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EX PARTE GAUNTT2/9/1996
On Application for Rehearing
The opinion issued on July 14, 1995, is withdrawn and the following opinion is substituted therefor.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 § 6-3-7, Ala. Code 1975, and Ex parte Macon County Greyhound Park, Inc., 634 So.2d 997 (Ala. 1993) (venue proper in county where alleged wrongful act occurred, not where resulting nonbodily injuries occurred). In the alternative, the defendants moved for a transfer pursuant to the doctrine of forum non conveniens as codified at Ala. Code 1975, § 6-3-21.1.
The plaintiffs argued that the clause in § 6-3-5 providing that "an action against a foreign insurance corporation shall be commenced only in a county where it does business" makes venue proper in Macon County, where United, a foreign corporation, does
business. The trial judge concluded that § 6-3-5 did not establish proper venue in Macon County, and he transferred the cases. His transfer order, dated December 22, 1994, reads as follows:
"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)
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