# Petition for Writ of Certiorari — Ford Life Insurance v. Miller

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 864

## Text

“oT Court, U.>
{

No.

In THE
Supreme Court of the United States
OCTOBER TERM, 1995

Forp LIFE INSURANCE COMPANY,
Petitioner,
Vv.

JoYCE MILLER,
Administratrix for the ESTATE OF MEARL M. MILLER,
Respondent.

Petition for Writ of Certiorari to the
Supreme Court of Alabama

PETITION FOR WRIT OF CERTIORARI

Of Counsel: WILLIAM L. HOWELL *

Davip A. MCDONALD WILLIAM L. HOWELL, P.A.

P.O. Box 882 P.O. Box 36695

Mobile, AL 36601 (334) 348-9510

(3384) 434-0045 * Counsel of Record for Petitioner
Ford Life Insurance Company

ee
WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON. D.C. 20001

| Gltn

QUESTION PRESENTED

Whether the Alabama Supreme Court, by (a) refusing
to recognize the traditional distinction between general
and soliciting agents, and instead, holding that Petitioner
could be contractually bound by its soliciting agent to
terms contrary to Petitioner’s. written insurance policy,
(b) retroactively applying this newly fashioned agency
law, (c) refusing to enforce a statute which would man-
date summary judgment in Petitioner’s favor, and (d)
applying the less onerous “breach of contract” standard
when holding respondent had presented prima facie evi-
dence of Petitioner’s bad faith, deprived Petitioner of its
right to due process?

ii
RULE 29.1 DISCLOSURE STATEMENT

Petitioner Ford Life Insurance Company (“Ford Life”)
is a wholly-owned subsidiary of American Road Insur-
ance Company. American Road Insurance Company, in
turn, is a jointly owned subsidiary of Ford Motor Credit
Company (“FMCC”) and Ford Holdings, Inc. FMCC
and Ford Holdings, Inc., in turn, are wholly owned sub-
sidiaries of Ford Motor Company. Ford Life has no
subsidiaries.

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TABLE OF CONTENTS

Page

oR Bg | yi R STS EN SS OE eD i
RULE 29.1 DISCLOSURE STATEMENT ................ ii
py VP Cs Nig y 6 hy 6 | eR elena ea vi
Sa I tle dks dcsecinniedcttinescdiapay nasaanstinctiecios 1
INIT Uarniherti dba itessniathchsdecoccdcasnchinticsansses-—ia-negeecknnes 1
CONSTITUTIONAL PROVISION INVOLVED ............. 1
a I alt sacctticcdiciile he eandbbneccendincvemnnstsinacevesvomess 1
STATEMENT OF THE CASE ...W..u2...2.n...2------eeeeeceeceeeeee 3
FO) LAID 3

Oe lll RE a A A MN OE
PRESEN™ “TION OF THY FEDERAL QUESTICN . 9
PM Oe inner ceereomconrcere-nnenee 11

REASONS FOR GRANTING THE PETITION ........... 14

I. THE ALABAMA SUPREME COURT'S RE-
VERSAL OF SUMMARY JUDGMENT ON
RESPONDENT’S BREACH OF CONTRACT
CLAIM WAS PREMISED UPON THE
COURT’S UNANTICIPATED DEPARTURE
FROM ESTABLISHED ALABAMA LAW....._.. 14

Il. THE ALABAMA SUPREME COURT, IN
REVERSING SUMMARY JUDGMENT ON
RESPONDENT’S BREACH OF CONTRACT
CLAIM, IMPROPERLY MANIPULATED
ALABAMA LAW SO AS TO AVOID APPLY-

ING § 27-14-7 CODE OF ALABAMA (1975)... 17

(iii)

iv

re Te ee ae

TABLE OF CONTENTS—Continued
Page
Ill. THE ALABAMA SUPREME COURT IMPROP-
ERLY APPLIED ITS NEWLY FASHIONED
EXCEPTION TO §27-14-7 CODE OF ALA-
BAMA (1975) RETROACTIVELY ..................... 19

IV. THE ALABAMA SUPREME COURT’S TRUE
MOTIVE IN REVERSING SUMMARY JUDG-
MENT ON RESPONDENT’S BREACH OF
CONTRACT AND BAD FAITH CLAIMS WAS
TO CIRCUMVENT THE ALABAMA LEGIS-
LATURE’S AUTHORITY TO GOVERN THE
INSURANCE INDUSTRY, AND, BECAUSE
OF ITS DISAPPROVAL OF THE LAW
CURRENTLY IN FORCE AND EFFECT,
TO ADOPT ITS OWN LAW REGARDING i
PROPER PRE-POLICY ISSUANCE PROCE-
TEED i aann.vcsnonovnisi.nn-suidieehalepiiaiialtianlasiaieaieiadiaaediinitcbeins 21

Vv. THE ALABAMA SUPREME COURT IMPROP-
ERLY REVERSED SUMMARY JUDGMENT
ON RiSPONDENT’S BAD FAITH CLAIM
BASED ONLY ON ITS CONCLUSION THAT
RESPONDENT HAD PRESENTED A PRIMA
FACIE CASE TO SUPPORT ITS BREACH
OF CONTRACT CLAIM, WITHOUT EVEN
ACKNOWLEDGING THE MORE ONEROUS |
BURDEN NECESSARY TO PROCEED WITH
A BAD PADIS CLAIM ok. 23

VI. EVEN THOUGH PETITIONER MAY ULTI-
MATELY PREVAIL ON RESPONDENT’S
BAD FAITH CLAIM, REQUIRING A JURY
TRIAL THEREON WILL DEPRIVE PETI-
TIONER OF ITS RIGHT TO DUE PROCESS.. 27

Le Tey re eed

CONC ardesiececithinnisisihericdactrinitiohskoctiaavcdia tae. 30
APPENDIX
A. Alabama Supreme Court Opinion ............0000000..... la
B. Alabama Supreme Court Overruling of Applica-
SO TI TE iia decent ec, 10a

3H Oo 9

Vv

TABLE OF CONTENTS—Continued

Page
Trial Court Summary Judgment Order .............. lla
Petitioner’s Application for Rehearing ................ 40a
Survey of Alabama Punitive Damages ................ 66a

Huff v. United Insurance, Alabama Supreme
Cer ec. PARR CO chilies tcheseices csc 127a

vi
)
TABLE OF AUTHORITIES
Cases: Page
AETNA Life Ins. Co. v. Lavoie, 505 So.2d 1050
Eid. GED: vicincvnentidevbaddcdanbialonimndibiistalibtiisnt, 26
Alabama Farm Bureau Mutual Ins. v. Davis, 354
So.2d 15 (Ala. Civ. App. 1978) ............................. 16
American Life Insurance v. Buntyn, 148 So. 617
| SESE cares. martin ORR Sel CSPI tee A 16

Auto-Owners Insurance Co. v. Ogden, Ala. S.Ct.
1930868, 1995 Ala. LEXIS 70, —— So.2d ——

(1995) (Maddox, J. dissenting) ......................... 24
Banker’s Credit Life Ins. Co. v. Ayers, 223 Ala. |
re SE RRR a he 15
Blue Cross/Blue Shield of Alabama v. Granger,
SES ae Tee CRs BOD citticienesettseteerctineen 26
BMW of North America, Inc. v. Gore, No. 94-896,
et | I sia ectie Seinih enters cient tn 2

Bouie v. City of Columbia, 378 U.S. 347 (1964) .... 19
Brinkeroff-Faris Trust Co. v. Hill, 281 U.S. 673

ERM e See cRGT SOAR IAR EI Born ats Re 10
Chavers v. Nat'l Sec. Fire & Cas. Co., 405 So.2d 1

CF. RIND Sin ccidlnbleeptenintiittineeetenate eden 23, 24
City Mortgage and Discount Co. v. Palatine Ins.

