dissenting.
hi respectfully dissent. Immunity in this case is not an affirmative defense. The plain language of Arkansas Code Annotated section 21-9-301 (Repl.2004) provides not only immunity but also a substantive bar to suit where the school district is uninsured. “[Sjchool districts ... shall be immune from liability and from suit for damages.” Ark.Code Ann. § 21-9-301(a). Further, “no action shall lie.” Id. § 21 — 9—301(b). The preamble to Act 165 of 1969 that enacted section 21-9-301 reconfirms this conclusion. It declares that the public policy of the State is that “its political subdivisions shall not be liable for tort” and “that no action shall be maintained therefor.” Act 292 of 1993 amended section 21-9-301 to allow suit to the extent there is insurance coverage, and it also confirms that section 21-9-301 provides a substantive bar. The preamble states that the bill “will permit them to be named as plaintiffs to the extent of their insurance.” If there is no insurance, they are not subject pto suit.
The bar to suit arises from public policy that, subject to insurance, no suit shall be maintained. As such, the substantive bar may not be waived by the school district through a failure to answer or otherwise. The circuit court simply lacks subject-matter jurisdiction where the plaintiff makes no allegation of insurance, and insurance coverage is required to state a cause of action. The plaintiff must raise the issue that insurance overcomes the substantive bar and immunity or the suit is barred. On that basis, immunity is not a new matter raised by the defendant and, thus, it is not an affirmative defense.
In the absence of an allegation of insurance, the circuit court lacked subject-matter jurisdiction, and its decision entering default and vacating the judgment and sentence is null and void. No cause of action was stated that would be subject to default. Further, “[i]f the trial court lacked subject-matter jurisdiction, we also lack subject-matter jurisdiction.” Clark v. Pine Bluff Civil Serv. Comm’n, 353 Ark. 810, 815, 120 S.W.3d 541, 545 (2003). This court may not waive subject-matter jurisdiction. See Dean v. Tallman, 331 Ark. 127, 959 S.W.2d 41 (1998). All this court may do is decline to act, noting that the circuit court’s decision is null and void. See, e.g., Linder v. Weaver, 364 Ark. 319, 219 S.W.3d 151 (2005). Because I believe that the circuit court lacked subject-matter jurisdiction to hear the case, I would hold that its acts were null and void. I would reverse and dismiss.