concurring in part, dissenting in part.
While I concur with the majority’s holding on all other points, I respectfully dissent on- the question involving the Arkansas Franchise Practices Act (AFPA), as I believe that a genuine issue of material fact exists. As set forth by the majority, “franchise” is defined within the AFPA as
a written or oral agreement for a definite or indefinite period in which a person grants to another person a license to use a trade name, trademark, service mark, or related characteristic within an exclusive or nonexclusive territory or to sell or distribute goods or services within an exclusive or nonexclusive territory at wholesale or retail, by lease agreement, or otherwise.
Ark.Code Ann. § 4-72-202(l)(A) (Repl. 2001). While this court did hold in Stockton v. Sentry Insurance, 337 Ark. 507, 989 S.W.2d 914 (1999), that Stockton had no franchise from Sentry, its facts can be clearly distinguished from those in the case before us.
There, Stockton was an employee of Sentry and his “sales representative employment contract” merely mandated that he “solicit and procure applications for insurance.” 337 Ark. at 512, 989 S.W.2d at 917. In fact, the Stockton court noted that his “authority went no further than to solicit and procure applications for insurance,” and it found this distinction “crucial.” Id. at 512-13, 989 S.W.2d at 917. So, yes, the majority is correct that the decision in Stockton was premised on the fact that Stockton could not consummate a sale; however, the 119Stockton court so decided because Stockton’s agreement was completely devoid of any language permitting him to sell.
That is distinctly different from the case at hand, in which Gunn explicitly agreed in Agreement III to “sell insurance for the Companies.” In addition, unlike the salesman in Vitkauskas v. State Farm Mutual Automobile Insurance Co., 157 Ill.App.3d 317, 109 Ill.Dec. 373, 509 N.E.2d 1385, 1391 (1987), who “could not commit the defendant to a binding contract of insurance,” Gunn could; thus, her right to bind coverage did consist of an “unqualified authorization to transfer a product,” in that her clients walked away with coverage once bound. Id. Finally, she was an independent contractor, rather than an employee, and she did have limited authority to adjust claims by contract.
As this court has today, and previously, acknowledged, we give a liberal construction to the act to effectuate its remedial purposes. See Stockton, supra. Viewing the evidence in the light most favorable to Gunn, resolving all doubts and inferences against Farmers, and taking into account the liberal construction we must give the AFPA, I would hold that Gunn has met proof with proof and demonstrated the existence of a material fact. Accordingly, I would reverse the circuit court’s grant of summary judgment on Gunn’s AFPA claim, and I respectfully concur in part and dissent in part.
HANNAH, C.J., and WILLS, J., join.