Cars GD Bi: TER, DE A Gi kicker 15
City of Newport v. Facts Concerts, Inc., 453 U.S.

a} SORTS rae ere ere Sh 10
Coastal States Life Insurance Co. v. Leonard, 279

Ale. 391, TRB Bes SiS CAB RGD anicseeeeccne 16
Commercial Casualty Insurance v. Hudgens, 160

it I Rs I chtittiacinctdsidiatctiainesion ee Dakidlbotainn 16
Continental Assurance Co. v. Kountz, 461 So.2d

RN is CI Sal ccna ett oe 26
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

IE a citasainccllcgneciadis sik tknciecidsDcethia ia laetidheehs coed teint 10
Frank v. Mangum, 237 U.S. 309 (1915) —.............. 19
General Motors Co. v. Johnson, 592 So.2d 1054

ERs, TEE sceittrecceecnicsinitncsinienhash bphsdedsiantncbiedeneahiiencecsant 29

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)... 11
Gillion v. Alabama Forestry Ass’n, 597 So.2d 1315

Ci IR elit Sectlsiedscsscebehalidslapsasesisiesienipenicintneenen 25
Globe & Rutgers Fire Ins. Co. v. Pappas, 219 Ala.

vii
TABLE OF AUTHORITIES—Continued

Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.
AST EE IR Pe A ip RR OR SOR Oe
Gulf Atlantic Life Insurance Co. v. Barnes, 405
RE I AE Ca chili icdthncdaeidtbeceistcidarencioocin
Herricks v. Mutual Life Ins. Co. of New York, 294
Ala. 446, 318 So.2d 688 (1975) -......22.20. uo.
Honda Motor Co. v. Oberg, 114 S. Ct. 2331 (1994)...
Huff v. United Ins. Co., A.S.C. No. 198, 1516 (May
eRe ne EET ee A AE SC OE RA
Independent Life & Acc. Ins. Co. v. Harrington,
1994 W.L. 407246 (Ala. 1994) 2.000.
Independent Life & Accident Insurance Co. v.
Parker, 449 So.2d 233 (Ala. 1984) 2.000000.
InterContinental Life Ins. Co. v. Lindblom, July,

International Board of Elec. Workers v. Foust,
GN ee EO eal i
Interocean Casualty Co. v. Irvin, 229 Ala. 312, 156
RT RE Re Ne Ce ce
Jefferson Life & Casualty Co. v. Williams, 37 Ala.
App. 718, 76 So.2d 185 (1954) ......222202..
Johnson v. Life of Georgia, No. CV-93-969 (Cir.
Ct. of Mobile Co., AL, Sept. 16, 1994) .....00..
Jones v. Alabama Farm Bureau Mutual Cas. Co.,
re Re I UD ie acriciteinedaneceins
Jones v. Liberty National Life Ins. Co., 35 Ala.
App. 52, 47 So.2d 222, aff'd, 254 Ala. 111, 47
BN IE a accident te is
Kolender v. Lawson, 461 U.S. 35 (1983) ...............
Land & Associates, Inc. v. Simmons, 562 So.2d 140
(Ala. 1989) (cert. denied, —— U.S. ——, 111
S. Ct. 1805, 1138 L.Ed.2d 240 (1991) ) ........0........
Landgraf v. USI Film Products, 114 S. Ct. 1483

Liberty National Life Ins. Co. v. McAllister, No.
1931163 Slip. Op. (Ala. F. 2495) 2.000222.
Liberty National Life Insurance Co. v. Staggs, 242
BA ee ee Ge a it a
Life Ins. Co. of Virginia v. Newell, 223 Ala. 401,
BE SI vn ocsicicettailantunitoreickininnicinnbllcdiinbapmscteiomaaibibies

Page
2

25

15

15

viii

TABLE OF AUTHORITIES—Continued

Page
Marks v. United States, 430 U.S. 188 (1977)........ 19
McLaughlin v. Alabama Farm Bureau Mut. Cas.
Insurance Co., 487 So.2d 86 (Ala. 1983) ............. 25
National Life & Accident Ins. Co. v. Allen, 285 Ala.
Gi, S54 Baws Ges: Ceeres wie &, 16, 24
National Savings Life Ins. Co. v. Dutton, 419 So.2d
pe Ege SR eR ete ee 25
North Carolina Mutual Life Ins. Co. v. Kerley, 109
So, Fe re De Be: Ce acdics ak 15
Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1
CRUD snl ee cit Ce ea as 2
Powell v. Prudential Insurance Co. of America, 45
ae oO}: eae i Tecctik ia nnelbbcnsahcaamtaosieecs 14
PruneYard Shopping Ctr. v. Robins, 447 U.S. 74
eNO Derr vA MICU AD Mn CS KU ARRS One ROR 10
Robinson v. Aetna Ins. Co., 128 Ala. 477, 30 So.
Rk EERE RIE LR BSAA oR oe ee 18
Saunders v. Shaw, 244 U.S. 317 (1917) ................ 10
Sear’s Roebuck & Co., et al. v. Harris, et al., No.
SU sciccrnecnnicisnintlnsichbpiarska
+
3
ps
&
be
‘
+]
-

95a

Plaintiff alleged that truck was defective because of stalling
caused by faulty computer chip. CV-88-117 (Maengo
County). Remittitur of punitives to $7,500.00 on appeal.
592 So.2d 1054 (Ala. 1992).

Allen v. Physicians’ Weight Loss Centers 15,000,000

Weight loss. Death of 23 year-old who died from an
irregular heartbeat after losing 21 pounds in weight-loss
program. CV-89-1969 (Mobile Co. June 5, 1991). Set-
tled post-trial for undisclosed amount.

Madden v. Magnolia Bay d’b’/a Family Planning Medical
Center 10,000,000

Medical liability. Death of 18-year-old student after
having an incomplete abortion. CV-87-899 (Mobile
County, June 5, 1991) On appeal. See 1993 WL 10349.

Lee v. Children’s Hospital of Alabama, et al. 6,875,000

Medical liability. Death of child from improper cathe-
terization while hospitalized for treatment of burns. Evi-
dence of cover-up by defendants. CV-86-1941-W (Jeffer-
son County, 1991) Affirmed on appeal, 603 So.2d 937
(Ala. 1992).

Garner v. City of Opp 750,000

Municipality. Death of 19-month-old child killed in
car accident which allegedly occurred because of improp-
erly maintained stop sign. Trial court reduced verdict to
$100,000 pursuant to municipal liability cap. Affirmed,
1993 Ala. Lexis 586.

Inge v. State Farm Mutual Automobile Ins. Co. 250,000

Motor vehicle. Wrongful death. CV-90-1981-PH Re-
mitted to $75,000 with concurrence of plaintiff. (Mont-
gomery County, September 17, 1991) Judgment satisfied.

96a
1990
(Non-Wrongful Death)

Braun v. Soldier of Fortune 10,000,000

Media. Negligence of magazine for allowing advertise-
ment by professional hit-man. Verdict of $10 million
punitive damages and $400,000 compensatory damages,
plus $2 million in compensatory to be shared by Michael
Braun and Ian Braun. Remittitur of punitive damages by
trial court to $2.375 million, 757 F.Supp. 1325 (M.D.
Ala. 1990). Affirmed on appeal, 968 F.2d 1110 (1992),
cert. denied, 113 S. Ct. 1028.

Overstreet v. Insurance Company of North America, et
al. 10,000,000

Insurance. Agent fraud. $10,000,000 punitive damages
award against agency individuals dismissed. CV-86-
002312 (Mobile County, June 8, 1990).

Smith v. MBL Life Assurance Corp. 4,500,000

Insurance. Bad faith. Alleged fraud and bad faith on
question of existence of life insurance policy. Compensa-
tory damages $250,000. Punitive award set aside by trial
court. CV-84-3028 (Jefferson County, June 1990). Af-
firmed on appeal, 589 So.2d 691 (Ala. 1991).

Elliott v. Brunswick Corp. 3,000,000

Product liability. Boat propeller struck and injured
plaintiff. Compensatory damages of $1.5 million and
punitive damages of $3 million. (N.D. Ala.) Reversed
on appeal, 903 F.2d 1505 (11th Cir. 1990), cert. de-
nied, 498 U.S. 1948 (1991).

White, et al. v. Georgia Casualty Ins. Co. 2,000,000

Insurance. Bad faith. Uninsured motorist carrier al-
legedly refused in bad saith to settle UM claim, and mis-

97a

represented insured’s right to stack benefits C-84-37-R
(Barbour County, 1989) Reversed and remanded on
grounds that tort claims did not survive insured’s death,
582 So.2d 487 (Ala. 1991).

Roberts v. National Security Insurance 2,000,000

Insurance. Fraud. Claim involving breach of contract
and fraud, but only the fraud claim went to the jury.
CV-87-4063 (Jefferson County, October 8, 1990). Set-
tled post-trial.

King v. Pioneer Life Insurance Co. 1,977,000

Insurance. Bad faith. Total verdict of $2,000,000 in-
cludes compensatory damages of $23,000 and punitive
damages of $1,977,000, CV-87-152 (Escambia County,
July 26, 1990).

Kitchens Foods, Inc. v. Arby’s, Inc., et al. 1,500,000

Business tort. Misrepresentations by sellers in sale of
franchise. CV-88-0761-P-M (U.S.D.C. §.D. Ala., June
28, 1990).

Backus v. The Club 90, Inc. 1,000,000

Dram Shop. Auto accident in which plaintiff was se-
verely injured in a head on collision with intoxicated
driver. Plaintiff's medical expenses were approx.
$150,000. Compensatory damages of $700,000. (Mobile
County, September 27, 1990).

Burden v. Empire Fire & Marine Ins. Co. 1,000,000

Insurance. Bad faith/Uninsured Motorist. Alleged bad
faith failure to settle an uninsured motorist claim. Com-
_pensatory damages of $400,000, punitive damages of $1
million. CV-88-244 (Lauderdale County, March 2,
1990). Appeal dismissed, 607 So.2d 388 (1991).

