Does the Arkansas Health Insurance Marketplace and its board get the same tort immunity as cities and counties under Ark. Code Ann. 21-9-301?
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This page answers the general question as of 2016. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
State Senator David Sanders asked whether the Arkansas Health Insurance Marketplace (AHIM), its Board of Directors, and their officers and employees were immune from tort liability under Ark. Code Ann. § 21-9-301, the statute that gives political subdivisions broad tort immunity. The question came up because AHIM's enabling statute (Ark. Code Ann. § 23-61-803(b)(2)) "exempts" it from all laws other than the Freedom of Information Act, raising a question about whether the tort-immunity statute still reached it.
Attorney General Leslie Rutledge concluded the immunity applies. The AHIM statute explicitly creates the Marketplace as "a political subdivision, instrumentality, and body politic of the State of Arkansas." Section 21-9-301 by its express terms applies to "political subdivisions" and to their boards and other governing bodies. The Marketplace's exemption from "all other laws" releases it from duties imposed on it by other laws, not from protections that other laws afford it.
Currency note
This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
How the AG read the two statutes together
The political-subdivision designation. Ark. Code Ann. § 23-61-803(b)(1) creates AHIM as "a political subdivision, instrumentality, and body politic of the State of Arkansas." The same subsection adds that AHIM "is not a state agency." The AG treated the "not a state agency" line as a clarification of AHIM's organizational status, not as a contradiction of the political-subdivision label.
The tort-immunity statute's scope. Ark. Code Ann. § 21-9-301 declares as public policy that "all counties, municipal corporations, school districts, public charter schools, special improvement districts, and all other political subdivisions of the state and any of their boards, commissions, agencies, authorities, or other governing bodies shall be immune from liability and from suit for damages except to the extent that they may be covered by liability insurance." The Marketplace fit within "all other political subdivisions of the state."
The officers-and-employees layer. The AG cited Matthews v. Martin, 280 Ark. 345 (1983), for the proposition that the immunity extends to public officers, directors, and employees in actions brought against them in their official capacities.
The "exempt from all laws" clause. AHIM's enabling statute also says it is "exempt" from all laws except the FOIA. The AG read "exempt" as Black's Law Dictionary does: "free or released from a duty or liability to which others are held." The exemption releases AHIM from duties imposed on it by other laws (regulatory burdens, reporting requirements, etc.). It does not release AHIM from protections that other laws confer.
The AG applied the cardinal rule of statutory interpretation: construe a statute just as it reads, giving words their ordinary and accepted meanings (citing Friar v. Erwin). Reading "exempt" naturally, the AHIM exemption did not strip away the immunity § 21-9-301 confers.
Common questions
Does AHIM still need to carry liability insurance?
Section 21-9-301 makes political subdivisions immune "except to the extent that they may be covered by liability insurance." That means if AHIM buys coverage, it can be sued up to the policy limits. Whether to buy coverage is a business decision for AHIM's board, not a question the AG opinion addressed.
What about federal claims?
The AG's opinion is about Arkansas tort immunity only. Federal claims (such as 42 U.S.C. § 1983 actions) operate under federal qualified-immunity doctrines, which are independent of Ark. Code Ann. § 21-9-301.
Does this analysis apply to other state-created entities described as "exempt from all laws"?
The reasoning would generally apply to any entity expressly created as a political subdivision. The key move is reading "exempt" as releasing the entity from duties imposed by other laws, not stripping away protections those laws provide. Each entity's specific enabling statute would have to be checked to confirm the political-subdivision designation.
Does the immunity cover intentional torts?
The AG did not specifically address intentional torts in this opinion. Battle v. Harris, 298 Ark. 241 (1989), holds that § 21-9-301 immunity does not cover intentional torts. That limitation applies the same way to AHIM as to any other political subdivision.
Source
Subject
Does Ark. Code Ann. 21-9-301 regarding immunity from tort liability apply to the Arkansas Health Insurance Marketplace? If Ark. Code Ann. 21-9-301 applies, does the immunity apply to the officers and
Source
Official summary
Does Ark. Code Ann. 21-9-301 regarding immunity from tort liability apply to the Arkansas Health Insurance Marketplace? If Ark. Code Ann. 21-9-301 applies, does the immunity apply to the officers and employees of the Arkansas Health Insurance Marketplace? Q2) Does Ark. Code Ann. 21-9-301 regarding immunity from tort liability apply to the Board of Directors of the Arkansas Health Insurance Marketplace? If section 21-9-301 applies, does the immunity apply to the officers and employees of the Board? RESPONSE: In my opinion, Ark. Code Ann. 21-9-301 applies to the Arkansas Health Insurance Marketplace, the Board, and their officers and employees, and all of them are immune from tort liability thereunder to the extent the statute provides for such immunity.
