Ex parte Auto-Owners Ins. Co., AUTO-OWNERS

• Decision Date: 21 July 1989
• Docket Number: AUTO-OWNERS
• Citation: 548 So.2d 1029
• Parties: Ex parteINSURANCE CO. (In re Bebe R. WHITE v. INSURANCE CO.) 88-652.
• Court: Alabama Supreme Court

Page 1029

548 So.2d 1029

Ex parte AUTO-OWNERS INSURANCE CO. (In re Bebe R. WHITE v. AUTO-OWNERS INSURANCE CO.)

88-652.

Supreme Court of Alabama.

July 21, 1989.

H.E. Nix, Jr. and Alex L. Holtsford, Jr. of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for petitioner.

Randall B. James of Beasley, Wilson, Allen, Mendelsohn & Jemison, Montgomery, for respondent.

MADDOX, Justice.

By its petition for a writ of mandamus, defendant Auto-Owners Insurance Company asks this Court to order the trial court to dismiss the present action on the grounds that the State of Florida is the more appropriate forum for the trial of the action.

The facts pertinent to our inquiry are basically undisputed.

On November 29, 1986, Bebe White allegedly received significant personal injuries and incurred property damage as a result of her automobile's being run off the road by an unidentified driver. White claims that she was forced to leave the roadway, and that upon doing so she collided with the porch of a house. The accident occurred in Crenshaw County, Alabama, while White was returning to her home in DeFuniak Springs, Florida. The accident was investigated by an Alabama State Trooper.

Respondent was treated at the scene by members of the Highland Home (Alabama) Rescue Squad. The only witness to the accident resides in Highland Home, Alabama.

Upon returning home, White was treated by physicians in DeFuniak Springs, Florida, and Ft. Walton Beach, Florida.

After the collision, White filed an uninsured motorist claim with her automobile insurance carrier, Auto-Owners Insurance Company (hereinafter "Auto-Owners"). White does not deny that her contract with Auto-Owners was entered into in the State of Florida, and she admits that her attempt to have Auto-Owners pay her claims was conducted through Auto-Owners' claims office in Pensacola, Florida.

White, nevertheless, filed a complaint in the Circuit Court of Montgomery County, Alabama, on November 18, 1988, after Auto-Owners had failed and refused to pay the amount she claimed was due to her under the Auto-Owners' policy.

In its answer, Auto-Owners admitted that it is a foreign corporation doing business by agent in Montgomery County, Alabama, and also that it had issued to White a policy that provided for uninsured motorist coverage.

Auto-Owners claimed that nothing concerning the action occurred in Montgomery County, Alabama, and it therefore filed a motion requesting the trial court to dismiss White's action pursuant to Code 1975, § 6-3-21.1. White responded to the motion, and the trial court heard oral arguments on the motion. After considering the legal arguments of both parties, the trial court denied Auto-Owners' motion to dismiss.

This Court has previously set out the requirements for mandamus:

"We note at the outset that 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.... In cases involving the exercise of discretion by an inferior court, mandamus may issue to compel the exercise of that discretion. It may not, however, issue to control or review the exercise of discretion except in a case of abuse."

Ex parte Terry Lee Edgar, 543 So.2d 682 (Ala.1989).

I

We first address petitioner's argument that the trial court lacked jurisdiction of the claim. Before discussing the possible application of the doctrine of forum non conveniens, it must first be determined whether the Montgomery County Circuit Court has jurisdiction to hear the case.

Art. XII, § 232, Ala. Const. 1901, as amended by Amendment 473, provides as follows:

"No foreign corporation shall do business in this state without having at least one known place of business and an authorized agent or agents therein, and without filing with the secretary of state a certified copy of its articles of incorporation or association. Any foreign corporation, whether or not such corporation has qualified to do business in this state by filing with the secretary of state a certified copy of its articles of incorporation or association, may be sued only in those counties where such suit would be allowed if the said foreign corporation were a domestic corporation. The legislature shall, by general law, provide for the payment to the state of Alabama of a franchise tax by such corporation, but such franchise tax shall be based on the actual amount of capital employed in this state. Strictly benevolent, educational, or religious corporations shall not be required to pay such a tax." (Emphasis added.)

Alabama's venue statute, Code 1975, § 6-3-7, provides, in pertinent part, that "a domestic corporation may be sued in any county in which it does business by agent or was doing business by agent at the time the cause of action arose." See also, Ex parte Alabama Mobile Homes, Inc., 468 So.2d 156 (Ala.1985).

Based on the foregoing reasons, it is readily apparent that the Montgomery County Circuit Court does have jurisdiction to hear the case. It is, therefore, necessary for this Court to ascertain whether the petitioner has carried its burden of demonstrating that there is another forum to whose jurisdiction it is amenable and in which justice can be served at substantially less inconvenience and expense to all concerned parties.

II

We now discuss whether the trial court should have dismissed the action without prejudice under the provisions of Code 1975, § 6-5-430. As indicated earlier, White's claim is one for uninsured motorist insurance benefits. Thus, in order for White to prevail on her claim, it will be essential for her to prove that she was involved in an accident with an uninsured motorist, that the uninsured motorist caused the accident, that the accident resulted in damages to the insured, and that the uninsured motorist was legally liable for those damages. Aetna Casualty & Surety Co. v. Beggs, 525 So.2d 1350 (Ala.1988).

White correctly notes that in order for her to prove that she is entitled to the uninsured motorist benefits, under the uninsured motorist provision of her policy, she must first show that she suffered injuries resulting from the negligent operation of an uninsured motor vehicle. She asserts that this will be established by her testimony, the testimony of the witness to the accident, the testimony of the rescue squad personnel called to the scene of the accident, and the testimony of law enforcement personnel called to investigate the accident. White further asserts that all of the aforementioned witnesses live in or around Highland Home, Alabama, and that they would be substantially inconvenienced if forced to travel to Florida to testify.

Auto-Owners, on the other hand,...