Related Posts
Arkansas Legislative Council, Claims Review Committee
August 22, 2022
Cozart I’d like to call this meeting to order. Thank you, everyone, for coming today. We’re going to get right into the– we have no opening remarks by the co-chair. So we will start right into the Item C of Litigations Oversight Reports by Agencies. Members, agenda Item C1-C5 encompass eight litigation reports or settlements submitted by agencies. We invite the agencies to come to the table and present them. We will start off with C1a, the University of Arkansas for Medical Sciences. If you’re here, you may come to the table. If you would, please identify yourself for the record before you begin.
Pipkin Good afternoon. My name is Mindy Pipkin. I’m an associate general counsel with the University of Arkansas System. Stepps versus the University of Arkansas for Medical Sciences is a discrimination claim. Mr. Stepps had filed a lawsuit in the Eastern District of Arkansas on November 9, 2021, alleging both race discrimination as well as retaliation after he was terminated from his residency program. An amended complaint was filed on February 24, 2022, to name the Board of Trustees for the University of Arkansas System, as well as Dr. Thomas Schultz, both in his individual and official capacities. Counsel has filed a motion to dismiss the claims against both parties on April 13, 2022, and currently the motion is still pending before the court. And with that, I’ll take any questions.
Cozart Are there any questions from members? Okay, I see no, see no questions. Okay. We’ll consider this reviewed. Thank you.
Pipkin Thank you.
Cozart On second thought, I do need a motion to consider that reviewed. Would someone like– I have a motion. And second? I have a second. All opposed? Motion carries. C2, Department of Labor and Licensing. If you would, state your name and who you’re with, please. And you’re welcome to proceed.
Morgan Thank you. Miles Morgan. I’m associate general counsel at the Department of Labor and Licensing. We have two, two items. Item A, Director of Labor vs Joint Forces K-9 group. This is a wage claimant. She was an employee at the Joint Forces K-9. She canceled her health insurance through payroll while she was employed there. The deductions were continued for about three months and just kind of an oversight. We’ve reached out to the employer with some negotiations, but we ultimately filed suit. The deductions totaled around $1,676 and it is set for hearing on September 13 in Siloam Springs District Court. And that’s Item A. Item B, Mr. Chairman, it’s a wage claimant again, two employees for Dan and Sara Rice. They did business as a tree service. They refused to pay wages owed for the hours that the two wage claimants performed work. And one claim is for $1,151.50. The other claim is for $1,824. We filed a motion– or a proposed order for default judgment in Carroll County District Court. That was mailed to the District Court August 16. Assuming that, if that’s granted, we will look into collection efforts, writ of garnishment and writ of execution possibly to try to retain the, the wages that are owed. And I’ll be happy to take any questions.
Cozart Any questions from members? Seeing none, do I have a motion to review? I have a motion and a second. Second. All in favor, say aye. Any opposed, no. Motion carries. Thank you, sir.
Morgan Thank you, Mr. Chairman.
Cozart C3, University of Arkansas System. Please state your name again for the record.
Pipkin Yes. Mindy Pipkin, associate general counsel for the University of Arkansas System. Agenda item A is Armstrong versus the Board of Trustees. Angela Armstrong was employed at the University of Arkansas at Little Rock. She filed a Title 7 claim on November 12, 2021, alleging sexual harassment and retaliation. An amended complaint was filed in March to identify the party as the Board of Trustees of the University of Arkansas System. Counsel filed an answer in March of 2022 and currently the parties are in the beginning stages of discovery. With that, I’ll take any questions.
Cozart Members, are there any questions? Seeing none, do I have a motion to review? I have a motion. A second? Second. All in favor, say aye. Any opposed, no. Motion carries. Thank you.
Pipkin Item number B is also a lawsuit against the University of Arkansas at Little Rock or University of Arkansas Little Rock Alumni Association. There was an amended complaint to name the Board of Trustees in place of those two parties. The court recently dismissed the case on August 5, 2022, and the nature of the claim was the disability, disability discrimination claim in violation of the Americans with Disabilities Act. With that, I’ll take any questions.
Cozart Members, are there any questions? All right, punch your button there and I’ll get you on.
S Flowers Dismissed it? Dismiss the action?
Pipkin Yes, Senator Flowers, the court entered an order of dismissal on August 5 of 2022, so just a couple of weeks ago.
S Flowers So, she has– or they, whoever it is, has 30 days to appeal.
Pipkin The order, I believe, was without prejudice. And so I’m not sure how the plaintiff’s counsel will proceed with the, with the claim at this point in time.
S Flowers But generally there’s 30 days after the date of the order–
Pipkin There’s typically 30–
S Flowers –for appeal.
Pipkin I apologize. There’s typically 30 days to file from an order with prejudice. But this order was without prejudice. And so for that reason, it wouldn’t be final order for an appeal.
S Flowers It would not be?
Pipkin That is correct.
S Flowers What are your expectations, if any?
Pipkin I do not have any expectations at this point. I haven’t spoken with the plaintiff’s counsel about the dismissal. And so I do not, I do not have any.
S Flowers So the order is dismissed without prejudice?
Pipkin That is correct.
S Flowers So they can refile.
Pipkin If the plaintiff chooses, yes.
S Flowers Otherwise, if there– I mean, what’s the timeline? When will– can we reasonably expect if the plaintiff does nothing, that this case is concluded? Is there a statute of limitations for bringing the case again?
Pipkin There is a statute of limitations, but I would have to go back and look at what the statute of limitations is on a disability discrimination claim. And I apologize. I just don’t know the answer at this point in time.
S Flowers So you can’t really tell us anything else until you hear something, huh?
Pipkin That is correct. Yes, ma’am.
S Flowers Thank you, Mr. Chair. I move for review.
Cozart All right, any other questions? Seeing none, we have a motion to review. I have a second? I have a second. Okay, didn’t hear one. All right. All those in favor, say aye. Any opposed. All right, motion carries. All right. C4, Arkansas Rehabilitation Services. Okay. This is a settlement. If you would, please state your name and who you’re with, please.
Lyford Yes, sir. Thank you, Mr. Chair. Charles Lyford, general counsel for Arkansas Rehabilitation Services.
Jackson And this is Maurina Jackson with the Arkansas attorney general’s office. Thank you.
Cozart All right. You’re welcome to proceed.
