The opinion
Robert H. Dudley, Justice, dissenting. In my opinion the majority opinion is in error in holding that the appellees are immune from suit as long as they acted in good faith. They are immune from liability, not suit, and there is a vast difference.
The majority opinion states that there may be a common law qualified immunity for performing the duty imposed by law in this case. That statement is, at best, difficult to understand since the legislature has specified the kind of immunity which is applicable to this case. The statute, Ark. Code Ann. § 12-12-510 (Supp. 1989), is correctly quoted in the majority opinion as providing, “immunity from any civil or criminal liability [for making reports].” (Emphasis added.) We have expressly held that this statute “provides only an immunity from liability if good faith is shown as opposed to an immunity from suit.” (Emphasis in original.) Jaggers v. Zolliecoffer, 290 Ark. 250 , 718 S.W.2d 441 (1986).
There is another statute which is clearly applicable but not mentioned in the majority opinion. It is Ark. Code Ann. § 19-10-305 (a) (Supp. 1989), which provides that “Officers and employees of the State of Arkansas are immune from civil liability for acts . . . other than malicious acts . . . occurring within the course and scope of their employment.” (Emphasis supplied.) As set out in the majority opinion, all of the appellees are state employees, and they were acting in the scope of their employment. Thus, the appellees are immune from liability, not suit, under the two quoted statutes.
An example of immunity from suit is found in Ark. Code Ann. § 16-10-406 (Supp. 1989), which provides: “Members of the commission, referees, commission counsel and staff shall be absolutely immune from suit . . . .”
We have recognized the distinction between immunity from liability and immunity from suit in three cases, Bly v. Young, 293 Ark. 36 , 732 S.W.2d 157 (1987);Beaulieuw. Gray, 288 Ark. 395 , 705 S.W.2d 880 (1986); and Carter v. Bush, 283 Ark. 16 , 677 S.W.2d 837 (1984) (substituted opinion on denial of rehearing). In each of these “immunity from liability” cases we wrote that suit could lie against the state employee but that employee would not be personally liable. However, if the employee had liability insurance which covered the wrongful act, the insurance company would be liable. In addition, as noted in Beaulieu v. Gray, supra, if a plaintiff obtains a judgment against a state employee, the State Claims Commission might pay the judgment, even if the employee is not personally liable. See also, Bly v. Young, Beaulieu v. Gray, and Carter v. Bush: The Arkansas State Employee Immunity Trilogy, 41 Ark. L. Rev. 893 (1988).
The majority opinion is in error in holding that the appellees are immune from suit, rather than immune from liability and, accordingly, I dissent.
Newbern and Price, JJ., join in this dissent.