Ex parte Hicks

• Decision Date: 25 September 1998
• Citation: 727 So.2d 23
• Parties: Ex parte Eddie HICKS. (Re Eddie Hicks v. Headland & Abbeville Mortuaries, Inc., et al.)
• Court: Alabama Supreme Court

727 So.2d 23

Ex parte Eddie HICKS.

(Re Eddie Hicks v. Headland & Abbeville Mortuaries, Inc., et al.)

1961835.

Supreme Court of Alabama.

September 25, 1998.

Opinion Overruling Rehearing January 8, 1999.

Thomas P. Willingham of Davenport & Willingham, Birmingham; and William C. Maddox of Hall & Smith, Dothan, for petitioner.

Herman Cobb and Todd Derrick of Cobb & Shealy, P.A., Dothan, for respondent Headland & Abbeville Mortuaries, Inc.

ALMON, Justice.

Eddie Hicks, the plaintiff in an action pending in the Henry County Circuit Court, petitions this Court for a writ of mandamus directing the circuit court (1) to order the defendants, Headland & Abbeville Mortuaries, Inc., and its owners, John Robert Holman and W. Russell Holman, to comply with Hicks's discovery requests, and (2) to transfer the action back to the Houston County Circuit Court.

Hicks's mother, Maude L. Hicks, died on July 3, 1995, at Hicks's home in Houston County. John Robert Holman came to Hicks's home to remove the body of Maude Hicks. Hicks stated in his deposition testimony:

"Mr. John Robert Holman asked me to come and sit down and talk with him a little. We went into the dining room and sat down at the dining room table and talked while his associates removed my mother's body from the home.

"There were arrangements that had to be made that night. I had to sign a form so that he could embalm the body. He said he wanted to go ahead and do it that night.

". . . .

"During this time I mentioned to Mr. John Robert Holman that my mother had a burial policy with Liberty National. And he asked me for what amount and I told him I believed it to be $500. During the conversation he said that I believe $500 was the most he had ever seen on one of those policies, that most of them were $300, $400, some maybe even less.

"I told him that my mother had explained to me that the policy would take care of her funeral, her expenses, casket, pretty much everything.

"He told me that no, what those did, they would only pay the face value, whatever it was.

"I asked if he needed to see the policy, because I did not have it with me. And he said, no, I could just bring it later and they would give me credit for the face value of the policy."

Holman told Hicks to come to the funeral home early the next day to make the arrangements for his mother's funeral.

Hicks testified that the next day, at the defendants' place of business in Henry County, W. Russell Holman told him that his mother's burial policy would pay benefits in the face amount of the policy and that Hicks should bring the policy with him when he came to pay the funeral bill, in order to receive a credit. Hicks stated that neither John Robert Holman nor W. Russell Holman informed him that a decision to purchase services or merchandise not listed in the burial policy would void the policy insofar as providing a "paid up" funeral for his mother and would cause a loss of the benefits specifically provided by the policy, so that Hicks would be required to pay for the entire funeral and simply receive a credit for the face value of the policy.

On July 4, 1995, while Hicks was at Headland & Abbeville Mortuaries funeral home in Henry County, he signed a contract for the defendants' services. His mother's funeral was conducted on July 6, 1995. On July 10, 1995, Hicks found his mother's Family Reserve Insurance Company burial insurance policy. Family Reserve burial policies are serviced by Liberty National Life Insurance Company. In protracted federal litigation, Liberty National's obligations under Family Reserve policies, Liberty National policies, and Brown-Service policies were rewritten or, as one court put it, "clarified or reformed." Battle v. Liberty Nat'l Life Ins. Co., 770 F.Supp. 1499, 1506 (N.D.Ala.1991), aff'd, 974 F.2d 1279 (11th Cir.1992), cert. denied, 509 U.S. 906, 113 S.Ct. 2999, 125 L.Ed.2d 692 (1993). For a full understanding of the federal courts' reform in the Battle litigation of the policies, such as Mrs. Hicks's policy, issued or assumed by Liberty National, see Battle v. Liberty Nat'l Life Ins. Co., 493 F.2d 39 (5th Cir.1974), cert. denied, 419 U.S. 1110, 95 S.Ct. 784, 42 L.Ed.2d 807 (1975); Battle v. Liberty Nat'l Life Ins. Co., 660 F.Supp. 1449 (N.D.Ala.1987), aff'd, 877 F.2d 877 (11th Cir.1989); and Taylor v. Liberty Nat'l Life Ins. Co., 462 So.2d 907 (Ala. 1984).

