ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

HARVEY HUDSPETH and MOLLY FREDERICK d/b/a THE ONE DOLLAR STORE

APPELLANTS

V.

CRAWFORD & COMPANY and BRENT CANON

APPELLEES

CA02-1329

August 27, 2003

APPEAL FROM THE INDEPENDENCE COUNTY CIRCUIT COURT

[NO. CIV 2000-68]

HON. JOHN NORMAN HARKEY,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

Harvey Hudspeth and Molly Frederick d/b/a The One Dollar Store appeal the entry of a summary judgment against them arising out of an insurance claim. They contend that summary judgment was not proper in that there were factual questions concerning a misrepresentation allegedly made by appellee Canon. We disagree and affirm.

Appellants operated a retail business that was insured with Lafayette Insurance Company ("Lafayette"). The coverage included business interruption, loss of inventory, and damage to equipment. On January 30, 2000, accumulated snow or ice on the building caused the roof to collapse. Lafayette contacted Crawford & Company ("Crawford"), a business that provides adjustment services for a number of companies, to adjust appellants' claim. Crawford assigned Brent Canon, one of its adjusters, to the claim. Canon worked with appellants to get salvage information, personal property documentation, and to determine average daily net profits.

On February 11, 2000, Canon filed his first report with Lafayette, in which he relayed preliminary information and recommended that Lafayette reserve $50,000 for the claim. On March 1, 2000, Canon filed a second report, in which he recommended that the total amount owed to the insured was $50,131.73, and requested that a draft in this amount be sent by overnight mail as appellants were in need of the funds. Lafayette did not follow this recommendation, requesting instead that additional salvage bids be obtained.

Appellants contend that after Canon investigated the loss, he offered to settle the claim for $54,435.70 and promised to send the settlement check overnight. They claim that he wrote this amount on the back of his business card, and that they accepted the offer.

Lafayette subsequently tendered a check for $24,000, representing a partial payment on appellants' claim. On March 31, 2000, appellants filed their complaint, alleging that Canon had investigated, negotiated, and settled the loss. They further contended that Lafayette, Crawford, and Canon refused to pay the agreed-to settlement and committed acts of bad faith in an attempt to avoid responsibility for the loss. On April 1, 2002, Crawford and Canon filed a motion for summary judgment, stating that there was no breach of contract and there was no bad-faith cause of action against them. In their response, appellants agreed there was no bad-faith or breach of contract claims, but contended there existed a material issue of fact as to whether Crawford and Canon had made false representations that they would settle the claim for $54,435.70 and overnight a check in that amount to conclude appellants' claim.

On April 25, 2002, appellants accepted an additional payment of $35,000 from Lafayette and signed a release of claims and rights that operated to "release, acquit, and forever discharge" Lafayette from "any and all claims, demands, rights and causes of action." The release form also expressly reserved any rights, claims, or causes of action that they might have against Crawford or Canon.

Upon learning of this release, Crawford and Canon filed a supplement to motion for summary judgment, arguing that the release of Lafayette inured to the benefit of Crawford and Canon. The trial court agreed that the release of Lafayette worked to release Crawford and Canon as well, and granted appellees' motion for summary judgment. This appeal followed.

Summary judgment is a remedy that should only be granted when there are no genuine issues of material fact to litigate and when the case can be decided as a matter of law. Smith v. Saint Paul Fire & Marine Ins., 76 Ark. App. 264, 64 S.W.3d 764 (2001). Summary judgment is no longer considered a drastic remedy, but is regarded simply as one of the tools in a trial court's efficiency arsenal. Id. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. National Union Fire Ins. Co. v. Fitzhugh, 76 Ark. App. 313, 64 S.W.3d 779 (2002). All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Id.

The question before us is whether appellants' settlement with Lafayette precluded further litigation against Crawford and Canon. In Rhodes v. Progressive Casualty Insurance Co., 36 Ark. App. 185, 820 S.W.2d 293 (1991), we held that where the insured released the agent from liability and settled her claim with him, there remained no cause of action against the insurer based on the acts of its agent. We again addressed the issue of whether one co-defendant benefits from the release of the other in National Security Fire & Casualty Co. v. Barnes, 65 Ark. App. 13, 984 S.W.2d 80 (1999), where we held that when the liability of a master for the tort of a servant is based solely on the doctrine of respondeat superior, a valid release of the servant operates to release the master. We also noted, however, that such a release does not preclude further action against a master for the master's own conduct, the question being whether recovery was sought against the master for his own conduct or merely as the servant's principal. We concluded that recovery was sought against the insurer based solely upon its relationship to its agent, and the settlement agreement with the agent therefore inured to the benefit of the insurer.

We find noteworthy a comment made by the Maryland Court of Appeals in Huff v. Harbaugh, 49 Md.App. 661, 435 A.2d 108 (1981), in discussing the history and treatment of releases in Maryland, that the common thread weaving its way throughout each of the cases was that there can be but one recovery for a single wrong. The Huff court held that where a wrong consists of separate and distinct, although closely related injuries for which the parties are respectively liable, then the release of one with respect to his wrongdoing will not discharge the other from liability for his share in the transaction. Application of this theory requires there to be more than one wrong at issue, with each act causing a separate and distinct harm; the court noted that a previous opinion emphasized the "wholly divisible" nature of the injuries incurred. 49 Md.App. at 670, 435 A.2d at 113.

In the case at bar, appellants argue that a sole cause of action was not being alleged against Lafayette, Crawford, and Canon. The pleadings, however, allege but a single cause of action based upon a single incident: Lafayette's refusal to pay the settlement amount allegedly agreed to by Canon. The harm suffered by appellants was in not receiving the settlement they contend they were promised within the time frame supposedly promised. Appellants sued for $54,435.70 and settled with Lafayette for $59,000. There was no separate conduct by Canon resulting in a separate and distinct wrong that would justify an additional recovery by appellants. We hold, therefore, that appellants' settlement with and release of Lafayette inured to the benefit of appellees.

Affirmed.

Bird and Griffen, JJ., agree.