Lyford Okay. Thank you, sir. As you said, this is a settlement of a charge that was pending before the Equal Employment Opportunity Commission. We at Rehabilitation Services had an employee, now a former employee, who filed a charge that alleged retaliation and then discrimination on the basis of race and disability. This employee had been demoted from an area manager position to a counselor position. After that, she resigned. We started an investigation after we were given this charge into those allegations, and we had determined– I determined that a settlement through a mediation would be the best course of action to try and resolve the claims. The former employee was represented by counsel and she agreed through her attorney to mediate and that mediation was successful. All claims that were or could have been raised in connection with the EEOC charge will be dismissed as a result of the settlement, and ARS nor the State is not admitting liability of any kind. We deny the allegations and continue to do so. The settlement is $55,000, which is one year’s salary approximately in the area manager position prior to the demotion. That was presented to the Department of Finance and Administration. DFA approved the settlement to move forward to this subcommittee, and that’s in the attachments for this agenda item, the DFA letter. And so the next step is to give you all this briefing. And I’ll pause for questions at this time if there are any. Thank you.
Cozart Senator Hammer, you’re recognized.
Hammer Thank you, Mr. Chair. What area did she represent?
Lyford I– don’t quote me on the number. I think by agency number this would be Region 8, but it was the Jonesboro, Batesville, Searcy area.
Hammer And follow up, Mr. Chair.
Cozart You’re recognized.
Hammer Thank you. As far as her record is concerned, if she was to be rehired or somebody was to look at hiring her, would there be anything that would be of a derogatory nature on her record that would prevent her from being hired, either in another place of state employment or public sector?
Lyford So thank you for the question, Senator. As a result of the settlement, she would get, if she applies again for state employment, will get a neutral reference from Rehabilitation Services. She cannot reapply for a position within our business area number. She is free to apply for other state employment. And if someone inquires, then they would get a neutral reference.
Hammer All right. Thank you, Mr. Chair.
Cozart Are there any other questions from members? All right. Punch your button, please. Senator Flowers.
S Flowers So when is the settlement going to be submitted to a court for an order?
Lyford Thank you, Senator. Since this was mediated through the EEOC and the EEOC supplied the mediator, what we’ll do is take the settlement after review today, and that’s a document between the agency and the claimant. And then that will be combined with the document that the mediator provides. So the EEOC will extinguish the charge. It didn’t get to court, and it won’t. And so the EEOC will handle that.
S Flowers Okay. And because I was wondering, why do you– so it never was a case file in court?
Lyford No. The settlement avoids that. That’s correct.
S Flowers Okay. Thank you. Move for review.
Cozart All right. Any other questions? I do need a motion on this one for this report, well, for a settlement. So you want to add a settlement to that motion? Okay. Let me get you up there. All right, you’re up. Just. Just say it. We’ll get it. Okay. Thank you. Do I have a second? I have a second. All right. All those in favor, say aye. And opposed. Motion carries for settlement.
Lyford Thank you, all.
Cozart All right. Item C5, Contractors Licensing Board. Please state your name and who you’re with for the record, sir.
Crow Thank you, sir. Greg Crow. I’m administrator of the Arkansas Contractors Licensing Board.
Cozart You’re recognized.
Crow Thank you, sir. We have two matters of litigation where we’re the plaintiff. The first one is Arkansas Residential Contractors Committee versus Aaron Morrissey. It’s for an unpaid civil penalty. We have filed suit to try to collect the unpaid civil penalty. We have not been successful in getting service so far. We have hired a process server, hope to get him served, but so far he has moved from the address we had for him. We thought we had a good address. We wouldn’t have sued, but he apparently has vacated that place. So we have– we filed it in June, so we still have another little bit of time. We’ll have to get an extension of time to service or dismiss if we don’t get him served.
Cozart That’s all the first one?
Crow Yes, sir.
Cozart Have any questions? All right, we have a question. You gotta punch that button. All right. Senator Flowers, you’re recognized.
S Flowers So are you going to serve him by publication, or is there a request before the court to serve him by publication?
Crow We have. That’s a good question, Senator. We traditionally don’t, because it’s usually a waste of money, a publication to try to get them that way because it’s so hard. The court set those aside so easy.
S Flowers The court said what?
Crow They set those aside pretty easy if you don’t dot any I– they don’t like the publication service. We, we will look into that. Thank you for bringing that to my attention. But we haven’t had a lot of success collecting money when we serve that way. People we actually get service on and have communication with, we’re pretty successful in getting them to pay. But we certainly can look into trying to serve him by publication. Yes, Senator.
S Flowers Well, was he a licensed contractor?
Crow He was not. He was an unlicensed contractor. He took money to build a fence for a couple in Little Rock, did a partial job, basically everything he had, he had done had to be torn out and, and most of the material could not even be reused when they rehired, when they hired someone proper to do the job for them.
S Flowers Does the contractor’s licensing board hire their own attorney or are they represented by the AG’s office?
Crow We have our own in-house counsel.
S Flowers Well, I guess your own counsel should know how to get service.
Crow Yes. Yes.
S Flowers And publication is allowed in Arkansas law.
Crow Yes, ma’am. I will bring that back. I’m sure she’s already thought of that. She’s busy today getting ready for hearings we’re having this week. And so I’m over here doing this. So, but I will– I’m sure she’s already thought of that. I had not discussed it with her. You know, we thought we had a good address on them when we sued them. Turns out, he hadn’t. But the process server hasn’t given up yet. The process service said they’ve got some lead to try to find them, so they haven’t given up yet.
S Flowers Thank you, Mr. Chair.
Cozart Senator Hammer.
Hammer Thank you. I want you to clarify something you just said, make sure I didn’t misunderstand. What did you say about the courts not liking what kind of publication or what did you say?
Crow I probably overspoke my bounds, and I apologize for that, Senator. I’ve just seen so many– I’ve seen several cases that comes through the court system where they, when you serve them by publication, I’ve seen the courts set those aside much more– those default judgments aside much more often than any other kind of default judgment. I’m not saying it’s not possible. That’s not what I’m saying. They also did amend the rules recently to make it a little more tedious to do by publication.
Hammer And when you say publication, you talk about like a legal notification in the newspaper.
Crow Yes, Senator.
Hammer Okay, is that because it’s not read, because it’s not seen? Is that some of the history that goes with that?
