Lowe v. Nationwide Ins. Co.
Decision Date | 26 February 1988 |
Citation | 521 So.2d 1309 |
Parties | Nelda Pillow LOWE and James Lowe v. NATIONWIDE INSURANCE COMPANY. 86-1149. |
Court | Alabama Supreme Court |
David B. Carnes of Carnes, Wamsley, Waid & Hyman, Gadsden, for appellants.
James D. Pruett of Pruett, Turnbach & Warren, Gadsden, for appellee.
Counsel for the appellants aptly states the issue presented: 1
The trial court answered the first of these two alternative questions in the negative, granted the insurer's motion for summary judgment, and certified the judgment as final, pursuant to Rule 54(b), A.R.Civ.P. 2
Three separate, underlying considerations are essential to our disposition of this first-impression case: 1) that of protecting the right of the insurer to know of, and participate in, the suit; 2) that of protecting the right of the insured to litigate all aspects of his claim in a single suit ("Separate trials of the same issues and facts are a waste of time and money, and should be avoided if possible," Wall v. Hodges, 465 So.2d 359 (Ala.1984)); and 3) that of protecting the liability phase of the trial from the introduction of extraneous and corrupting influences, namely, evidence of insurance. Robins Engineering, Inc. v. Cockrell, 354 So.2d 1 (Ala.1977).
With an admirable degree of professional candor, counsel for the insurer confesses error in the judgment appealed from. We quote directly from the appellee's brief:
We accept counsel's confession of error and agree that our reversal should be accompanied by instructions as to the appropriate proceeding upon remand of this cause.
We believe that each of the three relevant considerations can be accommodated in a manner substantially as suggested by the parties: 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 fashion its judgment accordingly. For two cases from other jurisdictions, reaching similar results, see Tidmore v. Fullman, 646 P.2d 1278 (Okla.1982), and Haas v. Freeman, 236 Kan. 677, 693 P.2d 1199 (1985).
We note that, in the instant case, the alleged tort-feasor's liability insurer and the plaintiffs' underinsured motorist insurer are the same company. The problems of confidence in defense counsel and the knowledge of applicable limits do not exist. The suggested procedure seems unimpeachable under these circumstances, as well as being readily adaptable to other underinsured motorist claims.
We conclude with our compliments to each of the lawyers for conduct consistent with the highest standards of the profession.
REVERSED AND REMANDED WITH INSTRUCTIONS.
I agree with the result reached in this case, but only because the appellee has confessed error, and has agreed that this Court should reverse the summary judgment in its favor, and has requested instructions on how the case should proceed.
Obviously, the avoidance of a multiplicity of law suits is to be encouraged, because separate trials of the same issues and facts are a waste of time and money, and should be avoided, if possible. Stoughton v. Cole Supply Co., 273 Ala. 383, 141 So.2d 173 (1962); Wall v. Hodges, 465 So.2d 359 (Ala.1984). However, the trial of the case should be protected from the infection and prejudicial effect of showing that a part or all of the recovery will be from an insurance company instead of from the tort-feasor. See Robins Engineering, Inc. v. Cockrell, 354 So.2d 1 (Ala.1978).
Our Rules of Civil Procedure are quite specific about the joinder of claims and remedies when there is liability insurance coverage involved. Rule 18(c), Ala.R.Civ.P., provides that "[i]n no event shall this or any other rule be construed to permit a jury trial of a liability insurance coverage question jointly with the trial of a related damage claim against an insured."
In the commentary to Rule 42, involving consolidation of trials, it is stated:
I believe that our rules of civil procedure specifically grant to an...
To continue reading
Request your trial-
Auto-Owners Ins. Co. v. Hudson, AUTO-OWNERS
...Co., 531 So.2d 885 (Ala.1988); United Services Automobile Association v. Allen, 519 So.2d 506 (Ala.1988); Lowe v. Nationwide Mutual Insurance Co., 521 So.2d 1309 (Ala.1988). The players, of course, are the injured party, the tort-feasor, the tort-feasor's carrier, and the underinsured motor......
-
James v. Mejia, CASE NO. 2:20-CV-298-WKW
...his right under Alabama law to bring suit against his own uninsured2 motorist carriers—USAA and ALFA. See Lowe v. Nationwide Ins. Co. , 521 So. 2d 1309, 1310 (Ala. 1988) (holding that "[a] plaintiff is allowed either to join as a party defendant his own liability insurer in a suit against t......
-
Ex parte Lewis
...Underwriters, and Druid City Hospital as potential claimants. The decision in Liao is consistent with the holding in Lowe v. Nationwide Ins. Co., 521 So.2d 1309 (Ala.1988), where this Court, quoting from Wall v. Hodges, 465 So.2d 359 (Ala.1984), said: " 'Separate trials of the same issues a......
-
State Farm Mut. Auto. Ins. Co. v. Motley, 1031285.
...that provided underinsured-motor-vehicle coverage for Esco's death.1 Pursuant to the procedure authorized by Lowe v. Nationwide Insurance Co., 521 So.2d 1309 (Ala.1988), State Farm filed a motion to opt out and not participate in the jury trial, stipulating that there was effective at the t......
-
More Uninsured/underinsured Motorist Coverage—an Addition to the Lawyers' Desk Reference
...a subset of the uninsured motorist ('UM') coverage statutorily mandated by § 32-7-23..."); see also Lowe v. Nationwide Ins. Co., 521 So. 2d 1309, 1309 n.1 (Ala. 1988) ("as statutorily defined, 'uninsured motorist' includes 'under insured' motorist.").3. Alabama's original statute was enacte......