Ex parte Prudential Ins. Co. of America

• Decision Date: 21 August 1998
• Citation: 721 So.2d 1135
• Parties: Ex parte The PRUDENTIAL INSURANCE COMPANY OF AMERICA. (In re Iola Y. GOODSON, etc., et al. v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA).
• Court: Alabama Supreme Court

721 So.2d 1135

Ex parte The PRUDENTIAL INSURANCE COMPANY OF AMERICA.

(In re Iola Y. GOODSON, etc., et al. v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA).

1971019.

Supreme Court of Alabama.

August 21, 1998.

M. Christian King and Floyd D. Gaines of Lightfoot, Franklin & White, L.L.C., Birmingham; and Wayne A. Schrader and Jonathan K. Tycko of Gibson, Dunn & Crutcher, L.L.P., Washington, D.C., for petitioner.

Russell Jackson Drake of Cooper, Mitch, Crawford, Kuykendall & Whatley, L.L.C., Birmingham; Whitney North Seymour, Jr., of Landy & Seymour, Jr., New York, NY; J.L. Chestnut, Jr., of Chestnut, Sanders, Sanders & Pettaway, P.C., Selma; and Joseph W. Phebus of Phebus & Winkelmann, Urbana, IL, for respondents.

HOUSTON, Justice.

The Prudential Insurance Company of America ("Prudential"), the defendant in an action pending in the Greene Circuit Court, petitions for a writ of mandamus directing the trial court to vacate its order of August 16,1996, conditionally certifying the action as a class action. We grant the writ.

Iola Y. Goodson, as attorney in fact for her incapacitated mother, Iola M. Young; and Gloria F. Pagliughi; Earnest Clay; and Joseph J. Nevills ("plaintiffs"), claiming to act on behalf of themselves and others similarly situated nationwide, sued Prudential, in the Circuit Court of Greene County, seeking damages based upon allegations that Prudential had charged the plaintiffs excessive premiums for Medicare supplement coverage, by agreeing to pay an insured treated by a physician the difference between the amount paid by Medicare and the amount of the plaintiff's physician's bill, up to the "usual and prevailing charges." On the same day they filed the complaint, the plaintiffs also filed a "Motion for Immediate and Conditional Class Certification Under Rules 23(b)(3) and 23(d)[, Ala.R.Civ.P.]." Within 17 days of the filing of that motion, and without notice to Prudential or a hearing, the trial court entered the following order:

"IT IS, THEREFORE, HEREBY CONSIDERED, ORDERED AND ADJUDGED that a nationwide class be conditionally certified to comprise the following members: All individuals who are or have been insured by [Prudential] on Medicare supplement insurance plans since January 1,1991."

The Greene County Circuit Court is directed to vacate its order conditionally certifying the class. Ex parte Frontier Corp., 709 So.2d 1197 (Ala.1998); Ex parte Equity National Life Ins. Co., 715 So.2d 192 (Ala.1997); Ex parte Citicorp Acceptance Co., 715 So.2d 199 (Ala.1997); Ex parte First National Bank of Jasper, 717 So.2d 342 (Ala.1997); Ex parte American Bankers Life Assur. Co., 715 So.2d 186 (Ala.1997); and Ex parte Mercury Finance Corp. of Alabama, 715 So.2d 196 (Ala.1997).

Before a trial court can certify a class, upon motion of the plaintiff, it must first give notice to the defendant. Ex parte Citicorp Acceptance Co., supra, 715 So.2d at 199. The trial court also must make a "rigorous analysis" to ensure that the following Rule 23(a), Ala.R.Civ.P., prerequisites of a class action have been met:

"(1) [T]he class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class."

In Ex parte Citicorp Acceptance Co., 715 So.2d at 203, the Court held:

"The burden of satisfying each of these prerequisites rests solely on the party seeking certification, and the court cannot approve class certification until it has adequate information before it to satisfy each of the prerequisites. Ex parte Blue Cross & Blue Shield, 582 So.2d [469, 475 (Ala. 1991)]."

The trial court has not ruled on Prudential's motion for summary judgment.¹ However, we note that the uncontested evidence in the record before us indicates that none of the named plaintiffs, nor Ms. Young, has Medicare supplement coverage issued by Prudential by which Prudential agrees to pay the insured the difference between the amount paid by Medicare and the physician's bill, up to the "usual and prevailing charges." (Affidavit of Thomas H. Lindquist, with attachments, presented in support of Prudential's motion for summary judgment, appearing as Exhibit 18 to the appendix to the petition for the writ of mandamus.) Rule 23(a) "inherently mandates that the person bringing the action must be a member of the class he seeks to represent." Amason v. First State Bank of Lineville, 369 So.2d 547, 549 (Ala. 1979). If a named plaintiff has not been injured by the wrong alleged in the complaint, then no case or controversy is presented and the plaintiff has no standing to sue either on his own behalf or on behalf of a class. Ex parte Blue Cross & Blue Shield of Alabama, 582 So.2d 469, 474 (Ala.1991); Ex parte Exide Corp., 678 So.2d 773, 777 (Ala. 1996); Ex parte Izundu, 568 So.2d 771, 772 (Ala.1990).