Crow Some of the– there’s– I think the courts are looking for a reason to set those aside, especially if someone then shows back up, you know, and said, I didn’t know about this, I didn’t read it or whatever. That’s that’s my– probably shouldn’t have brought it up.
Hammer No, I’m glad you did, for other reasons. Thank you. I appreciate it. Thank you, Mr. Chair.
Cozart Any other questions? Senator Flowers, you’re recognized.
S Flowers I just– Mr. Crow, you’re not an attorney, are you?
Crow I am. I don’t practice. I keep my law license current, but I haven’t really practiced in years. I was the attorney for the board a long time ago, but I have been the administrator of the board since 2008. So.
S Flowers Well, I don’t think that the court set it aside because somebody didn’t read it. I think it’s more that you have to make sure when the court signs the order allowing publication notice that you have exhausted all the things that are required to find the person, last known address, whether you’ve checked the tax rolls, maybe the Secretary of State’s office to see if you got an address there for voter registration or something like that. It has nothing to do with whether a person reads something.
Crow Oh, I understand that completely. And I really, I kicked over a hornet’s nest I didn’t mean to get into.
S Flowers Well, I didn’t want my colleagues to misunderstand what the law is.
Crow Yes, ma’am, I do understand that. Yes, ma’am.
Cozart Any other questions? We have a motion. Do we have a second? I have a second. All in favor say aye. Any opposed? Motion carries. Number two.
Crow Number two is, is an Arkansas Contractors Licensing Board against West River Construction, LLC. This is one we have got service on. They are in default. They have been in contact with us. We are trying to work out payment arrangements with them. We can get a default judgment. We would– and we’re not talking about discounting the amount of money they owe us. They’re going to have to pay 100%. But letting them pay it out over, say, six months or something makes more sense than trying to force– they’re in North Carolina, South Carolina. They have both addresses. And so we’re trying to work with them to get it, to get it paid. We have been contacted by their attorney, but they are already in default.
Cozart Is this also an unlicensed contractor?
Crow They were actually licensed at one point. They had a whole lot of problems. They were building apartments, student apartment complexes, not for any of the universities, but close to the universities. And they had a whole lot of problems with paying subcontractors, using unlicensed subcontractors and more over multiple projects. It wasn’t just a one project problem. And so they– but they gave up their license about the same time we penalized them several years ago.
Cozart All right. Any questions? Seeing none, do I have a motion? I have a motion. Do I have a second? And a second. All those in favor, say aye. Motion carries. Thank you, sir. All right. All right. We’re going to move now to Item D. Yes, sir.
Rice Would you have them pull the mic up a little bit closer for some of us older ones.
Cozart All right. Well, Miss Irby’s coming up. I believe she knows to do that, but we’ll tell her to do that. All right. Miss Irby, you are at the table. We will begin the claims review portion of the agenda. If you would state your name and who you’re with, we will begin.
Irby My name’s Catherine Irby. I’m the director of the Claims Commission.
Cozart All right. Let me get the mic back on here. So we’re going to do the reissuing of warrants? Okay. So we’ll go to item 1, which is the reissuing of warrants and unpaid bills. Miss Deskin, can you give a brief description of the claim?
Deskin Yes. This is claim number D1a. Eric Schmidt and Susan Schmidt versus the Arkansas Department of Finance and Administration. This claim was filed by the Schmidt’s requesting reissuance of an outdated warrant in the amount of $69,424 payable from the Department of Finance and Administration. The warrant is still outstanding and no duplicate has been issued. The Claims Commission unanimously allowed the claim and referred it for review and placement on an appropriation bill.
Cozart Miss Irby, does the commission have anything to add?
Irby No, sir, but I’m happy to take any questions.
Cozart Are there any questions from members? Seeing none, do I have a motion to approve this item? I have a motion. Second? Motion and second. All in favor, say aye. Any opposed, no. All right, motion carries. Miss Deskin.
Deskin This claim is claim number 220725, Richa Parikh versus the University of Arkansas for Medical Sciences. This claim was filed by Miss Parikh against the University of Arkansas for underpaid salary in the amount of $25,912.80. UAMS answered admitting liability due to an administrative error. The Claims Commission allowed the claim and referred it for review and placement on an appropriation bill.
Cozart Miss Irby, does the commission have anything to add to this?
Irby No, sir, but I’m happy to take any questions.
Cozart Any questions? Seeing none, do I have a motion to approve? I have a motion. Second? Second. All those in favor, say aye. All opposed no. Motion carries. Miss Irby– I’m sorry, Miss Deskin. Getting confused here.
Deskin The next claim is claim number D1c. It’s 221342, Nucor Corporation versus the Arkansas Department of Finance and Administration. This claim was filed by Nucor requesting reissuance of an outdated warrant in the amount of $392,623.29 payable from the Department of Finance and Administration. The warrant is still outstanding. No duplicate has been issued. The Claims Commission unanimously allowed the claim and referred it for review and placement on an appropriation bill.
Cozart Miss Irby, does the Commission have anything to add to this?
Irby No, sir. I’m happy to take any questions.
Cozart Any questions? Do I have a motion? I have a motion. Second? I have a motion and second. All those in favor say aye. Any opposed, no. Motion carries. Okay, we’re down to item number 2. Negotiated settlement agreement. Miss Deskin, can you give a brief description of the claim?
Deskin This is claim number 211352. [00:25:18]Greg Gasaway and Lance Gasaway doing business as G and L Gasaway Farms versus the Arkansas Division of Correction. In its complaint, claimant alleged damages in the amount of $86,880 to cotton crop on 160-acre field. Claimant alleged that respondent Arkansas Division of Corrections sprayed its soybean crop by use of a ground rig application and that chemicals drifted across the property damaging and destroying claimant’s cotton crop. Claimant alleged 50 acres of total loss and 25 acres of damage. ADC denied liability and moved to dismiss the claim for failure to state facts upon which relief could be granted. ADC argued that the total damage was limited to 10 to 15 acres and that the correct measure of damages would be the market value of the crop at the time of destruction. Alternatively, if the crop was too young to have a market value and it was too late to plant again, ADC argued that the measure of damages should be the rental value of the land. After Claimant filed an amended complaint alleging that the rental value of the land was $30,000, the parties entered into an agreement, settling the claim for $27,000. The Claims Commission approved the settlement agreement and referred the award to the General Assembly for review and placement on an appropriation bill. [70.4s]
Cozart Miss Irby, do you have anything to add to that?
