author: SHAW, Justice.

text:
    EX PARTE ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY
    (In re: Elizabeth Rebecca Zajic v. Kimberly D. Payne and Allstate Property and Casualty Insurance Company)
    Ex parte Allstate Property and Casualty Insurance Company
    (In re: Danielle Carter v. Alvin Lee Walker and Allstate Property and Casualty Insurance Company)
    Ex parte GEICO Indemnity Company
    (In re: Rasheena Harris-Williams v. Frederick Chamberlin IV and GEICO Indemnity Company)
    1150269 1150511 1151266
    Supreme Court of Alabama.
    May 5, 2017
    William F. Smith II of Vernis & Bowling of Birmingham, LLC, Birmingham, for petitioner Allstate Property and Casualty Insurance Company.
    S. Reid Dunlap, GEICO staff counsel, Birmingham, for petitioner GEICO Indemnity Company.
    Ralph W. Hornsby, Jr., and S.A. Watson, Jr., of Hornsby, Watson & Hornsby, Huntsville, for respondent Elizabeth Rebecca Zajic.
    Larry B. Moore and Kimberly E. Linville of Moore, Berry & Linville, Florence, for respondent Kimberly D. Payne.
    Paul A. Miller and Patrick W. Franklin of Miller, Christie & Kinney, P.C., Vestavia, for respondent Frederick Chamberlin IV.
    Alex L. Holtsford, Jr., of Holtsford, Gilliland, Higgins, Hitson & Howard, P.C., Montgomery, for respondent Alvin Lee Walker.
   SHAW, Justice.

In these three matters, Allstate Property and Casualty Insurance Company ("Allstate") and GEICO Indemnity Company ("GEICO") separately petition this Court for a writ of mandamus. The petitions seek writs directing the Madison, Macon, and Jefferson Circuit Courts to vacate their respective orders purporting to allow separate parties who have underinsured-motorist ("UIM") insurance with Allstate or GEICO to enter into, without the applicable insurer's consent, settlement agreements with an alleged underinsured tortfeasor. In case no. 1150269, we dismiss the petition as untimely filed. In case no. 1150511 and case no. 1151266, we grant the petitions and issue the writs.

Facts and Procedural History

Each of these matters resulted from separate automobile accidents between either an Allstate or a GEICO insured with UIM coverage and allegedly underinsured tortfeasors. In each case, it appears undisputed that the applicable insurance policy contained a "consent-to-settle" clause requiring the provision of notice to, and the consent of, the affected insurer prior to the insured's settlement of any claims against the alleged underinsured tortfeasors and/or a release of the tortfeasors' liability.

Case No. 1150269

On November 1, 2012, Elizabeth Rebecca Zajic filed in the Madison Circuit Court a complaint against Kimberly D. Payne, alleging that the two had been involved in an automobile accident on November 1, 2010, in which Payne had acted negligently and wantonly. Zajic also included a claim against her insurer, Allstate, seeking to recover UIM benefits. Thereafter, Payne's liability insurer offered to tender the entire $50,000 available under Payne's policy limits in exchange for a full release of Payne's liability.

Pursuant to the procedure outlined by this Court in Lambert v. State Farm Mutual Automobile Insurance Co., 576 So.2d 160, 167 (Ala. 1991), Zajic notified Allstate of the settlement offer and sought its consent to settle. Allstate, however, declined to consent; instead, as also permitted by Lambert, Allstate opted to advance the $50,000 to Zajic. Allstate then opted out of participation in further proceedings determining Payne's liability and Zajic's damages.

Approximately 10 months after Allstate opted out, Payne filed a "Motion to Enforce Settlement and for Pro Tanto Dismissal of Defendant, Kimberly D. Payne." In her motion, Payne, citing Lambert, among other authorities, argued that "the only permissible reason for a UIM carrier to advance or front the tortfeasor's liability limits is to preserve subrogation." Payne, citing Pennsylvania National Mutual Casualty Insurance Co. v. Bradford, 164 So.3d 537 (Ala. 2014), and Hardin v. Metlife Auto & Home Insurance Co., 982 So.2d 522 (Ala. Civ. App. 2007), further argued that Allstate had, after advancing the money in Zajic's case, failed to file either a subrogation cross-claim or a separate action against Payne, and that the applicable statute of limitations had, by that time, expired on any such action. Thus, Payne contended:

"As [Zajic] originally reached a settlement agreement with ... Payne, to accept her policy limits of $50,000.00 and to release and dismiss ... Payne from [the] case, and because the only delay was an alleged subrogation claim by ... [Allstate] which no longer exists as a matter of law, the original settlement agreement ... should not be prevented from proceeding forward."

