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Ex parte Progressive Direct Ins. Co.

Supreme Court of Alabama

December 5, 2014

Ex parte Progressive Direct Insurance Company; (In re: Ira Sentell Robinson
v.
Amber Nykole Clayton and Progressive Direct Insurance Company)

(Wilcox Circuit Court, CV-12-900032).

MOTION TO DISMISS DENIED; PETITION GRANTED; WRIT ISSUED.

For Petitioner: Paul A. Miller, Cindy Self Webb, Miller, Christie & Kinney, PC, Birmingham.

For Respondent: William W. Watts III, Pipes, Hudson & Watts, LLP, Mobile; Frederick P. Gilmore, Gilmore Law Firm, Mobile.

BOLIN, Justice. Stuart, Parker, Shaw, Main, Wise, and Bryan, JJ., concur.

Page 1031

PETITION FOR WRIT Of MANDAMUS

BOLIN, Justice.

Progressive Direct Insurance Company (" Progressive" ) petitions this Court for a writ of mandamus directing the Wilcox Circuit Court to vacate its order dated March 25, 2014, denying Progressive's motion to transfer this action from the Wilcox Circuit Court to the Tuscaloosa Circuit Court and to enter an order granting the motion. We grant the petition and issue the writ.

Page 1032

I. Facts and Procedural History

The underlying action arises out of a motor-vehicle accident that occurred in Tuscaloosa County on November 11, 2010, between an automobile driven by Ira Sentell Robinson and an automobile driven by Amber Nykole Clayton. On July 5, 2012, Robinson filed a complaint in the Wilcox Circuit Court against Clayton, a resident of Tuscaloosa,[1] and Progressive, a foreign corporation doing business in both Tuscaloosa and Wilcox Counties. In his complaint Robinson alleged that he was a resident of Wilcox County and that he had suffered injuries as a result of the negligent and/or wanton conduct of Clayton when the vehicle she was driving collided with the vehicle he was driving. Additionally, Robinson alleged that at the time of the accident he had a policy of insurance with Progressive, which included uninsured/underinsured-motorist coverage.

On August 8, 2012, Progressive filed a motion to transfer the action to Tuscaloosa County, alleging that venue in Wilcox County was improper because, it claimed, the accident occurred in Tuscaloosa County and both Robinson and Clayton resided in Tuscaloosa County at the time of the accident. Alternatively, Progressive claimed that the action was due to be transferred to Tuscaloosa County on the ground of the doctrine of forum non conveniens, as that doctrine is codified at Ala. Code 1975, § 6-3-21.1. In support of its motion to transfer, Progressive attached a copy of the complaint stating that Robinson resided in Wilcox County and a copy of the Alabama Uniform Traffic Crash Report, which listed Robinson's address as 1800 Links Boulevard in Tuscaloosa.

On May 9, 2013, the trial court entered an order denying the motion for a change of venue without prejudice. Progressive asserts that the trial judge " informed counsel for Progressive verbally he could conduct some additional discovery, namely regarding the residence of Robinson, and renew his motion on behalf of Progressive at a later date, if necessary." (Petition, p. 8.) Robinson does not dispute Progressive's assertion in this regard. On March 19, 2014, Progressive filed a renewed motion to transfer the case to Tuscaloosa County, reasserting that venue was improper in Wilcox County. On March 25, 2014, the trial court entered an order denying Progressive's renewed motion to transfer the case.

On April 3, 2014, Progressive petitioned this Court for a writ of mandamus directing the Wilcox Circuit Court to vacate its March 25, 2014, order denying Progressive's motion to transfer this action to Tuscaloosa County and to enter an order transferring the action to Tuscaloosa County. Robinson filed a motion to dismiss Progressive's petition for a writ of mandamus, along with a brief in support thereof, arguing that Progressive's petition is untimely pursuant to Rule 21(a)(3), Ala. R. App. P., because, he says, the petition was not filed within 42 days of the May 9, 2013, order denying the first motion for a change of venue. Specifically, Robinson asserts that Progressive did not ask the trial court to reconsider the denial of the its May 9, 2013, order; that the mandamus petition does not include a statement of circumstances constituting good cause for this Court's review given the untimeliness of the petition; and that the renewed motion for a change of venue alleges no new arguments, grounds, or other evidence other

Page 1033

than the fact that Robinson has since moved to Shelby County, Alabama, subsequent to filing his complaint. It is noted that in Ex parte Jones, 147 So.3d 415 (Ala. 2013), the petitioner moved unsuccessfully for a summary judgment on grounds of immunity; this Court denied his petition for a writ of mandamus as untimely pursuant to Rule 21(a)(3), Ala. R. App. P. The petitioner unsuccessfully filed a " renewed" motion for a summary judgment asserting no new grounds, argument, evidence, or change in the applicable law. The petitioner then filed a subsequent petition for a writ of mandamus with this Court. We denied the second petition, concluding that to allow the petitioner to petition this Court for a writ of mandamus would in essence grant the petitioner a second bite at appellate review because this Court had already determined that the previously filed mandamus petition challenging the denial of his first summary-judgment motion was untimely and that to allow the second petition would undermine the spirit and purpose of Rule 21(a)(3) and render that rule meaningless. In this case, however, Progressive is not seeking a second bite at appellate review because Progressive did not appeal the May 9, 2013, order. Instead, Progressive represents that the trial judge orally allowed it the option to renew its motion to transfer after conducting additional discovery relating to where Robinson resided at the time of ...


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