Ex parte Liberty Nat. Life Ins. Co.

• Court: Supreme Court of Alabama
• Citation: 825 So.2d 758
• Parties: Ex parte LIBERTY NATIONAL LIFE INSURANCE COMPANY. (In re Charles Hudson and Alice Hudson v. Liberty National Life Insurance Company et al.)
• Decision Date: 18 January 2002

825 So.2d 758

Ex parte LIBERTY NATIONAL LIFE INSURANCE COMPANY.
(In re Charles Hudson and Alice Hudson v. Liberty National Life Insurance Company et al.)

1002041.

Supreme Court of Alabama.

January 18, 2002.

825 So.2d 760

Matthew H. Lembke, Michael R. Pennington, Philip H. Butler, and Scott Burnett Smith of Bradley, Arant, Rose & White, L.L.P., Birmingham; William J. Baxley, William C. Barclift III, and David McKnight of Baxley, Dillard, Dauphin & McKnight, Birmingham; and Floyd D. Gaines of Gunther Gaines, L.L.C., Birmingham, for petitioner

Jere L. Beasley, W. Daniel Miles III, and J.P. Sawyer of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for respondents.

Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for amicus curiae Business Council of Alabama, in support of the petition for writ of mandamus.

J. Mason Davis of Sirote & Permutt, P.C., Birmingham; Victoria E. Fimea of American Council of Life Insurers, Washington, D.C.; and Lee E. Baines, Jr., of Maynard, Cooper & Gale, P.C., Birmingham, for amici curiae American Council of Life Insurers and Association of Alabama Life Insurance Companies, in support of the petition for writ of mandamus.

W. Lewis Garrison, Jr., F. Page Gamble, and W.A. Hopton-Jones, Jr., of Garrison, Scott, Gamble & Rosenthal, P.C., Birmingham, for amicus curiae National Association for the Advancement of Colored People, Alabama State Conference of Branches ("NAACP"), in support of the respondents.

PER CURIAM.

Liberty National Life Insurance Company ("Liberty National") petitions this Court for a writ of mandamus directing the trial court to grant Liberty National's motion to dismiss or for a summary judgment, or to certify for interlocutory appeal the trial court's denial of that motion. Liberty National claims that we should issue the writ of mandamus because, it says, the trial court clearly erred in failing to hold that the plaintiffs' claims were barred by Alabama's 20-year rule of repose. We deny the writ.

The plaintiffs, Charles Hudson and Alice Hudson, are African-Americans who purchased

825 So.2d 761

industrial-insurance policies from Service Insurance Company (now Liberty National). In their complaint, which was filed on February 28, 2001, the Hudsons allege various state-law claims stemming from their purchase of the Liberty National policies. Specifically, the Hudsons allege breach of contract; conversion; negligence; wantonness; negligent and wanton hiring, training, and supervision; fraud; breach of fiduciary duty; and the tort of outrage. The Hudsons appear to base their claims, to a large extent, on Liberty National's alleged past practices (i.e., practices alleged to have begun in the 1940s) of selling industrial-insurance policies to African-Americans at rates different from the rates it charged white policyholders for the same policies

Liberty National filed a motion entitled "Consolidated Motion to Dismiss, or in the Alternative for Summary Judgment." In its motion, Liberty National argued, among other things, that the Hudsons' claims were absolutely barred by Alabama's 20-year rule of repose. Attached in support of the motion was the affidavit of Anthony McWhorter, president of Liberty National, and various exhibits referred to in the affidavit. Included in these exhibits was information related specifically to the Hudsons' policies and generally to Liberty National's past and current policies and procedures, as well as various documents purporting to demonstrate that the use of race-distinct mortality rates in setting insurance rates in the early to mid-twentieth century was extremely common and well-known in the public arena.

The Hudsons did not file a brief in response to Liberty National's motion. Instead, the Hudsons filed (1) a motion to strike McWhorter's affidavit and its attached exhibits pursuant to Rule 12(f), Ala. R. Civ P., and (2) a motion to allow discovery and to continue Liberty National's motion pursuant to Rule 56(f).

On July 16, 2001, the trial court, treating the motion as a motion to dismiss under Rule 12(b)(6), summarily denied the motion and ordered the parties to proceed with discovery. The trial court's order stated that because the court was treating Liberty National's motion as a motion to dismiss only, Liberty National's motion for a summary judgment and the Hudsons' Rule 56(f) motion were moot "at this stage of the proceedings." The court never ruled on the Hudsons' Rule 12(f) motion.

