Released for Publication June 10, 2015.
Marshall Circuit Court, CV-12-000072. F. Timothy Riley, Trial Judge.
PETITION GRANTED; WRIT ISSUED.
For Petitioner: C. Peter Bolvig of Hall, Conerly & Bolvig, PC, Birmingham.
For Respondent: Robert W. Hanson, Albertville.
BRYAN, Justice. Stuart, Bolin, Parker, Murdock, Shaw, Main, and Wise, JJ., concur. Moore, C.J., dissents.
PETITION FOR WRIT OF MANDAMUS
Electric Insurance Company (" Electric" ) petitions this Court for a writ of mandamus directing the Marshall Circuit Court to allow Electric, an uninsured-motorist insurer, to " opt out" of the trial of the underlying case. The issue presented by this petition is whether Electric asserted its right to opt out within a reasonable time. We conclude that it did; thus, we grant the petition and issue the writ.
The facts giving rise to this action are as follows. An automobile being driven by Paul Nelson Bolt was involved in an accident with an automobile being driven by John Christopher Wilson, an uninsured motorist. On April 4, 2012, Bolt sued Wilson and Electric, Bolt's uninsured-motorist insurer, alleging that he had sustained various injuries in the accident and that the accident was caused by Wilson's negligence and wantonness. On May 17, 2012, Electric answered the complaint and served Bolt with interrogatories and a request for production. On July 6, 2012,
Bolt responded to the discovery requests. Electric deposed Bolt on September 26, 2012. In the latter part of 2013 and early 2014, Bolt deposed four physicians who had treated him following the accident. Those depositions were taken on October 7, 2013, October 17, 2013, November 7, 2013, and January 17, 2014.
On December 3, 2013, the trial court ordered the parties to submit a proposed scheduling order, which they did. On February 4, 2014, the trial court adopted the scheduling order submitted by the parties. The scheduling order provided that the last day for Electric to amend its answer would be March 15, 2014, that discovery would be completed no later than March 28, 2014, and that the trial would be held on May 12, 2014.
On March 14, 2014 -- one day before the last day Electric could have freely amended its answer -- Electric filed a motion seeking to opt out of the trial under Lowe v. Nationwide Insurance Co.,521 So.2d 1309 (Ala. 1988). Bolt objected to Electric's attempt to opt out. Following a hearing, the trial court denied Electric's motion, without stating a reason. Electric then petitioned this Court for a writ of mandamus directing the trial court to allow ...