Hartford Fire Insurance Co. v. Epting12/20/2002
AFFIRMED; NO OPINION.
See Rule 53(a)(1), (a)(2)(E), and (a)(2)(F), Ala. R. App. P.; § 6-6-370, Ala. Code 1975; and Southern Guar. Ins. Co. v. Jones, 279 Ala. 577, 188 So. 2d 537 (1966).
Moore, C.J., and Houston, Lyons, Brown, Johnstone, Harwood, and Woodall, JJ., concur.
See, J., dissents.
SEE, Justice (dissenting).
I respectfully dissent from the majority's affirmance of the trial court's judgment against the Hartford Fire Insurance Company ("Hartford") in this garnishment action. The trial court entered its judgment, in part, because it found that a garnishment proceeding is an ancillary proceeding to an underlying action. While a garnishment proceeding is an ancillary proceeding as to the parties to the underlying action, Hartford was not a party to the underlying action; therefore, Hartford correctly argues that any garnishment proceeding involving it constituted a new action as to Hartford, and was therefore barred under § 6-5-440, Ala. Code 1975, by Hartford's federal action for declaratory relief, which was pending when the garnishment proceeding was filed.
Mary K. Epting and Mary G. Slye brought a garnishment action to collect the proceeds of an insurance policy issued to Abacus Software Group, Inc., in satisfaction of a judgment entered against Sankaran Balasubramawium ("Bala"), a former Abacus employee. The trial court entered a summary judgment for Epting and Slye, and Hartford appeals.
Hartford provided business automobile insurance to Abacus. Abacus is an information technology company that provides technical staff to support software projects at client companies. Abacus works closely with a sister company, Sierra Systems Asia Pvt. Ltd., to recruit software analysts in India to fill positions with Abacus clients across the United States. Abacus assigned Bala, a citizen of India, to work on a software project at the CIBA Specialty Chemicals plant in McIntosh, Alabama.
While working at CIBA, Bala lived at the Warren Inn apartments in Mobile and drove an automobile he rented from Alamo Rent-A-Car. On February 17, 1998, Bala was driving south on Schillingers Road in Mobile. He turned left onto Thomas Drive, but failed to clear the oncoming northbound traffic lane before Epting's car crashed into his. Both Epting and her passenger, Slye, were injured in the accident. Abacus promptly notified its insurance agent of Bala's wreck, and the agent notified Hartford on February 24, 1998.
Three days after the wreck, Bala completed his work on the CIBA project and moved to an assignment in Cedar Rapids, Iowa. He subsequently moved from Iowa to Cleveland, Ohio, and then to Colorado. In December 1998, Abacus informed Bala that it no longer had any work for him in this country and suggested that he might want to return to India .
On May 25, 1999, Epting and Slye sued Abacus and Bala, as an Abacus employee, alleging negligence. Epting and Slye were unable to serve Bala in Mobile, and on October 1, 1999, the trial court denied their motion to serve Bala by publication. Epting and Slye served him in this action on December 18, 1999.
Shortly after the accident, a claims adjuster from Hartford's New England office spoke with Bala about the incident. After that conversation, Hartford paid Alamo $2,700 to settle Alamo's claim against Bala for damage to the rental car. Hartford then transferred the accident file to its Florida office, where a different Hartford claims adjustor took over management of the claim. On July 17, 1998, the adjuster took a tape-recorded statement over the telephone from Bala, in Cleveland, Ohio, but made no further attempts to contact Bala until aft
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