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Ex parte Alfa Mutual General Insurance Co.

Supreme Court of Alabama

June 26, 2015

Ex parte Alfa Mutual General Insurance Company PETITION FOR WRIT OF MANDAMUS (In re: Mark D. Trotter
v.
Alfa Mutual General Insurance Company)

Mobile Circuit Court, CV-14-902840

SHAW, Justice.

Alfa Mutual General Insurance Company ("Alfa") petitions this Court for a writ of mandamus directing the Mobile Circuit Court to grant its motion seeking to realign the parties to the underlying litigation so that Alfa may "opt out" of participation in the trial. We grant the petition and issue the writ.

Facts and Procedural History

In October 2012, the respondent, Mark D. Trotter, was injured when a "road sweeper" he was operating was struck by a vehicle being operated by Daniel Elijah Davis, an uninsured motorist. In October 2014, Trotter sued Alfa in the Mobile Circuit Court seeking to recover uninsured/underinsured-motorist ("UIM") benefits pursuant to a policy of insurance issued by Alfa to Trotter, which was in place at the time of the 2012 accident. Trotter did not include Davis as a codefendant in his action against Alfa.

Alfa subsequently filed a third-party complaint adding Davis as a third-party defendant. More particularly, Alfa's third-party complaint alleged that, to the extent it was determined to be liable to Trotter for UIM benefits, then Alfa was subrogated to and entitled to recover the amount of that liability from Davis. Thereafter, Alfa filed a "Motion to Realign Parties, " which stated, in part:

"Pursuant to the principles set out in the case of Lowe v. Nationwide Insurance Company, 521 So.2d 1309 (Ala. [1988]), Defendant Alfa Mutual General Insurance Company would move the Court to realign the parties so that Daniel Elijah Davis is a Defendant and to allow the Defendant Alfa Mutual General Insurance Company to opt out of the litigation."

Without explaining the findings on which its decision was based, the trial court denied Alfa's motion. In response, Alfa filed this petition for a writ of mandamus.

Standard of Review

"A writ of mandamus is an extraordinary remedy, and is appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court."

Ex parte BOC Grp., Inc., 823 So.2d 1270, 1272 (Ala. 2001). "A petition for a writ of mandamus is the appropriate means for challenging a trial court's refusal to grant a UIM carrier the right to opt out of litigation pursuant to Lowe [v. Nationwide Insurance Co., 521 So.2d 1309 (Ala. 1988)]." Ex parte Geico Cas. Co., 58 So.3d 741, 743 (Ala. 2010).

Discussion

Alfa, citing Lowe v. Nationwide Insurance Co., 521 So.2d 1309 (Ala. 1988), maintains that an insurer that is named as a party to litigation against a UIM motorist "[has] the right, within a reasonable time ..., to elect either to participate in the trial (in which case its identity and the reason for its being involved are proper information for the jury), or not to participate in the trial (in which case no mention of it or its potential involvement is permitted by the trial court)." 521 So.2d at 1310. Alfa's petition makes clear its understanding, as our caselaw mandates, that, even if permitted to opt out of participation at trial, Alfa nonetheless agrees to be "bound by the factfinder's decisions on the issues of liability and damages." See Lowe; Driver v. National Sec. Fire & Cas. Co., 658 So.2d 390, 394 (Ala. 1995). Alfa further expresses its intent, upon electing not to participate, for its counsel to continue to defend Davis. See Driver, 658 So.2d at 395 ("If the uninsured motorist carrier opts out of the trial of the case and there is no defense counsel already in place to represent the defendant motorist, then there is no mechanism to protect the interests of the insurer if the defendant motorist fails to, or chooses not to, defend his case. Understanding the need for the uninsured motorist insurance carrier to protect its interests, we hold that once the carrier opts out of the trial under Lowe, it may, in its discretion, hire an attorney to represent the uninsured motorist defendant."). See also Ex parte State Farm Auto. Ins. Co., 674 So.2d 75, 77 (Ala. 1995) (plurality opinion).

Trotter, who contends that his action against Alfa was permissible, see, generally, State Farm Mutual Automobile Insurance Co. v. Griffin, 51 Ala.App. 426, 286 So.2d 302 (Ala. Civ. App. 1973), nonetheless concedes that Alfa possesses the above-described rights under Alabama law. However, according to Trotter, in order for Alfa to be permitted to realign the parties, withdraw, then provide Davis with counsel, Alfa may not continue to prosecute the subrogation claims asserted in its third-party complaint. More specifically, Trotter contends that our decisions in Driver, supra, and in Ex parte Littrell, 73 So.3d 1213 (Ala. 2011), require that a UIM carrier must waive any ...


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