Rel: 9/26/14

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter . Readers are requested to notify the Reporter of Decisions , Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter
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# SUPRE ME CO URT O F ALA BAMA

SPECI AL TE RM, 2 014

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_____ _____ _____ _____ Ex pa rte E lectr ic In suran ce Co mpany PETIT ION F OR WR IT OF MAND AMUS (In r e: Pa ul Ne lson Bolt

v. Elect ric I nsura nce C ompan y and John Chri stoph er Wi lson) (Mars hall Circu it Co urt, CV-12 -0000 72)

BRYAN , Jus tice. Elect ric Insur ance Compa ny ("Ele ctric ") petit ions this Court for a writ of manda mus direc ting the Ma r shall Circu it11308 20

Court to allow Elect ric, an unins ured- motor ist insur e r , to "opt out" of the trial of t h e u n derly ing case. The issue prese nted by this pe titio n is wheth er Elect ric asser ted its right to o pt ou t wit hin a reas onabl e tim e. W e con clude that it di d; th us, w e gra nt th e pet ition and issue the writ. The facts givin g rise to this actio n are as follo ws. An autom obile being drive n by Paul Nelso n Bolt was invol ved in an accid ent w ith a n aut omobi le be ing d riven by J ohn C hrist opher
W ilson , an unins ured motor ist. On April 4, 2012, Bolt s u e d Wilso n and Elect ric, Bolt' s unins ured- motor ist insur er, alleg ing that he had susta ined vario us inju r i e s in the accid ent and that the accid e n t w a s cause d by Wilso n's negli gence and wanto nness . On May 17, 2012, Elect ric answe red the compl aint and serve d Bolt with inte r r o gator ies and a reque st for produ ction
. On Jul y 6 , 2012, Bolt respo nded to the disco very reque sts. El ectri c depos ed Bolt on Septe mber 2 6 , 2 012. In the latte r part of 2013 and early 2014, B o l t depos ed four physi cians who had t r eated him follo wing the accid ent. Thos e depos ition s were taken on Octob er 7, 2013, Octob er 17 , 201 3, No vembe r 7, 2013, and Janua ry 17 , 201 4.

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On Decem ber 3, 2013, the trial court order ed the parti es to submi t a propo sed sched uling order , which they did. On Febru ary 4, 2014, the trial court adopt ed the sched uling order submi tted by the parti es. The sched uling order provi ded that the l ast d ay fo r Ele ctric to a mend its a nswer woul d be March 15, 2014, that disco very would be compl et e d n o later than Marc h 2 8 , 2014, and that the trial would be held on May 12, 2014. On March 14, 2014 –– one day befor e the last day
E l ectri c could have freel y amend ed its answe r –– Elect ric filed a mo tion seeki ng to opt out o f the tria l und er Lo we v. Natio nwide Insu rance Co., 521 So. 2 d 130 9 (Al a. 19 88). Bolt objec ted to Elect ric's attem pt to opt out. Follo win g a heari ng, the trial court denie d Elect ric's motio n, wi t h o ut stati ng a reaso n. E lectr ic th en pe titio ned t his C ourt for a writ of ma ndamu s dir ectin g the tria l cou rt to allo w Ele ctric to opt out of the trial
. We s t a y e d the proce eding s below pendi ng th e res oluti on of the manda mus p etiti on.

"A writ of manda mus is an extra ordin ary remed y, and it will be 'issu ed only when t h e re is: 1) a clear legal right i n t he petit ioner to the order sough t; 2) an imper ative duty upon the respo ndent to perfo rm, accom panie d by a refus al to do so; 3 ) the lack of anoth er adequ ate remed y ; a n d 4) prope rly

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invok ed juris dicti on of the court .' Ex parte Unite d Serv. Stati ons, Inc., 628 So. 2d 501, 5 0 3 ( Ala. 1993) ." Ex parte Empir e Fire & M arine Ins. Co., 720 So. 2d 893, 894 ( A l a . 1998)
. "A petit ion for a writ of manda mus is th e appro priat e mea ns fo r cha lleng ing a tria l cou rt's refus al to grant a[n unins ured- motor ist] insur er the right to opt out of litig ation pursu ant to Lowe. Ex parte Aetna Cas. & Suret y Co., 708 So. 2d 156 (Ala. 1998) ." Ex parte Geico Cas. Co., 58 So. 3 d 741 , 743 (Ala . 201 0).
In L owe, this Court discu ssed the right s of an under insur ed-mo toris t insur er when its insur ed is invol ved in litig ation
. Altho ugh Lowe invol ved an under insur ed motor ist,

we noted in that case that the term "unde rinsu red motor ist" is statu toril y inclu ded withi n the term "unin sured motor i s t ." 521 So. 2d at 1309 n. 1 (citi ng § 32-7- 23(b) , Ala. Code 1975)
. Our analy sis in Lowe and its prog eny appli es equal ly to under insur ed and unins ured motor ists. See, e.g., Ex p arte Geico . In Lowe , thi s Cou rt st ated:

