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Ex parte Nationwide Agribusiness Insurance Co.

Supreme Court of Alabama

November 16, 2018

Ex Parte Nationwide Agribusiness Insurance Co. and The Hartford Steam Boiler Inspection and Insurance Co.
v.
Nationwide Agribusiness Insurance Co. et al. In re: Josh Hopkins and Kristy Hopkins

          Marshall Circuit Court, CV-16-18

          PETITION FOR WRIT OF MANDAMUS

          MAIN, JUSTICE.

         Nationwide Agribusiness Insurance Co. ("Nationwide") and The Hartford Steam Boiler Inspection and Insurance Co. ("Hartford") petition this court for a writ of mandamus directing the Marshall Circuit Court to rule on their pending motion for a change of venue from Marshall County to Morgan County. We grant the petition and issue the writ.

         I. Facts and Procedural History

         Josh Hopkins and Kristy Hopkins are poultry farmers who own four poultry houses in Morgan County. In September 2015, the Hopkinses discovered that approximately 20, 000 chickens had died in one of their poultry houses. According to the Hopkinses, temperature-monitoring equipment in the poultry house malfunctioned, and, as a result, the temperature rose to levels the chickens could not endure. The Hopkinses contend that the equipment malfunction was a result of electrical problems in the poultry house -- problems they have since discovered are also present in two of their other poultry houses. They contend that Total Radio Service, Inc. ("Total Radio"), a company located in Marshall County, had negligently performed electrical servicing work on the three poultry houses before the incident.

         At the time of the incident, the poultry houses were insured by Nationwide and/or Hartford. The insurance policy was sold to the Hopkinses by Randy Jones & Associates, Inc. ("Jones"), an insurance agency with its principal office in Marshall County. Although Nationwide paid a portion of the claim, the Hopkinses assert that the payment was insufficient and that Nationwide and Hartford have wrongfully denied coverage relating to the malfunctioning equipment caused by electrical problems in two poultry houses.

         On June 30, 2016, the Hopkinses filed this suit in the Marshall Circuit Court against Nationwide, Hartford, Jones, and Total Radio. The Hopkinses have asserted claims against Nationwide and Hartford alleging breach of contract, bad faith, and fraud. They alleged suppression and conspiracy against Nationwide, Hartford, and Jones. They asserted claims of negligent procurement against Jones and negligence against Total Radio. Finally, they asserted that Nationwide was vicariously liable for Jones's alleged negligent procurement.

         At the time the action was filed, venue in the Marshall Circuit Court was proper under § 6-3-7, Ala. Code 1975, because both Total Radio's and Jones's principal offices were located in Marshall County. The Hopkinses, however, ultimately moved to dismiss both Total Radio and Jones. Total Radio was dismissed without prejudice on December 13, 2017, and Jones was dismissed with prejudice on February 23, 2018.

         On February 27, 2018, Nationwide and Hartford filed a notice of removal in the United States District Court for the Northern District of Alabama on the basis that the dismissal of Total Radio and Jones created complete diversity of citizenship between the Hopkinses and Nationwide and Hartford. The federal court remanded the case on July 17, 2018. On July 20, 2018, the trial court entered an order setting the case for trial on October 15, 2018.

         On July 24, 2018, Nationwide and Hartford moved the trial court to transfer this action to the Morgan Circuit Court. Nationwide and Hartford argued that because Total Radio and Jones had been dismissed, a change of venue was required by Rule 82(d)(2), Ala. R. Civ. P.[1]

         On August 7, 2018, the trial court entered an order continuing the trial setting to November 13, 2018, and setting a pretrial conference for October 26, 2018, at which time it would hear all pending motions, including the motion for a change of venue. The order also set a deadline for filing dispositive motions and ordered the parties to conduct mediation. Nationwide and Hartford moved the trial court to reconsider its order setting their motion for a change of venue for a hearing on October 26, 2018. Nationwide and Hartford noted that the hearing date was only 18 days before the trial setting and argued that the delay in hearing their motion would effectively require them to complete discovery, file dispositive and pretrial motions, conduct mediation, and prepare for trial, all before their change-of-venue motion was heard.

         On August 22, 2018, the trial court entered an order confirming that the October 26, 2018, hearing would proceed as scheduled, but it ordered that it would rule on the venue issue first and that, should it decide to grant the motion for a change of venue, it would not rule on any further pending motions and would continue the trial setting.

         Nationwide and Hartford filed this petition on August 23, 2018. On September 28, 2018, this Court entered an order staying all proceedings in the trial court.[2]

         II. Standard of Review

"'"Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner 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) properly invoked jurisdiction of the court." Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995). "When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court [exceeded] its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner." Id. Our review is further ...

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