CIVIL PROCEDURE:  Jurisdiction
05/18/2012, Wilcox County, AL
Attenta, Inc. v. Calhoun

Robert Calhoun, Jr., the husband of Lulu Calhoun, was fatally injured while employed by Linden Lumber Company, Inc. (“Linden”). Calhoun filed a complaint against Linden in the Marengo Circuit Court seeking workers’ compensation benefits (“the Marengo County action”). The litigation continued and after an apparent settlement was reached, Linden’s insurer, Attenta, Inc., discontinued monthly payments to Calhoun on the theory that settlements had been reached extinguishing Linden’s liability to Calhoun. Calhoun then filed suit against Linden and Attenta in Wilcox County (“the Wilcox County action”), alleging the tort of outrage, fraud, and conspiracy.  The defendants unsuccessfully moved to dismiss the Wilcox Co. action based on, among other things, lack of subject matter jurisdiction. The case was tried to a jury solely on the tort of outrage claim against Attenta, and the jury awarded Calhoun $3,695,298. Attenta appealed. Judgment vacated; appeal dismissed. The Court explained that the Marengo Co. action was still pending when the Wilcox Co. action was commenced. The absence of a Rule 54(b) certification of the order on Calhoun’s claim rendered it interlocutory and subject to modification any time before the entry of a final judgment. ArvinMeritor, Inc. v. Handley, 12 So.3d 669 (Ala. Civ. App. 2007).  The Court pointed out that Calhoun’s right to continued workers’ compensation payments awarded in the Marengo County action was the threshold issue in the Wilcox Co. action and was inextricably intertwined with the subrogation aspect of the Marengo Co. order. Moreover, the Court noted the well settled rule that where two courts have concurrent jurisdiction, the first to take cognizance of a cause of action has exclusive jurisdiction. Grimes v. Liberty Nat’l Life Ins. Co., 726 So.2d 615 (Ala. 1998