Rel: 9/26/14




Notice: This opinion is subject to formal revision before publication in the advance
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          SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014
                             ____________________

                                    1130820
                             ____________________

                  Ex parte Electric Insurance Company

                       PETITION FOR WRIT OF MANDAMUS

                          (In re: Paul Nelson Bolt

                                           v.

   Electric Insurance Company and John Christopher Wilson)

                (Marshall Circuit Court, CV-12-000072)



BRYAN, Justice.

      Electric Insurance Company ("Electric") petitions this

Court for a writ of mandamus directing the Marshall Circuit
1130820

Court to allow Electric, an uninsured-motorist insurer, to

"opt out" of the trial of the underlying case.                    The issue

presented by this petition is whether Electric asserted its

right to opt out within a reasonable time.              We conclude that

it did; thus, we grant the petition and issue the writ.

    The facts giving rise to this action are as follows.                  An

automobile being driven by Paul Nelson Bolt was involved in an

accident with an automobile being driven by John Christopher

Wilson, an uninsured motorist.             On April 4, 2012, Bolt sued

Wilson     and    Electric,       Bolt's   uninsured-motorist      insurer,

alleging    that     he    had    sustained   various   injuries    in   the

accident    and     that    the    accident   was   caused   by    Wilson's

negligence and wantonness. On May 17, 2012, Electric answered

the complaint and served Bolt with interrogatories and a

request for production.            On July 6, 2012, Bolt responded to

the discovery requests.            Electric deposed Bolt on September

26, 2012.        In the latter part of 2013 and early 2014, Bolt

deposed four physicians who had treated him following the

accident.        Those depositions were taken on October 7, 2013,

October 17, 2013, November 7, 2013, and January 17, 2014.




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    On December 3, 2013, the trial court ordered the parties

to submit a proposed scheduling order, which they did.                  On

February 4, 2014, the trial court adopted the scheduling order

submitted by the parties.      The scheduling order provided that

the last day for Electric to amend its answer would be March

15, 2014, that discovery would be completed no later than

March 28, 2014, and that the trial would be held on May 12,

2014.

    On    March   14,   2014   ––    one   day   before   the   last   day

Electric could have freely amended its answer –– Electric

filed a motion seeking to opt out of the trial under Lowe v.

Nationwide Insurance Co., 521 So. 2d 1309 (Ala. 1988).                 Bolt

objected to Electric's attempt to opt out.                 Following a

hearing, the trial court denied Electric's motion, without

stating a reason.       Electric then petitioned this Court for a

writ of mandamus directing the trial court to allow Electric

to opt out of the trial.            We stayed the proceedings below

pending the resolution of the mandamus petition.

         "A writ of mandamus is an extraordinary remedy,
    and it will be 'issued only when 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

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1130820

    invoked jurisdiction of the court.' Ex parte United
    Serv. Stations, Inc., 628 So. 2d 501, 503 (Ala.
    1993)."

Ex parte Empire Fire & Marine Ins. Co., 720 So. 2d 893, 894

(Ala. 1998).      "A petition for a writ of mandamus is the

appropriate means for challenging a trial court's refusal to

grant a[n uninsured-motorist] insurer the right to opt out of

litigation pursuant to Lowe.         Ex parte Aetna Cas. & Surety

Co., 708 So. 2d 156 (Ala. 1998)."      Ex parte Geico Cas. Co., 58

So. 3d 741, 743 (Ala. 2010).

    In    Lowe,   this   Court   discussed    the   rights   of   an

underinsured-motorist insurer when its insured is involved in

litigation.    Although Lowe involved an underinsured motorist,

we noted in that case that the term "underinsured motorist" is

statutorily included within the term "uninsured motorist."

521 So. 2d at 1309 n. 1 (citing § 32-7-23(b), Ala. Code 1975).

Our analysis in Lowe and its progeny applies equally to

underinsured and uninsured motorists.        See, e.g., Ex parte

Geico.    In Lowe, this Court stated:

    "A plaintiff is allowed either to join as a party
    defendant his own liability insurer in a suit
    against the underinsured motorist or merely to give
    it notice of the filing of the action against the
    motorist and of the possibility of a claim under the
    underinsured motorist coverage at the conclusion of

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    the trial. If the insurer is named as a party, it
    would have the right, within a reasonable time after
    service of process, 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)."

Lowe, 521 So. 2d at 1310 (some emphasis omitted; some emphasis

added).

    "We stated in Lowe that the insurer has the option
    to withdraw from the case, provided that it
    exercises that option within a reasonable time after
    service of process. It was also stated that whether
    the insurer's motion to withdraw is timely made is
    left to the discretion of the trial court, to be
    judged according to the posture of the case.
    Logically, the insurer would not want to withdraw
    from the case too early, before it could determine,
    through the discovery process, whether it would be
    in its best interest to do so. On the other hand,
    the insurer cannot delay, unnecessarily, in making
    its decision whether to withdraw. We believe that
    it would not be unreasonable for the insurer to
    participate in the case for a length of time
    sufficient to enable it to make a meaningful
    determination as to whether it would be in its best
    interest to withdraw."

Ex parte Edgar, 543 So. 2d 682, 685 (Ala. 1989).     Although

Lowe was decided more than 25 years ago, there have been very

few opinions addressing whether an insurer timely asserted its

right to opt out. See Ronald G. Davenport, Alabama Automobile

Insurance Law § 33:4 (4th ed. 2013); see also Ex parte Geico,


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1130820

supra (concluding that the motion to opt out was timely when

it was filed five days after the insurer deposed its insured).

    We must determine whether Electric asserted its right to

opt out of the trial within a reasonable time.            In Ex parte

Edgar, we emphasized that such a determination must be made in

light of "the posture of the case."       Given the posture of this

case, we conclude that Electric asserted its right to opt out

within a reasonable time.       Significantly, Electric attempted

to opt out of the trial before the final day on which the

scheduling order allowed Electric to amend its answer.                By

amending its answer, Electric could have complicated the case

by adding parties, defenses, or counterclaims, and those

changes may have delayed the trial.         Conversely, Electric's

opting out of the trial would simplify and streamline the case

and would not delay the trial. It is inconsistent, on the one

hand, to allow Electric freely to amend its answer and, on the

other hand, to forbid Electric from exercising its right under

Lowe to opt out of the trial.

    We    have   noted   that   "the   insurer   would   not   want   to

withdraw from the case too early, before it could determine,

through the discovery process, whether it would be in its best


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interest to do so."        Ex parte Edgar, 543 So. 2d at 685.

Electric sought to withdraw only after Bolt had deposed four

physicians who had treated him following the accident.              Those

physicians testified regarding the extent of Bolt's various

alleged injuries and whether the accident may have caused

those injuries.       Electric reasonably waited until after the

physicians had been deposed to fully assess the strength of

Bolt's personal-injury case and whether opting out would be in

its best interest.       We recognize that Electric asserted its

right to opt out 56 days after the taking of the final

physician's deposition.      Considering that Electric sought to

withdraw within the period in which it could have amended its

answer and only 38 days after the trial court adopted the

scheduling order submitted by the parties, such a delay was

reasonable.

      Electric asserted its right to opt out of the trial

within a reasonable time.        Accordingly, we grant the petition

for   a   writ   of   mandamus   and    direct   the   trial   to   grant

Electric's motion seeking to opt out of the trial.

      PETITION GRANTED; WRIT ISSUED.




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    Stuart, Bolin, Parker, Murdock, Shaw, Main, and Wise,

JJ., concur.

    Moore, C.J., dissents.




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