On August 16, 2001, the trial court denied Liberty National's request to certify the ruling for interlocutory appeal under Rule 5, Ala. R.App. P., as well as Liberty National's request to stay the proceedings pending this Court's review. We granted Liberty National's emergency motion for a stay of the trial court proceedings, and we now consider Liberty National's petition for a writ of mandamus.

I. Liberty National's Request for Mandamus Relief

Liberty National claims that it is entitled to a writ of mandamus based on the trial court's denial of its motion to dismiss or for a summary judgment. In order for a writ of mandamus to properly issue, Liberty National must demonstrate: "(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court." Ex parte Ridgeview Health Care Ctr., Inc., 786 So.2d 1112, 1115 (Ala.2000). Subject to certain narrow exceptions not applicable here, we have held that, because an "adequate remedy" exists by way of an appeal, the denial of a motion to dismiss or a motion for a summary judgment is not

825 So.2d 762

reviewable by petition for writ of mandamus. See Ex parte Jackson, 780 So.2d 681, 684 (Ala.2000) (quoting Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998), quoting in turn Ex parte Central Bank of the South, 675 So.2d 403 (Ala.1996), for the general rule that "`"a writ of mandamus will not issue to review the merits of an order denying a motion for a summary judgment,"'" but noting that narrow exceptions exist, such as in cases involving governmental immunity); Ex parte Newco Mfg. Co., 481 So.2d 867, 870 (Ala.1985) ("In its Mandamus petition as addressed to its motion for summary judgment based on the statute of repose contained in the Tennessee products liability act, Newco seeks `to do by mandamus that which can be done on appeal.'" (quoting Ex parte South Carolina Ins. Co., 412 So.2d 269 (Ala.1982))); see also Ex parte Mobile County Dep't of Human Res., 815 So.2d 527 (Ala.2001) (issuing writ of mandamus to reverse an order denying a motion to dismiss asserting defense of immunity); Ex parte Alabama Dep't of Forensic Sciences, 709 So.2d 455 (Ala.1997) (permitting review by petition for a writ of mandamus in case involving immunity). Because the relief Liberty National seeks in its mandamus petition can be adequately attained by an appeal, Liberty National is not entitled to a writ of mandamus to review the denial of its motion

Liberty National also claims that it is entitled to a writ of mandamus based on the trial court's refusal to certify the denial of Liberty National's motion for appeal pursuant to Rule 5, Ala. R.App. P. Under Rule 5, a trial judge should certify for appeal an interlocutory order when that order "involves a controlling question of law as to which there is substantial ground for difference of opinion, [and when] an immediate appeal from the order would materially advance the ultimate termination of the litigation and ... would avoid protracted and expensive litigation." The trial court's action in certifying an order pursuant to Rule 5 is discretionary and is subject to correction by mandamus on a showing of a clear abuse of that discretion. Ex parte Showers, 812 So.2d 277 (Ala.2001).

In this case, we do not find that the trial judge abused his discretion in refusing to certify for appeal his ruling on Liberty National's motion, because he expressly ruled only on Liberty National's motion to dismiss under Rule 12(b)(6); he expressly refused to consider at that time Liberty National's motion for a summary judgment or any materials related to that motion.¹ Looking only at the allegations in the complaint, one cannot determine when the Hudsons purchased their policies. Liberty National did not, and cannot, contend that the complaint states when the policies were purchased, and, as discussed below, the issue of repose in this case will depend greatly upon when those policies were purchased. Because the trial court did not consider that information in conducting its narrow 12(b)(6) analysis, an immediate appeal from the trial court's denial of Liberty National's motion to dismiss based on the theory of repose would not materially advance the ultimate termination

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of the litigation. This is true because without facts concerning the purchase dates of the policies, the repose issue could not be resolved on appeal. The trial court's refusal to certify for appeal its denial of Liberty National's motion to dismiss was not an abuse of discretion; therefore, mandamus relief is not appropriate

We note that Liberty National's motion for a summary judgment based on the rule of repose is still pending before the trial court. Furthermore, judging from the various briefs filed by the parties and the amici curiae, we note that there is some confusion concerning the application of Alabama's rule of repose. Because this issue is, as the parties admit, one of great importance to the proper resolution of this case and similar cases, we take this opportunity to assist the parties (as well as the bench and bar) by clarifying the law concerning Alabama's rule of repose.

II. The Rule of Repose

Since 1858, causes of action asserted in Alabama courts more than 20 years after they could have been asserted have been considered to have...