REL: 11/20/98 GRIMES v LIBERTY NATIONAL









NOTICE:     This opinion is subject to formal revision before publication in the
advance sheets of Southern Reporter.     Readers are requested to notify the
Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery,
Alabama 36104-3741 ((334) 242-4621), of any typographical or other errors, in
order that corrections may be made before the opinion is printed in Southern
Reporter.





                                                   SUPREME COURT OF ALABAMA


                                                        OCTOBER TERM, 1998-99

                                                                                                                   

                                                                           1971795
                                                                                                                   

                                                                 Aura Mae Grimes

                                                                                v.

                                   Liberty National Life Insurance Company

                                        (Barbour Circuit Court, CV-92-021)

HOUSTON, Justice.

           Aura Mae Grimes appeals from an order of the Circuit Court of

Barbour County in which it exercised jurisdiction over matters

raised in an action that she has pending in the Circuit Court of

Jefferson County.     We affirm.[1]





           Ms. Grimes is a member of the non-opt-out plaintiff class of

policyholders in Robertson v. Liberty National Life Ins. Co., No.

CV-92-021, in which, in 1994, the Circuit Court of Barbour County

entered a final judgment pursuant to a settlement agreement between

the class members and the defendant Liberty National Life Insurance

Company ("Liberty National").     The judgment provided in part:

                         "6.     Consistent with the Findings of Fact and
           Conclusions of Law entered contemporaneously herewith,
           and subject to this Court's retention of jurisdiction to
           enforce this Order and the Stipulation of Settlement, as
           amended and modified, all claims asserted in this action,
           including those claims asserted in Named Plaintiff's
           Amended Complaint, and all claims which have been or
           could be asserted (by intervention or otherwise) by or on
           behalf of any Class Member relating to the 'alleged
           cancer exchange programs' or the 'Released Claims' (as
           those terms are defined in the Stipulation), are
           DISMISSED in their entirety on the merits, with
           prejudice, and defendant Liberty National (and the
           related beneficiaries of the Release set forth in Section
           III of the Stipulation of Settlement) are hereby RELEASED
           from all claims, actions, causes of action and
           liabilities which were or could be asserted by or on
           behalf of any Class Members, which relate to the alleged
           cancer exchange programs or the Released Claims as
           defined in the Stipulation of Settlement.     The Release
           provided in Section III of the Stipulation is hereby
           approved and made effective and incorporated herein by
           reference.     

                         "7.     Named Plaintiff and each and all Class Members
           are hereby permanently ENJOINED, precluded and barred
           from filing, initiating, asserting, maintaining,
           pursuing, or continuing or participating as a litigant
           (by intervention or otherwise) in any action, whether an
           individual lawsuit or class action, in any court,
           asserting any of the claims dismissed herein or any of
           the Released Claims as defined in the Stipulation of
           Settlement: provided, however, that neither this
           injunction, nor the settlement benefits provided by the
           Stipulation of Settlement described in this Order, shall
           apply to any individual who was a named plaintiff in any
           separate action filed on or before March 10, 1993, which
           alleges fraud, concealment, failure to disclose or





           misrepresentation in connection with the purchase, sale,
           issuance, exchange or replacement of any one or more
           Liberty National cancer policies, unless said action has
           been voluntarily dismissed without prejudice prior to the
           date of this Order and Final Judgment.

                         "....

                         "12. This Court reserves and maintains continuing
           jurisdiction over all matters relating to the Settlement
           or the consummation of the Settlement; the validity of
           the Settlement; the construction and enforcement of the
           Settlement and any orders entered pursuant thereto; any
           disputes which may arise between Class Members with
           respect to the persons entitled to receive the proceeds
           of any amounts payable to Class Members under the
           Stipulation; and the entry and enforcement of this FINAL
           JUDGMENT, including, in the event of reversal, vacation
           or modification of this final judgment, jurisdiction to
           revoke this Order and Final Judgment in its entirety and
           to reinstate all claims dismissed or claims, actions,
           causes of action and liabilities released pursuant to
           paragraph 5 hereof; to tax court costs (subject to the
           terms and conditions of the Stipulation) which shall
           consist of all expenses for the Class notice, fees and
           expenses of actuarial or other experts or consultants,
           fees and expenses of the Special Master, and all other
           matters pertaining to the Settlement or its
           implementation and enforcement."          

(Emphasis original.)