98a
Beatty v. Ford-New Holland Tractor Co. 1,000,000

Malicious prosecution. Compensatory damages of
$25,000 and punitive damages of $1 million. Reversed
& rendered on appeal, 602 So.2d 1198 (1992).

Braden v. Dorsey Motor Sales, Inc. 1,000,000

Automobile sales. Alleged fraudulent misrepresentation
by car dealer that a used car was “new.” Compensatory
damages $15,600. CV-89-004 (Autauga County, March
22, 1990).

Northington v. Alfa Ins. Co. 750,000

Insurance. Bad faith. Total verdict of $850,000
against insurer for failure to renew insurance coverage.
Affirmed on appeal, 604 So.2d 758 (Ala. 1991).

American Employers Ins. Co. of Southern Seeding Serv-
ices 750,000

Insurance. Fraud. Compensatory damages of $400,000
and punitive damages of $750,000. CV-87-G-0294S
(U.S.D.C. N.D. Ala., February 22, 1990)

Harris v. M & S Toyota, Inc. 500,000

Automobile sales. Used car buyers sued seller for
fraud arising out of seller’s statement that used car had
never been wrecked. They later found “bondo” on dam-
age site. After the jury returned a verdict for $502,500.00
the trial court granted defendant’s Motion for New Trial
on prejudicial effect of testimony about the dealers earlier
settlement of similar claim. Affirmed, 575 So.2d 74 (Ala.
1991).

Shoemaker v. Smith 5,000,000

Business tort. Purchaser of printing services sued seller
for fraud and breach of contract. C-86-935-M (Jefferson
County, 1990) Affirmed, 589 So.2d 171 (Ala. 1991).

99a
The Standard Plan v. Tucker 500,000

Insurance. Bad faith. Jury found insurance agency
guilty of negligence and awarded $1,083.19 in damages;
also found against insurer on claim of breach of contract
and bad faith failure to pay claim and awarded $500,000
in punitive damages. Affirmed, 582 So.2d 1024 (Ala.
1991).

Brown v. United Companies Financial Corp. 250,000

Lender liability. Homeowners sued company financing
home improvements for fraud and breach of contract
when company obtained homeowner’s endorsement on
check and certificate of completition to release money
prior to contractor’s completion of work. Compensatory
damages $250,000. CV-88-56-G (Lowndes County,
1989) Affirmed, 584 So.2d 470 (Ala. 1991).

Carroll v. Glisson 100,000

Construction contract. Fraud and breach of contract
involving construction of home. Plaintiff alleged defend-
ant suppressed knowledge of deficiencies and failure to
meet building code requirements. Compensatory damages
of $25,000. CV-89-2405 B (Mobile County, October 16,
1990).

American Cast Iron Pipe Co. v. Williams 100,000

Retaliatory discharge. Plaintiff, who was injured on job
using jackhammer, was terminated upon attempt to return
to work. Compensatory damages $80,000. CV-88-4871-
W (Jefferson County, 1990) Reversel on appeal, 591
So.2d 854 (Ala. 1991).

Waldon v. United Insurance Co. et al. 154,000

Insurance. Fraud. Plaintiff alleged fraud and breach
of contract for failure to pay medical bills for back surg-
ery. Compensatory damages of $3,820. CV-87-1222

100a

(Montgomery County, January 20, 1990) Judgment satis-
fied.

1990
(Wrongful Death)

Wilburn v. Luxaire, et al. 50,000,000

Product liability. Five family members died of asphyx-
iation during Christmas week from a gas furnace that was
not correctly vented. Codefendant gas company and
other defendants settled before trial for $11,500,00. CV-
88-147-DU et seq. (Mobile County, March 23, 1990)
Settled on appeal.

Ingram v. Anniston Medical Clinic 3,500,000

Medical liability. Widow alleged that doctor and clinic
were negligent in misdiagnosing decedent’s irregular heart-
beat. His heart stopped later that night. CV-86-611
(Calhoun County, August 11, 1990).

Chumney, Administrator v. Flowers Hospital 3,000,000

Medical liability. Death of child. CV-87-587 (Houston
County, March 9, 1990). Settled post-trial.

Jahandarfard v. Killough, et al. 2,500,000

Landlord liability. Plaintiffs minor daughter died from
smoke inhalation due to landlord’s failure to equip apart-
ment with smoke detector. CV-88-1269P (Madison
County, November 8, 1991) Affirmed on appeal, 578
So.2d 1041 (1991).

Lakeman v. P.P.G. Industries 2.250,000

Product liability. Wantonness in wrongful death case.
(U.S.D.C. S.D. Ala., February 22, 1990).

10la
Estate of Conley v. Flav-O-Rich 2,000,000

Negligent maintenance. Milkman died when delivery
truck overturned due to negligently maintained steering.
CV-87-0073 (Jefferson County, November 5, 1990).

Estate of Meadows v. Ridgeview Healthcare Center
2,000,000

Nursing home. Suit against nursing home in which
decedent resided at time of his death, alleging that death
resulted from an assault by decedent’s roommate. CV-
87-501 (Walker County). Reversed and remanded, 590
So.2d 243 (1991).

Thornton v. Yamaha Motor Co. Ltd., et al. 750,000

Product Liability. Death of a child whose Christmas
present motorbike crashed. CV-88-1639-T (Montgomery
County, April 26, 1990). Affirmed on appeal, 579 So.2d
619 (Ala. 1991). Important decision on “contributory
negligence” as defense.

Hays, Admin. v. City of Greenville, et al. 625,000

Municipality. Motor vehicle accident causing death
involving alleged negligence, wantonness, DUI. CV-89-
209 PH (Montgomery County, March 9, 1990). Not
appealed. |

Valley Building & Supply, Inc. v. Lombus 600,000

Motor vehicles. Trucking. Delivery truck backed onto
highway during rush hour after unloading at store. Re-
manded for Hammond/Green Oil review of excessiveness
of verdict. CV-89-080 (Talledega County). Affirmed
after remand, 590 So.2d 142 (Ala. 1991).

Rollins v. Bad Man Promotions et al. 200,000

Chiropractor. Chiropractor allegedly failed to diagnose
fighter’s hypertension during pre-fight physical. Decedent

102a

won the fight, collapsed on stage and died. CV-88-942-K
(Montgomery County, February 14, 1990). Judgment
satisfied.

1989
(Non-Wrongful Death)

Sigafoose v. Babson Brothers Co. 10,000,000

Business tort. Fraudulent sale of livestock semen which
was not as represented. Punitive damages of $10 million,
compensatory claim verdict of $21,000. (Baldwin
County). Settled post trial and appeal dismissed, 596
So.2d 56 (1989). Confidential settlement (reported un-
officially as $1.9 million).

Braswell v. Conagra 9,100,000

Business tort. Chicken growers sued buyers alleging
fraud and breach of contract arising out of misweighing
chickens over an eight year period. Compensatory dam-
ages $4,050,000 and Punitive damages $9,100,000. CV-
88-CV-00741-T-S (U.S.D.C. M.D. Ala., November 27,
1989). Affirmed on appeal, 936 F.2d 1169 (1991).

Joiner v. United American Insurance Co. 3,000,000

Insurance. Fraud. Verdict of $80,000 compensatory
and $3 million punitive; reduced by trial court to $960,-
000 (U.S.D.C. M.D. Ala., November 15, 1990).

Ford v. Colonial Mortgage Co. 3,000,000

Lender liability. Fraudulent breach of residential home
loan commitment. CV-89-010 (Russell County, Novem-
ber 21, 1989).

103a

Clarke v. Traffanstedt v. Estate of Thomas Holmes and
Human Hospital-Muscle Shoals 2,500,000

Medical liability. Malpractice against hospital and es-
tate of deceased physician. Verdict of $985,000 compen-
satory damages and $2.5 million punitive damages against
hospital only. Reversed on appeal for inconsistency of
verdict, 597 So.2d 667 (Ala. 1990).

Hilloy v. Allstate Insurance Co. 2,000,000

Insurance. Fraud. Failure of insurance company to
pay fire loss on home insured for $38,000. Affirmed on
appeal, 595 So.2d 873 (Ala. 1990).

American Mktg. Mortgage Co. v. National Group Corp.
2,000,000

Business tort. Fraud & intentional interference. Plain-
tiff was writing insurance policies for defendant. Compen-
satory damages award of $550,000. Total verdict re-
mitted to $1,550,000 by trial court. CV-87-695-PH
(Montgomery County, August 14, 1989).

Phillips v. United American Ins. Co. 1,800,000

Insurance. Bad faith. Refusal to pay $264 unpaid
balance on medical claim. CV-87-132JSS (June 2, 1989).
Settled post-trial.

E & S Facilities, Inc. v. Precision Chipper Corp. 1,750,000

Insurance. Agent fraud. Alleged fraud in procure-
ment of products liability insurance. Verdict for $875,000
each against insurance agency and insurance broker/
wholesaler. Affirmed on appeal, 565 So.2d 54 (Ala.
1990).

