In AFLAC v. Ellison the Mississippi Supreme Court reversed the Circuit Court of Smith County and ordered venue transferred from Smith County to Rankin County. Justice Dickinson wrote for the majority, joined by Justices Waller, Carlson, Lamar and Pierce. The Court analyzed the case under Miss. Code Ann. 11-11-3. The majority’s decision turned on the following passage:
It is undisputed that the Atkinsons (who are defendants) reside in Rankin County, and that AFLAC’s principal place of business is outside Mississippi. Thus, pursuant to the plain language of the statute, the action must be commenced in Rankin County, unless Ellison can show that a “substantial act or omission” or a “substantial event causing the injury” occurred in Smith County. However, in searching the record for activity which occurred in Smith County, we find only that Ellison was in Smith County when he was informed of the denial of insurance benefits.
The plaintiff being in Smith County when he got the bad news wasn’t enough. AFLAC is doing cart-wheels all the way to Brandon.
Justice Graves wrote an interesting concurrence stating that the doctrine of stare decisis required the Court to transfer the case to Rankin County. Justice Graves reached his decision despite the fact that he believed that the two cases that set the precedent were wrongly decided.
Justice Randolph dissented along with Justices Kitchens and Chandler. The dissent argued that the in-state defendants waived the venue issue by not asserting it as an affirmative defense. AFLAC, as the out-of-state defendant, lacked standing to assert improper venue because the defense belonged to the in-state defendants and not AFLAC.
I’m going to have to go with Justice Graves on this one. Why reinvent the wheel when there are two prior decisions that mandate reversal?
I don’t like the dissent’s position. If it were the law it would lead to venue shopping. Plaintiffs would cut side deals with in-state defendants to not assert improper venue. This would be especially prone to happen in insurance cases where the agent-company relationship is not always cozy. This would put the AFLAC’s of the world shut out of federal court, stuck in the plaintiff’s home county and side ways with a co-defendant.
Is it just me, or have Randolph and Dickinson been disagreeing a lot lately?