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SUPREME COURT OF ALABAMA

OCTOBER TERM, 2007-2008

1060310


Ex parte A & B Transport, Inc., and James Allemang
PETITION FOR WRIT OF MANDAMUS
(In re: Henry Graben, individually and as personal

representative of the estate of Una J. Graben, deceased
v.
A & B Transport, Inc., and James Allemang)
(Calhoun Circuit Court, CV-01-804)

MURDOCK, Justice.

A & B Transport, Inc., a Louisiana corporation, and
James Allemang petition this Court for a writ of mandamus

directing the Calhoun Circuit Court to vacate its order
granting relief pursuant to Rule 60(b)(6), Ala. R. Civ. P.,
and to enter an order denying such relief. We grant the
petition and issue the writ.

In November 1999, a vehicle occupied by Henry Graben and
his wife, Una J. Graben, collided with a tractor-trailer rig
operated by Allemang, an employee of A & B. Una died as a
result of the collision; Henry was injured. In November 2000,
Henry, both in his individual capacity and in his capacity as
the personal representative of Una's estate, filed an action
in the Calhoun Circuit Court against A & B and Allemang based
on the alleged wrongful death of Una and his personal
injuries.

A & B and Allemang were insured by Legion Insurance
Company, which was placed in receivership in Pennsylvania in
April 2002.1 In October 2002, on the date scheduled for the

1The April 2002 order that placed Legion in receivership
appointed the insurance commissioner of Pennsylvania as
Legion's "Rehabilitator," and it directed the Rehabilitator
"to take immediate possession of [Legion's] property, business
and affairs ... and to take such action as the nature of this
case and the interests of the policyholders, creditors, or the
public may require." The order also states, in part:

"No judgment, order or arbitration award against

Legion or an insured of Legion entered after the

trial of Henry's action, Henry, A & B, and Allemang entered
into a settlement agreement on the record. The transcript of
the settlement-agreement colloquy reflects that a judgment
would be entered against A & B and Allemang for $750,000, but
that "[e]nforcement of the judgment [would] be limited
specifically to the insurance carriers that could have
applicable coverage and/or the guarantee funds that may have
applicable coverage." The coverage limits under Legion's
insurance policies insuring A & B and Allemang exceeded the
amount of the judgment. The transcript of the settlement

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