104a

Scroggins v. Averbach Enterprises, Inc. 1,700,000

Premises liability. Apartment complex failed to pro-
vide adequate security and protection; plaintiff paralyzed
from gunshot. CV-89-2152-P (Madison County).

Deutz-Allis Credit Corporation v. Turner 1,609,500

Lender liability. Fraud claim. Settled post-trial. CV-
85-043 (Barbour County, October 9, 1989). Appeal dis-
missed, 596 So.2d 66 (Ala. 1990).

Terry v. John Carner and Leisure American, Inc. 1,500,-
000

Fraud. Actual damages of $5,500. CV-85-6777 (Jef-
ferson County, November 1, 1989). Settled prior to

appeal.
Carlis v. Richard J. Gibson, et al. 1,000,000

Insurance. Fraud involving sale of credit life insur-
ance; approximately $1,000 compensatory damages. Pu-
nitive damages remitted to $250,000. CV-87-30 (Macon
County , April 19, 1989).

Fuller v. Preferred Risk Life Ins. Co. 1,000,000

Insurance. Fraud. Compensatory damages of $16,-
764.82 on breach of contract; compensatory damages of
$1.00 on fraud count; and punitive damages of $1 mil-
lion on fraud count. Punitive damages remitted to $250,-
000 by trial court. CV-88-74-M (Montgomery County)
Alabama Supreme Court reversed and reinstated full $1
million verdict, 577 So.2d 878 (Ala. 1991).

Ramsey Health Care, Inc. v. Folmer 800,000

Employment contract. Claims by terminated chief fi-
nancial officer for breach of contract and fraud, alleging
he did not receive all the compensation he was promised

105a

after termination. Affirmed on appeal, 506 So.2d 746
(1990).

Battles Entertainment, Inc. v. First Federal Savings and
Loan Assoc. of Russell County, et al. 800,000

Real estate. Fraud in connection with sale of land.
CV-88-083 (Lee County, April 14, 1989). Settled post-
trial.

McDonald v. Continental Casualty Co. (CNA) 750,000

Outrage. Late payment of workmen’s compensation
benefits. (Houston County). Affirmed on appeal, 567
So.2d 1208 (Ala. 1990).

Green Tree Acceptance, Inc. v. Standridge 750,000

Reposession. Claims of fraud, conversion and outrage
involving sale and repossession of mobile home, CV-87-
710 TH (Montgomery County, 1988). Judgment on out-
rage claim reversed and remanded, remainder affirmed,
565 So.2d 38 (Ala. 1990).

Massachusetts Mutual Life Ins. Co. v. Collins 750,000

Insurance. Agent fraud. Insured alleged that he was
fraudulently induced into purchasing additional life in-
surance by taking loans against existing policy. CV-86-
166-M (Marion County, 1988). Affirmed on appeal,
575 So.2d 1005 (Ala. 1990).

Blackburn, et al. v. Altus Bank 500,000

Lender liability. Claims of fraud by two plaintiffs,
resulting in total verdicts of $2,038,753. CV-88-2263
(Mobile County, November 30 1989). Appeal dis-
missed, 607 So.2d 388 (1991).

106a

Watson, Watson & Rutland v. Rosser Fabrap Int’.
700,000

Business tort. Intentional interference with business
relationship. CV-88-II-1292-N (U.S.D.C. M.D. Ala. Oc-
tober 19, 1989).

Bryant v. R & S Materials 450,000

Environmental. Plaintiff alleged defendant surface
mining company polluted commonly owned lake. CV-
88-1594-PR (Montgomery County, July 17, 1989). Set-
tled on appeal.

Fraser v. Reynolds 375,000

Real estate. Fraud in sale of apartment complex;
actual damages of approximately $15,000. First trial
resulting in verdict of $30,000 was reversed for lack of
evidence to support jury verdict. Second trial resulted
in $375,000 punitive verdict. Remanded for Hammond/
Green Oil hearing on excessiveness, 588 So.2d 442
(1990). Affirmed conditioned upon remittitur of $26,-
217.09, 588 So.2d 488 (Ala. 1992).

John H. Vella et al. v. Roberts Brothers, Inc. 275,000

Real estate. House purchasers sued title company and
listing agent for failure to disclose I.R.S. right of redemp-
tion. Recovery for mental anguish allowed even if no
physical symptoms corroborated the anguish. Compensa-
tory damages of $100,000, punitive damages $275,000.
Trial judge apportioned punitive damages between two
defendants, based upon excessiveness as to one of the
defendants. CV-85-1973-RGK (Mobile County, 1989).
Affirmed, 570 So.2d 578 (Ala. 1990).

O.K. Bonding Co. v. Milton 225,000

Assault ‘trespass. Women and children whose homes
were subject to armed intrusion by surety agents seek-

107a

ing “bailjumper” sued the surety and person who in-
structed its agents, CV-84-75-R (Shelby County, 1989).
Affirmed on appeal, except as to one plaintiff who was
awarded no nominal or compensatory damages, 570 So.2d
602 (Ala. 1991).

Key et al. v. McDowell 190,000

Real estate. Plaintiffs alleged that the land purchased
was only a portion of the land they were fraudulently
led to believe they were purchasing. General verdict
with actual damages of $10,000. CV-87-2472-T (Jeffer-
son County, March 3, 1989). Affirmed on appeal, 557
So.2d 1243 (Ala. 1990).

Rodopoulos v. Sam Piki Enterprises, Inc. 170,000

Business tort. Pizza franchise purchasers sued sellers
alleging fraud, deceit and breach of contract arising from
misrepresentation regarding projected gross earnings for
pizza business. CV-86-422-O (Calhoun County, 1989)
Affirmed on appeal, 570 So.2d 661 (Ala. 1990).

Spirit Nissan, Inc. v. Ogburn 125,000

Automobile sale. Lessees sued dealer and lessor alleg-
ing they were fraudulently induced to enter into the lease
by defendants’ false representation that the vehicle was
equipped with power steering. CV-87-145 (Talladega
County, 1989) Affirmed on appeal, 572 So.2d 1248
(Ala. 1990).

Charter Hospital of Mobile v. Weinberg 107,000

Employment contract. Doctor who was formerly em-
ployed at hospital sued for wrongful termination and
wrongful conversion of a drug and alcohol abuse treat-
ment program which he developed. Compensatory dam-
ages of $152,000. CV-80-1858 BLK (Mobile County,
1989) Reversed in part for new trial on punitive damages,
558 So.2d 909 (Ala. 1990).

108a

Finley v. Jerry Griggs and Wanda Griggs 100,000

Real estate. Buyers and sellers alleging misrepresenta-
tion that property was located on public road, and suit-
able for placement of septic tank and that adjacent land
would be deeded to purchaser after sale. Compensatory
damages $70,000. CV-87-20755 (Madison County, June
16, 1989). Affirmed on appeal, 565 So.2d 154 (Ala.
1990).

1989
(Wrongful Death)

Burlington-Northern R.R. v. Whitt 15,000,000

Railroad crossing. Wanton misconduct involving de-
sign and maintenance of railroad crossing. Remitted to
$5,000,000 on appeal, 575 So.2d 1011 (1990).

Thornton v. Susan Ashbee, M.D., et al. 5,000,000

Medical liability. Failure to diagnose baby’s spinal
meningitis. CV-85-1275 (Mobile County, March 7,
1989). Appeal dismissed, 596 So.2d 57 (1989).

Turner v. Alabama Power Company 5,000,000

Electric utility. Truck driver electorcuted when door
contacted an energized guy wire. CV-88-1700-PR (Mont-
gomery County, August 30, 1989) Remitted on appeal
to $3.5 million, 575 So.2d 551 (Ala. 1991).

Ruby Davis v. Montrose Bay Health Care Inc., et al
2,500,000

Nursing home. CV-86-196 (Mobile County, June 19,
1989).
Ballard v. Montgomery Health Care Facility 2,000,000

Nursing home. Estate of patient who died as the result
of multiple infected bedsores brought negligence claim

109a

against nursing home. CV-87-173-TH (Montgomery
County, May 17, 1989) Affirmed on appeal, 565 So.2d
221 (1990).

Bever v. Beech Aircraft Corp. 1,500,000
Product liability. CV-81-2120 (Jefferson County 1989)

Kumar v. Lewis 875,000

Medical liability. Surgery to repair umbilical hernia in-
jured left ureter, causing septicemia death of child. Ver-
dict affirmed, 561 So.2d 1082 (Ala. 1980).

1988
(Non-Wrongful Death)

Joshua Medders, a minor, et al. v. Darlene Forsythe
Harris 6,500,000

Medical facility, $65.5 million verdict against Harris
only. CV-88-364 (Calhoun County).

State Farm Auto. Ins. Co. v. Robbins 5,000,000

Insurance. Bad faith/fraud. Insurance company denied
$700 disability claim. Verdict remitted by trial court to
$500,000. (Macon County, 1988) Affirmed on appeal,
541 So.2d 477 (Ala. 1989).

