Kimbrough v. Safeway Insurance Co. of Alabama

148 So. 3d 39, 2013 WL 5506557
CourtSupreme Court of Alabama
DecidedOctober 4, 2013
Docket1120439
StatusPublished
Cited by18 cases

This text of 148 So. 3d 39 (Kimbrough v. Safeway Insurance Co. of Alabama) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kimbrough v. Safeway Insurance Co. of Alabama, 148 So. 3d 39, 2013 WL 5506557 (Ala. 2013).

Opinions

MOORE, Chief Justice.

Safeway Insurance Company of Alabama, Inc. (“Safeway”), petitions this Court for a writ of mandamus directing the Jackson Circuit Court to grant Safeway’s Rule 12(b)(1), Ala. R. Civ. P., motion to dismiss a bad-faith claim against it for lack of subject-matter jurisdiction. For reasons explained below, we deny the petition.

I. Facts and Procedural History

Richard Thomas Kimbrough alleges that, on November 19, 2011, a deer ran across Jackson County Road 33, causing a truck in the southbound lane to swerve into the northbound lane, where Kim-brough was driving. According to Kim-brough, the truck struck his vehicle and ran him off the road and into a creek bed. The driver of the truck allegedly fled and remains unknown.

As a result of the accident, Kimbrough broke his right femur, right hand, and nose. As part of his medical treatment, screws were inserted into his leg, and he required plastic surgery to his face. His medical expenses totaled $96,947.70.

At the time of the accident, Kimbrough held an insurance policy with Safeway that included uninsured-motorist benefits of $25,000 per vehicle or a stacked policy limit of $50,000 per occurrence. Kim-brough submitted a claim to Safeway for uninsured-motorist coverage, alleging that the driver of the “phantom vehicle”1 was an uninsured motorist. He sought the full policy limit of $50,000 because his expenses ($96,947.70) exceeded his coverage. The parties dispute whether Safeway denied the claim.

On February 6, 2012, Kimbrough sued Safeway, asserting claims of breach of contract and bad faith, alleging that Safeway, without lawful justification, had intentionally refused to pay Kimbrough’s claim. On June 7, 2012, Safeway moved to dismiss the case for lack of subject-matter jurisdiction, arguing that a claim for uninsured-motorist benefits is not ripe for adjudication until liability and damages have been established. The trial court denied the motion to dismiss, as well as Safeway’s [41]*41subsequent motion to reconsider. Safeway now petitions this Court for a writ of mandamus directing the trial court to dismiss only the bad-faith claim, not the breach-of-contract claim, without prejudice, for lack of subject-matter jurisdiction.

II. Standard of Review

“Mandamus is an extraordinary remedy and, will be granted only where there is ‘(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991). This Court will not issue the writ of mandamus where the petitioner has ‘full and adequate relief by appeal. State v. Cobb, 288 Ala. 675, 678, 264 So.2d 523, 526 (1972) (quoting State v. Williams, 69 Ala. 311, 316 (1881)).”

Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810, 813 (Ala.2003). “ ‘The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus.’ ” Ex parte Chemical Waste Mgmt., Inc., 929 So.2d 1007, 1010 (Ala.2005) (quoting Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478, 480 (Ala.2003)).

III. Analysis

Safeway argues that the trial court lacked subject-matter jurisdiction over Kimbrough’s bad-faith claim and, therefore, that it was required to dismiss it pursuant to Rule 12(h)(3), Ala. R. Civ. P., which provides: “Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”

Safeway’s claim that the trial court lacked subject-matter jurisdiction is based on the holding in Pontius v. State Farm, Mutual Automobile Insurance Co., 915 So.2d 557 (Ala.2005). Pontius involved a husband and wife who were in a car accident with a vehicle driven by an uninsured driver, a minor. The husband and wife sued the minor and the minor’s parents and then filed a claim with State Farm for uninsured-motorist benefits. State Farm denied the claim and intervened in the case. The husband and wife amended their complaint to add State Farm as a defendant and alleged, among other things, that State Farm had denied their claim in bad faith. State Farm filed a motion to dismiss pursuant to Rule 12(b)(6), Ala. R. Civ. P., or for a judgment on the pleadings pursuant to Rule 12(c), Ala. R. Civ. P. The trial court granted the motion and entered a judgment in favor of State Farm.

On appeal, the issue before this Court was whether an action for bad-faith failure to pay an uninsured-motorist claim could be maintained against an insurance company before the plaintiff demonstrated that she was legally entitled to recover damages from the uninsured motorist. This Court held that “ ‘[t]o be “legally entitled to recover as damages” the insured must establish fault on the part of the uninsured motorist, which gives rise to damages, and must then prove the extent of those damages.’ Pontius, 915 So.2d at 560 (quoting State Farm’s motion to dismiss and LeFevre v. Westberry, 590 So.2d 154, 157 (Ala.1991)). Consequently, ‘“[t]here can be no breach of an uninsured motorist contract, and therefore no bad faith, until the insured proves that he is legally entitled to recover.’ ” LeFevre, 590 So.2d at 158 (quoting Quick v. State Farm Mut. Auto. Ins. Co., 429 So.2d 1033, 1035 (Ala.1983)).

The Court then cited LeFevre and Bowers v. State Farm Mutual Automobile Insurance Co., 460 So.2d 1288, 1290 (Ala.1984), for the proposition that a tort of [42]*42bad-faith failure to pay uninsured-motorist benefits is not ripe for adjudication until the insurer and the insured become adversarial and that bad faith can arise only after that time, provided also that the dispute is legitimate and that the issues of fault and damages are resolved. “As to [the] bad-faith claim arising out of [the uninsured-motorist] coverage with State Farm,” the Court concluded, the husband and wife “had to demonstrate [that they were] ‘legally entitled to recover’ damages for bad-faith failure to pay under the policy, and ... ‘ “must be able to establish fault on the part of the uninsured motorist, which gives rise to damages and must be able to prove the extent of those damages.” ’ ” Pontius, 915 So.2d at 564. Because the husband and wife failed to meet that burden, their claims were not ripe and, the Court held, the trial court lacked subject-matter jurisdiction. Id. at 564-65.

Safeway argues that the reasoning in Pontius controls 2 and that the trial court should have dismissed this case as unripe because Kimbrough has not proven liability or damages:

“[B]ecause (1) liability had not been established and (2) damages were ques-tionablef,] ... Safeway is entitled to litigate liability and damages without being subjected to a pretrial tort of bad faith discovery and the threat of an extra contractual judgment at trial of what is a simple automobile accident case.”

Petition, at 6. We disagree that the trial court lacks subject-matter jurisdiction.3 The trial court does have the authority to hear the case and may dismiss it on the merits. The outcome of the case ought to depend on a Rule 12(b)(6)

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