NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

LARRY D. VAUGHT, JUDGE

DIVISION II

JAMES E. POLLARD, et al.

APPELLANTS

V.

UNION PACIFIC RAILROAD CO., et al.

APPELLEES

CA00-1158

May 9, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

CIV 99-7766

HON. DAVID BOGARD, JUDGE

APPEAL DISMISSED

Appellants, James Pollard and Sharon Hunter, mother and natural guardian of Scott Hunter, a minor, appeal the trial court's grant of summary judgment to appellees Union Pacific Railroad and Tri-State Traffic Control. We dismiss the appeal because the order from which it is taken does not adjudicate all of the claims or the rights and liabilities of the parties and is, therefore, not a final appealable order.

Appellants filed a complaint against Floyd Frazier, Union Pacific Railroad (Union Pacific), and Tri-State Traffic Control, Inc. (Tri-State). The suit arose out of an automobile accident, which occurred on August 13, 1998. Appellants later filed an amended complaint adding Frazier's insurance carrier, Liberty Mutual Insurance Co. (Liberty Mutual), as a defendant. By an amendment to the amended complaint, appellants stated that they were suing Liberty Mutual directly pursuant to Ark. Code Ann. § 23-79-210 because the Arkansas State Highway Commission, Frazier's employer, was an additional insured under Frazier's policy, and that a direct action against the insured was appropriate under the circumstances.

On August 13, 1998, Scott Hunter was driving a vehicle in which his grandparents, James and Helen Hunter, were passengers. Hunter was driving north on Highway 49 approaching Highway 306, where he intended to turn east/right onto Highway 306. A railroad track operated by Union Pacific runs parallel to Highway 49 and intersects Highway 306, several feet east of the intersection. As Hunter approached the intersection, he slowed down with the intention of turning right on Highway 306. Floyd Frazier, an employee of the Arkansas Highway and Transportation Department, was traveling behind Hunter in a state-owned service truck. Hunter, according to Frazier, turned on his right turn signal and began to slow down and bear off to the right like he was about to turn. Frazier then began to pass on the left, admittedly passing in a no-passing zone. Before Hunter turned onto Highway 306, he saw a barricade and sign indicating that the railroad crossing on Highway 306 was closed for repairs by Union Pacific. Hunter turned his vehicle back to the left and into the path of Frazier's truck. Frazier hit Hunter's vehicle broadside, resulting in personal injuries to Hunter and his grandparents and damage to the vehicle.

Appellants filed their complaint alleging, inter alia, that appellees' negligence was the proximate cause of their injuries. Tri-State filed a motion for summary judgment, contending that its alleged negligence in failing to place warning signs advising motorists of the closed railroad crossing was not the proximate cause of appellants' injuries and that their proof of causation amounted to speculation and conjecture. Union Pacific joined the motion for summary judgment of Tri-State. After a hearing on June 9, 2000, the trial court granted summary judgment in favor of Tri-State and Union Pacific. Appellants filed a motion to voluntarily nonsuit Floyd Frazier, which the trial court granted. Appellants filed a notice of appeal on July 21, 2000, appealing the trial court's June 28, 2000, order granting summary judgment to Union Pacific and Tri-State. Appellants' notice of appeal designated only specific portions of the record on appeal.

For an order to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Haase v. Starnes, 337 Ark. 193,987 S.W.2d 704 (1999). Rule 54(b) of the Arkansas Rules of Civil Procedure provides that when multiple claims or parties are involved, the trial court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties "only upon an express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment." In the absence of such determination and direction, any order that adjudicates fewer than all of the claims or the rights and liabilities of fewer than all of the parties shall not terminate the action as to any of the claims or parties. Ark. R. Civ. P. 54(b). A claim against a party remains pending until the trial court enters an order of dismissal. Shackelford v. Arkansas Power & Light Co., 334 Ark. 634, 976 S.W.2d 950 (1998). The failure to comply with Ark. R. Civ. P. 54(b) is a jurisdictional matter which this court is required to raise on its own. Stratton v. Arkansas State Hwy. Comm'n, 323 Ark. 740, 917 S.W.2d 538 (1996).

Based on the record before us, its appears as though defendant Liberty Mutual was not dismissed. The trial court entered an order granting summary judgment in favor of Tri-State and Union Pacific on June 29, 2000. Appellants filed a motion to nonsuit Floyd Frazier, and the trial court entered an order granting the motion on July 5, 2000. Although appellees' statement of the case suggests that the trial court granted summary judgment in favor of Liberty Mutual, we find no order in the record dismissing Liberty Mutual. Additionally, the order appealed from does not contain an express determination, supported by factual findings, that there is no just reason for delay in taking an appeal as required by Rule 54(b).

Appeal dismissed without prejudice.

Robbins and Crabtree, JJ., agree.