Irby No, sir. Happy to take any questions, though.
Cozart Senator Hammer, do you have a question?
Hammer Thank you, Mr. Chair. Do you know what product it was that they were spraying? Was it Roundup? Was it Dicamba? Do you know what product they were spraying?
Irby I do not know. And I don’t know if we have any of the parties here to ask that. But I, I don’t believe that was in the–
Cozart Senator, I believe that’s in the report, but I’d have to dig it out.
Hammer Okay. I tell you what– just as long as I can get it at some point. I’d be curious to know which, which product it was that they, they were spraying it. And I presume it had a drift factor to it. So I’ll get with you off line, but I’d like you to get that for me, please.
Irby Yes, sir.
Hammer Thank you.
Cozart We’re going to give you the name and I’ll probably mess it up.
Deskin I believe it’s, it’s flumioxazin, maybe f-l-u-m-i-o-x-a-z-i-n. Yes. Senator Hammer, it’s on page 63.
Hammer Thank you.
Cozart All right. Any other questions? So I need a motion as to the negotiated settlement. I have a motion. All right. And I have a second? I have a second. All in favor say aye. All opposed no. Motion carries. Number 3, awarded claims referred pursuant to Arkansas Code 19-10-215b. Miss Deskin, please give a brief description of the claim.
Deskin This is claim number 200115. James Construction Group, LLC, versus the Arkansas Department of Transportation and Arkansas State Highway Commission. Claimant James Construction Group sought $338,948.15 in damages from the Arkansas Department of Transportation, allegedly stemming from additional work to address bridge deck concrete cracking on two bridge projects. Claimant alleged that after substantial completion of the projects, ARDOT demanded additional work without identifying any contractual specification the claimant’s work had violated. Claimant performed the additional work under protest. ARDOT denied liability, arguing that Claimant was liable for the cost of the additional work. Following a hearing on this matter, the Commission entered an order awarding claimant $270,071.60, which included labor, materials, equipment and subcontractor costs, as well as insurance, tax and bond damages. In addition, the Commission also awarded $24,120 in attorney fees. The commission found the claimant had met its burden of proving breach of contract by respondent. Specifically, the Commission found, based on the testimony, that other than the isolated squalled areas, the cracking on the bridge deck was not excessive and that ARDOT should not have demanded claimant do additional work to add a polymer overlay. The Commission found that this demand violated the implied covenant of good faith and fair dealing. The Commission referred the total award of $294,191.60 to the General Assembly for review, approval and placement on an appropriation bill.
Cozart Miss Irby, does commission have anything to add?
Irby No, sir. I’m happy to take any questions, though.
Cozart Are there any questions? All right. Do I have a motion to this awarded claim? I have a motion. Second. I have a motion and second. All in favor, say aye. Any opposed no. Motion carries. Item 4, denied and dismissed claims appealed by the claimant. Miss Deskin, can you give a brief description of this claim?
Deskin This is claim number D4a210604, Richard Gentle versus the Arkansas Department of Transportation. Claimant Gentle sought an unspecified amount of damages from the Arkansas Department of Transportation. Claimant alleged that he was traveling west on Highway 69 and turned north onto Highway 163. His boat trailer’s wheel and axle allegedly hit a culvert sticking out into the road and turned over on the highway. Claimant alleged that his axle was bent, the boat’s motor was broken and the trailer was broken into two pieces as a result of the accident. ARDOT moved to dismiss the claim alleging that claimant failed to control his vehicle and remain within the white lines and that claimant failed to state a legally cognizable cause of action. In support of its claim, ARDOT attached a picture of the intersection. Claimant did not respond to ARDOT’s motion. The Claims Commission treated ARDOT’s motion to dismiss as a motion for summary judgment because of the attached picture and entered an order to dismiss, denying and dismissing the claim on April 26, 2021. In its order, the Commission found that ARDOT made a prima facie showing that it was entitled to judgment as a matter of law based on the picture. But the claimant failed to demonstrate that there were any genuine issues of material fact precluding summary judgment when it failed to respond. After entry of the Commission’s April 26 order, attorney Janette Whatley filed a letter of representation and a request for appeal on June 1, 2021. ARDOT subsequently filed a motion to strike the pleading as untimely on June 28, 2021. However, the Commission did not address Ms. Whatley’s response or ARDOT’s motion to strike, stating that its jurisdiction terminated upon transmission of the claim to the General Assembly. Ms. Whatley subsequently sent a letter to BLR staff advising that she is no longer able to represent Claimant as she has accepted employment with the state.
Cozart Miss Irby, does the commission have anything to add?
Irby No, sir. Happy to take any questions, though.
Cozart Are there any questions? Do I have a motion as to this claim which was denied or dismissed by the Claims Commission? I have a motion. I have a second? I have a second. All in favor say aye. All opposed no. Motion carries. Miss Deskin, would you give a brief description of the next claim?
Deskin This is claim number 200356, Daphne Lothrop versus the Arkansas Department of Transportation. Claimant sought unspecified damages associated with injuries to her person and damage to her vehicle. Claimant alleged that she was driving on Highway 1 toward Forrest City and that she slowed down below the speed limit when it began to rain heavily. Between Haynes and Forrest City, she reported that she noticed ruts of water and tried to stay on the paved area above the ruts. However, the car began to slide despite her best efforts. As she tried to straighten her car she alleged that it’s spun to the right and rolled into a ditch on its side. ARDOT denied liability and moved to dismiss the claim. Claimant responded, reasserting her arguments that ARDOT was responsible for the damage and stating that the road had yet to be repaired. After discovery and a hearing on the matter, the Claims Commission denied and dismissed the claim, finding claimant’s testimony and evidence to be insufficient to establish liability on the part of ARDOT. Claimant appeals.
Cozart Miss Irby, do you have anything to add to that?
Irby No, sir. Happy to take any questions, though.
Cozart Are there any questions? Do I have a motion to– for this claim that was denied. I have a motion and a second. And all in favor say aye. All opposed no. Motion carries. Miss Deskin, would you give a description of the next claim?
Deskin This is claim number 180341.
Cozart Hold on. Yes, ma’am.
