National Trust Insurance Company v. Dow Corning, [Ms. 1160028, Sept. 1, 2017] __ So. 3d __ (Ala. Civ. App. 2017). In this decision by Justice Sellers (Stuart, C.J., and Bolin, Parker, Main, and Wise, JJ., concur, Murdock, Shaw, and Bryan, JJ. concur in the result), the Court denies a petition for writ of mandamus sought by defendants in a declaratory judgment action concerning whether Dow Corning Alabama, Inc. and its insurers were entitled to indemnification from Alabama Electric Company, Inc. of Dothan. The declaratory judgment action was related to underlying personal injury litigation in Montgomery County which had been settled by Dow and its insurers prior to Alabama Electric’s initiation of the declaratory judgment action in Houston County.
The Dow parties contended that the trial court exceeded its discretion in refusing to transfer the declaratory judgment action to Montgomery County under the interest of justice prong of the forum non conveniens statute, Ala. Code § 6-3-21.1 (1975). In denying the writ, the Court noted that mandamus “may not issue to control the exercise of discretion except in a case of abuse.” Ex parte Finance America Corp., 507 So. 2d 458, 460 (Ala. 1987)(“[A] writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.”) Ms. *20.
The Court noted that “‘when venue is appropriate in more than one county, the plaintiff’s choice of venue is generally given great deference.’” Ms. *8-9, quoting Ex parte Perfection Siding, Inc., 882 So. 2d 307, 312 (Ala. 2003). The Court found that the Dow parties did not discharge their burden of clearly showing that Montgomery had a stronger interest in litigating the declaratory judgment than Houston County. The Court reasoned
In the instant case, Alabama Electric and National Trust chose to file their action in Houston County – the county not only where Alabama Electric’s principal place of business is located, but also where the master contract [containing the disputed indemnity obligation] was negotiated and delivered and where the National Trust policy was issued and delivered. Accordingly, Houston County appears to have as much interest in the proper resolution of the indemnity dispute as does Montgomery County [where the plaintiff in the underlying tort action was injured and where the personal injury litigation was filed and ultimately settled].