EX PARTE GEORGIA FARM BUR. MUT. AUTO. INS.

• Decision Date: 26 March 2004
• Parties: Ex parte GEORGIA FARM BUREAU MUTUAL AUTOMOBILE INSURANCE COMPANY. (In re Donald Johnson and Cynthia Johnson v. Georgia Farm Bureau Mutual Automobile Insurance Company).
• Court: Alabama Supreme Court

889 So.2d 545

Ex parte GEORGIA FARM BUREAU MUTUAL AUTOMOBILE INSURANCE COMPANY.

(In re Donald Johnson and Cynthia Johnson v. Georgia Farm Bureau Mutual Automobile Insurance Company).

1011899.

Supreme Court of Alabama.

March 26, 2004.

T. Randall Lyons, Bradley L. Hendrix, and William H. Webster of Webster, Henry & Lyons, P.C., Montgomery, for petitioner.

Christopher B. Scott of Smith, Wallis & Scott, LLP, Carrollton, Georgia, for respondents.

JOHNSTONE, Justice.

The defendant Georgia Farm Bureau Mutual Automobile Insurance Company ("Georgia Farm Bureau") petitions this Court for a writ of mandamus directing the trial court to dismiss this case. We grant the petition and issue the writ of mandamus.

Facts

In 1999, the plaintiff Donald Johnson, while riding as a guest passenger in a car owned and operated by an Alabama resident ("the owner-operator"), was injured in a one-car accident in Randolph County, Alabama ("the accident"). The parties agree that the accident was proximately caused by the simple negligence of the owner-operator. Although the owner-operator's liability insurance covered him for the accident, the owner-operator's insurer declined to compensate Johnson for his injuries on the ground that the application of the Alabama guest-passenger statute, § 32-1-2, Ala.Code 1975, to Johnson's status as a guest in the owner-operator's car relieved the owner-operator of liability to Johnson for simple negligence.

At the time of the accident, Donald Johnson resided in the household of his mother, the plaintiff Cynthia Johnson, in Carroll County, Georgia. At that time, Cynthia Johnson maintained a policy of automobile liability insurance with Georgia Farm Bureau ("the policy"), which afforded Donald Johnson uninsured-motorist coverage. However, when Donald Johnson claimed uninsured-motorist benefits under the policy for the injuries he sustained in the accident, Georgia Farm Bureau denied his claim on the ground that Georgia law (§ 33-7-11, Ga.Code Ann.) conditions a party's recovery of uninsured-motorist benefits on that party's first obtaining a judgment against the tortfeasor.

After Georgia Farm Bureau denied Donald Johnson's claim, Donald and Cynthia Johnson sued Georgia Farm Bureau for breach of contract in the Randolph Circuit Court. Georgia Farm Bureau then moved to dismiss the lawsuit on the grounds that the trial court did not have in personam jurisdiction over Georgia Farm Bureau and did not constitute a proper venue for the case. Georgia Farm Bureau supported the motion with an affidavit of a Georgia Farm Bureau employee attesting that Georgia Farm Bureau was a Georgia corporation. He further attested that Georgia Farm Bureau did not employ agents in Alabama, did not solicit business in Alabama, and did not sell insurance to residents of Alabama. The plaintiffs' complaint itself had alleged that Cynthia Johnson's policy was delivered to her in Georgia.

Georgia Farm Bureau asserted that the trial court lacked in personam jurisdiction over Georgia Farm Bureau under Rule 4.2(a)(2), Ala. R. Civ. P., the Alabama long-arm rule, because Georgia Farm Bureau did not have "sufficient contacts" with Alabama, as required by that rule, because it neither transacted business in Alabama nor insured persons who were in Alabama when the insurance was issued. Georgia Farm Bureau asserted also that neither the Randolph Circuit Court nor any other court in Alabama was a proper venue for the case under § 6-3-7, Ala.Code 1975, because Georgia Farm Bureau did not do business by agent in Alabama.

In opposing the motion to dismiss, the plaintiffs did not offer any evidence or argument that Georgia Farm Bureau either transacted business in Alabama or insured persons who were in Alabama when the insurance was issued. Rather, first, the plaintiffs argued that they must be allowed to sue Georgia Farm Bureau in the Alabama courts because they were without a remedy in the Georgia courts. The plaintiffs argued that, because Georgia procedural law (§ 33-7-11, Ga.Code Ann. (2000)) conditioned a party's recovery of uninsured-motorist benefits on that party's first obtaining a judgment against the tortfeasor, and because the Georgia courts could not exercise in personam jurisdiction over the Alabama-resident-owner-operator for the Alabama accident, while Alabama substantive law (§ 32-1-2, Ala.Code 1975) precluded the plaintiffs from first obtaining a judgment, grounded on simple negligence, against the owner-operator, the Georgia courts afforded the plaintiffs no remedy for the recovery of Donald Johnson's uninsured-motorist benefits from Georgia Farm Bureau. The plaintiffs further argued that, because Alabama procedural law did not condition the plaintiffs' recovery of uninsured-motorist benefits on their first obtaining a judgment against the owner-operator, the Alabama courts afforded the plaintiffs their only remedy for the recovery of such benefits.

