Ex parte Mary L. GAUNTT, et al. (Re Mary L. GAUNTT, et al. v. UNITED INSURANCE COMPANY OF AMERICA, et al.)
1940591
Supreme Court of Alabama
February 9, 1996
Order Overruling Second Application for Rehearing May 3, 1996
677 So. 2d 204
Warren B. Lightfoot, Mac M. Moorer and William H. Brooks of Lightfoot, Franklin, White & Lucas, Birmingham, for Respondents.
Phillip E. Stano, Washington, DC; Cathy S. Wright and Sarah E. Yates of Maynard, Cooper & Gale, P.C., Birmingham, for Amicus Curiae American Council of Life Insurance.
On Application for Rehearing
SHORES, Justice.
The opinion issued on July 14, 1995, is withdrawn and the following opinion is substituted therefor.
A judge of the Macon Circuit Court has ordered that 16 pending civil actions filed in Macon County against United Insurance Company of America (“United“), Unitrin, Inc., United Casualty Insurance Company of America, Union National Life Insurance Company, and Union National Fire Insurance Company be transferred to Shelby County for trial. The plaintiffs, whose actions are based on various contract and fraud claims, have petitioned for a writ of mandamus directing the trial judge to set aside his transfer orders. None of the plaintiffs resides in Macon County, although United does business there. The plaintiffs reside in the central Alabama counties of Elmore, Montgomery, Chilton, and Tallapoosa.
The defendants filed a motion to transfer the cases to Shelby County, based on allegations of improper venue and premised upon the assertion that United‘s regional manager, George McDonald, resides in Shelby County. The defendants relied on and cited
The plaintiffs argued that the clause in
“All pending motions with the exception of the motion for class certification were set for argument. Prior to argument, the Court stated that it might be appropriate to dispose of the venue question since the remaining motions would become moot as to the Circuit Court of Macon County in the event venue was transferred. It is stipulated and agreed among the parties that venue is proper in Macon County for the following cases subject to a motion for change of venue based on the concept of forum non conveniens:
“Bloodsaw v. United Ins. Co. of America, et al. CV-93-166; Floyd v. United Ins. Co. of America, et al. CV-93-136; Samuels v. United Ins. Co. of America, et al. CV-93-135; Smith v. United Ins. Co. of America, et al. CV-93-180; Torbert v. United Ins. Co. of America, et al. CV-93-146.
“For purposes of argument it is also stipulated and agreed that none of the other plaintiffs in the above-styled causes reside in Macon County and that United Insurance Company of America does business in Macon County.
“The above-styled causes sound in fraud. Counsel for plaintiffs argue that
Section 6-3-5(a), Code of Alabama 1975 , makes venue proper in Macon County.Section 6-3-5(a) , provides:“‘Any person, firm or corporation that issues policies or certificates of insurance of any kind shall be subject to a civil action on any such policy or certificate in the county where the holder of the policy or certificate resides, and the summons may be executed by serving a copy of the summons and complaint upon any officer or agent of the insurer; provided, however, that an action against a foreign insurance corporation shall be commenced only in a county where it does business.’
“Counsel for defendants argue that
Section 6-3-5(a) has no application in this case since the actions are not ‘action[s] on any such policy or certificate’ and that the general venue rules as to fraud apply. Counsel for plaintiffs argue that the portion following the semi-colon makes venue proper in Macon County and that there should be no distinction drawn between actions ex delicto and [actions] ex contractu. Plaintiffs cite the opinion of the Alabama Supreme Court in [Ex parte Bloodsaw, 648 So.2d 553 (Ala.1994)], as being dispositive. One of the causes of action in that case is for bad faith refusal to pay. Consequently, at least a portion of that case sounds in contract and is therefore distinguishable from the fraud cases. The Court is of the opinion that the defendants are correct in their argument and consequently their various motions for change of venue are due to be and hereby are granted. Defendants have indicated that their preference of venue is Shelby County. The Court is of the opinion that defendants are entitled to have venue transferred to the county of their preference.“It is, therefore, ORDERED, ADJUDGED and DECREED that with the exception of the four cases cited in the body of this order, venue of the above-styled cases is transferred to Shelby County. The Circuit Clerk of Macon County shall transfer all documents necessary to perfect said transfer....”
