Government Employees Insurance Co v. Stiles , 571 So. 2d 1069 ( 1990 )

ON APPLICATION FOR REHEARING

SHORES, Justice.

This Court’s opinion of September 28, 1990, is withdrawn and the following is substituted therefor:

The factual background and the proceedings in the trial court out of which this petition for writ of mandamus arose are set out in Justice Maddox’s dissenting opinion. Although we agree with Justice Maddox that the trial court erred in dismissing the claim of Blue Cross and Blue Shield of Alabama and erred in its determination that 29 U.S.C. § 1132(a)(3)(B)(ii) places in the federal district court exclusive jurisdiction to determine that claim, the judgment of dismissal was not challenged in this Court. Despite its representations to the contrary, Blue Cross did not file a counter-petition for writ of mandamus in this Court. Therefore, the only issue before us is whether the petitioners are entitled to the relief prayed for, viz., an order directing the trial court to release the withheld funds. We hold that they are, and we issue the writ of mandamus.

The petition for writ of mandamus is granted because the order dismissing Blue Cross’s claim was not challenged. That claim is now pending in the United States District Court for the Northern District of Alabama for appropriate disposition.

ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; WRIT GRANTED.

HORNSBY, C.J., and JONES, ADAMS and HOUSTON, JJ., concur. MADDOX and STEAGALL, JJ., dissent.