Second, the plaintiffs argued that Georgia Farm Bureau had sufficient contacts with Alabama to confer in personam jurisdiction over Georgia Farm Bureau on the Alabama courts under subsection (I) of Rule 4.2(a)(2), Ala. R. Civ. P.:

"Though [Georgia Farm Bureau] has no agents in Alabama, and even though it sells no policies of insurance in the State of Alabama, it sells policies in each Georgia county, seventeen of which abut the Alabama-Georgia border. These policies, such as the one at bar, follow their insured from Georgia into foreign states such as Alabama. Clearly, a future consequence to be contemplated by this is that incidents could transpire within the State of Alabama necessitating the interpretation by Alabama courts of policies issued in Georgia. There is more than a reasonable potential for the terms of the Georgia insurance policy between Plaintiffs and [Georgia Farm Bureau] to apply to an automobile accident occurring in the State of Alabama involving a Georgia Farm Bureau insured or covered vehicle. Accordingly, the concepts of due process dove-tail well with a finding that [Georgia Farm Bureau] obtained `fair warning' through `minimum contacts' with the State of Alabama such as those outlined here and in the Statement of Facts above."

(Plaintiffs' brief in opposition to defendants' motion to dismiss (Exhibit D, petition for writ of mandamus).) The plaintiffs argued that a Georgia Farm Bureau Web site and a Georgia Farm Bureau weekly television show established that Georgia Farm Bureau had sufficient contacts with Alabama to confer in personam jurisdiction on the Alabama courts under Rule 4.2(a)(2)(I). The plaintiffs presented exhibits of the contents of the Georgia Farm Bureau Web site. (Exhibit D, supra.) The Web site stated that Georgia Farm Bureau maintained agents in each of the 17 Georgia counties abutting the Alabama line. It stated that "Farm Bureau is local, state, national, and international in scope and influence." It advertised that members of Georgia Farm Bureau automatically became members of the American Farm Bureau Federation. The Web site further advertised that low-cost long-distance telephone service was available to Georgia Farm Bureau members because of "the group purchasing power of Farm Bureau's 4.5 million member families nationwide." In addition, the plaintiffs presented evidence that Alabama Farm Bureau, another affiliate of American Farm Bureau Federation, offered low-cost long-distance telephone service to its members, who were Alabama residents. (Id.) Finally, the plaintiffs presented evidence that Georgia Farm Bureau broadcast a weekly half-hour television show into Alabama and other southeastern states. (Id.) The sole description of the content of the weekly television show in the materials before us appears in the exhibits downloaded by the plaintiffs from the Georgia Farm Bureau Web site:

"A weekly half-hour TV program, The Georgia Farm Monitor, is produced in the Farm Bureau TV studios and seen in every TV market in Georgia from Atlanta to Valdosta.

"The show also covers major portions of South Carolina, Tennessee, Alabama Florida [sic]. Our reporters and photographers travel all over the state and nation to cover stories of interest to Farm Bureau members, farmers and consumers in this entertaining and informative 30 minute program.

"While the program focuses on Farm Bureau, the Georgia farmer and agriculture. ....national issues, consumer information and interesting feature stories are also part of the weekly broadcast."

(Tab "D," exhibit "A," p. 6, petition for writ of mandamus, dots in original.)

On the basis of the evidence of the Georgia Farm Bureau Web site, the Georgia Farm Bureau weekly television show, and the Alabama Farm Bureau Web site, the plaintiffs argued:

"[T]hrough Defendant's contacts via the web and through television broadcasting into the State of Alabama, business is solicited for Farm Bureau memberships in general[,] which increases the nationwide pooling of memberships, benefitting members in both Alabama and Georgia Farm Bureaus."

(Id.)

The plaintiffs responded to the assertion of Georgia Farm Bureau that venue was not proper anywhere in Alabama by arguing that venue was proper because the owner-operator and the site of the accident were located in the county of the forum.

The trial court denied the motion to dismiss without stating a rationale. (Exhibit A, petition for writ of mandamus.) Georgia Farm Bureau then moved the trial court to certify the interlocutory order denying the motion to dismiss in accordance with Rule 5, Ala. R.App. P., so that Georgia Farm Bureau could petition this Court for an interlocutory appeal of that order. (Exhibit F, petition for writ of mandamus.) The trial court did not certify the order within 28 days after denying the motion to dismiss. See Rule 5(a)(1), Ala. R.App. P. Georgia Farm Bureau then petitioned this Court for a writ of mandamus directing the trial court to dismiss the case.

Issue

The dispositive issue is whether the plaintiffs presented...