" A plain tiff is allow ed eithe r to join as a p a r t y defen dant his own li a b i lity insur er in a suit again st the under insur ed motor ist or merel y to give it not i c e o f the filin g of the actio n again st the motor ist and of the possi bilit y of a claim under the under insur ed motor ist cover age at the concl usion of

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the t r i a l. If the insur er is named as a party , it would have the right , withi n a reaso nable time after servi ce of proce ss, to elect eithe r to parti cipat e in the trial (in which case its ident ity and the reaso n for its being invol ved are prope r infor matio n for the jury) , or not to parti c i p a t e in the trial (in which case no menti on of it or its poten tial invol vemen t is permi tted by th e tri al co urt). " Lowe, 521 So. 2d at 1310 (some empha sis omitt ed; some empha sis added ). "We state d i n L owe that the insur er has the optio n to withd raw from the case, pro vided that it exerc ises that optio n withi n a reaso nable time after servi ce of proce ss. It was also state d that wheth er the insur er's motio n to w i thdra w is timel y made is left to the discr etion of the trial court , to be jud g e d a ccord ing to the postu re of the case. Logic al l y , the insur er would not want to withd raw from the case too early , befor e it could deter mine, throu gh the disco very proce ss, wheth er it would be in its best inter est t o d o so. On the other hand, the insur er canno t delay , unnec essar i l y, in makin g its decis ion wheth er to withd raw. We belie ve that it would not be unrea sona b l e for the insur er to parti cipat e in the case for a lengt h of time suffi cient to enabl e it to make a m e a n i n gful deter minat ion as to wheth er it would be in its best inter est t o wit hdraw ." E x p arte Edgar , 543 So. 2d 682, 685 (Ala. 1989)
. Alt h o u g h Lowe was decid ed more than 25 years ago, there have been very few opini ons addre ssing wheth er an insur er timel y asser ted its right to opt out. See Ronal d G. Daven port, Alaba ma Autom obile Insur ance Law § 33:4 (4th ed. 2013) ; see also Ex parte Geico ,

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supra (con cludi ng th at th e mot ion t o opt out was t imely when it was filed five days after the insur er depos ed its insur ed). We must deter mine wheth er Elect ric asser ted its right to opt out of the t r i a l withi n a reaso nable time. In Ex parte Edgar , we empha sized that such a deter minat ion must be made in light of "the postu re of the case. " Given the postu re of this
case, we concl ude that Elect ric asser ted its right to opt out withi n a r eason able time. Sig nific antly , Ele ctric atte mpted to opt out of the trial befor e the final day on which t he sched uling order allow ed Elect ric to amend its answe r . By amend ing its answe r, Elect ric could have compl icate d the case by addin g parti es, defe nses, or count ercla ims, and those chang es may have delay ed the trial
. Co nvers ely, Elect ric's optin g out of the trial would simpl ify and strea mline the case and would not delay the trial
. It is incon siste nt, on the one hand, to allow Elect ric freel y to amend its answe r and, on the other hand, to forbi d Elect ric from exerc ising its right under Lowe to op t out of t he tr ial. We have noted that "the insur er would not wa nt to withd raw f rom t he ca se to o ear ly, b efore it c ould deter mine, throu gh the disco very proce ss, wheth er it would be in its best

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inter est to do so. " Ex parte Edgar , 543 So. 2d at 685. Elect ric s ought to w ithdr aw on ly af ter B olt h ad de posed four physi cians who had treat ed him follo wing the accid ent. Those physi cians testi f ied regar ding the exten t of Bolt' s vario us alleg ed injur ies and wheth er the acci d e nt may have cause d those inju ries. El ectri c rea sonab ly wa ited until afte r the phys i cians had been depos ed to fully asses s the stren gth of Bolt' s perso nal-i njury case and wheth er optin g out would be in its best inter est. We recog nize that Elect ric asser ted its right to opt out 56 days af t e r the takin g of the final physi cian' s dep ositi on. Consi derin g tha t Ele ctric soug ht to withd raw withi n the perio d in which it could have amend ed its

answe r and o n l y 38 days after the trial court adopt ed the sched uling order submi tted by the p a rties , such a delay was

reaso nable . Elect ric asser ted its right to opt o u t o f the trial withi n a reaso nable time. Accor dingl y, we grant the petit ion for a writ of manda mus and direc t the trial to grant Elect ric's moti on se eking to o pt ou t of the t rial.
PETIT ION G RANTE D; WR IT IS SUED.

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Stuar t, Bolin , Park er, Murdo ck, Shaw, Main, and Wise, JJ., concu r. Moore , C.J ., di ssent s.

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