S Flowers I’m wondering– is the chair aware that any of these people that have– I guess, there– these things are being appealed. These case– claims are being appealed, but you haven’t asked for the claimant’s side. But I just wanted to know if they are here and are we just overlooking them or not allowing them an opportunity to come before the body?
Cozart Just a second. Senator, what we usually do, if members have questions and that person is here, that’s correct, we will allow them to come forward and answer questions. We’ve had no questions for anybody yet on these so. They will have their day in court. Well, they’ve already had their day in court.
S Flowers [Speaking with mic off]
Cozart Far as I know. As far as I know, we’ve never done that, right? No, I don’t think we have, because these are already been dismissed claims, denied and dismissed. So all we’re doing is just affirming what the Claims Commission has–
S Flowers [Speaking with mic off]
Cozart I can, I can check and see if anybody signed up.
S Flowers [Speaking with mic off]
Cozart I’ll, I’ll let Senator Hester tell you what–
Hester Senator Flowers, certainly you can– it’s your prerogative to ask. But, you know, I’ve been chairing this committee for the last four years, and what we do is we, we just hear the, the, you know, the stated claim. And that’s on both sides because sometimes the state appeals, right, if they don’t like a decision. And so we don’t allow either side to make a case here unless a member specifically asks. And the reason for that, in the past when we’re doing it, we would sometimes be in here for days at a time when, you know, the request is that members should do their homework beforehand and if they have questions, they can ask. And at that point, if you ask for one side, we allow the other side to speak as well. But you can imagine what we found was no one was ever happy with 5 minutes a side or 15 minutes a side or 30 minutes a side. So it just it ends up being a day’s worth of a committee. So we just decided we would just not– so unless a member asks. If you ask every time, then we’ll ask every time.
Cozart We don’t do sign-up sheets. They have to ask to– I think that’s true. They’d have to ask to be here, to be able to present.
S Flowers They have to ask to be here.
Cozart They have to ask to present if they come.
S Flowers [Speaking with mic off]
Cozart Well, they would, they would– I guess. Would you like to speak to that? Can you speak to that? Or do we have– there. All right. We do not take oral argument on this. Just like Senator Hester said, if a member has a question, we ask that question and we move on. So we do not take oral argument. That’s already been decided. All right. Where were we? All right. So I guess we’re ready for a motion on this claim on D4b to– okay, that was an item dismissed. All right, do I have a second? I have a second. All those in favor say aye. All opposed no. That motion carries. Miss Deskin, you’re recognized.
Deskin The next claim is claim number 180341. Christopher Martin versus the Arkansas State Police. In his initial complaint dated October 11, 2017, Claimant sought $350,000 in damages from the Arkansas State Police and a state trooper for false arrest, excessive force, false imprisonment and violation of claimant’s right to bodily integrity in violation of the U.S. and Arkansas Constitutions. Claimant alleged that a state trooper shot him with a taser gun while he was running and that he broke his jaw and teeth and suffered a traumatic brain injury as a result of being unable to break his fall when he was tasered. Concerning the liability of the Arkansas State Police, claimant contended that ASP failed to prohibit the use of tasers at individuals who were running in accordance with the taser product warning bulletin and standard police practice. On November 6, 2017, ASP moved to dismiss the claim, arguing that the Claims Commission lacked jurisdiction to hear claims asserting violations of rights under the U.S. Constitution and the Arkansas Constitution. On November 2, 2020, claimant filed an amended claim asserting further claims under the U.S. and Arkansas Constitutions. Claimant also sought redress for the state towards malicious prosecution, false imprisonment and civil assault and battery. In addition, claimant sought damages for pain and suffering, mental anguish and humiliation, loss of teeth, physical injury, physical impairment to the jaw and mouth, loss of earnings, mental health services, dental care expenses and attorney’s fees and costs. On December 2, 2020, ASP moved to dismiss the claim for failure to state a claim. Claimant did not file a response. And on February 10, 2021, the Claims Commission entered an order granting ASP’s motion to dismiss. Concerning claimant’s federal law claims, the Claims Commission held that these claims could be brought in federal court and hence it did not have jurisdiction over these claims. The Claims Commission dismissed claimant’s Arkansas Civil Rights Acts claims and malicious prosecution claims for failure to state facts upon which relief could be granted. As to claimant’s state law, false imprisonment, assault and battery claims, the Claims Commission held that they were time barred. On March 1, 2021, pursuant to Arkansas Rules of Civil Procedure 60a, claimant moved the commission to vacate or set aside its order, dismissing the claim to prevent miscarriage of justice. Claimant argued one, the claimant had articulated a meritorious claim in the amended complaint. Two, that claimant’s counsel did not have internet, email, computer or phone access from February 10 through February 19 of 2021. Three, that counsel was a solo practitioner with a heavy caseload. Four, that counsel did not have staff to assist him. Five, that counsel began work on a response to the state’s motion when his internet issues were fixed and would be able to finalize a response within the week. And six, that counsel had been conducting discovery. On March 4, 2021, ASP responded to the claimant’s motion, arguing that the facts set forth by counsel were insufficient to establish a miscarriage of justice. ASP noted that claimant’s response was due on December 16, 2020, per rule 6 of the Arkansas Rules of Civil Procedure, well before the Claims Commission entered its order on February 10, 2021. On March 5, 2021, the Claims Commission denied claimant’s motion to vacate or set aside the prior order of dismissal. Specifically, the commission was unpersuaded that claimant clearly articulated the state’s liability in his amended complaint. As to counsel’s other rationales, the Claims Commission found them to be irrelevant to claimants’ failure to respond, given that the response was due on December 16, 2020. Claimant appeals.
Cozart Miss Irby, does the commission have anything to add?
Irby No, sir. I’m happy to take any questions.
Cozart We have any questions? Senator Hammer, you’re recognized.
Hammer [00:43:09]Thank you, Mr. Chair. I’m looking through the paperwork and on page 3, I just want you to clarify this is the case. It said when the case went to jury trial in circuit court, at close of state’s evidence, the trial judge dismissed all the charges because the arrest was illegal and without probable cause. And the court of appeals affirmed the trial court’s decision. Is that correct? I’m looking at page 4. I’m sorry, page 4. [25.3s]
Irby Well, I don’t, I don’t have the same booklet in front of you. But I do understand that the, the, the federal lawsuit was dismissed. As to the specific grounds, I couldn’t speak to you at this moment.
