowed to use misstatements in the application to avoid liability where the misstatements are the 1. Jo Ann Farr, who was not a party to the insurance contract, was dismissed from the result of fraud, negligence, or mistake by the insurer s agent. APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26 CV ], HONORABLE MARCIA R. HEARNSBERGER, JUDGE T. Clay Janske, for appellants. Munson, Rowlett, Moore & Boone, P.A., by: Mark Breeding and Ashleigh Phillips, Little Rock, for appellee. KENNETH S. HIXSON, Judge S 1 Appellants Ernest Warren Farr, Jr. (Warren) and Debbie Holmes (Debbie) entered into an insurance contract with appellee American National Property and Casualty Company (ANPAC) to insure a pontoon boat and trailer. Appellants later submitted a claim for insurance coverage after the boat and trailer were allegedly stolen. ANPAC denied coverage for the loss and rescinded the policy after discovering that Warren and Debbie were not the owners of the boat and had made misrepresentations on the insurance application. Warren and Debbie, along with the boat s owner, Jo Ann Farr, brought a complaint against ANPAC for breach of the insurance contract, alleging that AN- PAC had acted in bad faith and should be ordered to cover the loss. 1 The trial court subsequently granted summary judgment for S 2 ANPAC. Warren and Debbie now appeal, arguing that the trial court erred in granting summary judgment because material issues of fact remained to be litigated. We affirm. Summary judgment may be granted only when there are no genuine issues of material fact to be litigated, and the mov- case for failure to state a cause of action.

3 Cite as 472 S.W.3d 137 (App. 2015) 139 ing party is entitled to judgment as a matter of law. Kirkwood v. Dial, 2013 App. 536, 2013 WL Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Midkiff v. Crain Ford Jacksonville, LLC, 2013 App. 373, 2013 WL On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving part in support of the motion left a material fact unanswered. Neal v. Sparks Reg l Med. Ctr., , 422 S.W.3d 116. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Campbell v. Asbury Auto., Inc., , 381 S.W.3d 21. Our review focuses not only on the pleadings, but also on the affidavits and documents filed by the parties. Kirkwood, supra. Jo Ann Farr, who is Warren Farr s mother, purchased the pontoon boat and trailer in In Debbie s deposition, she explained that although Jo Ann was the named purchaser and titled owner, the boat essentially belonged to her [Debbie] and Warren and that they were making the payments. Debbie said that both she and Warren had bankruptcies on their credit reports, and that Jo Ann, who had better credit, signed for the boat so they could get a lower interest rate. S 3 On July 23, 2010, Debbie submitted a watercraft insurance application with AN- PAC, seeking insurance coverage on the boat and trailer for herself and Warren. One of the questions on the application asked, Have you or any member of your household ever been convicted of a felony or drug possession? The application stated, If yes, do not bind. The answer given on the application was no, when in fact Warren had a prior felony conviction for attempted murder. The application further asked, Is the applicant the original owner of this watercraft? The answer given to that question on the application was yes. The application was signed by Debbie, and above the signature line the application stated: I, the undersigned, agree that the statements herein are made for the express purpose of inducing the company to issue an insurance policy and these statements are true, correct, and complete and any policy issued as a result of any material misrepresentation shall be declared void. I understand that any binder or insurance policy issued as a result of this application will be based on the facts and answers stated herein. After the application was submitted, ANPAC issued a watercraft policy naming Warren and Debbie as the insureds. The policy provided, Unless otherwise shown in the endorsements area on the Declarations page, your statements are as follows: TTTT You are the only owner of your insured watercraft[.] The policy also contained the following provision: Concealment or Fraud. This entire policy is void if an insured person has intentionally concealed or misrepresented any material fact or circumstances relating to this insurance, or acted fraudulently or made false statements relating to this insurance. Warren and Debbie made a claim for coverage under the policy, claiming that the boat and trailer were stolen on July 24, After ANPAC denied coverage, Warren and Debbie filed a breach-of-contract action against ANPAC on March 20, 2013, alleging that ANPAC S 4 had breached the insurance contract and had also acted in bad faith. On June 16, 2014, ANPAC filed a motion for summary judgment as-

