Stead v. Blue Cross-Blue Shield of Alabama, CROSS-BLUE
| Citation | 310 So.2d 469,294 Ala. 3 |
| Decision Date | 06 March 1975 |
| Docket Number | CROSS-BLUE |
| Parties | In re Eston H. STEAD, Jr. v. BLUESHIELD OF ALABAMA, a corporation. Ex parte Eston H. Stead, Jr. SC 977. |
| Court | Alabama Supreme Court |
John H. Lavette, Birmingham, for petitioner.
J. Gusty Yearout, Birmingham, for respondent.
Petitioner filed his original complaint against Blue Cross-Blue Shield on February 21, 1972, claiming damages of $6,000 for breach of a policy of insurance issued to him on October 1, 1970. Blue Cross denied the caim because of pre-existing illness. It appears that petitioner had a history of drug addiction and schizophrenia. The policy contained a provision which required the policy to be in effect for a minimum of nine months for a condition existing prior to date of inception of the policy. After the policy was five months old, petitioner was hospitalized for treatment of drug addiction and schizophrenia.
After suit was filed, petitioner moved to Kentucky. Upon motion of petitioner the suit was continued a number of times during the period of two years following the filing of the suit. When the case was set for trial in February, 1974, petitioner asked leave of the court to amend his complaint. While the original complaint was short and simple, and sounding in contract, the amendment was sixteen pages long, encompassing inter alia fraud, misrepresentation, negligence, and wanton breach of contract. Damages for $125,000 were claimed. Blue Cross-Blue Shield opposed the amendment, and in August, 1974, Judge Deason denied the motion to amend.
Petitioner filed a writ of mandamus in this court to require the trial judge to allow the amendment. The petitioner says that the spirit of Rule 15, Alabama Rules of Procedure, requires that amendments be freely allowed. Petitioner avers that the remedy of appeal is not adequate in this case, because, if successful, it would require another trial on the fraud counts. He would suffer irreparable injury in such event.
Blue Cross-Blue Shield claims the averments in the amendment were sufficiently expressed in the original complaint. It claims any fraud or misrepresentation prior to the inception of the policy should not be allowed because (1) it would be unjust to require Blue Cross-Blue Shield to prepare for trial on acts which took place three years preceding any notice of such claim, and (2) petitioner would not be inconvenienced by having to try his case on breach of contract, and (3) the claim of fraud would be barred by the statute of limitations, since there was no newly discovered evidence which was not available when the original complaint was filed, and (4) the filing of the amendment was unduly delayed.
Both briefs in this cause make use of the recent case from this court, Ex Parte Miller, 292 Ala. 554, 297 So.2d 802 (1974). In that case, the plaintiff wanted to amend his complaint to add two additional defendants in an action for wrongful arrest and imprisonment. The amendment was offered six months after the original complaint was filed and, of course, involved no new issues at trial. Mr. Justice Coleman concluded that the remedy of appeal would not be adequate because it would put the plaintiff to the expense of a second trial, assuming he was successful on his appeal from a final judgment in the first trial. This would have amounted to an undue injury in an effort to simply amend a complaint. Mandamus was granted conditionally in Miller for that reason. However, in that opinion, it was pointed out that mandamus will not always be the proper remedy for reviewing a disallowance of an amendment to pleadings:
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