Ex parte Allstate Insurance Co.

         Perry Circuit Court, CV-18-900027

Page 818

          De 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.

         STEWART, Justice.

         Allstate 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.

         Facts and Procedural History

         On 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.

         In May 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.^[1] 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 things, that

"[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."

Page 819

          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). ..."

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