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RENDERED: OCTOBER 20, 2005 T
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2005-SC-000193-MR LD~Ay[pN
THE INDEPENDENT ORDER OF FORESTERS APPELLANT
APPEAL FROM COURT OFAPPEALS
V. 2004-CA-002682
JEFFERSON CIRCUIT COURT
NO. 01-CI-06761

HON. MCKAY CHAUVIN, JUDGE, JEFFERSON CIRCUIT COURT APPELLEE AND FOREST RICHARD POPE REAL PARTY IN INTEREST
OPINION OF THE COURT BY JUSTICE ROACH AFFIRMING In an original action in the Court of Appeals, Appellant, the Independent Order of
Foresters ("Foresters"), sought a writ of prohibition against the circuit court on the grounds that Forest Richard Pope's claims were barred by res iudicata. The Court of Appeals denied the petition, finding that Foresters had failed to carry its burden of proof. On appeal, Foresters repeats its claim that Pope's cause of action is barred by res judicata. Because Foresters has failed to show that its claim is such that the
extraordinary remedy of writ is even available, we affirm the Court ofAppeals.
I . FACTUAL BACKGROUND
Foresters is a fraternal benefit society that sells life and health insurance to its members. In 1989, Forest Richard Pope purchased a universal life insurance policy
from Foresters. The insurance policy included a child term rider that would pay the policyholder $10,000 upon the death of the covered child. Pope's daughter was the covered child under his policy. She died in 2000 at the age of 26. Pope filed a claim under the child term rider later that year, and Foresters denied it as not being in effect at the time of the daughter's death.
In 2001, Forest Richard Pope sued Foresters in the Jefferson Circuit Court over the child term rider of his insurance policy. Specifically, Pope alleged that he had purchased the child term rider and paid its annual premiums with the understanding that it would be effective until he turned 65.' This belief was based on the fact that the annual billing statements Pope received from Foresters listed February 2, 2009 (when Pope will be 65) as the termination date of the child term rider.
Foresters, however, claimed that coverage under the child term rider terminated at the earlier of the policyholder turning 65 or the policyholder's child turning 25. Foresters's interpretation was based on the following language in the rider: "[A] child will cease to be an Insured Child on the earlier ofthe child's 25th birthday or the anniversary of the date of issue of the certificate nearest the member's 65th birthday ." Foresters claims that coverage lapsed when Pope's daughter turned 25 on July 3, 1998. However, Foresters continued to bill Pope and he continued to pay for the child term rider after his daughter turned 25.
Pope discovered the difference between his interpretation and Foresters's only when Foresters refused to pay the claim he filed in 2000. Foresters also refused to
The allegations are taken from Pope's Second Amended Complaint. Because the litigation leading to the filing of the Second Amended Complaint was lengthy and complex, we will discuss it only when necessary to understand the current issues.
repay the premiums that Pope had paid after his daughter turned 25. Based on these facts, Pope alleged in his complaint that Foresters had engaged in the practice of charging premiums when it knew or should have known that no benefit would inure to policyholders because their insured children had reached the age of 25. His complaint specifically claimed breach of contract, rescission, unjust enrichment, and negligent misrepresentation. He also sought to have the case certified as a class action, claiming that thousands of other people were similarly situated.
The insurance policy on which Pope based his lawsuit had previously been the subject of a nationwide class action lawsuit. That suit, which focused on Foresters's sales practices, was settled, and the Federal District Court for the District of New Jersey entered a Final Order and Judgment. See Roy v. Independent Order of Foresters, No. 97-CV-6225 (JCL), Final Order and Judgment (D.N.J. Aug. 3, 1999) [hereinafter Final Order and Judgment].
Foresters moved the trial court to dismiss Pope's claim as barred by resjudicata because issues related to the child term rider, as part of the insurance policy in Roy, had already been decided by the Roy settlement. Foresters cited specifically to language in the Final Order and Judgment that gives it preclusive, res 'tudicata effect over future claims based on the conduct involved in the Roy lawsuit. The trial court denied Foresters's motion, refusing to give the Roy Final Judgment and Order res 'udicata effect on Pope's claims. Specifically, the trial court held that Pope's current claims were distinct from those covered by the Final Order and Judgment because the Roy litigation "involved a point-of-sale fraud," whereas Pope's claims were based on allegations of "fraud . . . after the purchase of the policy."
Rather than proceeding with discovery regarding Pope's claims, Foresters
initiated an original action in the Court of Appeals by filing a petition for a writ of prohibition against the trial court on the alternative grounds that the circuit court was proceeding without jurisdiction or that Foresters would suffer great injustice and irreparable injury. Both grounds were based on Foresters's assertion that Pope's underlying cause of action was barred by res judicata. The Court of Appeals denied the petition, noting simply the following :
The argument that Foresters makes in this original action fails to satisfy this Court that the respondent trial court is proceeding without jurisdiction. Further, in order to show entitlement to a review of the merits of its alternate argument, Foresters was required to demonstrate the . . . prerequisites of lack of an adequate remedy by appeal or otherwise and great injustice and irreparable injury. It is clear to the Court that Foresters did not carry that burden.
Foresters now appeals to this Court as a matter of right. See Ky. Const.

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