           Section III of the settlement agreement, which was

incorporated into the judgment, contained the following release:

                         "Effective upon ... the final approval of all
           aspects of this Settlement by the Circuit Court of
           Barbour County, Alabama, and the final, binding
           affirmance of said approval in the event of any appeal,
           Named Plaintiff, individually and on behalf of the Class,
           and each Class Member, separately and severally, do
           hereby fully, finally, and forever release Liberty
           National and each of its past, present, and/or future:
           parents, subsidiaries, affiliated and related entities
           and persons, officers, employees, directors,
           shareholders, agents, successors, and assigns, separately
           and severally, of and from all claims, causes of action
           and liabilities (known or unknown) which have been or
           could be asserted by any Class Member, whether arising





           under state or federal statutory or common law, to the
           extent such claims, causes of action or liabilities arise
           from, are connected with, or are in any way based upon or
           related to any allegation of fraud, misrepresentation,
           concealment, failure to disclose, or other tortious
           conduct or breach of duty which occurred in whole or in
           part on or before the date of this Settlement Agreement,
           regarding (1) the alleged cancer policy exchange
           programs, (2) any other transaction resulting in the
           issuance of a new policy providing cancer coverage for a
           Class Member previously insured under an old policy, or
           (3) the failure to offer or issue any Class Member a new
           policy (the 'Released Claims')."

The final judgment entered in Robertson was affirmed by this Court.

See Adams v. Robertson, 676 So.2d 1265 (Ala. 1995).     

           In 1997, Ms. Grimes filed an action, which is pending in the

Circuit Court of Jefferson County (CV-97-70), in which she seeks

compensatory and punitive damages based on allegations of the tort

of outrage, fraud, breach of contract, and bad-faith refusal to pay

an insurance claim.     She filed this present appeal after the

Circuit Court of Barbour County, at Liberty National's request,

issued an order enforcing the injunction that it had issued in

Robertson.     Liberty National sought the order out of concern that

Ms. Grimes was basing at least some of her claims on statements or

representations alleged to have been made by Liberty National at

the time it sold Ms. Grimes her cancer policy.     Specifically, the

Circuit Court of Barbour County noted in its order that the release

that had been incorporated into the Robertson judgment covered "any

frauds or other claims, including breach of contract, which arose

out of transactions involving the cancer exchange program or

statements or representations made by Liberty National or its





agents pursuant to such a transaction."     The court went on to

state:

           "Accordingly, under the existing injunction in this case
           [Robertson], the plaintiff in the underlying action [Ms.
           Grimes] remains permanently enjoined from asserting in a
           separate action any claims based upon representations or
           statements allegedly made to the plaintiff in connection
           with her decision to purchase her 1986 policy.     

                         "As to claims of fraud based upon alleged
           representations made after the entry of the Final
           Judgment [in Robertson], which the plaintiff in the
           underlying action contends were made in 1995 and 1996,
           such claims are not barred by the existing injunction.
           Likewise, claims for breach of contract based upon the
           written policy and claims for bad faith failure to pay
           claims under the policy as written are not barred by the
           existing injunction.     As noted above, however, any claim
           for breach of contract or bad faith based upon an alleged
           oral contract or representation arising prior to the
           entry of the Final Judgment is barred by the existing
           injunction."     

           After carefully examining the record and the accompanying

briefs, we conclude that the Circuit Court of Barbour County,

pursuant to its continuing jurisdiction to oversee and administer

the Robertson class action, had the authority to issue its order

enforcing the 1994 injunction.     In Ex parte Burch, 236 Ala. 662,

665-66, 184 So. 694, 697 (1938), this Court wrote:

                         "It is uniformly held that where two or more courts
           have concurrent jurisdiction, the one which first takes
           cognizance of a cause has the exclusive right to
           entertain and exercise such jurisdiction, to the final
           determination of the action and the enforcement of its
           judgments or decrees.     
                         
                         "Mr. Chief Justice Cooley, in speaking for the
           Supreme Court of Michigan, in the case of Maclean v.
           Wayne Circuit Judge, 52 Mich. 257, 258, 18 N.W. 396, 397
           [(1884)], which involved the issuance of a writ of
           prohibition, said:     'It is a familiar principle that when
           a court of competent jurisdiction has become possessed of





           a case its authority continues, subject only to the
           appellate authority, until the matter is finally and
           completely disposed of, and no court of co-ordinate
           authority is at liberty to interfere with its action.
           The principle is essential to the proper and orderly
           administration of the laws; and, while its observance
           might be required on the grounds of judicial comity and
           courtesy, it does not rest upon such consideration
           exclusively, but is enforced to prevent unseemly,
           expensive, and dangerous conflicts of jurisdiction and of
           process.     If interference may come from one side, it may
           from the other also, and what is begun may be
           reciprocated indefinitely.     The country has witnessed
           some such conflicts in which federal and state courts of
           co-ordinate powers have unguardedly or unadvisedly
           undertaken to hamper or restrain each other's actions,
           and the mischiefs of which such cases are suggestive are
           quite as likely to arise when courts existing as part of
           the same system intrude with their process upon each
           other's authority.     The writs prayed for should issue.'

