Ex parte Edgar

• Court: Supreme Court of Alabama
• Citation: 543 So.2d 682
• Parties: Ex parte Terry Lee EDGAR. (In re Eleanor DEAN v. Terry Lee EDGAR and Alfa Mutual Insurance Company, et al.). Ex parte ALFA MUTUAL INSURANCE COMPANY, a corporation. (In re Eleanor DEAN v. Terry Lee EDGAR and Alfa Mutual Insurance Company, et al.). 88-65-M & 88-67-M.
• Decision Date: 07 April 1989

Page 682

543 So.2d 682 Ex parte Terry Lee EDGAR.
(In re Eleanor DEAN
v.
Terry Lee EDGAR and Alfa Mutual Insurance Company, et al.).
Ex parte ALFA MUTUAL INSURANCE COMPANY, a corporation.
(In re Eleanor DEAN
v.
Terry Lee EDGAR and Alfa Mutual Insurance Company, et al.). 88-65-M & 88-67-M. Supreme Court of Alabama. April 7, 1989.

Joe C. Cassady of Cassady, Fuller & Marsh, Enterprise, for petitioner/cross-respondent Terry Lee Edgar.

Page 683

L. Merrill Shirley, Elba, for respondent/cross-petitioner Alfa Mut. Ins. Co.

Debbie Lindsey Jared of Lindsey, Jared & Young, Elba, for respondent Eleanor Dean.

HOUSTON, Justice.

On January 14, 1987, Eleanor Dean was involved in an automobile accident with Terry Lee Edgar. On January 21, 1988, Ms. Dean filed a complaint in the Circuit Court of Coffee County, Elba Division, against her automobile liability insurance carrier, Alfa Mutual Insurance Company ("Alfa"), seeking to recover uninsured motorist benefits under her policy. Alfa was served with the complaint on January 22, 1988. Ms. Dean amended her complaint on February 1, 1988, stating a claim against Alfa for underinsured motorist benefits and naming Edgar as a defendant, alleging that his negligence or wantonness proximately caused the personal injuries that she had sustained in the accident. Alfa was served with the amended complaint on February 3, 1988. Alfa filed a motion to dismiss the complaint on February 7, 1988. On February 25, 1988, Alfa amended its motion to dismiss and, alternatively, moved, pursuant to Rules 42(b) and 18(c), A.R.Civ.P., to have Ms. Dean's claim against it for insurance coverage resolved in a trial separate from her related claims against Edgar. On March 1, 1988, Edgar filed a motion seeking to have the case transferred to the Circuit Court of Covington County, pursuant to Alabama Code 1975, § 6-3-21.1 The motions filed by Alfa and Edgar were denied by the trial court on April 19, 1988. On May 2, 1988, citing Lowe v. Nationwide Ins. Co., 521 So.2d 1309 (Ala.1988) (decided February 26, 1988), Alfa filed a motion seeking to exercise its option not to participate in the trial of Ms. Dean's claims against Edgar. Alfa did, however, seek to participate in discovery. Alfa amended this motion on August 29, 1988, by stating that it was reserving its right to intervene in the case at a later date. ¹ Ms. Dean filed an objection to the court's allowing Alfa to withdraw from the case, which, in pertinent part, stated as follows:

Page 684

"Notice is not timely made. Further there is no authority to grant Defendant's request to participate in discovery and to reserve the right to join the litigation at some future date to be determined by Defendant."

On September 27, 1988, the trial court denied Alfa's request to withdraw, stating that it was doing so because, it said, Alfa had failed to make a timely election. Alfa then filed a petition in this Court for a writ of mandamus, seeking an order directing the trial court to allow it to exercise its option to withdraw from the case. Edgar also filed a petition in this Court for a writ of mandamus, seeking an order directing the trial court to transfer the case, pursuant to § 6-3-21.1, supra, from Coffee County to Covington County. For the following reasons, both petitions are denied.

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. Barber v. Covington County Comm'n, 466 So.2d 945 (Ala.1985). 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 Smith, 533 So.2d 533 (Ala.1988).

Arguing that it made a proper election to withdraw from the case under Lowe, supra, Alfa contends that the trial court erred in refusing to allow it to exercise its right not to participate in the trial of Ms. Dean's claims against Edgar. We disagree.

In Lowe, supra, this Court stated as follows:

"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 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). Under either election, the insurer would be bound by the factfinder's decisions on the issues of liability and damages. If the insurer is not joined but merely is given notice of the filing of the action, it can decide either to intervene or to stay out of the case. The results of either choice parallel those set out above--where the insurer is joined as a party defendant. Whether the choice is timely made is left to the discretion of the trial court, to be judged according to the posture of the case. In either event, the trial court could then...