Three persons, none of whom was an Alabama resident, moved to intervene. One of them, Harriet Byan, was the named plaintiff in a then-pending New York case, Byan v. Prudential Insurance Company of America, in which the claims were identical to the claims pleaded in the movants' amended complaint in this present case. After this motion to intervene was filed, the Supreme Court of New York, New York County, granted Prudential's motion to dismiss the Byan case and entered a judgment for Prudential. That judgment was upheld on appeal. Byan v. Prudential Ins. Co. of America, 242 A.D.2d 456, 662 N.Y.S.2d 44 (1997). Prudential filed an "Opposition to [Motion] to Intervene." Byan withdrew from the motion to intervene, and the trial court granted the motion as to the two remaining movants, who were not named plaintiffs in the New York action: Hans Raymond, who is described in the motion as "an adult resident of the State of Florida"; and Nettie Yelen, who is described in the petition as "an adult resident of the state of New Jersey." Prudential moved to dismiss, without prejudice, pursuant to Ala.Code 1975, § 6-5-430, or, in the alternative, to transfer the action to Jefferson County, Alabama, pursuant to Ala.Code 1975, § 6-3-21.1. The intervenors contend that the trial court denied the motion to dismiss on August 19, 1997. However, there is no notation on the case action summary showing such a denial; there is no written document showing such a denial; there is no order in a memorandum showing such a denial; and there is no order appended to a memorandum showing such a denial. These are the methods by which the trial court may render an order or judgment. Rule 58(a), Ala.R.Civ.P.

The following comments were made at a hearing on August 19, 1997:

"THE COURT: Basically you concede your motion [to dismiss or to transfer] is a forum non conveniens [motion]?

"[Attorney for Prudential]: Yes, sir.

"THE COURT: I'm going to deny that. Move to the next one. I deny that. Send me an order."

The attorneys for the intervenors drafted and sent to the trial court a proposed order denying the motion, but nothing in the record indicates that the trial court rendered or entered an order in compliance with Rule 58(a) or (c). Therefore, we must assume that no order on Prudential's motion has been entered.

Alabama Code 1975, § 6-5-430, provides, in pertinent part:

"[T]he courts of this state shall apply the doctrine of forum non conveniens in determining whether to accept or decline to take jurisdiction of an action based upon [a] claim originating outside this state [the claims of Raymond and Yelen originated outside the State of Alabama]; and provided further that, if upon motion of any defendant it is shown that there exists a more appropriate forum outside this state, taking into account the location where the acts giving rise to the action occurred, the convenience of the parties and witnesses, and the interests of justice, the court must dismiss the action without prejudice."

(Emphasis added.)

Yelen is a resident of New Jersey. Prudential is incorporated in New Jersey (see "Class Action Complaint Amendment," appendix to petition for writ of mandamus, Exhibit 2), and has its principal office there. It is evident that a New Jersey court would be "a more appropriate forum outside [the State of Alabama]." The Legislature used the words "shall" and "must" in § 6-5-430.

"Words used in [a] statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is clear and unambiguous, then there is no room for judicial construction and the clearly expressed intent of the Legislature must be given effect."

Tuscaloosa County Comm'n v. Deputy Sheriffs' Ass'n of Tuscaloosa County, 589 So.2d 687, 689 (Ala.1991) (citations omitted); see also Ex parte New England Mutual Life Ins. Co., 663 So.2d 952 (Ala.1995), and State Dep't of Transportation v. McLelland, 639 So.2d 1370 (Ala.1994). The word "shall" is clear and unambiguous and is imperative and mandatory. Tuscaloosa County Comm'n v. Deputy Sheriffs' Ass'n of Tuscaloosa, supra; Taylor v. Cox, 710 So.2d 406 (Ala.1998); Ex parte First Family Financial Services, Inc., 718 So.2d 658 (Ala.1998) (on application for rehearing) (interpreting the word "shall" as used in § 6-3-21.1). The word "shall" has been defined as follows:

"As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary signification, the term `shall' is a word of command, and one which has always or which must be given a compulsory meaning; as denoting obligation. The word in ordinary usage means `must' and is inconsistent with a concept of discretion."

Black's Law Dictionary 1375 (6th ed.1991).

Therefore, a trial court is compelled to apply the doctrine of forum non conveniens...