4 SOUTH WESTERN REPORTER, 3d SERIES serting that Debbie had made material misrepresentations in the insurance application, and further asserting that, because Jo Ann Farr was the titled owner of the boat, Warren and Debbie lacked an insurable interest in the subject matter of the insurance. On July 28, 2014, the trial court entered an order granting ANPAC s motion for summary judgment and dismissing appellants complaint with prejudice. The trial court subsequently denied appellants motion for reconsideration. In this appeal, Warren and Debbie argue that the trial court erred in granting ANPAC s summary-judgment motion. Appellants first claim that, contrary to ANPAC s contention, they had an insurable interest in the boat and trailer under these circumstances notwithstanding the fact that Warren s mother held the title. Appellants assert that they established an insurable interest because they made the monthly payments, and also used and housed the boat. Appellants rely on Beatty v. USAA Casualty Insurance Co., , 954 S.W.2d 250 (1997), where the supreme court held that, although a person must have an insurable interest in property to have an enforceable insurance contract, in order to have an insurable interest, a party need not have legal title to the insured property, but must have some legal basis for the assertion of interest. In Beatty, supra, the supreme court indicated that a person has an insurable interest in property if he would profit by or gain some advantage by its continued existence and suffer some loss or disadvantage by its destruction. Appellants also claim that summary judgment was improper under ANPAC s theory that Debbie had made a material misrepresentation on the insurance application. Appellants S 5 rely on Neill v. Nationwide Mutual Fire Insurance Company, , 139 S.W.3d 484 (2003), a case in which the supreme court reversed a summary judgment in favor of the insurance company because, although there had been a misrepresentation made on the insurance application, and the insured signed the application, a material fact remained as to whether the insurance agent had misstated the insured s response or failed to ask all the questions on the application. The supreme court in that case stated that the insurer may not set up false answers in the application to avoid the policy. Id. In the present case, appellants assert that there is a material issue of fact based on Debbie s deposition testimony that, during the application process, the appellee s agent never asked whether anyone in her household was a convicted felon. Appellants further argue that, even had there been a misrepresentation on the application, ANPAC failed to show that the misrepresentation was material or that it would not have issued the policy had it known the true facts. Finally, citing National Old Line Insurance Company v. People, , 506 S.W.2d 128 (1974), appellants assert that it was AN- PAC s burden to show a causal connection between the misrepresentation and the eventual loss, and that in this case the fact that Warren was a convicted felon had no relationship to the boat being stolen. [1] We hold that the trial court properly granted ANPAC s summary-judgment motion because a material misrepresentation made on the insurance application, relied on by the insurance company, voided the policy. Therefore, we need not reach ANPAC s alternative defense that the appellants lacked an insurable interest. S 6 In addressing the material misrepresentation, we initially note that National Old Line Insurance Company, supra, cited by appellants, was later overruled by our supreme court in Southern Farm Bureau Life Insurance Company v. Cowger, , 748 S.W.2d 332 (1988). In

5 Cite as 472 S.W.3d 137 (App. 2015) 141 Southern Farm Bureau, the supreme court held that an insurer may defend on the ground that a misrepresentation caused issuance of the policy, though the fact misrepresented was not necessarily related to the loss sustained. Therefore, contrary to appellants argument herein, ANPAC did not have to show a causal connection between the misrepresentation and the eventual loss. [2] In the absence of a statutory provision to the contrary, Arkansas follows the general common-law rule that a material misrepresentation made on an application for an insurance policy and relied on by the insurance company will void the policy. Countryside Cas. Co. v. Orr, 523 F.2d 870 (8th Cir. 1975). The materiality of the misrepresentation goes to whether or not the insurer, with knowledge of the true facts, would have accepted the risk and issued the policy. Id. In this case the insurance application, signed by Debbie, falsely contained a no answer to whether any member of her household had ever been convicted of a felony. Next to that question the application contains the instruction, If Yes, do not bind. Above Debbie s signature she agreed that the statements made herein are made for the express purpose of inducing the company to issue an insurance policy and these statements are true, correct, and complete and any policy issued as a result of any material misrepresentation shall be declared void. From the language in the application providing that coverage should not S 7 be bound if the answer was yes, we conclude that ANPAC established that it would not have accepted the risk and issued the policy had it known about Warren s prior felony. With respect to appellants claim that the insurance agent never asked Debbie this question during the application process, we conclude that Debbie s deposition does not raise a factual question on that issue or lend support to that claim. In Debbie s deposition she was asked if she remembered the agent asking the question about prior felony convictions, and she responded, I don t recall. She did not deny that she was asked the question. Debbie proceeded to testify that, despite being given the opportunity to do so, she did not read the application line by line before signing it, stating that I don t think anybody does that. [3, 4] In Neill, supra, the supreme court stated the general rule that, if a person signs a document, she is bound under the law to know the contents of the document. One who signs a contract, after an opportunity to examine it, cannot be heard to say that she did not know what it contained. Neill, supra. However, an insurer will not be allowed to use misstatements in the application to avoid liability where the misstatements are the result of fraud, negligence, or mistake by the insurer s agent. Id. In the present case, Debbie signed the application containing the material misrepresentation, and there is no proof in the record to support appellants claim that her misstatement was the result of fraud, negligence, or mistake by ANPAC s agent. The material misrepresentation, relied upon by the insurance company in issuing the policy, voided the policy and relieved ANPAC from coverage. Therefore, AN- PAC was entitled to judgment as a matter of law with respect to appellants breachof-contract claim. Appellants do not S 8 address their bad-faith claim in their brief, and we summarily affirm that aspect of the summary judgment as well. 2 Affirmed. Kinard and Gruber, JJ., agree., 2. Although appellants notice of appeal also purports to appeal from the denial of their posttrial motion for reconsideration, their arguments on appeal are limited to challenging the order of summary judgment. To the extent appellants may also be directing their arguments to the trial court s denial of their posstrial motion, we reject those arguments for the same reasons we affirm the summary judgment.