In response, Allstate argued, among other things, that, despite the expiration of the statute of limitations on direct actions it might have against Payne, under Bradford and pursuant to the terms of the policy, it retained certain reimbursement rights to any funds Zajic might obtain from Payne in excess of the liability policy.

After a hearing and over Allstate's objection, the trial court, on October 20, 2015, granted Payne's motion. More specifically, the trial court directed that the parties "effectuate the settlement" and submit appropriate pleadings seeking to dismiss the claims against Payne. In response, Allstate filed, on November 4, 2015, a motion requesting that the trial court "alter, amend, or vacate" its order. The trial court denied that motion by order entered the following day. Following the denial of its motion seeking relief from that order, Allstate filed the instant petition for a writ of mandamus on December 16, 2015.

Case No. 1150511

As the result of an automobile accident that occurred in Tuskegee on August 5, 2013, Danielle Carter sued, in the Macon Circuit Court, the alleged tortfeasor, Alvin Lee Walker. Carter's complaint also included a count against Allstate, her UIM insurer, pursuant to which Carter, who alleged that Walker was underinsured, sought to recover UIM benefits under her own policy. Walker's liability insurer subsequently made a $25,000 policy-limits offer to settle Carter's claims against Walker. Carter notified Allstate of the settlement offer; Allstate refused to consent to the settlement and, pursuant to the Lambert guidelines, instead elected to advance Carter $25,000. In addition, on May 12, 2014, Allstate obtained leave from the trial court to opt out of further participation in the litigation.

Over one year later, in September 2015, Walker filed a motion seeking "enforcement" of the original settlement offer and his dismissal from the action. In his motion, Walker noted that, despite the fact that "the only permissible reason for a UIM carrier to 'front' liability limits is to preserve subrogation," Allstate had not filed either a cross-claim or a separate subrogation action against him; thus, according to Walker, because the statute of limitations applicable to any such claim against him had expired with no action by Allstate, the settlement offer was due to be "enforced." Citing Bradford, Allstate responded that, although the statute of limitations might foreclose the right of a UIM insurer to maintain a direct action against the tortfeasor for recovery of amounts paid to its insured, the insurer had other means to seek reimbursement if the UIM insured obtained amounts from the tortfeasor in excess of the liability policy.

On January 7, 2016, the trial court ordered the parties to effectuate settlement of Carter's claims against Walker and dismissed Walker with prejudice. The trial court further noted: "The case will remain pending only against the underinsured motorist carrier, Allstate ...." Allstate responded with the instant petition for a writ of mandamus, which was filed on February 17, 2016.

Case No. 1151266

On October 22, 2013, Rasheena Harris-Williams was, while driving a vehicle insured under a policy issued by GEICO, injured as the result of an automobile accident in Birmingham. Harris-Williams filed, in the Jefferson Circuit Court, a complaint against the alleged tortfeasor, Frederick Chamberlin IV. The complaint did not name GEICO as a party. Thereafter, Harris-Williams placed GEICO on notice, in light of the amount of Chamberlin's policy limits, of her intent to also seek UIM benefits under the GEICO policy. Harris-Williams also notified GEICO that Chamberlin's insurer had extended a $25,000 policy-limits offer to settle her claims against Chamberlin in exchange for Chamberlin's dismissal and that bills related to her medical treatment already exceeded $20,000. Harris-Williams requested that GEICO consent to the settlement or advance funds in the amount of the settlement offer. GEICO declined to consent and, instead, remitted the requested amount, stating that it reserved its right of subrogation and to pursue reimbursement of the advanced settlement.

