EX PARTE ALLSTATE INSURANCE COMPANY (In re: Devin Anthony Harrison
Allstate Insurance Company and Thomas Michael Hobson)
Circuit Court, CV-18-900027
Martensen and Stewart W. McCloud of Huie, Fernambucq &
Stewart, LLP, Birmingham, for petitioner.
Richard E. Smith and Rick D. Norris of Christian & Small
LLP, Birmingham, for respondent.
Insurance Company ("Allstate") petitions this Court
for a writ of mandamus directing the Perry Circuit Court
("the trial court") to vacate its order denying
Allstate's motion to transfer an action filed against it
by Devin Anthony Harrison in Perry County to Shelby County or
Bibb County. We grant the petition and issue the writ.
and Procedural History
September 4, 2015, Harrison, a resident of Bibb County, was
driving an automobile in Perry County. The automobile was
owned by Thomas Michael Hobson, a resident of Bibb County
("Hobson"), and was insured by Allstate, whose
principal place of business is in Shelby County. Dylan
Gardner and Alexander Hobson, Hobson's grandson, were
passengers in the vehicle Harrison was driving. While
Harrison was driving, the automobile was involved in a
single-vehicle accident. Gardner died as a result of injuries
sustained in the accident, and Alexander Hobson was injured.
Gardner's estate filed a wrongful-death action against
Harrison and obtained a $2 million dollar judgment. At some
point, Alexander Hobson also filed an action in the trial
court against Harrison and Allstate seeking damages for
injuries relating to the accident.
2018, Harrison filed the action underlying this petition in
the trial court against Allstate in which he asserted claims
of breach of contract and bad faith based on Allstate's
alleged refusal to defend or indemnify him in the
wrongful-death action. Harrison asserted that Hobson had
insured the automobile involved in the accident underlying
the wrongful-death action with a policy issued by Allstate
and that Harrison was a permissive user and was entitled to
coverage under the policy. Allstate removed the action to the
United States District Court for the Southern District of
Alabama. After that court remanded the case to the trial
court, Allstate filed a motion to transfer the action to
Shelby County or Bibb County, arguing that venue in Perry
County was improper. Allstate supported its motion with an
affidavit from Nicole Johnson, a claims-service leader for
Allstate. Johnson testified in her affidavit, among other
"[a] substantial amount of Allstate's
investigation, decision-making and handling of the claim
submitted by Mr. Hobson occurred at Allstate's Office
in Shelby County, Alabama. Any other claim-related work by
Allstate employees on the claim would simply have been in
an oversight role by Allstate's Home Office Legal
Department in Illinois."
Harrison filed a reply to Allstate's motion for a change
of venue in which he argued that the events or omissions
giving rise to his action occurred in Perry County because
the automobile accident occurred in Perry County and because
the wrongful-death action filed by Gardner's estate for
which Allstate failed to indemnify him and the action filed
by Alexander Hobson had both been filed in Perry County.
Harrison did not provide evidentiary materials in support of
his argument that venue was proper in Perry County. Allstate
moved to strike many assertions in Harrison's response
because, it argued, those assertions were not supported by
evidence. The trial court did not rule on Allstate's
motion to strike and, on April 16, 2019, the trial court
entered an order denying Allstate's motion for a change
of venue. Allstate timely filed a petition for the writ of
mandamus in this Court.
Standard of Review
"`The proper method for obtaining review of a denial
of a motion for a change of venue in a civil action is to
petition for the writ of mandamus.' Ex parte
Alabama Great Southern R.R., 788 So.2d 886, 888 (Ala.
2000). `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).
Moreover, our review is limited to those facts that were
before the trial court. Ex parte National Sec. Ins.
Co., 727 So.2d 788, 789 (Ala. 1998).
"`The burden of proving improper venue is on the party
raising the issue and on review of an order transferring or
refusing to transfer, a writ of mandamus will not be
granted unless there is a clear showing of error on the
part of the trial judge.' Ex parte Finance America
Corp., 507 So.2d 458, 460 (Ala. 1987). ..."
Ex parte Pike Fabrication, Inc., 859 So.2d 1089,
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