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Ex parte Liberty National Life Insurance Company and Marcus Rich

Supreme Court of Alabama

December 6, 2019

Ex parte Liberty National Life Insurance Company and Marcus Rich
v.
Liberty National Life Insurance Company and Marcus Rich In re: Kenny Girdner and Margie Girdner

          Montgomery Circuit Court, CV-18-901639

          PETITION FOR WRIT OF MANDAMUS

          STEWART, JUSTICE.

         Liberty National Life Insurance Company and Marcus Rich petition this Court for a writ of mandamus directing the Montgomery Circuit Court ("the trial court") to vacate its order denying their motions to transfer an action filed against them by Kenny Girdner and Margie Girdner to Elmore County and to enter an order transferring the action. We grant the petition and issue the writ.

         Facts and Procedural History

         According to the allegations in the Girdners' complaint, in May 2017 two Liberty National agents from the Mark Woodruff Liberty National Agency in Wetumpka came to their house in Wetumpka and offered to restructure their existing Liberty National life-insurance policies; the restructuring, they said, could save the Girdners money. The Girdners alleged that, during that meeting, one agent telephoned Rich, another Liberty National agent with Woodruff's agency, for instructions on how to convert the Girdners' term-life policies into whole-life policies. The Girdners alleged that the policies were restructured under the assurances that their premiums would not increase substantially.

         In January 2018, a Liberty National agent again contacted the Girdners to offer them an improved cancer policy, and, based on that agent's alleged representations, the Girdners eventually agreed to restructure their cancer policy and to cancel two other policies. The Girdners asserted that they submitted a check for a portion of their premiums to Rich and that they were assured that their premiums had been waived for a certain period. Shortly thereafter, the Girdners were informed by a letter that their new cancer policy had been denied and they also learned that the premium payment that they had submitted to Rich had not been received by Liberty National. Rich, however, repeatedly assured the Girdners that everything was "fine."

         In late March 2018, three Liberty National agents met with the Girdners at their house to discuss fixing the "mess" they indicated Rich had created with their policies. Apparently, some of the Girdners' insurance policies had lapsed. The Girdners alleged that they were given information at that meeting that indicated either that Rich did not know what he was doing or that Rich had intentionally allowed their policies to lapse in order to gain additional commission when new policies were issued. The Girdners again agreed to restructure the policies as the three agents recommended to have their policies reinstated.

         On September 6, 2018, after Liberty National had failed to reinstate their insurance policies, the Girdners sued Liberty National and Rich alleging misrepresentation, suppression, deceit, unjust enrichment, negligent and/or wanton hiring, supervision, and training, breach of contract, conversion, and "negligent/wanton service." In their complaint, the Girdners asserted that venue was proper in Montgomery County under § 6-3-7(a)(1) and (3), Ala. Code 1975. The Girdners also stated in their complaint, however, that Liberty National has a registered agent in Wetumpka, which is in Elmore County, and that Rich is a resident of Butler County.

         On October 10, 2018, Liberty National filed a motion to transfer the action to Elmore County pursuant to § 6-3-7(a)(1) and (3) because, it asserted, the acts or omissions complained of occurred in Elmore County and because the Girdners are residents of Elmore County. Liberty National supported its motion with an affidavit from Rich. Rich testified that he was an "[a]gency [d]irector with the Mark Woodruff Liberty National Agency based in Wetumpka." Rich testified that all the transactions and all of his personal dealings with the Girdners occurred in Elmore County. Liberty National also submitted documents that were signed during the alleged transactions that showed that they were signed in Wetumpka.

         On October 11, 2018, Rich filed a motion joining in Liberty National's motion for a change of venue. Rich also argued that, under § 6-3-2, Ala. Code 1975, venue in Montgomery County was not proper as to him because he does not reside in Montgomery County and the alleged act or omission did not occur in Montgomery County.

         The Girdners filed a response to the motions for a change of venue in which they asserted that venue in Montgomery County was proper because, they argued, they purchased and signed what they called "the policies at issue" in Montgomery County. To their response, the Girdners attached an insurance application related to a policy for the Girdners' daughter dated October 2003 that identified the city and state where the policy was executed as Montgomery, Alabama.

         The trial court held a hearing on the motions for a change of venue on November 15, 2018, at which it heard arguments from counsel for Liberty National and the Girdners. Liberty National asserted that the Girdners' reliance on the 2003 policy was misplaced because in their complaint the Girdners did not allege any wrongful actions with regard to the purchase of that policy. Their claims, instead, involved actions and omissions occurring in 2017 and 2018 when agents with Liberty National contacted them to restructure their existing policies. The Girdners argued that they did not receive the benefit of their original policies, which were purchased in Montgomery County, and that "Montgomery has a sufficient nexus to make it a proper venue."

         On April 24, 2019, the trial court entered an order denying Liberty National and Rich's motions for a change of venue finding that substantial events giving rise to the claims occurred in Montgomery County and that Liberty National and Rich conduct sufficient business in Montgomery County to make venue proper ...


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