In May 2016, Harris-Williams amended her complaint to add GEICO as a named defendant and to formally assert a claim for UIM benefits. In June 2016, Chamberlin filed a motion seeking "enforcement" of the settlement offer to Harris-Williams and the dismissal of all claims against him. More specifically, Chamberlin argued, as in the above cases, that preservation of its subrogation rights was the only "permissible" reason for GEICO's decision and that, pursuant to Bradford and Hardin, supra, the two-year statute of limitations applicable to any subrogation claim against him had expired without action by GEICO. Thus, according to Chamberlin, "[t]he settlement agreement is due to be enforced in its entirety and upon payment of $25,000.00 by [his insurer], [he was] due to be released and dismissed from this case, with prejudice." The trial court, over GEICO's claim that Bradford and Hardin concerned only the filing of "new actions" and were, thus, inapposite, granted, on August 2, 2016, Chamberlin's motion in all respects and dismissed Chamberlin as a defendant. Following the denial of its motion requesting that the trial court "reconsider" that decision, GEICO filed the instant petition for a writ of mandamus on September 13, 2016.

This Court subsequently ordered answers and briefs in all three cases and, considering that the issues presented are identical, has consolidated them for the purpose of writing a single opinion.

Standard of Review

As discussed in more detail below, in Lowe v. Nationwide Insurance Co., 521 So.2d 1309, 1310 (Ala. 1988), this Court "set out the rights of a UIM carrier when its insured is involved in litigation" as including the right to

" 'elect either to participate in the trial (in which case its identity and the reason for its being involved are proper information for the jury), or not to participate in the trial (in which case no mention of it or its potential involvement is permitted by the trial court).' "

Ex parte Geico Cas. Co., 58 So.3d 741, 743 (Ala. 2010) (quoting Lowe, 521 So.2d at 1310 ). In the instant cases, by attempting to enforce settlement agreements between the insureds and the alleged underinsured tortfeasors and dismissing the tortfeasors from these actions, the trial courts have left the UIM carriers as the sole defendants, regardless of their desire to opt out of participation at trial. It is well settled that "[a] petition for a writ of mandamus is the appropriate means for challenging a trial court's refusal to grant a UIM carrier the right to opt out of litigation pursuant to Lowe." 58 So.3d at 743. See also Ex parte Aetna Cas. & Sur. Co., 708 So.2d 156 (Ala. 1998) (issuing a writ of mandamus directing the trial court to set aside an order compelling a UIM insurer to participate at trial).

The standard for the issuance of the requested writs is also well settled:

" ' "Mandamus is a drastic and extraordinary writ, to be issued 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 Integon Corp., 672 So.2d 497, 499 (Ala. 1995). The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus. Ex parte Flint Constr. Co., 775 So.2d 805 (Ala. 2000).'
" Ex parte Liberty Nat'l Life Ins. Co., 888 So.2d 478, 480 (Ala. 2003)."

Ex parte Progressive Specialty Ins. Co., 31 So.3d 661, 663 (Ala. 2009).

Discussion

I. Timeliness

Although not raised by any of the parties to these proceedings, this Court must first consider whether these petitions were timely filed.

The Court of Civil Appeals in Ex parte Hoyt, 984 So.2d 424, 425-26 (Ala. Civ. App. 2007), explained:

" 'The presumptively reasonable time within which to file a petition for a writ of mandamus is the time in which an appeal may be taken.' Norman v. Norman, 984 So.2d 427, 429 (Ala. Civ. App. 2007). In the present case, the petition was filed 68 days after the trial court had entered its order [challenged by the mandamus petition]. Accordingly, the petition was filed outside of the presumptively reasonable 42-day period. '[A] motion to [alter, amend, or vacate] [does] not work to extend that presumptively reasonable time within which the [petitioner] could have filed a petition for a writ of mandamus.' Norman, 984 So.2d at 429 ; see also Ex parte Onyx Waste Servs., 979 So.2d [833,] 834 [ (Ala. Civ. App. 2007) ]. ' "[U]nlike a postjudgment motion following a final judgment, a motion to reconsider an interlocutory order does not toll the presumptively reasonable time period that a party has to petition an appellate court for a writ of mandamus." ' Norman, 984 So.2d at 429 (quoting Ex parte Onyx Waste Servs., 979 So.2d at 834 ).
" 'When a petition for a writ of mandamus has not been filed within a presumptively reasonable time, the petition "shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time." Rule 21(a)(3), Ala. R. App. P. "The filing of such a statement in support of an untimely petition for a writ of mandamus is mandatory." Ex parte Fiber Transp., L.L.C., 902 So.2d 98, 100 (Ala. Civ. App. 2004) (citing Ex parte Pelham Tank Lines, Inc., 898 So.2d 733, 736 (Ala. 2004), and Ex parte Troutman Sanders[, LLP], 866 So.2d [547,] at 550 [ (Ala. 2003) ] ).'
" Ex parte Onyx Waste Servs., 979 So.2d at 835.
"The petitioner in this case did not include a 'statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time.' Rule 21(a)(3), Ala. R. App. P. 'Therefore, because the petition was not filed within a presumptively reasonable time and no statement constituting good cause for this court to consider the petition was filed, we must dismiss the petition.' Ex parte Onyx Waste Servs., 979 So.2d at 835."