Headland & Abbeville Mortuaries is an "authorized" funeral home, pursuant to a contract with Brown-Service Funeral Homes, Inc. By virtue of this contract, Headland & Abbeville Mortuaries is obligated to service burial insurance policies issued or assumed by Liberty National, including Family Reserve and Brown-Service policies. Pursuant to the contract, Headland & Abbeville Mortuaries furnishes the merchandise set out in the burial insurance policies and, if the customer selects "other merchandise ... and an oversale is thus made," Headland & Abbeville Mortuaries will allow the value of the policy to be applied as a credit to the total price of the funeral and merchandise. Under the terms of the 1978 consent judgment in Battle,¹ an "oversale" occurs when the customer making the funeral arrangements orders services and merchandise additional to, or other than, those listed in the policy.

The defendants conduct approximately 100 funerals each year for which Liberty National, Family Reserve, and Brown-Service burial policies are submitted in payment for their services. The defendants stated that they are familiar with the provisions of Liberty National, Family Reserve, and Brown-Service policies, that all of these policies are serviced by Liberty National, and that the defendants' furnishing of services and merchandise under any of these policies is controlled by the contract between the defendants and Brown-Service Funeral Homes, Inc. As the defendants acknowledge, an "oversale" can occur pursuant to the provisions of the Liberty National, Family Reserve, and Brown-Service policies. They contend that they explain to every customer the terms of the burial policy involved, including the possibility and result of an oversale.

Hicks points out that the effect of an oversale is not explained in the Liberty National, Family Reserve, or Brown-Service burial policies.² Therefore, says Hicks, an insured's survivor knows of the result of an oversale only if he or she happens to know about the decision in the Battle litigation or if an agent, officer, or employee of the funeral home providing a burial pursuant to the policy tells the customer about the changes wrought by that federal court decision.

Hicks paid the bill for his mother's funeral and received a $300 credit³ for her burial insurance policy. Hicks then brought an action against the defendants in the Houston County Circuit Court, alleging fraud in the sale of funeral services. On February 6, 1997, on motion of the defendants, the cause was transferred to the Henry County Circuit Court. On February 20, Hicks filed a motion to vacate the transfer. While that motion to vacate was pending, the parties continued with discovery that had begun in Houston County. On April 29, 1997, the Henry County Circuit Court ruled on Hicks's pending discovery motion by ordering the defendants to produce the names and addresses of their customers who had submitted Liberty National or Family Reserve burial insurance policies for payment in the past five years and to respond to two interrogatories. The trial court also denied Hicks's motion to vacate the transfer to the Henry County Circuit Court.

After receiving the trial court's order, Hicks's attorney wrote to the defendants' attorney:

"I am in receipt of Judge Little's April 29, 1997, order on the plaintiffs motion to compel. The judge has granted the plaintiffs interrogatories insofar as they relate to production of the information regarding clients of the defendants who submitted burial policies for servicing. In his order, he has directed your clients to produce names and addresses for `customers who have submitted to the defendants burial insurance policies with Liberty National Life Insurance Company and/or Family Reserve Insurance Company for the last five years.' Although not specifically stated in his order, this would encompass Brown-Service policyholders, since those policies would have been serviced by Liberty National. Please let me know whether or not you will agree to this interpretation of Judge Little's order so that we don't have to bring this matter up before him again.

"In that regard, Judge Little apparently did not rule on the plaintiffs request for production, specifically, requests 3, 4, 5 and 6. Those discovery requests deal specifically with documents that would have been generated from sales to Liberty National burial policyholders. These documents would include copies of any policies submitted, sales documents, invoices, and documentation that would show whether or not an `oversale' was created. Apparently, Judge Little did not rule on the request for production; however, I am sure that you will agree that these documents are relevant in light of his Order requiring your client to produce the customer list. Please let me know whether or not you will agree to the production of the documents requested in plaintiffs requests ... 3, 4, 5 and 6 insofar as [they] pertain to customers of Headland & Abbeville Mortuaries who submitted Liberty National policies in the last five years."

In response to this letter, the defendants filed a motion to clarify and amend the April 29, 1997, order and asked the trial court to address "appropriate limitations" on discovery, pursuant to Ex parte Compass Bank, 686 So.2d 1135 (Ala.1996).

On May 16, 1997, the trial court issued an amended order (1) directing the defendants to produce a list of customers who, in the past five years, had submitted as payment for the defendants' services Family Reserve burial policies with a face value of $300; (2) limiting Hicks's contact with ...