Opinion
Prior report: 320 Ark. 584, 899 S.W.2d 61.
BROWN, Justice, dissenting.
I would reverse and remand.
The majority opinion states that Rule 803(6) does not require a custodian or keeper of the record to be the sponsoring witness of an insurance policy but that a "qualified witness" could do so. That is correct, and we have held that the phrase "other qualified witness" under Rule 803(6) should be given the broadest interpretation. Wilburn v. State, 317 Ark. 73, 876 S.W.2d 555 (1994). The trial court, however, never considered whether Charles Deaton, the Columbia Mutual claims adjuster, was such a "qualified witness." Rather, the trial court agreed with Larry Patterson's counsel that Arkansas Rule of Evidence 803(6) requires that the sponsoring witness be a "custodian with knowledge," who had to be familiar with the precise terms of the policy. That was incorrect, and that error was the basis for the court's refusal to allow the insurance policy into evidence.
The majority opinion agrees that the trial court misstated the requirements of Rule 803(6). But the opinion proceeds forward and states that the trial court's ruling "implicitly" was a finding that Patterson's insurance policy was not properly authenticated under Arkansas Rule of Evidence 901(b)(1). The majority is affirming in effect on the basis that the trial court was correct in its ruling but for the wrong reason. See West v. G.D. Searles&sCo., 317 Ark. 525, 879 S.W.2d 412 (1994).
Rule 901(b)(1) states:
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming to the requirements of this rule:
(1) Testimony of Witness With Knowledge. Testimony of a witness with knowledge that a matter is what it is claimed to be.
In concluding that Mr. Deaton was not a "witness with knowledge," the majority is making a finding of fact for the first time on appeal. Moreover, a "witness with knowledge" under Rule 901(b)(1) seems directly synonymous with a "qualified witness" under Rule 803(6). Neither "witness" under either rule is required to be a "custodian of the record."
Mr. Deaton testified that he was familiar with the standard automobile policy issued by the company and the liability section of that policy and that the standard policy is what Larry Patterson had. (Indeed, both Larry Patterson and Roger Perry admitted in their answers to Columbia Mutual's complaint that Larry Patterson had coverage with the company.) Mr. Deaton then identified for the jury's benefit the declaration page of the policy that named Larry Patterson as the insured. He next read the "Exclusions" language from the standard policy to the jury. It is the "Exclusions" language that lies at the heart of the litigation.
Much discussion was had at trial about the endorsements to the standard policy and whether Mr. Deaton had knowledge of what the endorsements specifically accomplished. Two points are relevant here. First, the rules do not require that the qualified witness or witness with knowledge know the precise terms of the policy--only that he know that it is the policy at issue. 29A Am.Jur.2d, Evidence § 1033 (1994); see also New Orleans Saints v. Griesedieck, 612 F.Supp. 59 (E.D.La.1985). Secondly, neither Larry Patterson nor Roger Perry nor Columbia Mutual ever contended that the endorsements changed the "Exclusions" section of the standard policy in any respect. In fact, Columbia Mutual stated in its appellant's brief that the endorsements did not alter that facet of the policy, and the appellees did not contest this in their brief. The endorsements are simply not material to the Exclusions issue in this appeal.
Because an erroneous standard was employed to deny admission of the policy, a reversal and remand for trial are warranted. I respectfully dissent.
ROAF, J., joins.