984 So.2d at 424-25. See Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549-50 (Ala. 2003) (noting that the effect of a Rule 59(e), Ala. R. Civ. P., motion in tolling the time to file an appeal is applicable to final judgments and holding that a motion to reconsider a nonfinal, interlocutory order does not toll the time for filing a petition for a writ of mandamus seeking review of such order).

In case no. 1150269, as in Hoyt, Allstate filed its petition more than 42 days after the trial court had entered the order purporting to grant Payne's motion seeking to "enforce" the settlement agreement. In fact, Allstate's petition was filed on the 57th day following entry of that order. As was true in Hoyt, Allstate's motion to alter, amend, or vacate that interlocutory order did not toll the time for filing a petition for writ of mandamus in this Court. In addition, the petition does not include, as contemplated by Rule 21(a)(3), Ala. R. App. P., a statement explaining Allstate's failure to file the petition within the 42-day period contemplated by that rule. In consideration of those circumstances, the petition was not filed within the presumptively reasonable time; therefore, it is due to be dismissed. See Hoyt, supra ; Troutman Sanders, 866 So.2d at 549.

In case no. 1150511 and case no. 1151266, both petitions were timely filed within 42 days of the trial court's orders purporting to enforce the settlement agreements. Those matters are, thus, properly before this Court.

II. Case No. 1150511 and Case No. 1151266

In Lowe, the Court considered the following question of first impression: "Whether an insured may file a claim for underinsured motorist coverage against his or her own insurer in the same lawsuit with the insured's claim against the alleged underinsured motorist ...." 521 So.2d at 1309. We noted:

"Three separate, underlying considerations are essential to our disposition of this first-impression case: 1) that of protecting the right of the insurer to know of, and participate in, the suit; 2) that of protecting the right of the insured to litigate all aspects of his claim in a single suit ...; and 3) that of protecting the liability phase of the trial from the introduction of extraneous and corrupting influences, namely, evidence of insurance ...."

Id. This Court ultimately held that all the foregoing concerns were accommodated by the following procedure:

"A plaintiff is allowed either to join as a party defendant his own liability insurer in a suit against the underinsured motorist or merely to give it notice of the filing of the action against the motorist and of the possibility of a claim under the underinsured motorist coverage at the conclusion of the trial. If the insurer is named as a party, it would have the right, within a reasonable time after service of process, to elect either to participate in the trial (in which case its identity and the reason for its being involved are proper information for the jury), or not to participate in the trial (in which case no mention of it or its potential involvement is permitted by the trial court). Under either election, the insurer would be bound by the factfinder's decisions on the issues of liability and damages. If the insurer is not joined but merely is given notice of the filing of the action, it can decide either to intervene or to stay out of the case."

