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TIMELINESS OF MANDAMUS PETITION - UNDERINSURED MOTORIST COVERAGE - OPT-OUT PROCEDURE - EX PARTE ALLSTATE PROPERTY AND CASUALTY COMPANY

Ex parte Allstate Property and Casualty Company, [Ms. 1150269, 1150511, 1151266, May 5, 2017] __ So. 3d __ (Ala. 2017). In a unanimous decision authored by Justice Shaw (Stuart, C.J., and Bolin, Parker, Main, Wise, and Bryan, JJ. concur), the Court issues writs of mandamus in two of three cases consolidated for review by the Court. The petitions presented identical substantive questions in regard to trial of claims for underinsured motorist benefits. In each of the cases, the insurers had advanced the liability limit tendered by the respective tortfeasor’s liability carrier but had not filed a cross-claim or separate proceeding against the tortfeasor prior to expiration of the two-year statute of limitations. In each of the three cases, the circuit courts of Jefferson, Macon, and Madison counties had on plaintiffs’ motions dismissed the tortfeasors from the cases so that the case would proceed to trial only against the respective insurance company.

The Court dismisses one of the petitions as untimely. In that case, the trial court’s interlocutory order subject of the mandamus proceeding was entered on October 20, 2015. Allstate filed a motion to alter, amend, or vacate the order on November 4, 2015, which was denied on November 5, 2015. Allstate filed its petition for writ of mandamus on December 16, 2015. Applying settled law, the Court held that the filing of a motion to reconsider an interlocutory order does not toll the time for filing a petition for writ of mandamus. Ms. *13, citing Ex parte Troutman Sanders, LLP, 866 So. 2d 547, 549-50 (Ala. 2003).

The Court reached the substantive issue presented by two of the three petitions. The Court grants mandamus relief concluding that the insurance companies had complied with the very letter of the law on an insurer’s options when sued on a claim for underinsured motorist benefits. Ms. *19-20. The Court quoted Lambert v. State Farm Mutual Automobile Insurance Co., 576 So. 2d 160, 167 (Ala. 1991), as follows:

“(1) The insured, or the insured’s counsel, should give notice to the underinsured motorist insurance carrier of the claim under the policy for underinsurance benefits as soon as it appears that the insured’s damages may exceed the tortfeasor’s limits of liability coverage.

“(2) If the tort-feasor’s liability insurance carrier and the insured enter into negotiations that ultimately lead to a proposed compromise or settlement of the insured’s claim against the tort-feasor, and if the settlement would release the tort-feasor from all liability, then the insured, before agreeing to the settlement, should immediately notify the underinsured motorist insurance carrier of the proposed settlement and the terms of any proposed release.

“(3) At the time the insured informs the underinsured motorist insurance carrier of the tort-feasor’s intent to settle, the insured should also inform the carrier as to whether the insured will seek underinsured motorist benefits in addition to the benefits payable under the settlement proposal, so that the carrier can determine whether it will refuse to consent to the settlement, will waive its right of subrogation against the tort-feasor, or will deny any obligation to pay underinsured motorist benefits. If the insured gives the underinsured motorist insurance carrier notice of the claim for underinsured motorist benefits, as may be provided for in the policy, the carrier should immediately begin investigating the claim, should conclude such investigation within a reasonable time, and should notify its insured of the action it proposes with regard to the claim for underinsured motorist benefits.

“(4) The insured should not settle with the tort-feasor without first allowing the underinsured motorist insurance carrier a reasonable time within which to investigate the insured’s claim and to notify its insured of its proposed action.

“(5) If the uninsured motorist insurance carrier refuses to consent to a settlement by its insured with the tort-feasor, or if the carrier denies the claim of its insured without a good faith investigation into its merits, or if the carrier does not conduct its investigation in a reasonable time, the carrier would, by any of those actions, waive any right to subrogation against the tort-feasor or the tort-feasor’s insurer.

“(6) If the underinsured motorist insurance carrier wants to protect its subrogation rights, it must, within a reasonable time, and, in any event before the tort-feasor is released by the carrier’s insured, advance to its insured an amount equal to the tort-feasor’s settlement offer.”

Ms. *17-18, quoting Lambert, 576 So. 2d at 167.

The Court rejected the plaintiff’s argument that the insurer was required to file a direct action against the tortfeasor prior to the expiration of the statute of limitations. The Court quoted Justice Murdock’s special concurrence in Pennsylvania National Mutual Casualty Insurance Co. v. Bradford, 164 So. 3d 537 (Ala. 2014), “having advanced the tortfeasor’s policy limits to its insured, ‘[the insurer] is now the beneficial owner of ‘the case’ against [the tortfeasor], and, as such, has the right to control the prosecution of that case.’” Ms. *22.

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