Opinion
1180213
06-21-2019
Ex parte First Acceptance Insurance Company, Inc. (In re: Christopher A. Gore v. Acceptance Insurance Company, Inc., et al.)
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.
PETITION FOR WRIT OF MANDAMUS
(Etowah Circuit Court, CV-18-900666)
On Application for Rehearing
WISE, Justice.
APPLICATION OVERRULED. NO OPINION.
Parker, C.J., and Bolin, Shaw, Bryan, Mendheim, Stewart, and Mitchell, JJ., concur.
Sellers, J., dissents. SELLERS, Justice (dissenting).
First Acceptance Insurance Company, Inc. ("First Acceptance"), filed an application for rehearing requesting that this Court reconsider its April 26, 2019, decision denying, without an opinion, First Acceptance's petition for a writ of mandamus. I dissented from this Court's decision on original submission, and I maintain that the petition is due to be granted. I respectfully dissent to explain my rationale.
The underlying action arose from a motor-vehicle accident that occurred in Marshall County involving a vehicle driven by Christopher A. Gore, a Marshall County resident, and a vehicle driven by Donna Pursell Coley. Gore was injured in the accident and received initial medical treatment for his injuries in Marshall County. Officer Jacob M. Mullinax of the Albertville Police Department in Marshall County investigated the accident.
At the time of the accident, Gore was insured under an automobile-liability insurance policy with First Acceptance and Coley was insured under an automobile-liability insurance policy with Allstate Insurance Company ("Allstate"). Gore purchased his policy with First Acceptance through Christie Belue, an agent for First Acceptance whose office is located in Marshall County. After settling a claim against Coley for the maximum benefits available under her policy with Allstate, Gore submitted a claim for underinsured-motorist benefits under his policy with First Acceptance. First Acceptance denied Gore's claim for underinsured-motorist benefits because, it claims, he declined to include such coverage as a part of his policy.
Thereafter, Gore sued First Acceptance in the Etowah Circuit Court ("the trial court"), alleging breach of contract based on First Acceptance's refusal to provide him underinsured-motorist benefits under his policy. First Acceptance filed a motion to transfer the action from Etowah County to Marshall County under Alabama's forum non conveniens statute, § 6-3-21.1, Ala. Code 1975. Gore filed a response in opposition to the motion to transfer. First Acceptance filed a reply brief in further support of its motion. The trial court summarily denied the motion to transfer the action to Marshall County, and First Acceptance subsequently filed its petition for a writ of mandamus with this Court.
First Acceptance attached to its motion an affidavit executed by Belue that stated that Gore's policy with First Acceptance was issued in Marshall County and that "[s]aid policy reflected a written rejection of uninsured/underinsured motorist coverage electronically executed by Mr. Gore, in Marshall County, Alabama." First Acceptance also attached a certified copy of Gore's policy with First Acceptance, including the alleged written rejection of uninsured/undersinsured-motorist coverage.
Gore attached to his response an affidavit stating that he "did not sign the [uninsured/underinsured-motorist-coverage] rejection form attached to the policy" and an exemplar of his signature.
In its petition, First Acceptance argued that it had a clear legal right under § 6-3-21.1 for the underlying action to be transferred to Marshall County "in the interest of justice" based on precedent of this Court and the Court of Civil Appeals. See Ex parte Alfa Mut. Ins. Co., 250 So. 3d 541 (Ala. 2017); see also Ex parte Alfa Mut. Ins. Co., 142 So. 3d 728 (Ala. Civ. App. 2013). This Court has stated that the "interest of justice" requires the transfer of an "action from a county with little, if any, connection to the action, to the county with a strong connection to the action." Ex parte National Sec. Ins. Co., 727 So. 2d 788, 790 (Ala. 1998). Indeed, the materials before this Court clearly show that Marshall County has a strong connection to the action, while Etowah County's only connection is that First Acceptance maintains an office there. But there is a separate issue with the application of § 6-3-21.1 to this case that was not discussed in the materials before this Court; I write specially to address that issue.
Section 6-3-21.1(a) states, in pertinent part:
"With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein."(Emphasis added.) Based on the emphasized language, this Court has stated, "the doctrine of forum non conveniens, as codified at § 6-3-21.1, 'has a field of operation only where an action is commenced in a county in which venue is appropriate.'" Ex parte Miller, Hamilton, Snider & Odom, LLC, 978 So. 2d 12, 14 (Ala. 2007)(quoting Ex parte New England Mut. Life Ins. Co., 663 So. 2d 952, 956 (Ala. 1995)).