521 So.2d at 1310.

Subsequently, in Lambert, the Court considered "the right of an insured to settle with a tort-feasor, and to give the tort-feasor a complete release without getting the consent of the insured's carrier of underinsured motorist coverage to the settlement." 576 So.2d at 161. Noting "the 'twilight zone' that [an insured] is placed in when the underinsured motorist insurance carrier does not want to give its consent to settle, or wants to protect its subrogation rights," Lambert"attempt[ed] to provide a road map for everyone concerned to follow." 576 So.2d at 165. That "road map" included the following "general rules":

"(1) The insured, or the insured's counsel, should give notice to the underinsured motorist insurance carrier of the claim under the policy for underinsurance benefits as soon as it appears that the insured's damages may exceed the tortfeasor's limits of liability coverage.
"(2) If the tort-feasor's liability insurance carrier and the insured enter into negotiations that ultimately lead to a proposed compromise or settlement of the insured's claim against the tort-feasor, and if the settlement would release the tort-feasor from all liability, then the insured, before agreeing to the settlement, should immediately notify the underinsured motorist insurance carrier of the proposed settlement and the terms of any proposed release.
"(3) At the time the insured informs the underinsured motorist insurance carrier of the tort-feasor's intent to settle, the insured should also inform the carrier as to whether the insured will seek underinsured motorist benefits in addition to the benefits payable under the settlement proposal, so that the carrier can determine whether it will refuse to consent to the settlement, will waive its right of subrogation against the tort-feasor, or will deny any obligation to pay underinsured motorist benefits. If the insured gives the underinsured motorist insurance carrier notice of the claim for underinsured motorist benefits, as may be provided for in the policy, the carrier should immediately begin investigating the claim, should conclude such investigation within a reasonable time, and should notify its insured of the action it proposes with regard to the claim for underinsured motorist benefits.
"(4) The insured should not settle with the tort-feasor without first allowing the underinsured motorist insurance carrier a reasonable time within which to investigate the insured's claim and to notify its insured of its proposed action.
"(5) If the uninsured motorist insurance carrier refuses to consent to a settlement by its insured with the tort-feasor, or if the carrier denies the claim of its insured without a good faith investigation into its merits, or if the carrier does not conduct its investigation in a reasonable time, the carrier would, by any of those actions, waive any right to subrogation against the tort-feasor or the tort-feasor's insurer.
"(6) If the underinsured motorist insurance carrier wants to protect its subrogation rights, it must, within a reasonable time, and, in any event before the tort-feasor is released by the carrier's insured, advance to its insured an amount equal to the tort-feasor's settlement offer."

576 So.2d at 167. Finally, Lambert explained that the foregoing

"guidelines should be applied with the understanding that the purpose of consent-to-settle clauses in the uninsured/underinsured motorist insurance context is to protect the underinsured motorist insurance carrier's subrogation rights against the tort-feasor, as well as to protect the carrier against the possibility of collusion between its insured and the tortfeasor's liability insurer at the carrier's expense."

Id.

In these two remaining petitions, Allstate and GEICO (hereinafter collectively referred to as "the insurers") contend that they are entitled to mandamus relief on the ground that they, in all respects, complied with the procedural requirements established by this Court in Lowe and in Lambert, supra, and that they, therefore, possessed a clear legal right to have their liability to pay UIM benefits, if any, determined by a jury whose verdict would not be influenced by evidence of insurance coverage. According to the insurers, the trial courts' actions in ordering the subject settlements to be enforced over their objections, and the tortfeasors to be dismissed, thus leaving the insurers as the only remaining defendants, deprived them of that right. The respondents counter that, contrary to the insurers' claims, the trial courts' actions did not deprive the insurers of any legal right because, at the time the settlements were enforced, the insurers' subrogation claims against the tortfeasors had been extinguished by the expiration of the applicable limitations period-a claim that, at least according to Walker, is "the practical and logical result of this Court's decision in Bradford." (Case no. 1150511, Walker's answer, at p. 8.) We disagree.

It is undisputed that, at all times pertinent hereto, the insurers complied, to the very "letter of the law," with the Court's dictates in Lowe and Lambert, as set out above. Specifically, Allstate and GEICO, after receiving notice of a settlement offer but declining to consent, which right was secured by the respective contracts between the insurers and their insureds, properly advanced an amount equal to the tortfeasor's respective settlement offer. Further, Allstate ultimately exercised the available option of opting out of further participation in the litigation in order to prevent mention of "its potential involvement." Despite that compliance, the actions of the trial courts in attempting to order that the settlements be effected and the tortfeasors dismissed have essentially nullified the insurers' legal right both to withhold consent to settlement and to opt out of further proceedings. In essence, despite the insurers' payment of the funds necessary to enjoin the insureds' consummation of the tortfeasors' offered settlements, the insurers were, nonetheless, ultimately forced to accept the exact settlement to which they had previously declined to consent. Further, as a result of the trial courts' attempted dismissal of the tortfeasors, the insurers-each of which would be the sole remaining defendant in each case-are being denied the right to opt out of further proceedings and to avoid mention of their involvement in the case.

