REL: 11/20/98 GRIMES v LIBERTY NATIONAL
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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.