Posey v. Prudential Ins. Co. of America

• Decision Date: 26 March 1980
• Citation: 383 So.2d 849
• Parties: Rosie Lee POSEY v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA and Elton Posey, a minor. Civ. 2100.
• Court: Alabama Court of Civil Appeals

Page 849

383 So.2d 849

Rosie Lee POSEY v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA and Elton Posey, a minor.

Civ. 2100.

Court of Civil Appeals of Alabama.

March 26, 1980.

Rehearing Denied April 23, 1980.

William Conway, Fred Blanton, Birmingham, for appellant.

Ralph B. Tate of Spain, Gillon, Riley, Tate & Etheredge, Birmingham, for appellee Prudential Ins. Co.

Judith S. Crittenden, Douglas P. Corretti, Birmingham, guardians ad litem for Elton Posey.

WRIGHT, Presiding Judge.

The Prudential Insurance Company of America (Prudential) filed a complaint of interpleader on February 12, 1979, admitting liability under a policy issued on the life of Daniel Posey, Sr., deceased, and alleging conflicting claims between decedent's son, Elton Posey, and his niece, Rosie Lee Posey. Prudential later amended its complaint to admit further liability under the accidental death provision of the policy. Prudential paid the full amount due into court and asked to be discharged from liability under Rule 22(b), ARCP.

On August 13, 1979, the trial court, upon finding that there was no just reason for delay in entering a final judgment in favor of Prudential, expressly directed the entry of such a final judgment pursuant to Rule 54(b), ARCP.

After an ore tenus hearing, the trial court held that Elton Posey was entitled to the proceeds of the policy and ordered payment to him. Rosie Lee Posey appeals from the trial court's final judgments in favor of Prudential and Elton Posey.

Prudential has filed a motion to dismiss the appeal from the final judgment in its favor as untimely filed. The judgment was filed on August 13, 1979. There was no post-trial motion concerning this judgment and the notice of appeal was filed on October 26, 1979, more than forty-two days after entry of the judgment. It is clear that the appeal in this case was not timely filed if the judgment entered on August 13, 1979, is a final judgment, appealable as such. Rule 54(b), ARCP provides that in cases involving multiple parties the trial court may direct entry of a final judgment as to one or more but fewer than all of the parties upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. The trial court's order of August 13, 1979, met both of those requirements and was a final appealable judgment. Appellant's appeal from the judgment of August 13, 1979, was not timely filed. Bertschinger v. National Surety Corporation, 449 F.2d 746, 747 (9th Cir. 1971). Prudential's motion to dismiss the appeal from that judgment is granted.

Rosie Lee Posey also appeals from the trial court's judgment ordering payment of the proceeds to Elton Posey.

Daniel Posey, Sr., the deceased, was divorced on February 11, 1977, from Joyce Posey. The divorce decree included the following provision:

5. That the Defendant shall forthwith execute or cause to be executed such documents as may be necessary and required to designate the minor child of the parties, namely: Elton Posey, as the irrevocable beneficiary of all of his life insurance. The Defendant shall maintain, keep in full...