The writ of mandamus is an extraordinary remedy. One seeking it must show: “(1) a clear legal right ... to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Edgar, 543 So.2d 682, 684 (Ala.1989); Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991); Ex parte Johnson, 638 So.2d 772, 773 (Ala.1994). The writ of mandamus will issue to correct an erroneous ruling on a motion to transfer a case. Elmore County Comm‘n v. Ragona, 540 So.2d 720 (Ala.1989). The essential question in our consideration of a petition for the writ of mandamus in this context is whether the county in which the action was brought was a proper venue. Id.;
Whether Macon County is a proper venue for these cases depends on whether a complaint alleging both contract and tort claims against a foreign corporation may be brought in a county in which it does business, even though the plaintiff does not reside there. These plaintiffs are bringing contract and fraud actions against foreign insurance corporations and their agents, directors, and officers. Accordingly, this Court considers
The plaintiffs, relying on Ex parte City of Fayette, 611 So.2d 1032 (Ala.1992), overruled on other grounds, Ex parte Alabama Power Co., 640 So.2d 921, 924 (Ala.1994); and Ex parte Bloodsaw, 648 So.2d 553 (Ala.1994), argue that venue is proper in Macon County or in any other county where a foreign corporate defendant does business. Neither of these cases is authority for this proposition, and the plaintiffs’ argument fails to acknowledge the significance of
A. History
In 1886, Alabama‘s corporate venue statute, codified at
The corporate venue statute appeared unchanged as
In Ex parte Western Union Telegraph Co., 200 Ala. 496, 76 So. 438 (1917), this Court held that, because the
“A foreign or domestic corporation may be sued in any county in which it does business by agent, or was doing business by agent at the time the cause of action arose; but all actions against a domestic corporation for personal injuries must be brought in the county where the injury occurred, or in the county where the plaintiff resides, if such corporation does business by agent in the county of plaintiff‘s residence.”
The language of the primary clause still conflicted with
”A foreign corporation may be sued in any county in which it does business by agent, and a domestic corporation may be sued in any county in which it does business by agent or was doing business by agent at the time the cause of action arose; but all actions against a domestic corporation for personal injuries must be brought in the county where the injury occurred or in the county where the plaintiff resides, if such corporation does business by agent in the county of plaintiff‘s residence.”
In 1955, the legislature adopted an act applicable only to insurers.
“Any person, firm, or corporation that issues policies or certificates of insurance of any kind shall be suable on any such policy or certificate in the county where the holder of the policy or certificate resides, and the summons may be executed by serving a copy of the summons and complaint upon any officer or agent of the insurer; provided, that a foreign insurance corporation shall be sued only in a county where it does business. For the purpose of this section, any of the following acts effected by mail or otherwise shall constitute doing business within the county: (1) The making, issuance, or delivery of contracts of insurance to residents of the county; (2) the solicitation of applications for such contracts; (3) the collection of premiums, membership fees, assessments or other considerations for such contracts; (4) any other transaction of insurance business.”
Section 2 of the Act provided that “[a]ll laws or parts of laws which conflict with this Act are repealed.” The general venue statute for corporations remained unchanged.
The two statutes have been changed slightly by the legislature since 1958. The general corporate venue statute, codified at
“A foreign corporation may be sued in any county in which it does business by agent, and a domestic corporation may be sued in any county in which it does business by agent or was doing business by agent at the time the cause of action arose; provided, that all actions against a domestic corporation for personal injuries must
be commenced in the county where the injury occurred or in the county where the plaintiff resides if such corporation does business by agent in the county of the plaintiff‘s residence.”
(Emphasis added; the “provided, that” replaced “but“). The insurance corporation statute (currently
“(a) Any person, firm or corporation that issues policies or certificates of insurance of any kind shall be subject to a civil action [this phrase replaces ‘shall be suable‘] on any such policy or certificate in the county where the holder of the policy or certificate resides, and the summons may be executed by serving a copy of the summons and complaint upon any officer or agent of the insurer; provided, however, [the emphasized word was added] that an action against a foreign insurance corporation shall be commenced only in a county where it does business.