United Serv. Auto Ass’n v. Wade, 3,500,000

Insurance. Bad faith. None-jury verdict of $3.5 mil-
lion punitive damages for bad faith. Compensatory dam-
ages of $166,795 plus $21,962 on contract court. Re-
mitted to $2.5 million, 544 So.2d 906 (Ala. 1989).

Land & Associates, Inc. v. Simmons 2,500,000

Insurance. Bad faith. Also claims for fraud and breach
of contract arising out of denial of $10,000 life insurance
claim by wife of deceased. Brokerage agency held not
liable for agent’s misrepresentation. CV 862340RGK

110a

(Mobile County) Affirmed on appeal, 562 So.2d 140
(1989).

Health America, et al. v. Menton 1,800,000

Insurance. Agent fraud. Agent allegedly induced
plaintiff to drop former health insurance coverage and
enroll under new employee group insurance plan by rep-
resenting that plaintiff's son’s pre-existing condition would
be covered. The insurer later denied a $2,400 claim for
medical benefits. CV-86-003049-BV (Mobile, Court)
Affirmed on appeal, 551 So.2d 235 (Ala. 1989).

Barclay International v. First Ala Bank 1,800,000

Lender liability. Baldwin County banking case con-
cerning letter of credit issued to plaintiff but called upon
in full by First Ala. Bank; First Ala. Bank was awarded
$1.8 million in counterclaim. CV-84-5000056Wi (Bald-
win County) Reversed and remanded, 557 So.2d 1201
(1989).

Walls v. Colonial Mortgage Co. 1,700,000

Lender liability. Fraud involving breach of residential
home loan commitment; compensatory damages of $2,500
or less. Settled pending appeal, (companion case to Ford
v. Colonial Mortgage) CV-87-194 (Russell County, De-
cember 19, 1988).

Sidney Wright, III v. Preferred Research, Inc. 1,500,000

Insurance. Fraud. Plaintiff alleged that defendant
wrote policy without having proper E&O coverage. Com-
pensatory damages of $7,000. Remittitur of punitive dam-
ages to $150,000, CV-87-T-1046-S (U.S.D.C. Middle
District, July 14, 1988). Affirmed by Eleventh Circuit.

State Farm Mutual Automobile Ins. Co. v. Hollis, Adm.
1,500,000

Insurance. Bad faith. Failure to settle lawsuit and
wanton failure to file supersedeas bond. Reversed and re-

lila

manded for new trial, 516 So.2d 576 (Ala. 1987). Af-
firmed after verdict in second trial, 554 So.2d 387 (Ala.
1989).

Porter v. Hook 1,300,000

Business tort. Fraud and breach of unwritten joint ven-
ture agreement against cable television owner. Remitted
by trial court to $300,000. Full verdict reinstated by
Supreme Court of Alabama, 554 So.2d 382 (Ala. 1989).

Pacific Mutual Life Ins. Co. v. Haslip 1,000,000

Insurance. Agent fraud. Agent misrepresented cover-
age and intercepted and pocketed premiums (with al-
leged knowledge of manager) thus allowing plaintiff's
health insurance coverage to lapse. CV 82 2453 C (Jef-
ferson County, 1988 Affirmed on appeal, 553 So.2d 537
(1989), affirmed by U.S. Supreme Court, 111 S.Ct. 1032
(1991).

Tarwick v. Michaels of Oregon Co. 1,000,000

Product liability. Hunter injured while climbing down
from tree stand with loaded automatic rifle. Rifle fell and
discharged. Plaintiff alleged swivel on should strap dis-
connected, causing gun to fall and discharge. Serious
injury to arm. Total verdict $3.9 million. CV-88-C-413N
(U.S.M.D. Ala., December 21, 1988). Settled pending

appeal.
United American Ins. Co. v. Brumley 1,000,000

Insurance. Bad faith. Refusal of medicare supplement
insured to pay a claim. Affirmed on appeal, 542 So.2d
1231 (Ala. 1989).

Carner, et al. v. Commercial Union Ins. Co., et al.
811,804

Insurance Bad faith denial of insurance claim. C-82-
3504 (Jefferson County 1988).

Set

112a

Thomas v. Principal Financial Group, et al. 750,000

Insurance. Bad faith failure to pay $1,000 death bene-
fit where insurer determined that dependent was not a
“full time student” but was attending part-time beauty
school. CV-87-2561 (Mobile County, 1988) Punitive
award set aside by trial court, reinstated by Alabama
Supreme Court on appeal, 566 So.2d 735 (Ala. 1990).
Verdict held not excessive, 585 So.2d 816 (Ala. 1991).

Isbell v. Thompson Hayward Chemical Co., et al. 675,000
CV-88-162 (Jefferson Co. Cir. Ct.).

Adams v. The City of Bessemer, et al.
CV-88-222 (Jefferson Co. Cir. Ct.).

Trammell v. Bessemer Water Service, et al.

CV-87-627 (Jefferson Co. Cir. Ct.).

Municipality. Verdicts of $746,000 (675,000 punitive
damages) for dangerous chemicals in water service.

Achord v. Mormar Incorporated 500,000

Products liability. Verdict of $863,625 included
$500,000 punitive damages. CV-87-D-0824-N (U.S.M.D.
Ala., September 6, 1988).

Vintage Enterprises v. Jaye 500,000

Mobile home sale. Purchasers sued seller for fraud,
wantonness, negligence, warranty and Magnuson-Moss
theories arising out of order and delivery of mobile home.
Compensatory verdict $20,000. (Tallapoosa County).
Affirmed, 547 So.2d 1169 (Ala. 1989).

The Ice House v. Aesco Steel Co. 332,000.

Construction contract. Plaintiff alleged negligent con-
struction and fraud due to collapse of ceiling at plant.

113a

Compensatory damages of $252,000. Remittitur denied.
CV-87-84-G (Montgomery County, April 26, 1988).
Appeal dismissed on joint motion.

Green Oil Co. v. Hornsby 150,000

Business tort. Suit against store owners for recovery
of personal property and open account for gasoline de-
livered. Owners counter-claimed for breach of contract
and fraud. Verdict on counterclaim for $14,704.06 in
compensatory and $150,000 in punitive damages. (Macon
County, 1988). Remanded for Hammond hearing and
the trial court remitted the punitive damages verdict to
$25,000. Affirmed, 539 So.2d 218 (Ala. 1989).

Abeta Travel Service, Inc. v. Ocean Cruise Lines 150,000

Travel agent. Abeta sued cruise ship agent alleging
breach of contract and fraud for failure to provide ac-
commodations on a particular cruise to passengers booked
by travel agent. Jury awarded $100,000 in compensa-
tory damages. CV-87-002471-J (Mobile County, June 9,
1988). Affirmed on appeal, 562 So.2d 295 (Ala. 1990).

Hargrove v. Cantrell 127,717

Automobile sale. Fraudulent odometer rollback. Ver-
dicts of $23,134 compensatory damages and $127,717
punitive damages. Affirmed on appeal, 547 So.2d 488
(Ala. 1989).

Greene v. Robert Averi, DPM 100,000

Medical liability. Plaintiff alleged improper procedure
was used in surgery on plaintiff's foot causing permanent
damage. Compensatory damages $50,000. CV-87-1534-
PII (Montgomery County, June 30, 1988).

114a

1988
(Wrongful Death)

Heathcoat v. Mitchell Potts, et al. 3,000,000

Wrongful death. No. CV-85-7805, CV-85-7288 (U.S.
District Court N.D. Ala. 1988).

Olympia Spa v. Johnson 3,000,000

Premises liability. Death of business patron by scalding
in steam room of health club. (Mobile County). Af-
firmed on appeal, 547 So.2d 80 (Ala. 1989).

Clardy v. Sanders 2,750,000

Auto negligence. Sixteen year old motorist killed in
automobile collision. Plaintiff alleged that other motorist
was acting within the line and scope of his employment
at the time of the accident. CV-87-448 (Montgomery
County, November 15, 1988). Affirmed on appeal, 551
So.2d 1057 (Ala. 1989).

Proctor & Gamble Co. v. Staples 2,750,000

Industrial accident. Plaintiff alleged that the employer
failed to provide safe work environment and that the
employer negligently inspected the machine which killed
the decedent. Judgment reversed on appeal, 551 So.2d
949 (Ala. 1989). Settled thereafter.

Shelby County Commission v. Bailey 1,000,000

Municipality. Estate of motorist and passenger killed
in head-on collision with deputy sheriff’s vehicle filed suit
against county. Verdicts of $500,000 each for two deaths.
Affirmed on appeal, 545 So.2d 743 (Ala. 1989).

Central Alabama Electric Corp. v. Tapley 1,000,000

Electric utility. Dump truck bed contacted power line.
Affirmed on appeal, 546 So.2d 371 (Ala. 1989).

115a

Williams v. Rust International 1,000,000

Wrongful death. CV-82-CV-174 (Jefferson County,
1988).