The respondents argue that this circumstance resulted from the insurers' own inaction, namely, the failure of the insurers to timely file either cross-claims or separate subrogation actions against the tortfeasors. More specifically, citing Bradford and Hardin, it is contended that once the statute of limitations on a direct subrogation action by the insurers against the tortfeasors has expired, "[t]here would be no viable legal means by which the [insurers] could collect against the [tortfeasors]." (Case no. 1151266, Chamberlin's answer, at p. 10.) As this Court recently explained in Bradford, however, "insurers need not file a direct action against the tortfeasor to protect their rights of reimbursement ... [but] may obtain reimbursement from the insured's recovery against the tortfeasor." 164 So.3d at 540. Indeed, as Justice Murdock noted in his special concurrence in Bradford, having advanced the tortfeasor's policy limits to its insured, "[the insurer] is now the beneficial owner of 'the case' against [the tortfeasor]," and, as such, "has the right to control the prosecution of that case." 164 So.3d at 541 (Murdock, J., concurring specially). Thus, it is of no consequence that the timing for filing a direct action by the insurers against the tortfeasors has expired. The respondents correctly point to Bradford, 164 So.3d at 539, Hardin, 982 So.2d at 526, and related authorities as establishing that the statute of limitations begins to run against a subrogated insurer at the same time it begins to run against the insured. See also Home Ins. Co. v. Stuart-McCorkle, Inc., 291 Ala. 601, 607-08, 285 So.2d 468, 472-73 (1973). However, that well settled principle is clearly applicable only insofar as it prevents an insurer from "fil[ing] some new claim in its own name against [the tortfeasor] after the statute of limitations has expired." Bradford, 164 So.3d at 541 (Murdock, J., concurring specially) (emphasis added).

As noted in Lambert:

"This Court has held that the insurer's duty to defend is more extensive than its duty to pay. See Universal Underwriters Ins. Co. v. Youngblood, 549 So.2d 76 (Ala. 1989) ; United States Fidelity & Guar. Co. v. Armstrong, 479 So.2d 1164 (Ala. 1985) ; and Samply v. Integrity Ins. Co., 476 So.2d 79 (Ala. 1985). Therefore, the liability insurer's duty to defend the tort-feasor could extend beyond that moment when the underinsured motorist insurance carrier elected to pay to its insured the amount offered by the tort-feasor's liability insurer."

576 So.2d at 167-68.

Because the insurers, in following the express directives of this Court, have been deprived of their contractual rights as well as the benefit of the procedures set forth in Lowe and Lambert, we conclude that they have demonstrated a clear legal right to the requested relief. We, therefore, in case no. 1150511 and case no. 1151266, direct the applicable circuit court to vacate its respective order purporting both to "enforce" the pro tanto settlement agreements against the insurer's consent and to dismiss the tortfeasors.

1150269-PETITION DISMISSED.

Stuart, C.J., and Bolin, Parker, Main, Wise, and Bryan, JJ., concur.

Murdock, J., dissents.

1150511-PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Bolin, Parker, Murdock, Main, Wise, and Bryan, JJ., concur.

1151266-PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Bolin, Parker, Murdock, Main, Wise, and Bryan, JJ., concur.

      As noted above, GEICO filed a motion to reconsider, but nevertheless filed its petition within 42 days of the trial court's order purporting to grant the motion to enforce the settlement.

      There appears to be no suggestion that, in any of the three cases, the consent of the respective insurer was unreasonably withheld or that Allstate did not "opt out" within a reasonable time.