“(b) For the purpose of this section, any of the following acts effected by mail or otherwise shall constitute doing business within the county:
“(1) The making, issuance, or delivery of contracts of insurance to residents of the county;
“(2) The solicitation of applications for such contracts;
“(3) The collection of premiums, membership fees, assessments, or other considerations for such contracts; or
“(4) Any other transaction of insurance business.”
(Emphasis added).
Significant to the operation of these statutes is
“No foreign corporation shall do any business in this state without having at least one known place of business and an authorized agent or agents therein, and without filing with the secretary of state a certified copy of its articles of incorporation or association. Any foreign corporation, whether or not such corporation has qualified to do business in this state by filing with the secretary of state a certified copy of its articles of incorporation or association, may be sued only in those counties where such suit would be allowed if the said foreign corporation were a domestic corporation. The legislature shall, by general law, provide for the payment to the state of Alabama of a franchise tax by such corporation, but such franchise tax shall be based on the actual amount of capital employed in this state. Strictly benevolent, educational, or religious corporations shall not be required to pay such a tax.”
(Emphasis added). This emphasized language replaced a sentence reading “Such corporation may be sued in any county where it does business, by service of process upon an agent anywhere in the state.” For a discussion of the history of
B. Application to these Cases
Venue, as distinguished from jurisdiction, is a legislative determination based upon the presumed convenience of the parties. Ingram v. Omelet Shoppe, Inc., 388 So.2d 190 (Ala.1980). In Alabama, “the venue of actions is governed by statute, and only in the event of inconsistency in statutory provisions, by Rule 82.” Ex parte Lashley, 596 So.2d 890, 891 (Ala.1992).3 We do not find an inconsistency, but, even if we did, we would note the mandate of
In construing these statutes together, this Court observes that fundamental to statutory analysis is the principle that each part of the statute be given effect. Michael v. Beasley, 583 So.2d 245 (Ala.1991).
1. Section 6-3-5
The language of
“Any person, firm, or corporation that issues policies or certificates of insurance of any kind shall be suable on any such policy or certificate in the county where the holder of the policy or certificate resides, and the summons may be executed by serving a copy of the summons and complaint upon any officer or agent of the insurer; provided, that a foreign insurance corporation shall be sued only in a county where it does business.”4
The use of the word “shall” does not require the plaintiff to bring an action only in her county of residence. The grammatical structure of the statute shows that “shall be suable” is the predicate and that its subject is “any person, firm or corporation.” The word “shall,” therefore, does not reflect an intention
In construing
This construction does not conflict with
2. Section 6-3-7
By virtue of
The personal injury clause has been termed a “proviso” by this Court. Ex parte Townsend, 589 So.2d 711 (Ala.1991). The restrictive scope of this proviso has not been fully decided by this Court, nor has it been made clear by the legislature, as it relates to complaints that allege personal injury claims along with claims that are outside the scope of the proviso. It is proper, then, to strictly construe this proviso. Pace v. Armstrong World Industries, Inc., 578 So.2d 281 (Ala.1991) (if restrictive scope of proviso is in doubt, proviso is strictly construed, and only those subjects expressly restricted are freed from operation of statute); State Farm Mut. Auto. Ins. Co. v. Martin, 292 Ala. 103, 289 So.2d 606 (1974) (a proviso limits or modifies the enacting clause and should be strictly construed in accord with the general purpose of the enactment). The exception concerning personal injury actions would swallow the rule that venue of actions against corporations lies in any county in which the corporation does business by agent if this Court held that all “personal” actions are covered by the proviso, which uses the term “personal injury.” Mobile Liners, Inc. v. McConnell, 220 Ala. 562, 126 So. 626 (1930) (any doubts about exception or proviso in statute must be judged on assumption that rule is broader than exception). The Court has recognized that venue for personal injury actions is limited by