Mallory v. Hobbs Trailers 500,000

Product liability. Estate of employee killed when dump
truck overturned on her filed suit against driver, trucking
company and manufacturer of trailer. Trial court set
aside the verdict, which was reinstated by Alabama Su-
preme Court, 554 So.2d 966 (Ala. 1989).

1987
(Non-Wrongful Death)

Estate of Jackson v. Phillips Petroleum Co. 5,100,000

Tortious interference. Conversion, intentional interfer-
ence with contractual relations and wrongful exercise of lien
rights. Reduced punitive damages from 5,041,690.04 to
$300,000 in one case, 2,500,000 and from $2,519,439.85
to $150,000 in another. New trial granted on plaintiff's
refusal to remit punitive damages, 676 F.Supp. 1142 (S.D.
Ala. 1987).

Robbins v. National Security Insurance Company 2,00,000
Insurance. Fraud. CV-87-4063 (Jefferson County).

State Farm Fire and Casualty Company v. Balmer
1,500,000

Insurance. Bad faith. Verdict of $1,813,404 included
$45,650 on breach contract, $265,000 compensatory
damages and $1,500,000 punitive damages on bad faith
claim. CV-86-D-742-N (Verdict August 5, 1987). Bad
faith verdict set aside by U.S. District Court on Motion
for JNOV, 672 F.Supp. 1395 (M.D. Ala. 1987).

116a

Wal Mart Stores, Inc. v. Jones 200,000

Malicious prosecution. Customer brought action for
false arrest, malicious prosecution, defamation, outrageous
conduct and wantonness. The jury returned verdict on
wantonness. Affirmed on appeal, 533 So.2d 551 (Ala.
1988).

1987
(Wrongful Death)

Dale, Estate of v. Dept. of Mental Health 11,675,000

Wrongful death. Employees of state mental hospital
were accused of negligently releasing a mental patient
who attempted a robbbery. CV-85-0138-K (Montgomery
County, February 3, 1987). Reversed on appeal, 530
So.2d 770 (Ala. 1988).

Industrial Chemical & Fiberglass v. Chandler 5,000,000

Industrial accident. Two workers killed by explosion
while repairing a fiberglass tank. Widows sued under
AEMLD, alleging negligent failure to warn and breach
of warranty. Jury verdict of $2.5 million for each widow.
Affirmed, 547 So.2d 812 (Ala. 1988).

Talmage v. Humana Hospital Florence, et al. 1,500,000

Medical liability. CV-85-135 (Lauderdale County,
September 10, 1987). Settled post-trial.

Alabama Power Co. v. Courtney 750,000

Motor vehicle. Trucking. Decedent’s estate sued driver
of vehicle and his employer for death resulting from col-
lision. (Chilton County, 1987). Affirmed, 539 So.2d 170
(Ala. 1988).

117a
Consolidated Freightways v. Pacheaco-Rivera 525,000

Motor vehicle. Trucking. Personal injury and wrongful
death action brought by 3 plaintiffs. Jury awarded
$525,000 for wrongful death portion of claim. That por-
tion of the verdict was not remitted. Affirmed on appeal,
524 So.2d 346 (Ala. 1988).

Alabama Farm Bureau v. Hixon 500,000

Premises liability. Trailer park tenant sued park owner
for death of child in a common swimming pool. Alleged
failure to provide fence & lighting. CV-84-1447-PR
(Montgomery County, February 4, 1987). Reversed on
appeal, 533 So.2d 518 (Ala. 1988).

Alabama Power Co. v. Capps 500,000

Electric Utility. Dump truck bed contacted overhead
power line (simple negligence). (Butler County). Af-
firmed on appeal, 519 So.2d 1328 (Ala. 1988).

1986
(Non-Wrongful Death)

Super Valu Stores, Inc. v. Peterson 5,000,000

Employment contract. Breach of contract and fraud in
employment relationship where retailer claimed willful
failure to construct and lease grocery store to retailer.
Affirmed, 506 So.2d 317 (Ala. 1987).

Best Plant Food Products, Inc. v. Cagle 972,000

Fertilizer. Potato farmer brought action against seller
for deceit, fraud and breach of warranty. Jury returned
a general verdict for $972,000. Affirmed, 510 So.2d 229
(Ala. 1987).

118a

Rollison Logging Company v. John Ellis 921,584

Fraud. Alleged fraud involving proposed purchase of
logging equipment. Compensatory damages of $78,416
and punitive damages of $921,584. Remitted to $200,000.
CV-84-03 (Cherokee County, May 12, 1986).

Jimmy Wayne Fountaian v. Aetna Casualty & Surety
720,000

Product liability. Failure to warn. Plaintiff suffered
severance of 114 fingers in a wire drawing machine. Gen-
eral verdict (compensatory and punitive) of $750,000
including specials of $30,000. CV-84-18 (Lauderdale
County, August 18, 1986). Settled on appeal.

Griggs v. Northrup King and Alabama Feed Serv. 600,000

Product liability. Bad feed. Defendant delivered old
seed instead of feed, and plaintiff’s cattle suffered prob-
lems. Verdict of $700,000 including $100,000 actual
damages and $600,000 punitive damages. CV-85-4956
(Jefferson County, 1986).

Harmon v. Motors Insurance Corp. 500,000

Automobile sale. Purchaser sued dealer and insurance
company for fraudulently inducing car purchase by false
assurances that plaintiff would qualify for insurance. Puni-
tive damages remitted to $40,000 by trial court, finding
that economic impact would be devastating to defendant .
car dealer. (Calhoun County) (493 So.2d 1370, after
remand, 525 So.2d 411 (1987). Affirmed subject to
remittitur.

Johnson & Associates, Inc. v. Rivers Construction Co.
500,000

Construction. Fraud. Construction company sued
property owner for fraud and breach of contract. Com-
pensatory damages $165,000. (Marion County, 1986).
Affirmed on appeal, 532 So.2d 618 (Ala. 1988).

119a

North Carolina Mut. Life Ins. Co. v. Holley 500,000

Insurance. Bad faith. Failure to pay $2,000 life insur-
ance claim. Remitted to $500,000 by Alabama Supreme
Court, 533 So.2d 497 (Ala. 1987).

A.L. Williams & Assoc. v. Williams et al. 400,000

Assault. Employee sued for injuries received from
assault by supervisor, also alleging outrage, interference
with business, etc. General verdict of $500,000 treated
by court as including $100,000 compensatory damages.
(Madison County, 1986) Reversed due to inconsistent
verdicts, 517 So.2d 596 (Ala. 1987).

State Farm Fire & Cas. Ins. Co. v. Lynn 250,000

Insurance. Fraud. Verdict of $250,000 punitive dam-
ages, $25,000 compensatory. Alabama Supreme Court
ordered $4,078 of remittitur of compensatory award and
affirmed, 516 So.2d 1373 (Ala. 1987).

Kabel v. Brady 162,500

Chiropractor. Fraud. He represented that Medicare
would cover services performed. Verdicts of $162,000
punitive damages, $609 compensatory. Affirmed, 519
So.2d 912 (Ala. 1987).

Dependable Ins. Co. v. Kirkpatrick 150,000

Insurance. Conversion. Alleged conversion of vacation
cabin and its contents. Verdict of $150,000 punitive dam-
ages. Affirmed, 514 So.2d 804 (Ala. 1987).

John Hancock Variable Life Ins. Co. v. Pierce 150,000

Insurance. Fraud. Failure to pay on life policy. In-
sured failed to disclose preexisting conditions and insurer
denied $200,000 claim. Verdict of $350,000 including
$150,000 in punitive damages. (Mobile County, 1986)

120a

Affirmed on rehearing after remand, 530 So.2d 719 (Ala.
1987), cert. denied, 486 U.S. 1032 (1988).

Hayes v. Payne 140,000

Business tort. Breach of contract and fraud arising out
of sale of stock in a fabricating company. Affirmed on
return after remand, 523 So.2d 333 (Ala. 1987).

Miller v. Equitable Life Assur. Society 116,000

Insurance. Agent fraud. Agent allegedly misrepre-
sented terms of policy including amount of premiums.
CV-86-296-PII (Montgomery County, September 24,
1986) Judgment satisfied.

Donnell Welch v. Kenworth of Dothan, Inc., et al.
100,000

Trailer sale. Buyer sued seller and manufacturer alleg-
ing fraud in delivery of 1982 trailer when buyer had
sought a 1984 model and manufacturer’s certificate of
origin reflected 1984 trailer. Jury awarded $9,000 in
compensatory damages. CV-84-417S (Houston County,
November 6, 1986). Affirmed on appeal, 519 So.2d 502
(Ala. 1988).

1986
(Wrongful Death)

Beck, Murray, Tull v. Piper Aircraft, et al. 5,175,000
Product Liability. CV-83-6266 (Jefferson County

1986).