The materials before this Court do not conclusively show that Etowah County was an appropriate venue in which to file the underlying action. Section 6-3-7(a), Ala. Code 1975, states:
"(a) All civil actions against corporations may be brought in any of the following counties:
It is undisputed that First Acceptance does business by agent in Etowah County by maintaining an office there, which could support a finding that Etowah County is a proper venue for this action under § 6-3-7(a)(4). But § 6-3-7(a)(4) is applicable only if subdivisions (1), (2), and (3) of that section do not apply. See Ex parte Thomasville Feed & Seed, Inc., 74 So. 3d 940, 942 (Ala. 2011). In this case, § 6-3- 7(a)(3) does apply and makes Marshall County a proper venue for the action. Therefore, § 6-3-7(a)(4) is not applicable, and the materials before this Court do not otherwise indicate that Etowah County is a proper venue under § 6-3-7(a)."(1) In the county in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of real property that is the subject of the action is situated; or
"(2) In the county of the corporation's principal office in this state; or
"(3) In the county in which the plaintiff resided, or if the plaintiff is an entity other than an individual, where the plaintiff had its principal office in this state, at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiff's residence; or
"(4) If subdivisions (1), (2), or (3) do not apply, in any county in which the corporation was doing business by agent at the time of the accrual of the cause of action."
As noted above, it is undisputed that Gore is a resident of Marshall County and that First Acceptance does business by agent there.
I note that Etowah County may have been an appropriate venue in which to file the underlying action under § 6-3-7(a)(2), if the office First Acceptance maintains in Etowah County is its "principal office in this state." However, that fact is not specifically asserted in any of the materials before this Court. --------
Because it is unclear whether Etowah County was in fact a proper venue in which to file this action, there is a question whether a change of venue can be ordered in this case under § 6-3-21.1 or whether ordering such a transfer is outside the "field of operation" of that statute. Ex parte Miller, Hamilton, supra; see also Ex parte Ford Motor Co., 47 So. 3d 234 (Ala. 2010); Ex parte AIG Baker Orange Beach Wharf, L.L.C., 12 So. 3d 1204 (Ala. 2009). Based on the reasoning set forth in Ex parte Ford Motor Co., I would hold that ordering a change of venue in this case under § 6-3-21.1 is still warranted despite that issue.
Ex parte Ford Motor Co. involved a petition for a writ of mandamus asking this Court to direct the transfer of an underlying case from Barbour County to Montgomery County based on the doctrine of forum non conveniens. The respondent (plaintiff) argued that the petition was due to be denied because, she claimed, the petitioner (defendant) had failed to affirmatively show that Barbour County, where the case was originally filed, was a proper venue for the action under § 6-3-7(a); the respondent claimed that the petitioner had therefore failed to establish the applicability of § 6-3-21.1. In a plurality decision, this Court rejected that argument, granted the petition, and issued a writ directing the Barbour Circuit Court to transfer the action to Montgomery County under § 6-3-21.1. The plurality opinion noted (1) that, in filing the motion for a change of venue with the circuit court, the petitioner merely "took as the premise for its motion the allegation in [the plaintiff's] own complaint that venue was proper in Barbour County," 47 So. 3d at 40, and (2) that both parties had conceded to the circuit court for the purposes of the motion that Barbour County was an appropriate venue. Thus, the plurality opinion concluded that the petitioner had demonstrated that the facts of the case warranted a change of venue under the forum non conveniens prong of § 6-3-21.1, despite acknowledging that Barbour County may have been an improper venue in which to file the action originally. 47 So. 3d at 241.
Because Ex parte Ford Motor Co. was a plurality decision, it is not binding precedent on this issue. See Ex parte Town of Lowndesboro, 950 So. 2d 1203, 1209-10 (Ala. 2006). Nevertheless, I find its reasoning to be persuasive, practical, and in the best interest of justice. As the defendant, First Acceptance should be allowed to concede the issue whether the case was filed by Gore, as the plaintiff, in an appropriate venue when requesting a transfer under § 6-3-21.1 based on the doctrine of forum non conveniens. After all, if First Acceptance had challenged the propriety of venue in Etowah County, it would have had the burden of proving improper venue. Ex parte Interstate Freight USA, Inc., 213 So. 3d 560, 564 (Ala. 2016).
For the purpose of the motion for a change of venue below, both parties conceded that venue was proper in Etowah County. First Acceptance's petition demonstrates that Marshall County's connection to this action is strong and Etowah County's connection to this action is weak. A change of venue is, therefore, warranted "in the interest of justice" under § 6-3-21.1. The petition should be granted and a writ issued directing the trial court to transfer the underlying action to Marshall County. I thus respectfully dissent.