On the other hand, if the plaintiff is bringing several claims properly joined, and at least one of them is not a personal injury claim, then the proviso does not operate to require the plaintiff to bring the action in either the county where the wrongful act occurred or the county in which the plaintiff resides, if the corporation does business by agent there. At common law, the joinder of contract claims and tort claims was allowed. See Pyle v. Pizitz, 215 Ala. 398, 401, 110 So. 822, 824 (1926), holding it was not grounds for objection to a complaint, as a whole, that it contained some tort claims and some contract claims, since the claims arose out of the same subject matter. Because
Additionally, because venue is proper in Macon County as to United Insurance Company of America and because that corporation is a defendant in each action, the plaintiffs may join in their Macon County actions against that defendant their claims against the other defendants, regardless of where the individual defendants reside. See Louisville & N.R.R. v. Strickland, 219 Ala. 581, 122 So. 693 (1929) (under the common law, a joint, or joint and several, action may be brought in a county having jurisdiction of either defendant, whether that defendant is an individual or a corporation (
Fraud is a “personal injury” for purposes of venue. See Ex parte SouthTrust Bank, 619 So.2d 1356, 1357 (Ala.1993); Ex parte TranSouth Financial Corp., 608 So.2d 385, 386 (Ala.1992). The proviso in
To summarize,
APPLICATION OVERRULED; OPINION OF JULY 14, 1995, WITHDRAWN; OPINION SUBSTITUTED; WRIT ISSUED.
ALMON, INGRAM, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., and MADDOX and HOUSTON, JJ., dissent.
Ex parte Mary L. GAUNTT, et al. (Re Mary L. GAUNTT, et al. v. UNITED INSURANCE COMPANY OF AMERICA, et al.)
1940591
Supreme Court of Alabama
February 9, 1996
I respectfully dissent. I concur in Justice Houston and Justice Maddox‘s dissents, and I add the following.
None of the plaintiffs resides in Macon County. The alleged injurious acts did not occur in Macon County. None of the defendants resides in Macon County.
As for Macon County‘s relationship to these cases, it does not matter which statute this Court uses to analyze the situation presented here. Both “The rules of statutory construction require that the words used in a statute be given their plain, natural, ordinary, and commonly understood meaning.” Alabama Farm Bureau Mut. Cas. Ins. Co. v. City of Hartselle, 460 So.2d 1219, 1224 (Ala.1984), quoted in Ex parte New England Mut. Life Ins. Co., 663 So.2d 952 (Ala.1995). If this Court categorizes the complaints as “arising out of” the policies of insurance issued by United Insurance Company, then As for actions “on the policy,” If this Court relies upon Given these facts, this Court should rely upon The majority‘s interpretation renders The majority attempts to explain away the use of the word “shall” in I would also add that I have found only four opinions written since 1954 that even cite The majority seems to avoid the plain meaning of Forum shopping is a horrendous abuse of the judicial system. The trial judge did not clearly err in transferring these cases out of Macon County. In fact, he did his duty. I would deny the mandamus petition as it relates to Judge Bryan‘s holding that venue is improper in Macon County. The clear wording of Ex parte Mary L. GAUNTT, et al. (Re Mary L. GAUNTT, et al. v. UNITED INSURANCE COMPANY OF AMERICA, et al.) 1940591 Supreme Court of Alabama February 9, 1996 On application for rehearing, the majority has withdrawn its original opinion and has substituted another; unfortunately, the majority has reached the same result it reached in that first opinion on July 14, 1995—that Macon County is a proper venue for these cases although not one of the 16 plaintiffs and not one of the individual defendants resides there. In reaching that result, the majority holds that the laws of Alabama authorize these plaintiffs to file these claims against a corporate defendant in Macon County and force not only that corporate defendant but the individual defendants, who admittedly committed no wrongful acts in Macon County, to be tried by a jury in Macon County.9 The In Alabama, the venue of actions is governed by provisions of the state Constitution, which vests in the legislative branch the sole power to govern venue in both criminal and civil cases. This Court, except when using its power to interpret the intent of a law passed by the legislature or when interpreting a provision of the Constitution, has no authority to determine the place where a civil action can be filed. In fact, when the people ratified As I interpret Alabama law, these defendants have a substantive right not to be sued in a county unless the legislature has authorized it or required it, and they have a right to have an action transferred to a more convenient forum in the interest of justice. It is clear to me that during the past decade the legislature has been limiting the right of parties to pick the forums where their actions can be brought, and the majority, by interpreting legislative intent so as to authorize a