Ex parte Empire Fire and Marine Ins. Co.
| Decision Date | 31 July 1998 |
| Parties | Ex parte EMPIRE FIRE AND MARINE INSURANCE COMPANY and Town and Country Autos. (In re Lorenzo SANDERS v. EMPIRE FIRE AND MARINE INSURANCE COMPANY et al.) 1970695. |
| Court | Alabama Supreme Court |
Travis Holzborn of Barnett, Bugg & Lee, Monroeville, for petitioners.
Sidney W. Jackson III and Scott E. Denson of Jackson, Taylor & Martino, P.C., Mobile, for respondent.
Empire Fire and Marine Insurance Company ("Empire") and Town and Country Autos ("Town & Country") petition for a writ of mandamus directing Judge Harold Crow, of the Circuit Court of Clarke County, to grant their motion for a summary judgment in an action filed against them by Lorenzo Sanders. For the reasons discussed below, we deny the petition.
In November 1992, Sanders entered into an automobile rental contract with Town & Country. As a part of that contract, Sanders purchased a "vehicle damage waiver" option whereby, for a fee, Town & Country waived its right to hold Sanders liable for any damage to the vehicle caused by him or by any other authorized driver. An exception to the damage waiver became effective if the vehicle was damaged while being driven by a person whose driving ability was impaired to any degree by intoxicating liquor or by any other substance. The vehicle subsequently was damaged while being driven by James Drinkard, who was listed on the rental contract as an authorized driver. The police report regarding the one-vehicle accident indicated that Drinkard was under the influence of alcohol at the time of the accident.
Empire provided automobile collision insurance coverage to Town & Country, and it paid Town & Country for the damage to the automobile Sanders had rented. In 1993, Town & Country and Empire, as Town & Country's subrogee, 1 filed in the Clarke Circuit Court a complaint against Sanders 2 to recover the amount Empire had paid to Town & Country and the deductible Town & Country had paid under the policy. Sanders did not answer the complaint, and the trial court entered a default judgment against him. Sanders later filed a bankruptcy petition, and in his bankruptcy plan he included the amount of the judgment as a debt.
In 1995, Sanders filed in Mobile County the present action against Empire and Town & Country. 3 His complaint contains counts arising from his automobile rental agreement and the damage waiver option with Town & Country and arising from the complaint filed against him by Empire and Town & Country--those counts allege breach of contract, bad faith failure to pay an insurance claim, fraud, misrepresentation, and abuse of process. Empire and Town & Country responded by filing a motion to dismiss in which they contended, among other things, that venue was improper in Mobile County and that the complaint was due to be dismissed as a matter of law because, they argued, Sanders's claims were compulsory counterclaims that should have been raised in their 1993 action against him. The Mobile County circuit judge denied that motion; however, in response to a "motion to reconsider" filed by Empire and Town & Country, the judge later transferred the case to Clarke County. After the case was transferred, Empire and Town & Country moved for a summary judgment, arguing that they were entitled to a judgment because, they claimed, as a matter of law Sanders's claims against them should have been brought as compulsory counterclaims in their 1993 action against him. Judge Crow denied their summary judgment motion on August 25, 1997. On January 26, 1998, Empire and Town & Country filed this mandamus petition.
A writ of mandamus is an...
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