dissenting.
Because the circuit court in no way erred when it followed this court’s precedent in dismissing the complaint with prejudice, I would affirm and therefore respectfully dissent. The majority’s reversal in this case demonstrates a complete disregard for this court’s longstanding adherence to one of the basic principles of 112vicarious liability, as set forth in Hartford Insurance Co. v. Mullinax, 336 Ark. 335, 984 S.W.2d 812 (1999), specifically, that “[w]hen the employee has been released or dismissed and the employer has been sued solely on a theory of vicarious liability, any liability of the employer likewise is eliminated.” 336 Ark. at 344, 984 S.W.2d at 816-17 (citing Barnett v. Isabell, 282 Ark. 88, 666 S.W.2d 393 (1984); Davis v. Perryman, 225 Ark. 963, 286 S.W.2d 844 (1956); 27 Am.Jur.2d. Employment Relationship, §§ 469-70 (1996) (currently § 387 (2011))).
The majority attempts to distinguish the instant case on the basis that it involved a direct action pursuant to Arkansas Code Annotated § 23-79-210 (Supp.2009); however, no distinction can be had. This court has made it exceedingly clear that the direct-action statute is merely a remedy that permits allegations of injury by a charitable organization, not subject to an action in tort, to be made in a suit against the charity’s liability insurer. See Neal v. Sparks Reg’l Med. Ctr., 375 Ark. 46, 289 S.W.3d 8 (2008). It is remedial, or procedural in nature, and does not create a substantive right in a claimant to sue the insurance company. See Archer v. Sisters of Mercy Health Sys., 375 Ark. 523, 294 S.W.3d 414 (2009).
Here, the Estate’s substantive right to sue Washington Regional is based on the doctrine of respondeat superior, under which an employer can be held vicariously liable for the tortious conduct of an employee or agent if the evidence shows that the conduct was committed within the employee’s scope of employment. See Cooper Clinic, P.A. v. Barnes, 366 Ark. 533, 237 S.W.3d 87 (2006). While Washington Regional is not subject to an action in tort due to its charitable status, its liability insurance carrier is subject to such a suit and is | ^subject to the legal principles of vicarious liability. Merely because the suit is permitted directly against the insurer rather than the employer itself is of absolutely no moment.
The Estate elected to bring suit against the nurses and their employer, who was immune from suit; therefore, the Estate was permitted to bring suit against the hospital’s insurance carrier. The Estate, however, also elected to dismiss the nurses, resulting in a dismissal with prejudice. Indeed, there was no requirement that the nurses be joined; but where they were and were released or dismissed, the principles of vicarious liability result in the extin-guishment of any claim against their employer, charitable or not. The majority’s attempt to evade this principle solely on the basis that the action is one under the direct-action statute is simply illogical.
CORBIN and HENRY, JJ., join.
COURTNEY HUDSON HENRY, Justice,dissenting.
Appellant appeals the circuit court’s order dismissing with prejudice a medical-malpractice action brought against Continental Casualty Company (Continental) pursuant to the direct-action statute found at Arkansas Code Annotated section 23-79-210 (Supp.2009). In reversing the circuit court’s order of dismissal and remanding for further proceedings, the majority opinion appears to abolish our well-established, common-law principles of vicarious liability when an aggrieved party files a negligence action against a tort-immune hospital and, more importantly, its employees. I disagree with the majority’s holding and respectfully dissent.
114The issue in this case is whether the circuit court correctly applied the principles of vicarious liability in appellant’s negligence action whereby, pursuant to the direct-action statute, appellant named Continental as a defendant as the insurer of Washington Regional Medical Center (WRMC), which is immune from suit. Appellant alleged that WRMC, and thus Continental, was vicariously liable for the conduct of two nurses, Irma De La Cruz and Amber Hefner, who were also named as defendants in the lawsuit. Continental moved to dismiss, alleging that appellant failed to obtain service of process on the two nurses and that the statute of limitations expired with respect to any claims against them. Further, based upon principles of vicarious liability, Continental contended that the required dismissal of the nurses with prejudice worked to absolve Continental of any liability.
The circuit court granted Continental’s motion to dismiss, agreeing with Continental’s arguments. The circuit court ruled that, because of the nurses’ dismissal, any vicarious liability could not be imputed to Continental. In its decision, the circuit court relied upon a vicarious-liability theory articulated by this court in Hartford Insurance Company of the Midwest v. Mullinax, 336 Ark. 335, 984 S.W.2d 812 (1999). In Mullinax, we stated,
White was voluntarily dismissed from the litigation pursuant to a motion by Mullinax. This was a second dismissal, and it operated as an adjudication on the merits. See Ark. R. Civ. P. 41(a). Imputed or vicarious liability is tied to the negligence of the employee. When the employee has been released or dismissed and the employer has been sued solely on a theory of vicarious liability, any liability of the employer likewise is eliminated. See Barnett v. Isabell, 282 Ark. 88, 666 S.W.2d 393 (1984); Davis v. Perryman, 225 Ark. 963, 286 S.W.2d 844 (1956). See also 27 Am.Jur.2d, Employment Relationship §§ 469-70 (1996). Because Hartford Insurance stands in the shoes of Mullinax, its claim is no greater than that of its insured. See Union Nat’l Bank of Little Rock v. Hooper, 295 Ark. 83, 746 S.W.2d 550 (1988); Page v. Scott, 263 Ark. 684, 567 S.W.2d 101 (1978).
Mullinax, 336 Ark. at 344, 984 S.W.2d at 816-17. In Mullinax, we concluded that any potential subrogation claim against Jim Bottin, an appellee, by Hartford Insurance, appellant, ended when appellee’s employee was dismissed from the litigation with prejudice.
In my opinion, the circuit court properly dismissed appellant’s complaint based upon the vicarious-liability principles articulated in Mullinax. The majority attempts to distinguish Mullinax, without overruling it, by claiming that it did not involve “the application of our remedial direct-action statute.” However, the fact that the direct-action statute was not at issue in Mullinax is a distinction without a difference. The holding in Mullinax rests entirely upon principles of vicarious liability, and those principles are fully applicable here. Contrary to the majority’s contention, the holding in Mullinax applies here with even greater force because the direct-action statute itself incorporates the very principles of vicarious liability. As in Mullinax, supra, the circuit court’s dismissal of the nurses served as an adjudication on the merits. See Ark. R. Civ. P. 41(a); Orr v. Hudson, 2010 Ark. 484, 374 S.W.3d 686. Thus, any of the nurses’ liability was imputed to WRMC, and, because of their dismissal, Continental’s liability was likewise eliminated because Continental stands in the shoes of WRMC.
Further, we have held that a legislative act (i.e., the direct-action statute) will not be construed as overruling a principle of common law (i.e., vicarious liability) “unless it is made plain by the act that such a change in the established law is intended.” Mullinax, 336 Ark. at 343, 984 S.W.2d at 816. We strictly construe statutes in derogation of the common law. Id. In my view, we should not eviscerate our common-law principles of vicarious liability; 11 (¡rather, we should read them harmoniously with the direct-action statute. To reverse this ease would be in derogation of our well-established, common-law principles of vicarious liability and would eliminate any available defenses to future insurer-defendants.
CORBIN and DANIELSON, JJ., join.