plaintiff to choose a forum where he or she does not reside, where the individual defendants do not reside, and where the event giving rise to the cause of action did not occur, applies a statutory interpretation that seems to run contrary to what the legislature intended. Assuming, however, that the law did permit the individual defendants to be sued in Macon County, where neither they nor the plaintiffs reside, does the law give them any rights? Of course, it does. Assuming further that the corporate defendant could properly be sued in Macon County, does the law give the corporate defendant any rights? Of course it does. The law provides that, in the interest of justice, the trial judge, using the provisions of law, has the authority to transfer a case to a more convenient forum.12 New England Mutual addressed the intent of the legislature in adopting the forum non conveniens statute: “The doctrine of forum non conveniens was formally adopted in this state and codified at In that case, the Court held that the legislature had intended to grant a trial judge Given our holding in New England Mutual then, even assuming that the majority has correctly interpreted the statutes as authorizing the filing of these actions in Macon County, that does not mean that the trial judge was powerless to transfer them, because the legislature, in In my opinion, the legislature, in adopting the forum non conveniens statute that includes these words, intended to vest in the trial courts, and in this Court and the Court of Civil Appeals, the power to transfer a case when the “interest of justice” requires a transfer. In 1987, the legislature, after extensive debate, adopted the statute that the trial judge followed in transferring these cases. In my opinion, when the trial judge determines that a plaintiff is guilty of “forum shopping” and that the chosen forum is inappropriate because of considerations affecting the court‘s own administrative and legal problems, the statute provides that the trial court “shall” transfer the cause. What has the Supreme Court of the United States said about “forum shopping,” which is obviously involved in these cases? That Court has stated that because plaintiffs are allowed a choice of forum by statute, a plaintiff may be “under temptation to resort to a strategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to himself.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 842, 91 L.Ed. 1055 (1947). In another case, the United States Supreme Court, applying the forum non conveniens doctrine, said a transfer under that doctrine is proper when: “an alternative forum has jurisdiction to hear the case, and when trial in the chosen forum would ‘establish ... oppressiveness and vexation to a defendant ... out of all proportion to plaintiff‘s convenience,’ or when the ‘chosen forum [is] inappropriate because of considerations affecting the court‘s own administrative and legal problems.‘” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, 102 S.Ct. 252, 258, 70 L.Ed.2d 419 (1981), quoting Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 524, 67 S.Ct. 828, 831-32, 91 L.Ed. 1067 (1947). I realize that a defendant moving for a transfer under the doctrine of forum non conveniens has the initial burden of showing that the selected forum is inconvenient. The United States Supreme Court, in the Gulf Oil case, addressed this issue and discussed the competing private and public interests involved: “Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, ‘vex,’ ‘harass,’ or ‘oppress’ the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff‘s choice of forum should rarely be disturbed. “Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn 330 U.S. at 508-09, 67 S.Ct. at 843. For a discussion of the issue presented here, see, “Review and Appeal of Forum Non Conveniens and Venue Transfer Orders,” 59 Geo. Wash.L.Rev. 715 (1991). I am of the opinion that the legislature, by adopting the forum non conveniens statute, which allows the transfer of an action that has been filed in a proper forum, intended to promote the concept of fairness and justice and to provide trial judges with the power to transfer a case, if the trial judge, in the exercise of broad discretion, determines that, in the words of the legislation, “the interest of justice” requires it. Blair v. Container Corp. of America, 631 So.2d 919, 921 (Ala. 1994); Ex parte Canady, 563 So.2d 1024, 1025 (Ala.1990). The trial judge stated his reasons for transferring these cases. The evidence shows that none of the parties or witnesses resides in Macon County; that the only contact with Macon County is the fact that a defendant corporation does business by agent in Macon County; and that the filing of this case in Macon County was an intentional act of forum shopping. I close this dissent by asking this question: How can permitting 23 plaintiffs to sue individual and corporate