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Ex parte Safeway Ins. Co. of Alabama v. Safeway Insurance Company of Alabama, Inc.

Supreme Court of Alabama

October 4, 2013

Ex parte Safeway Insurance Company of Alabama, Inc. In re: Richard Thomas Kimbrough
v.
Safeway Insurance Company of Alabama, Inc.

Released December 13, 2013 as modified on denial of rehearing.

PETITION FOR WRIT OF MANDAMUS. (Jackson Circuit Court, CV-12-900023).

PETITION DENIED.

For Petitioner: Robert R. Kracke, Clifton S. Price II, Kracke & Price, Leeds.

Brief in support of the Petitioner's application for rehearing filed by Joseph L. Cowan II, Mark J. Hart, John E. Rollins, Hand Arendall, LLC, Birmingham.

For Respondent: J. Barton Warren, Warren & Simpson, P.C., Huntsville.

Amicus Curiae Allstate Insurance Company, in support of the Petitioner's application for rehearing: De Marteson, Walter J. Price III, David M. Fleming, Huie, Fernambucq & Steward, LLP, Birmingham.

MOORE, Chief Justice. Parker, Murdock, Main, Wise, and Bryan, JJ., concur. Stuart, Bolin, and Shaw, JJ., dissent.

OPINION

Page 40

MOORE, Chief Justice.

Safeway Insurance Company of Alabama, Inc. (" Safeway" ), petitions this Court for a writ of mandamus directing the Jackson Circuit Court to grant Safeway's Rule 12(b)(1), Ala. R. Civ. P., motion to dismiss a bad-faith claim against it for lack of subject-matter jurisdiction. For reasons explained below, we deny the petition.

I. Facts and Procedural History

Richard Thomas Kimbrough alleges that, on November 19, 2011, a deer ran across Jackson County Road 33, causing a truck in the southbound lane to swerve into the northbound lane, where Kimbrough was driving. According to Kimbrough, the truck struck his vehicle and ran him off the road and into a creek bed. The driver of the truck allegedly fled and remains unknown.

As a result of the accident, Kimbrough broke his right femur, right hand, and nose. As part of his medical treatment, screws were inserted into his leg, and he required plastic surgery to his face. His medical expenses totaled $96,947.70.

At the time of the accident, Kimbrough held an insurance policy with Safeway that included uninsured-motorist benefits of $25,000 per vehicle or a stacked policy limit of $50,000 per occurrence. Kimbrough submitted a claim to Safeway for uninsured-motorist coverage, alleging that the driver of the " phantom vehicle" [1] was an uninsured motorist. He sought the full policy limit of $50,000 because his expenses ($96,947.70) exceeded his coverage. The parties dispute whether Safeway denied the claim.

On February 6, 2012, Kimbrough sued Safeway, asserting claims of breach of contract and bad faith, alleging that Safeway, without lawful justification, had intentionally refused to pay Kimbrough's claim. On June 7, 2012, Safeway moved to dismiss the case for lack of subject-matter jurisdiction, arguing that a claim for uninsured-motorist benefits is not ripe for adjudication until liability ...


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