Hammer All right. So this is in regards to the, to the federal, to the federal case, then.
Irby The underlying federal case. Let me look here. We were notified by– let’s see– in June 2019, the claimant advised the Claims Commission that the federal lawsuit was concluded. That was the terminology that was used. And so the Claims Commission claim then restarted at that point.
Hammer Okay. And I just wanna make sure I have my mind around it. So it’s the State Police’s position that the claim should not be paid. Is that correct?
Irby You would have to, you’d have to ask the State Police that. But I believe that the State Police has opposed the granting of this claim. They moved to dismiss it.
Hammer All right. Thank you. Thank you, Mr. Chair.
Cozart Yes, sir. I’m– you want to punch your button again?
Hammer Thank you, Mr. Chair. I’m just curious, there’s a gentleman there to the right that seems to have stood up to speak. I didn’t know if Chair was going to acknowledge or allow a member of the audience who may have interest in this case to speak.
Cozart If you want to call him down, all he can do is answer a question. He cannot– we can ask him a question. That is all we can do.
Hammer Okay, let me do that then, if you don’t mind. Please, Mr. Chair.
Cozart All right, sir. If you want to come down, take a seat up here and you’ll have to state your name and who you’re with. Wait until you get the table and turn the mic on, please. All right. Have a seat. All you, all you can do is let us ask you a question and answer the question. No statements.
Thompson All right. Yes. Right. So my name is Morris Thompson. I represent the claimant.
Cozart Okay, Senator Hammer.
Hammer Thank you, sir. Am I interpreting– the information we have in front of us has a statement that the jury and the judge dismissed all the charges against the individual because the arrest was determined to be illegal and without probable cause. Is that correct?
Thompson That’s correct. The criminal charges were dismissed, as you said, and because there was no probable cause. The testimony at the trial established that the officer admitted that he was sitting in the parking lot looking for my client to go by so that he could then get in behind him and possibly trail him to establish probable cause. But as it was, my client pulled into the parking lot to go shop where the state trooper was sitting. So there was never any basis for the stop in the first place.
Hammer Which would have led to the conclusion– or would it lead then to the conclusion that he should never have been tased in the first place?
Thompson He never should have been tased in the first place.
Hammer Okay. Thank you, Mr. Chair.
Cozart Yeah, we will. Senator, Senator Flowers, do you have a question for this gentleman or someone else? Wait a minute, wait a minute. I’m sorry. Now you can go.
Thompson I’m kind of hard of hearing, so.
Cozart Okay. Hold on.
S Flowers My question, I think, is to the director of the Claims Commission and maybe to the gentleman attorney. My understanding from what was read in terms of the disposition by the Claims Commission is that they had no jurisdiction. And it appears to me, and answer yay or nay, but I think that the proper venue and jurisdiction would be with the federal court or state court alleging violations of his Constitutional rights.
Thompson Is that directed to me, ma’am?
S Flowers I want to know first of all if the Claims Commission, if that was their position. I heard you say–
Irby Senator Flowers, yes, ma’am. On February 10, 2021, and I’m referring to paragraph 7 and 8 of the Commission’s order, they found that the 1983 federal law claims and claims under the Arkansas Civil Rights Act, that the commission did not have jurisdiction over those.
S Flowers Okay. And so, Mr. Thompson, how– I mean, how can you overcome jurisdictional issue that was decided?
Thompson In two ways, ma’am. First of all– I’m sorry. I thought I turned it off.
S Flowers Did you make your response to the Claims Commission concerning lack of jurisdiction?
Thompson I’m sorry. Would you say it again?
S Flowers Did you make your claim to the, the Claims Commission that the Claims Commission had jurisdiction?
Thompson Yes, I started to say judge. Yes, Senator. On two points– first off–
S Flowers No, just on the jurisdiction, just on the jurisdictional question.
Thompson Yes, that’s what I’m about to address. Yes.
S Flowers Yes, you made a response.
Thompson Okay. We’re here because–
S Flowers No, I want to know, as far as the jurisdiction of the Claims Commission, did you present an argument showing the Claims Commission had jurisdiction?
Thompson In my motion to strike, I did. I laid out that in addition to those other claims, I was also making a tort claim against the police department, Arkansas State Police, and there’s no question about jurisdiction there.
S Flowers Based on what– well, I don’t understand why it was brought before the Claims Commission, any of the claims.
Thompson It’s because–
S Flowers It would be more appropriate to be in a court of law, either federal or state court.
Thompson Okay. Because you can not sue the state in circuit court in Arkansas courts.
S Flowers In federal court for a Constitutional rights violation?
Thompson No, ma’am, you cannot sue a state. A state is not considered a person under civil rights under section 1983.
S Flowers You are suing these officers for failing to adhere to policy.
Thompson I was suing, I was suing– yes, that’s as to the officer individually. But as far as the state is concerned, my– the complaint against the state is that the state had a pattern in practice of arming these state troopers with these dangerous instrumentalities, these tasers, and did not give them training. I don’t believe you all have before you a copy of my spreadsheet which shows that the state of Arkansas armed 372 state troopers and never trained them on the limitations of these dangerous instrumentalities. 372.
S Flowers Thank you for your response.
Thompson I’m sorry.
S Flowers Thank you for your response. Thank you, Mr. Chair.
Cozart Senator Hammer, do you have another question? Let me get you on.
Hammer [00:51:58]I’m, I’m reading through the paperwork. If he would have stopped as the trooper told him to stop the first time and did not run, there would have been no need for the taser to be used, correct? [8.9s]
Thompson [00:52:09]That’s not quite true, sir, because my client had no idea that the trooper was talking to him. As it came out at the trial, there were other people standing by the front door of the grocery store where my client was going in. My client had no idea the trooper was talking to him as he approached the front door. He thought the trooper was talking to the, the guys milling around. He had no idea that the state trooper had, was keyed in on him. [31.0s]
Hammer [00:52:42]But you don’t deny the fact that he ran? [1.5s]
Thompson [00:52:46]Yes, that is correct, because he looked back, saw the trooper reaching for a gun, what he thought was a gun, and he was trying to get out of the way. [9.5s]
Hammer [00:52:56]Okay. [0.0s]
Thompson [00:52:56]He had no idea that the trooper was talking to him. Again, sir, because the trooper was parked in the parking lot. He turned into the parking lot to park and go shop. He had no idea that the state trooper was talking to him. [13.1s]
Hammer Okay. Thank you. Thank you, Mr. Chair.