Black Belt Wood Co. v. Sessions 3,500,000

Motor vehicles. Trucking. Motorist killed when log
fell from passing truck and crushed his vehicle. Suit
against owner and loader of logs. (Jefferson County,

12la

1986) Important case of non-apportionment of punitive
damages. Affirmed, 514 So.2d 1249 (Ala. 1987).

Patricia L. Crandall, et al. v. Rudolph B. Williams
3,000,000

Automobile accident. Personal injury and wrongful
death actions arising from automobile accident involving
drunk driver and social host liability. One deal—$500,000,
one general verdict for personal injury, $250,000 includ-
ing punitive damages. (Madison County) Affirmed on
return to remand, 514 So.2d 12 (1987).

Moore v. Alabama Gas Corp. 1,250,000

Landlord liability. Wrongful death from carbon mo-
noxide poisoning in rental unit. CV-86-323-G (Mont-
gomery County, December 5, 1986) Appeal dismissed.

Curry, Estate of v. Alabama Gas, et al. 1,250,000
Wrongful death. CV-86-323-G (Montgomery County,

December 5, 1986).

1985

(Non-Wrongful Death)

Holt v. State Farm Mutual 25,000,000

Insurance. Fraud. Alleged fraudulent suppression of
insured’s right to stack uninsured motorist coverage on a
$10,000 contract claim. Pattern of practice evidence.
CV-82-686 (Clay County, 1985) Settled post-trial.

McMillan v. Massey Ferguson, Inc. et al. 10,000,000

Product liability. Partial leg amputation caused by
grain auger. General verdict of $10.5 million which in-
cluded $584,000 actual damages. CV-82-686 (Mobile
County, 1985). Settled pending appeal.

122a

Pasquale Food Co. v. Shakey’s Inc. 3,000,000

Business tort. Punitive damages for intentional inter-
ference with business relationship and improper acquisi-
tion of trade secrets. C-82-2606 (Jefferson County,
1985).

AmSouth Bank v. Speigner 1,000,000

Lender liability. Wrongful completion, cashing of
$25,000 check. Settled on appeal. (Elmore County,
1985) Affirmed, 505 So.2d 1030 (Ala. 1986).

Mobile Dodge, Inc. v. Alford 125,000

Automobile sales. General verdict of $125,000 includ-
ing punitive damages for fraud by used car dealer. (Mo-
bile County, 1985) Affirmed, 487 So.2d 866 (Ala.
1986).

1985

(Wrongful Death)

May v. Lloyd Noland Foundation 4,000,000

Medical liability. Wrongful death of baby. CV-79-
583 (Jefferson County). Settled post-trial.
Wright v. Superior Gas 3,600,000

Wrongful death. Settled post-trial. CV-84-87 (Macon
County) Appeal dismissed, 482 So.2d 299 (1985).
Hudson v. K&S Industries, Inc. 2,000,000

Wrongful death. CV-84-593 (Montgomery County,
1985).
Treadwell Fund, Inc. v. Campbell 1,000,000

Automobile sale. Misrepresentation involving condi-
tion of used pickup truck which had defect in accelera-

123a

tor, which caused spontaneous acceleration, running over
defendant. (Mobile County, 1985) Affd by Alabama
Supreme Court, 485 So.2d 312 (Ala. 1986). Appeal
dismissed by U.S. Supreme Court, 486 U.S. 1028 (1988).

Alabama Power Co. v. Cantrell 1,000,000

Electric utility. Decedent moving television antenna
which contacted uninsulated power line. (St. Clair
County) Affirmed by Alabama Supreme Court, 507 So.
2d 1295 (Ala. 1986). Appeal dismissed by U.S. Supreme
Court, 486 U.S. 1028 (1988).

Dunaway v. Alabama Power Company 500,000

Premises liability. Action against lessor of marina
where child drowned. CV-84-650-PR (Montgomery
County, December 13, 1985) Reversed, 502 So.2d 726
(Ala. 1987).

1984
(Non-Wrongful Death)

American Pioneer Life Ins. Co. v. Sandlin 3,000,000

Insurance. Agent fraud. Verdict of $3 million puni-
tive damages for fraud involving $100,000 compensatory
damages. (Marion County) Affirmed, 470 So.2d 657
(Ala. 1985).

Alabama Power Co. v. Beam 250,000

Workplace safety. Verdict for failure to provide safe
place to work. Affirmed, 472 So.2d 619 (Ala. 1985).

Cooper Chevrolet, Inc. v. Chambers 150,000

Automobile sale. Intentional fraud in sale of used car.
Verdict of $150,000 punitive damages. Affirmed, 529
So.2d 913 (Ala. 1985).

124a
1984

(Wrongful Death)
General Motors Corp. v. Edwards 4,000,000

Product liability. Crashworthiness claim involving
deaths of two occupants of vehicle struck from behind.
(Jefferson County) Remitted by trial court to $1.4 million
each. Affirmed, 482 So.2d 1176 (Ala. 1985).

Murray Hill, Administrator v. Jack Gilmore et al.
1,250,000

Landlord liability. Estate of tenant who died in apart-
ment fire alleged that apartment contained faulty heater
and no smoke detector. (Mobile County, 1984) Settled
after trial.

1983
(Non-Wrongful Death)
Parsons Steel Industries, Inc. v. First Alabama Bank of
Montgomery 4,000,000

Lender liability. Fraud involving breach of loan com-
mitment. (Montgomery County, February 9. 1983).
Aetna Life Ins. Co. v. Lavoie 3,000,000

Insurance. Bad faith. Refusal to pay $1,650 medical
claim after partial payment. (Mobile County) Affirmed
by Alabama Supreme Court, then vacated on appeal to
U.S. Supreme Court and thereafter remitted to $500,000
by Alabama Supreme Court and affirmed, 505 So.2d
1050 (Ala. 1987).

Langston v. Osborne Truck Lines, Inc. 2,581,000

Motor vehicle. Trucking. Verdict of $2,581,000 puni-
tive plus compensatory damages for injuries suffered in a
traffic accident. ($1,525,000 to one plaintiff); ($1,000,000
to one plaintiff) ; ($56,000 to one plaintiff). Three plain-

125a

tiffs; two severely injured, one suffered minor injuries.
Affirmed, 454 So.2d 1317 (Ala. 1984).

Elting Center Corp. v. Owens Corning Fiberglass
1,557,000

Construction contract. Fraud, breach of express war-
ranty for failure of roof on shopping center. (Lauderdale
County, April 3, 1983).

Nationwide Mut. Ins. Co. v. Clay 1,250,000

Insurance. Bad faith. Insurer’s refusal to pay $40,000
disability claim to lawyer suffering from cataracts. (Mo-
bile County, 1983) Affirmed, 469 So.2d 533 (Ala.
1985); judgment vacated, U.S. (1985); reaffirmed, 525
So.2d 1339 (Ala. 1987) |

1983
(Wrongful Death)

Williams v. Alabama Power Company 3,500,000

Electric utility. Admiralty case involving wrongful
death of both parents of a 9-year old girl. Parents were
killed when sailboat mast contacted overhead power line.
(Mobile County, 1983)

Deaton, Inc. v. Burroughs 835,000

Motor vehicle. Trucking. Wantonness alleged for im-
properly loaded truck resulting in wrongful death. Ver-
dict of $835,000 affirmed, 456 So.2d 771 (Ala. 1984).
1982

(Non-Wrongful Death)

National Sec. Fire & Gas Co. v. Bowen 1,500,000

Insurance. Landmark case. Outrage and malicious
prosecution; verdict of $1,500,000 affirmed where special

126a

damages were about $50,000, 447 So.2d 133 (Ala.
1983).

1982
(Wrongful Death)

Hicks v. Ireland 25,000,000

Medical liability. Alleged improper release of mentally
ill patient who murdered plaintiff's decedent. Remanded
to circuit court for orders in furtherance of settlement,

430 So.2d 438 (1983).
1981
(Wrongful Death)

Drs. Lane, Bryant, et al. v. Otis 5,000,000

Medical liability. Suit against anesthesiologist for death
resulting from complications with anesthesia (anesthetist
failed to diagnose the developing complications). Af-
firmed, 412 So.2d 254 (Ala. 1982).

Estes Health Care Centers Inc. v. Bannerman 500,000

Medical liability. Mentally retarded child died after
complication developed from scalding bath given by
nurse. Affirmed, 411 So.2d 109 (Ala. 1982).

127a
APPENDIX F

SUPREME COURT OF ALABAMA

1931516
Mary HUFF
V.

UNITED INSURANCE COMPANY OF AMERICA, et al.

Appeal from Jefferson Circuit Court
(CV-93-5510)

May 26, 1995, Released

JUDGES: INGRAM, Maddox, Almon, Houston, and
Butts, JJ., concur.
OPINION

INGRAM, JUSTICE.

