Summary
The Alabama Supreme Court granted Gilbert Lee Littrell's petition for a writ of mandamus concerning an underinsured-motorist insurer that had opted out of trial under the procedure established in Lowe v. Nationwide Insurance Co. The Court held that, because the case involved an underinsured rather than uninsured motorist and the defendant was already represented by liability-insurer-provided counsel, the insurer could not participate in the trial through its attorney's appearance as additional counsel for the defendant. The Court directed the Colbert Circuit Court to vacate its order and prevent the insurer's counsel from participating as the defendant's additional counsel.
Topics
Practice areas
Questions Presented
- Whether an underinsured-motorist carrier that elected to opt out of trial under Lowe may nevertheless have its counsel appear as additional trial counsel for the insured tortfeasor when the tortfeasor already has competent counsel provided by a liability insurer.
- Whether RLI's participation in discovery after electing to opt out was properly before the Supreme Court or was waived because Littrell did not timely object.
- Whether Littrell had a clear legal right to mandamus relief directing the trial court to enforce RLI's opt-out election and prevent RLI's counsel from appearing as additional counsel for Thrasher.
Holdings
- An underinsured-motorist carrier that elects to opt out of trial under Lowe may not retain its counsel to appear as additional counsel for an underinsured defendant who is already represented by competent counsel provided by the defendant's liability insurer.
- An insurer that withdraws from the case under Lowe may not continue to participate in discovery.
- Littrell demonstrated a clear legal right to relief, and the Alabama Supreme Court granted the petition and issued the writ of mandamus.
Key quotations
“The holdings in Driver and Ex parte State Farm are limited to the uninsured scenario.” (73 So. 3d at 1219)
“If an underinsured carrier were permitted to opt out and then allowed to provide the alleged tortfeasor representation in the form of its counsel, the mechanism provided in Lowe and concerns underlying the adoption of that mechanism would be rendered meaningless.” (73 So. 3d at 1220)
Factual background
Littrell was involved in a May 26, 2005, motor-vehicle accident with a vehicle operated by Gary Marcus Matlock. Littrell sued Doris Thrasher, Matlock's parent and next friend, and RLI, the underinsured-motorist carrier for Littrell's employer. RLI rejected a settlement offer, advanced the liability-policy limits, preserved its subrogation interests, and elected to opt out of the litigation under Lowe, but its counsel later participated in discovery and appeared as additional counsel for Thrasher, who already had counsel provided by State Farm.
Procedural history
Littrell sued Doris Thrasher, individually and as parent and next friend of Gary Marcus Matlock, and RLI Insurance Company after a motor-vehicle accident. RLI elected under Lowe v. Nationwide Insurance Co. to opt out of the litigation and stipulated that it would be bound by the judgment, but its attorney later participated in discovery and entered an appearance as cocounsel for Thrasher. The Colbert Circuit Court denied Littrell's motion to disqualify the attorney and enforce RLI's opt-out election. The Alabama Supreme Court granted mandamus relief.
Remand instructions
The Colbert Circuit Court must vacate its November 10, 2010, order and enforce RLI's decision to opt out of participation in the trial by preventing RLI's counsel, Bert P. Taylor, from appearing or participating as additional counsel for Doris Thrasher.