Cozart Mr. Waite, would you like to interject into this conversation? I’ve just– is there anyone here that would like to interject any testimony into this?
Thompson Mr. Chair, if I–
Cozart Can answer a question. So I just said, okay, no one else? Yes, sir.
Thompson I just want to clarify what we’re seeking. We’re simply asking the committee to remand this for a full hearing on the merits so that the case can be presented fully to the commission.
Cozart Okay. All right. Thank you, sir. All right. Any other questions? Seeing none, so I’m going to ask for this motion. Do I have a motion as to this claim which was denied or dismissed? Just will affirm the ruling of the Claims Commission. Do I have a motion? I have a motion. Do I have a second? I have a second. All right. All in favor, say aye. Any opposed. Motion carries. Thank you, sir. All right. Miss Irby. Miss Deskin, would you read the next case, please?
Deskin [00:55:02]This is case number 2110912. Temetria Tucker versus the Arkansas Department of Transportation. Claimant sought unspecified damages for damage to her vehicle, which arose when she hit a pothole while trying to merge onto I-40 east toward Memphis from Forrest City. She alleged that her rim and wheel cover were damaged and her tire was flattened, rendering the vehicle undriveable. ARDOT denied liability and moved to dismiss the claim. The Claims Commission entered an order dismissing the claim without prejudice. The commission found that Claimant did not allege any facts regarding ARDOT’s prior knowledge of the pothole or failure to repair it within a reasonable amount of time. In the absence of that evidence, the Commission held that the existence of a pothole alone was insufficient to establish liability. Claimant appeals. [42.5s]
Cozart [00:55:48]Miss Irby, do you have anything to add from the commission? [1.5s]
Irby [00:55:50]No, sir, but I’m happy to take any questions. [1.2s]
Cozart [00:55:53]Senator Hammer. [0.2s]
Hammer [00:55:53]Thank you, Mr. Chair. Clarify, did– was there previous records at the department– your place– as far as pothole complaints about this particular one? [11.9s]
Irby [00:56:07]What you have, Senator, is what we received from the claimant. And there was, there was no such documentation included or ever presented by the claimant in this matter or in response to the motion to dismiss. [10.1s]
Hammer [00:56:18]It seems like I remember in a previous meeting, does the department have like a hotline number or something like that where people can call and report those potholes when they see them out there? [10.9s]
Irby [00:56:30]I believe that there are a number of ways that the motoring public can report potholes, but I could not speak to the specifics. I think that there is a website option and I think there is a telephone option. [9.2s]
Hammer But as to this particular pothole in question that this claim is about, do you know if there was any previous complaints filed with the department as to this one?
Irby With the department, I cannot speak to that. No, sir.
Hammer Anybody with the department here, Mr. Chair?
Cozart Senator Hammer, I believe there is someone. Would you like to have them come forward?
Hammer Yes, I would, please. Thank you. I’ll be brief. Thank you.
Cozart Transportation department here? They were. Yes, they are. I’m sorry. We have a question. Please state your name and who you’re with, please.
Sparks Traylon Sparks, Deputy Chief Counsel of ARDOT.
Cozart Senator Hammer, you’re recognized.
Hammer [00:57:31]Thank you. I just, a clarification, is this– and maybe this picture– is this pothole in the road or is it on the shoulder or do you know? [7.2s]
Sparks [00:57:39]I believe this one was on, either an entrance or an exit ramp from the interstate. [6.6s]
Hammer [00:57:47]Okay. So it is in the pathway of the drivers? [1.6s]
Sparks [00:57:50]Yes. [0.0s]
Hammer [00:57:50]Okay. So do you know if there was– do you– isn’t there a system that people can call and report that? [4.7s]
Sparks [00:57:56]Yes, they can, they can call. They can go on our website and click ‘report a pothole.’ [5.3s]
Hammer Okay. Was there a claim on this? Was there– were there multiple calls on this one, do you know?
Sparks I do not know.
Hammer [00:58:11]Would that have a bearing on, say, if there was 50 complaints on this one and this was number 51 that hit it and had the damage done? Would that be of any value for us as legislators to know that? [10.3s]
Sparks [00:58:26]Well, the claimant’s responsibility to bring their claim forward is to prove liability. And the claimant did not have any proof that ARDOT had prior notice. So ARDOT didn’t bring that response. It’s not their burden of proof, so we haven’t investigated that. [21.8s]
Hammer [00:58:49]I’d like you to get for me, for my own personal benefit, regardless how this goes. I’d like to know if there are a number of complaints about this particular one. And then I’ll visit off line with you about the number of complaints you get per individual pothole, which would probably be in the thousands. But I’ll talk to you about it. Thank you. [19.5s]
Sparks Yes, sir. I will do that.
Cozart Senator Rice, you’re recognized.
Rice Yes, Mr. Chair. Prior to my motion, I will state we hear these, not real regular, but I have heard them before. I’ve had three damages a few years ago. It’s part of it. It’s not good. I know ARDOT put out a statement after a previous meeting for people to call in and that’s about all you can do when one shows up. Call in and they’ll get to it just as quick as they can. It’s part of the daily things that we face each day. I would make a motion to uphold the denial of the commission on this claim.
Cozart I have a motion and a second. Seeing no more questions, all in favor say aye. Any opposed no. Motion carries. Miss Deskin, can you give a description of the next claim, please?
Deskin This claim is claim number 211185. James Kuehnert versus the Arkansas Department of Transportation. Claimant Kuehnert sought $743 in damages from ARDOT alleging that he broke his vehicle’s shocks and struts on I-530 into North Little Rock. ARDOT answered denying liability and moved to dismiss the claim for failure to state facts supporting the cause of action. Claimant responded, alleging that he encountered huge craters in the road, causing front end, front end damage to his vehicle. Claimant argued that the case should not be dismissed because a subcontractor performing the freeway construction was responsible for keeping the open lane safe for motor vehicles and had failed to do so. The Claims Commission denied and dismissed the claim upon ARDOT’s motion for summary judgment. The Commission found that ARDOT made a prima facie showing that it was entitled to a judgment as a matter of law, but that the claimant failed to respond to the motion. Furthermore, the Commission held that it did not have jurisdiction over the claim against the prime contractor because the contractor was not a state agency. Claimant appeals.
