Page:Clayborn v. Bankers Standard Insurance Co.pdf/8

564   S.W.2d 395 (1996) are satisfied: (1) liability insurance must be carried by a nonprofit corporation; (2) a person must suffer injury or damage on account of negligence or wrongful conduct; and (3) the damage or injury must be on account of the negligence or wrongful conduct of "servants, agents, or employees" of the nonprofit corporation acting within the scope of their agency or employment. See id. We disagree.

[4, 5] In Rogers, we did not include the element "and not subject to suit in tort" among the elements that must be established for Ark. Code Ann. § 23-79-210 to apply. However, we note that in Rogers, we were not faced with the issue of whether a nonprofit corporation is subject to suit for tort, as we are now. We have more recently construed Ark. Code Ann. § 23-79-210 in Smith v. Rogers Group, Inc., 348 Ark. 241, 72 S.W.3d 450 (2002). We concluded in Smith, supra, that Ark. Code Ann. § 23-79-210 only provides for direct actions against an insurer in the event that the organization at fault is immune from suit in tort. Id. We also noted the distinction between immunity from suit and immunity from liability. We stated that the immunity from suit is the entitlement not to stand trial, while immunity from liability is a mere defense to a suit. Smith, supra (citing Robinson v. Beaumont, 291 Ark. 477, 725 S.W.2d 839 (1987)).

[6, 7] Applying this construction of the statute to the facts of the present case, we conclude that Ark. Code Ann. § 23-79-210 is not applicable to the circumstances of this case because there is nothing in the pleadings to show that Forrester-Davis is a nonprofit corporation that is immune from suit in tort. Because no showing is made of such alleged immunity, appellant is precluded from bringing a direct action against Forrester-Davis's insurer, Bankers. It is not controverted that Forrester-Davis is a nonprofit corporation, but no authority has been cited to us, and we know of none, that holds that all nonprofit corporations, by virtue of their status as nonprofit corporations, are immune from suit for tort. We are not aware of any case law holding that nonprofit corporations are ipso facto immune from suit. To the contrary, our statutes provide that nonprofit corporations generally have the power to sue and be sued. Ark. Code Ann. § 4-33-302