John McClanahan, an agent of United Insurance Com-
pany of America (“United”), sold a life insurance policy
to John Huff, providing coverage for both John Huff and
his wife, Mary Huff. When Mr. Huff died, United denied
payment of benefits under the policy, because Mr. Huff
had made misstatements about his health on the policy
application. Mrs. Huff sued United and McClanahan, al-
leging fraud, breach of contract, bad faith refusal to
pay, and other claims. The trial court entered a sum-

128a

mary judgment in favor of United and McClanahan on
all claims. Mrs. Huff* appeals from the judgment as to
her claims alleging fraud.

On a motion for summary judgment, the burden is
initially on the movant to make a prima facie showing
that there is no genuine issue of material fact (i.e., that
there is no dispute as to any material fact), and that the
movant is entitled to a judgment as a matter of law.
Rule 56, Ala.R.Civ.P.; McClendon v. Mountain Top
Indoor Flea Market, Inc., 601 So. 2d 957 (Ala. 1992);
Elgin v. Alfa Corp., 598 So. 2d 807 (Ala. 1992). “The
burden does not shift to the opposing party to establish a
genuine issue of material fact until the moving party has
made a prima facie showing that there is no such issue
of material fact.” McClendon, at 958; Elgin, at 810-11.

Rule 56 must be read in conjunction with the “substan-
tial evidence rule,” § 12-21-12, Ala. Code 1975, for ac-
tions filed after June 11, 1987. See Bass v. SouthTrust
Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.
1989). In order to defeat a defendant’s properly sup-
ported motion for summary judgment, the plaintiff must
present substantial evidence, i.e., “evidence of such weight
and quality that fair-minded persons in the exercise of
impartial judgment can reasonably infer the existence of
the fact sought to be proved.” West v. Founders Life
Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.
1989). This Court reviews the record in a light most
favorable to the nonmovant and must resolve all reason-
able doubts against the movant. Wilma Corp. v. Flem-
ing Foods of Alabama, Inc., 613 So. 2d 359 (Ala.
1993).

In early 1993, McClanahan made several visits to Mr.
and Mrs. Huff’s home for the purpose of selling a United
life insurance policy. According to Mrs. Huff, McClana-

1 Pursuant to Ala. R. App. P., Rule 43(a), Mrs. Huff’s attorney
has informed the Court that she has died during the pendency of
this appeal.

129a

han’s sole communication with her about the policy was
to speak with her about the cost of potential premiums
on the policy; she said McClanahan gave her no other
information. At that time, Mrs. Huff, apparently speak-
ing for both herself and Mr. Huff, told McClanahan that
they were not interested in purchasing the policy. How-
ever, Mr. Huff later, without Mrs. Huff's knowledge,
bought a policy from McClanahan providing life insur-
ance coverage for both himself and Mrs. Huff. The policy
application contained questions concerning both his and
Mrs. Huff’s health. No health problems for either were
indicated on the completed application. However, Mr.
Huff had previously been treated for heart problems, —
while Mrs. Huff had suffered from diabetes and its com-
plications, including blindness. The application appeared
to be signed by both Mr. and Mrs. Huff. Mrs. Huff de-
nies that she signed the application; however, she also
states that she had authorized Mr. Huff to sign her
name for her in the past, because of her blindness. Con-
cerning her knowledge of the circumstances surrounding
the purchase of the policy, Mrs. Huff responded as
follows:

“Q. ... Do you remember any application for
life insurance with United?
“A. No.

“Q. So there is no way for you to tell us what
your husband might have told Mr. McClanahan?

“A. No.

“Q. And there’s no way for you to tell us what
Mr. McClanahan might have told your husband?

“A. No.

“Q. And you didn’t tell Mr. McClanahan any-
thing, did you?

“A. I did not.

“Q. And he didn’t tell you anything?

“A. No. He just explained to me about the pre-
mium of the insurance.

130a

“Q. But that was sometime before when you told
him that you didn’t want any insurance, is that
right?

“A. Right.

“Q. So, Mr. McClanahan never did tell you any-
thing about this policy, which was actually issued,
did he?

“A. No.

“és

“Q. [McClanahan] didn’t tell you anything about
this policy that was issued that was untrue, did he?

“A. No.

“Q. He just didn’t tell you anything one way or
another, right?

“A. No. That’s right, yes.”

Shortly after United issued the policy, Mr. Huff died
of a heart attack. Mrs. Huff learned of the policy after
his death, and she submitted a claim for the policy’s
death benefit. Upon investigating Mr. Huffs medical
history, United discovered his medical records indicating
cardiovascular disease and refused to pay the death bene-
fit. Mrs. Huff then filed this action.

A prima facie fraud claim has at its heart a misrep-
resentation concerning a material fact, either by an af-
firmative statement or act, or by a concealment or sup-
pression. Reynolds v. Mitchell, 529 So. 2d 227 (Ala.
1988); Cowen v. M.S. Enterprises, 642 So. 2d 453 (Ala.
1994). The fraud claims asserted here are based only
upon an alleged fraud directed towards Mrs. Huff. Con-
sequently, an alleged misrepresentation must have been
made to, and relied upon by, Mrs. Huff, or else facts
must have been concealed from her that United and
McClanahan had a duty to disclose. North Carolina Mut.
Life Ins. Co. v. Holley, 533 So. 2d 497 (Ala. 1987);
Crowder v. Memory Hill Gardens, Inc., 516 So. 2d 602
(Ala. 1987).

13la

This fact situation illustrates an all-too-common situa-
tion for Alabamians in life insurance transactions. United
issued the policy without investigating the applicants’
health. As the law in Alabama currently stands, an in-
surance company may issue a life insurance policy with
its knowledge of its applicant’s health coming solely from
its agent’s questioning of the applicant about his or her
health history. The benefits from this type of transaction
lie solely in favor of the insurance company and its agent.
The insurance company receives premiums month after
month, while the agent retains a commission from the
sale. But when the insured dies, the insurance company
refuses to pay the benefits provided by the policy. Its
refusal is based upon its discovery, for the first time, that
the insured’s health was poor. When the policy is sold,
an agent is not required to delve thoroughly into the ap-
plicant’s background for the details of his health history.
Such a requirement could prevent situations like the one
in this case.

In Miller v. Dobbs Mobile Bay, Inc., [Ms. 1921552,
February 25, 1995] So. 2d (Ala. 1995), this Court held
that an insurance company was bound by the actions of
its agent, when the agent knew of the applicant’s adverse
health history and yet sold the policy without regard to
that knowledge. As was adeptly stated by the Mississippi
Supreme Court in Southern United Life Ins. Co. v. Caves,
481 So. 2d 764, 768 (Miss. 1985), an insurance com-
pany “manifests an intention to ‘insure the world’ ” when,
with no effort to establish guidelines for its agents, it
merely relies on its agents’ judgment to ascertain the
health of applicants when deciding whether to issue a
policy. There was no evidence that McClanahan specifi-
cally knew of Mr. Huff’s poor health when he sold him
the policy. However, had United been required to investi-
gate Mr. Huff’s medical history before issuing the policy,
it most likely would not have issued it, and this lawsuit
provably would not have been filed. Undoubtedly, it
would be in the interests of the insurer, the applicant,

132a

and judicial economy for the insurer to investigate the
applicant’s health history before issuing a policy. Appar-
ently, though, until that is required, the sale of this type
of life insurance policy with no serious attempt to de-
termine the applicant’s true health history will continue,
to the frustration of “beneficiaries” of the deceased.

Nonethless, after reviewing the record, we must con-
clude that the trial court properly entered the summary
judgment for United and McClanahan. Mrs. Huff pre-
sented no substantial evidence that United or McClana-
han made any misrepresentation to her regarding the in-
surance policy. As noted above, she stated that she did
not learn that Mr. Huff had purchased the policy until
after his death. Mrs. Huff’s own testimony, quoted above,
indicates that no representations were made to her about
the United policy except those concerning the policy pre-
miums, which are not at issue. Furthermore, she pre-
sented no substantial evidence that United and McClana-
han fraudulently suppressed any material facts. The mere
fact that Mrs. Huff was unaware that her husband had
purchased life insurance, without more, would not support
a finding of fraudulent suppression. We further note that
United refused to pay the death benefit solely because of
the falsity of Mr. Huff’s statements about his health on
the application. Those statements on the application con-
cerning Mrs. Huff’s health were not involved in United’s
decision to deny payment. Although Mrs. Huff contends
that her signature was forged on the application, she
failed to show, even if the signature was forged, how she
was proximately damaged by the fact that her name was
signed on the application. Her name on the application
was entirely unrelated to United’s refusal to pay on Mr.
Huff's policy.

Bare argument or conjecture does not satisfy the non-
moving party’s burden to offer substantial evidence to
defeat a properly supported summary judgment motion.
Riggs v. Bell, 564 So. 2d 882, 884 (Ala. 1990). Mrs.

133a

Huff presented no substantial evidence to rebut United
and McClanahan’s prima facie showing that no genuine
issue of material fact existed as to her fraud claims.
Therefore, we must affirm the judgment of the trial court.

AFFIRMED.

Maddox, Almon, Houston, and Butts, JJ., concur.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2066%3A1. Public record. Not legal advice.