defendants in a county where none of the individual plaintiffs and none of the individual defendants resides, and where none of the alleged wrongful acts occurred, be “in the interest of justice“? It would seem to me that the most convenient forums would be the counties where the individual plaintiffs reside and where the corporate defendants apparently did the business that led to these disputes, and where the alleged wrongful acts occurred. The public interest in the fair application of venue statutes is apparent, and I believe the trial judge here carried out the intent of the legislature. Consequently, I must respectfully dissent. HOOPER, C.J., and HOUSTON, J., concur. HOUSTON, Justice (dissenting). While I join Justice Maddox‘s dissent, I also choose to write specially. HOOPER, C.J., and MADDOX, J., concur. SHORES, Justice. APPLICATION OVERRULED. ALMON, INGRAM, COOK, and BUTTS, JJ., concur. HOOPER, C.J., and MADDOX, and HOUSTON, JJ., dissent. HOUSTON, Justice (dissenting) (dissenting opinion modified on denial of second application for rehearing, May 3, 1996). The majority opinion has implicitly overruled the discussion of The phrase “a civil action on any such policy or certificate” implies an action based on rights or obligations of the parties arising out of the terms of the policy or certificate and not rights or duties implied in law. Adding to the tortured history of this case is the fact that in all of the confusion over venue as to the corporate defendants, I, in my original dissent, overlooked the fact that there was an individual defendant who resided in Shelby County. Venue was proper as to him in Shelby County. HOOPER, C.J., and MADDOX, J., concur. [1] Section 6-3-7 provides: “A foreign corporation may be sued in any county in which it does business by agent, and a domestic corporation may be sued in any county in which it does business by agent or was doing business by agent at the time the cause of action arose; provided, that all actions against a domestic corporation for personal injuries must be commenced in the county where the injury occurred or in the county where the plaintiff resides if such corporation does business by agent in the county of the plaintiff‘s residence.” 2 Amendment No. 473 changed § 232 so that venue of actions against a foreign corporate defendant is proper where venue would be proper for an action against a domestic corporation. 3 We do not rely on Rule 82 for our decision in this case, and although Roland Pugh Min. Co. v. Smith, 388 So.2d 977, 979 (Ala.1980), deals with venue as to multiple defendants, this Court properly noted in that case that “Rule 82(c), A.R.C.P., simply restates the statutes as heretofore construed by this Court.” 4 In the current statute, “Any person, firm or corporation that issues policies or certificates of insurance of any kind shall be subject to a civil action on any such policy or certificate in the county where the holder of the policy ... resides ...; provided, however, that an action against a foreign insurance corporation shall be commenced only in a county where it does business.” 5 Before the adoption of the Constitution of 1901, this Court had construed the precursor of § 232, holding that Code 1886, § 2642, “in so far as it relates to foreign corporations, is merely affirmatory of the constitution.” Sullivan v. Sullivan Timber Co., 103 Ala. 371, 373, 15 So. 941, 941 (1894). Then, as now, the constitution did not include the phrase “by agent,” but the statute did. The Court deemed this difference immaterial: “When a foreign corporation ‘does business’ within the State, of necessity the business is done by and through agents; and the necessity is recognized by the constitution and by the statute.” Id., 103 Ala. at 379, 15 So. at 944. The framers of a constitution are presumed to have known of a pre-existing decision of this Court construing a constitutional provision. Board of Revenue of Jefferson County v. State ex rel. City of Birmingham, 172 Ala. 138, 149, 54 So. 757, 760 (1910). Thus, after the adoption of the 1901 Constitution, the Court continued to require, both as to foreign corporations and as to domestic corporations, that the corporation be doing business “by agent” in a particular county for venue to be proper in that county. 6 The phrase “doing business by agent” has been interpreted less restrictively in recent cases. Tidwell v. Louisiana-Pacific Corp., 517 So.2d 602, 603 (Ala.1987) (unnecessary for a corporation to have an agent physically present and conducting business in a county for venue to be proper there); accord, Ex parte Reliance Ins. Co., 484 So.2d 414, 417 (Ala.1986). This less restrictive application derives from the expansion of the concept of personal jurisdiction over corporations that began with International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). 