Original opinion text
Opinion No. 2015-110
January 12, 2016
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
The Honorable David J. Sanders
State Senator
500 Woodlane Avenue
State Capitol, Room 320
Little Rock, AR 72201
Dear Senator Sanders:
This is in response to your request for my opinion on whether the Arkansas Health
Insurance Marketplace ("AHIM"), its Board of Directors ("Board"), and their
officers and employees are immune from tort liability under Ark. Code Ann. § 21-
9-301.
That statute provides:
(a) It is declared to be the public policy of the State of Arkansas that
all counties, municipal corporations, school districts, public
charter schools, special improvement districts, and all other
political subdivisions of the state and any of their boards,
commissions, agencies, authorities, or other governing bodies
shall be immune from liability and from suit for damages except
to the extent that they may be covered by liability insurance.
(b) No tort action shall lie against any such political subdivision
because of the acts of its agents and employees.1
1 Ark. Code Ann.§ 21-9-301(Supp. 2015).
323 CENTER STREET, SUITE 200 · LITTLE ROCK, ARKANSAS 72201
TELEPHONE (501) 682-2007 · FAX (501) 682-8084
ARKANSASAG.GOV The Honorable David J. Sanders
State Senator
Opinion No. 2015-110
Page 2
As you note in your request, this statute has been held to extend immunity to
public officers, directors, and employees in actions brought against them in their
official capacities.2
As you also note in your request, however, AHIM is "exempt" from all laws other
than the Freedom of Information Act. 3
You ask whether, given the exemption, AHIM, the Board, and their officers and
employees are immune from tort liability under Ark. Code Ann. § 21-9-301.
RESPONSE
In my opinion, Ark. Code Ann. § 21-9-301 applies to AHIM, the Board, and their
officers and employees, and all of them are immune from tort liability thereunder
to the extent the statute provides for such immunity.
DISCUSSION
The statute creating AHIM provides that it is "created as a political subdivision,
instrumentality, and body politic of the State of Arkansas .... "4 The immunity
statute expressly applies to the state's "political subdivisions."5
The Board, being a "board . . . or other governing bod[y ]" of a political
subdivision of the State, is also immune from tort liability under the express terms
of the immunity statute.6 And as noted above, officers and employees of immune
entities are also immune. 7
2 See, e.g., Matthews v. Martin, 280 Ark. 345, 658 S.W.2d 374 (1983).
3 Ark. Code Ann. § 23-6l-803(b)(2) (Supp. 2015).
4 Ark. Code Ann. § 23-61-803(b )(1 ).
5 Ark. Code Ann. § 21-9-30l(a). The statute creating AHIM provides that it "is not a state agency." Ark.
Code Ann. § 23-6 l-803(b )(1 ). I do not regard this provision as relevant to the question at issue here.
Whatever else AHIM is or is not for other purposes, it is expressly declared to be a political subdivision of
the State and thus comes within the immunity statute's coverage. Section 23-6 l-803(b )(1) states in full:
"The Arkansas Health Insurance Marketplace is created as a political subdivision, instrumentality, and
body politic of the State of Arkansas and, as such, is not a state agency."
6 Ark. Code Ann.§ 21-9-30l(a).
7 See supra note 2 and accompanying text. The Honorable David J. Sanders
State Senator
Opinion No. 2015-110
Page 3
The statute exempting AHIM from all laws other than the Freedom of Information
Act does not, in my opinion, change the analysis or result.
The cardinal rule of statutory interpretation is to construe a statute just as it reads,
giving words their ordinary and usually accepted meanings. When a statute is
clear, the courts give it its plain meaning and will not search further for legislative
purpose.8
The word "exempt" means "free or released from a duty or liability to which
others are held."9 Thus, in my view, the provision exempting AHIM from all laws
other than the Freedom of Information Act only frees AHIM from laws that would
otherwise impose on it some duty or liability; it does not, in my view, mean that a
law protecting a public entity and its officers and employees does not apply. It is
accordingly my opinion that Ark. Code Ann. § 21-9-301 applies to AHIM, the
Board, and their officers and employees, and all of them are immune from tort
liability thereunder to the extent the statute provides for such immunity.
Sincerely,
~~~
Attorney General
8 See, e.g., Friar v. Erwin, 2014 Ark. 487, 450 S.W.3d 666.
9 Black's Law Dictionary 692 (10th ed. 2014) (emphasis added).
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