                         "And this court in the case of Gay, Hardie & Co. v.
           Brierfield Coal & Iron Co., 94 Ala. 303, 11 So. 353, 16
           L.R.A. 564, 33 Am.St.Rep. 122 [(1891)], in an opinion by
           Coleman J., said [94 Ala. at 318, 11 So. at 359]:     'All
           the authorities recognize the importance of carefully
           preserving the boundary line between courts of concurrent
           jurisdiction, in order to prevent conflicts, and to
           preserve in harmony their relations to each other. ... To
           prevent abuse of the principle, and the successful
           perpetration of injustice or fraud, through forms of law,
           courts accord to suitors and litigants all necessary
           latitude, and they are not restricted to any one forum
           for the adjudication of any question or right, provided
           only that such adjudications are not upon questions
           pending in another concurrent court which had prior
           jurisdiction, and provided that its writs or process
           shall not hinder the performance of any lawful mandate of
           such concurrent court, or interfere with the possession
           of any subject-matter then in gremio legis.'     Many
           authorities could be cited in support of this
           proposition, but we deem it unnecessary, in view of the
           universality of the rule, to further cite authorities.
           But see 15 C.J.  583, pp. 1134 and 1135, and authorities
           cited in notes thereunder.     

                         "In Vol. 50,  22, p. 667, Corpus Juris, the author
           states the rule with reference to issuance of writs of
           prohibition, to preserve the jurisdiction of the court
           which first takes cognizance of a cause, as follows:





           'Prohibition will lie to restrain one court from assuming
           jurisdiction of a matter over which another, having
           concurrent jurisdiction, has assumed and is exercising
           jurisdiction.'     This statement of the author of the text
           seems to be abundantly supported by the authorities.
           [Citations omitted.]"

See, also, Ex parte Liberty National Life Ins. Co., 631 So.2d 865

(Ala. 1993); Ex parte Moore, 382 So.2d 548 (Ala. 1980); Orton v.

Cheatham, 293 Ala. 639, 309 So.2d 94 (1975); Smith v. Charles E.

Jay & Co., 292 Ala. 513, 296 So.2d 885 (1974); Ex parte State ex

rel. Ussery, 285 Ala. 279, 231 So.2d 314 (1970); Rush v. Simpson,

373 So.2d 1105 (Ala.Civ.App. 1979), and the cases cited therein;

Clements v. Barber, 49 Ala.App. 266, 270 So.2d 815 (Ala.Civ.App.

1972); Ex parte State Mutual Ins. Co., 715 So.2d 207 (Ala. 1997)

(plurality decision recognizing, among other things, the power of

a court entertaining a class action to enjoin a competing action

filed after the class action); Amend. 328,  6.04(b), Ala. Const.

1901 ("[the circuit court] shall have authority to issue such writs

as may be necessary or appropriate to effectuate its powers").     

           All of these decisions demonstrate the well-settled rule that

where two courts have equal and concurrent jurisdiction, the court

that first exercises jurisdiction in a matter has preference and is

not to be obstructed in the legitimate exercise of its powers by a

court of coordinate jurisdiction.     The Circuit Court of Barbour

County was acting well within its power in enforcing its permanent

injunction so as to prevent Ms. Grimes from relitigating in another

forum any claims against Liberty National that she, as a member of

the Robertson class, had released in 1994.     





           AFFIRMED.

           Hooper, C. J., and Maddox, Almon, Cook, and See, JJ., concur.

           Kennedy, J., dissents.

           Shores and Lyons, JJ., recuse themselves.





     





1. Ms. Grimes also filed in this Court a "Petition for Emergency
Supervisory Injunction, for Writ of Prohibition, or for Writ of
Mandamus," raising the same issues that she raises on this appeal.
That petition, docketed as case No. 1971597, will be dismissed.







FindLaw Career Center

    Search for Law Jobs:

      Post a Job  |  View More Jobs
Ads by FindLaw