7 Section 232 does not apply to domestic corporations. Harris v. Elliott, 277 Ala. 421, 171 So.2d 237 (1965). 8 United Insurance Company of America is a subsidiary of the defendant Unitrin, Inc. The other corporate defendants, United Casualty Insurance Company, Union National Life Insurance Company, and Union National Fire Insurance Company, are wholly owned subsidiaries of United Insurance Company of America. The defendant George McDonald is United Insurance Company‘s regional manager in Alabama; one group of individual defendants are current or former employees of one or more of the defendant corporations; the remaining individual defendants are officers or directors of one or more of the defendant corporations. 9 The salient facts are: (1) None of the plaintiffs resides in Macon County now, and none of them resided there either at the time they filed these complaints or at the time any of the alleged wrongful acts occurred. (2) None of the individual defendants in any of the cases resides in Macon County now, and none of them resided there either at the time the complaints were filed or at the time any of the alleged wrongful acts occurred. (3) The underlying actions are personal actions, although each apparently arises out a relationship between an insured and an insurer and the alleged agents of the insurer. (4) The plaintiffs’ only basis for filing the actions in Macon County is that some of the corporate defendants do business in that county. (5) None of the alleged wrongful acts or omissions committed against any plaintiff occurred in Macon County and none of the plaintiffs suffered any injury in Macon County. 10 The relevant portion of “(a) Any person, firm or corporation that issues policies or certificates of insurance of any kind shall be subject to a civil action on any such policy or certificate in the county where the holder of the policy or certificate resides, and the summons may be executed by serving a copy of the summons and complaint upon any officer or agent of the insurer; provided, however, that an action against a foreign insurance corporation shall be commenced only in a county where it does business.” (Emphasis added.) 11 See, Ex parte New England Mutual Life Ins. Co., 663 So.2d 952 (Ala.1995).
On Second Application for Rehearing
NOTES
Notes
Notes
Section 6-3-7 provides:
“A foreign corporation may be sued in any county in which it does business by agent, and a domestic corporation may be sued in any county in which it does business by agent or was doing business by agent at the time the cause of action arose; provided, that all actions against a domestic corporation for personal injuries must be commenced in the county where the injury occurred or in the county where the plaintiff resides if such corporation does business by agent in the county of the plaintiff‘s residence.”
Although
“(a) With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein.”
(Emphasis added.)
This Code section is taken from Act No. 87-181, Ala. Acts 1987, p. 243, which was part of the so-called “tort reform” package of bills adopted by the legislature; when it adopted that package of bills, the issues of venue and the principle of forum non conveniens were important issues being considered by the legislature. Robert D. Hunter, who served as the Governor‘s special counsel on tort reform at the time those bills were adopted, specifically stated the following regarding the doctrine of forum non conveniens:
“The ability to transfer cases within Alabama for the convenience of parties and witnesses and in the interest of justice was denied Alabama courts prior to passage of Alabama Code section 6-3-21.1 in this tort reform effort. Courts are now required to transfer a case to a county in which the case originally might have been filed if the convenience of the parties and witnesses or the interests of justice so dictate. Although the statute uses the mandatory term ‘shall,’ judicial discretion will necessarily be involved in considering the factors of convenience and the interest of justice.
“As introduced, the forum non conveniens proposal referred only to a ‘change’ of venue. Although the Alabama Constitution grants courts the power to ‘change’ venue, existing statutes speak in terms of both a ‘change’ and a ‘transfer’ of venue. One ‘change’ of venue for cause is permitted any party, while a defendant may move for ‘transfer’ of venue as provided in the Alabama Rules of Civil Procedure. Those who drafted section 6-3-21.1 were of the view that venue was ‘changed’ and actions were ‘transferred,’ a view apparently shared by those who drafted Alabama Rule of Civil Procedure 82. During the course of Senate debate, the reference was expanded to include ‘change or transfer’ of venue. The language was altered to insure that section 1(b), which specified the new right, was considered cumulative to previously existing rights.”
“Alabama‘s 1987 Tort Reform Legislation,” 18 Cumb.L.Rev. 289 (1988).