Cozart Miss Irby, is there anything the commission would like to add?
Irby No, sir. I’m happy to take any questions though.
Cozart Senator Rice.
Rice I just have a motion unless there’s discussion.
Cozart Have a motion and a second. Seeing no other questions, all in favor say aye. Any opposed no. Motion carries. Miss Deskin, would you give a brief description of the next claim, please?
Deskin This claim is claim number 220058. Andrew Martin versus the Arkansas Department of Transportation. Claimant Martin sought unspecified damages from ARDOT, alleging that he damaged his vehicle on an unrepaired section of road. ARDOT denied, denied liability and moved to dismiss the claim for failure to state a claim for which relief could be granted. Claimant did not respond. The Claims Commission entered an order granting ARDOT’s motion to dismiss. The commission found that Claimant had not alleged any specific facts related to ARDOT. The commission also found that the fact the vehicle was damaged was not by itself sufficient to demonstrate a claim against ARDOT. Claimant appeals.
Cozart Miss Irby is there anything the commission would like to add?
Irby No, sir, but I’m happy to take any questions.
Cozart Senator Rice.
Rice To uphold denial of the claim.
Cozart I have a motion and a second. All in favor, say aye. Motion carries. Miss Deskin, would you present the next claim, please?
Deskin This claim is claim number 200850. Mitchell Wine versus the Arkansas Alcohol Beverage Control. This claim was filed on February 2020 and has a lengthy record which has been provided and summarized. In brief, Mr. Wine sought $10,027,500 in damages from the Arkansas Alcoholic Beverage Control for breach of contract, which allegedly occurred when claimant’s corporate entity was not selected for a medical marijuana dispensary license. Selection was made based upon the application scores provided by respondent’s vendor, PCG. Claimant alleged that part of his application was not scored by PCG, thus breaching the contract entered into by all parties concerning scoring of the applications. Claimant argued that ABC failed to produce documentation of the score sheets. In addition, Claimant asserted that a contractual relationship existed between himself and ABC because he was required to pay $7,500 for a complete scoring of the application packet. In the alternative, claimant argued that he receive a lesser amount or be granted a medical marijuana dispensary license. Respondent denied liability, affirmatively stating that there was no privity of contract between the parties to the claim. Respondent also argued that there was underlying litigation concerning the pending issues in state court and urged the commission to hold the claim in abeyance until the litigation was concluded. The commission entered an order holding the claim in abeyance until parties advise the Commission that the underlying litigation had concluded. Upon resumption of discovery, Claimant provided a link to the original score sheets from PCG, which expired 20 days therefrom. Claimant asserted that the documents were incomplete and moved for summary judgment. Respondent filed a motion to dismiss the claim. Both motions were denied by the Claims Commission. In its order denying both motions, the Claims Commission placed the claim in abeyance for an additional 60 days to permit claimant’s corporate entity to join the claim through counsel in order to assert the claim for lost profits. The Commission denied claimants motion for reconsideration of its order. On February 10, 2022, following a hearing on January 14, 2022, the Claims Commission denied and dismissed claimant’s breach of contract claim, finding that claimant was not a party or a third party beneficiary to the contract between the Medical Marijuana Commission and PCG. Consequently, the Commission found that respondent ABC was entitled to judgment as a matter of law concerning claimant’s breach of contract claim. The Commission also rejected claimant’s claims of fraud, which he alleged were committed by various individuals during the course of the litigation. The commission found that claimant’s allegations were made in emails, motions and orally at a hearing, rather than in his original claim filing. The commission found that this did not comply with Arkansas Rules of Civil Procedure 9B, which requires that fraud claims be stated with particularity in a pleading. The Commission subsequently denied claimant’s motion for reconsideration because it did not set forth any new or additional evidence which was not previously available. Claimant appeals.
Cozart Miss Irby, does the commission have anything to add?
Irby No, sir, but I’m happy to take any questions.
Cozart Are there any questions? Seeing no questions, do I have a motion to– I have a motion to uphold the commission’s denial and dismissal. Yes. Yeah, I have a motion to– as to the claim which was denied to uphold their dismissal. I have a second. All in favor say aye. All opposed no. Motion carries. Okay. Item 5. Is that right? We’re down to five now. And I have this– excuse me. We’re just trying to make sure we’re doing everything correctly up here. All right. If there is no objection, I’d entertain a motion to batch items D5a through D5g, appeals from denied and dismissed inmate claims. Do I have a motion to batch? I have a motion to batch, and I have a second. Any discussion? Seeing none, all in favor to batch, say aye. Any opposed no. Motion carries. Items are batched. Now those items have been batched. Do I have a motion to affirm the decision of the Claims Commission concerning item D5a through D5g. I have a motion, have a second. All in favor say aye. Any opposed. Motion carries. Okay. Item 6, appeals received outside of the timeframe described under Arkansas Code 19-10-21. Members, we have– the last five claims on the agenda are appeals of decisions of the claim commission that were submitted outside of the timeframe prescribed under Arkansas Code Annotated 19-10-211a. You will find a copy of the statue in your folder with the highlighted in yellow. Although the Commission receives these appeals after the statutory prescribed times, the Commission is of the option of that is required by law, as highlighted pink on the copy of your folder of the transmitted to these– the transmitted these appeals to us. This section provides that the Commission must notify the General Assembly when a notice of appeal is filed by the Commission. I missed something. What’s the next page? Sorry, I missed a page. Having fulfilled this obligation to notify the claims subcommittee, it is now up to the subcommittee to determine what action we would like to take regarding these two items. Senator Rice.
Rice Thank you, Mr. Chair. The five claims in D6a and D6b were submitted outside the statutory time frames for appeal under Arkansas Code annotated section 19-10-211a. As such, Mr. Chair, I move that the subcommittee not consider these claims, send a letter to the parties reporting the subcommittee’s action upon Legislative Council’s adoption of our report. That’s my motion.
Cozart Have a motion. Do I have a second? I have a second. No discussion. All in favor say aye. Any opposed no. Motion carries. That’s it. Ladies and gentlemen, that concludes our business today. Thank you all for coming and have a safe drive home. Thank you.