      GEICO was added as a defendant in May 2016, and Chamberlin's motion seeking "enforcement" of the settlement offer was made the next month. Thus, it does not appear that GEICO had yet had the opportunity to "opt out" of the proceedings within a reasonable time. See Ex parte Electric Ins. Co., 164 So.3d 529, 531 (Ala. 2014) (holding that an insurer's decision to opt out, which was nearly two years after the complaint was filed and after participation in discovery, was made within a reasonable time), and Ex parte Edgar, 543 So.2d 682, 685 (Ala. 1989) ("Logically, the insurer would not want to withdraw from the case too early, before it could determine, through the discovery process, whether it would be in its best interest to do so."). The trial court's order essentially denies GEICO the ability to do so, despite the fact that GEICO has complied with the procedures in Lowe and Lambert.

      GEICO was not made a party in the action until after the applicable limitations period had expired. Additionally, in case no. 1150269, which we are dismissing as untimely filed, Zajic's complaint against Payne and Allstate was filed the day the statute of limitations expired, making it virtually impossible for Allstate to file a timely direct subrogation action against Payne.

      We are likewise unpersuaded by Chamberlin's claim that mere " 'fronting' of the settlement money did not create a vehicle for actual subrogation recovery" but, instead, that "the additional step of a timely Crossclaim or a timely separate lawsuit is necessary." (Case no. 1151266, Chamberlin's answer, at p. 9.) Notably, Chamberlin includes no citation to authority in support of that contention, which appears to be directly contradicted by Bradford and the authority cited therein.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    BRAZELTON PROPERTIES, INC., d/b/a Plush Horse v. CITY OF HUNTSVILLE
    2160043
    Court of Civil Appeals of Alabama.
    April 21, 2017
    Kevin D. Heard of Heard, Ary & Dauro, LLC, Huntsville, for appellant.
    Stacy L. Moon and Ryan G. Blount of F & B Law Firm, P.C., Huntsville, for appellee.
   THOMAS, Judge.

Brazelton Properties, Inc., d/b/a Plush Horse ("Brazelton"), appeals a summary judgment entered by the Madison Circuit Court in favor of the City of Huntsville ("the city"). We dismiss the appeal.

Background

Brazelton owns certain real property located within the geographical limits of the city ("the property") on which businesses such as dinner theaters, entertainment venues, and nightclubs have operated for a number of years. In August 2014, Brazelton submitted an application to the city seeking its approval for a lounge retail liquor license regarding the property ("the 2014 application"). The next month, the city's Liquor License Review Committee ("the committee") denied approval of the 2014 application after concluding that the property did not contain a sufficient number of parking spaces as required by the relevant city ordinances. The city council thereafter upheld the committee's decision.

In October 2014, Brazelton initiated an action against the city in the circuit court. Brazelton's complaint, as amended, stated, in relevant part:

"COUNT I
"....
"15. While a municipality has broad discretion to approve or disapprove the issuance of liquor licenses, such a decision granting or denying a liquor license must be set aside on judicial review if the municipality acted arbitrarily or capriciously.
"16. The [c]ity's standards as [they] relate[ ] to the number of parking spaces necessary in order to obtain a liquor license are not enforced equally. Indeed, on this very [p]roperty the [c]ity has taken inconsistent positions. While the [property] has always been designated as a place of assembly, its approved occupancy has been as high as 750, and with the current parking, was able to obtain a liquor license.[ ] Presently, its occupancy has been reduced to 585[,] and the [c]ity has refused to issue a liquor license stating that the current parking (the count of which varied between 205 and 245) is still short of the required 255. Yet the [c]ity refused Brazelton['s] request to reduce the occupancy rating down from 585 to 425 so as to meet the 'required' parking spaces. Clearly, the [c]ity keeps moving the goal post for Brazelton....
"17. Upon information and belief, Brazelton ... is situated no differently than other establishments who have been granted liquor licenses. Such disparate and unequal treatment in the application of the rules concerning the issuance of the liquor license is arbitrary and capricious.
"18. Moreover, the unequal application by the city of the parking space requirement for the issuance of a liquor license shows that this regulation bears no substantial relationship to the health, safety, morals and general welfare and is therefore invalid.
"19. Accordingly, the [c]ity's decision to deny the liquor license to Brazelton ... is due to be set aside as arbitrary and capricious.
"COUNT II-Denial of Equal Protection
"20. Brazelton ... adopts and incorporates by reference the allegations set forth in paragraphs 1 through 19 as if fully set forth herein.
"21. The [c]ity's application of its regulations and ordinances in denying the liquor license to Brazelton violated Brazelton's right to equal protection guaranteed it by Sections 1, 6[,] and 13 of the Alabama Constitution. Specifically, the [c]ity selectively applied its licensing requirements to [Brazelton] in violation of Alabama's constitution. Therefore, the [c]ity's actions should be found to be void as a matter of law.
"22. ... Brazelton ... has suffered substantial financial harm as a result of the selective and arbitrary enforcement by the [c]ity of its regulations.
"COUNT III-Inverse Condemnation
"23. [Brazelton] adopts and incorporates by reference the allegations set forth in paragraphs 1 through 22[ ] as if fully set forth herein.
"24. This is an action for inverse condemnation.
"25. As noted by the Supreme Court of Alabama[:] 'Property ownership should, and does, bring with it freedom to use one's possession as the owner deems appropriate, subject, of course, to reasonable restraints for the general health, safety or public welfare ... absent the need for such reasonable impediments, the landowner's "bundle of rights" should remain inviolate.' BP Oil Co. v. Jefferson County, 571 So.2d 1026, 1028 (Ala. 1990).
"26. Yet the actions of the [c]ity have caused the [p]roperty ... to be unsuitable for its intended purpose and [Brazelton']s right to use the property has been prevented by the actions of the [c]ity.
"27. Such actions by the [c]ity constitute a taking without just compensation in violation of Section 23 of Article 1 of the Constitution of Alabama of 1901[,] Section[ ] 235 of Article XII of the Constitution of Alabama of 1901, [and] Ala. Code § 18-1A-32 (1975).
"28. The [c]ity has the power of eminent domain, and the power to commence condemnation actions; however, the [c]ity has not instituted such actions for the taking of the property. Instead the [c]ity has denied Brazelton's application for a liquor license and thus [Brazelton] cannot use the [p]roperty according to its highest and best use and its historical purpose.
"RELIEF REQUESTED ON ALL COUNTS
"1. Enter an Order finding that the [c]ity's denial of Brazelton['s] liquor license is arbitrary and capricious and due to be reversed;
"2. Find that the [c]ity's actions were in violation of the equal protection clause afforded Brazelton under the Alabama Constitution;
"3. Determine that the [c]ity's arbitrary denial of Brazelton['s] liquor license amounts to the inverse condemnation of the [p]roperty by the [c]ity for which Brazelton ... is entitled to compensatory damages in an amount to be determined at trial; and
"4. Award Brazelton ... its attorney's fees and costs of this action as well as grant it such further legal or equitable relief as maybe appropriate under the circumstances."

The city filed two motions to dismiss regarding Brazelton's original complaint, the second of which specifically pertained to only portions of the original complaint. The circuit court entered an order indicating that the city's first motion to dismiss had become moot and entered an order denying the city's second motion to dismiss. The city thereafter filed an answer to Brazelton's complaint and submitted a petition for the writ of mandamus to the Alabama Supreme Court requesting that it order the circuit court to grant the city's second motion to dismiss. The supreme court denied the city's petition on December 11, 2015, see Ex parte City of Huntsville (No. 1140539), 224 So. 3d 155 (Ala. 2015)(table), after which Brazelton filed the amended complaint, portions of which are quoted above, and the city filed an answer to Brazelton's amended complaint.

In June 2016, the city filed a motion for a summary judgment in the circuit court regarding "all claims asserted against it" and a brief in support of its motion. In its supporting brief, the city argued, among other things, that, to the extent that Brazelton had requested monetary damages stemming from the city's alleged violations of the Alabama Constitution, such a remedy was not available under Alabama law. See Matthews v. Alabama Agric. & Mech. Univ., 787 So.2d 691, 698 (Ala. 2000) (noting an absence of authority "recogniz[ing] a private cause of action for monetary damages based on violations of the provisions of the Constitution of Alabama of 1901"). Brazelton thereafter submitted a response to the city's summary-judgment motion. On August 30, 2016, the circuit court entered a judgment granting the city's motion. Brazelton filed a motion on September 13, 2016, requesting that the circuit court alter, amend, or vacate its summary judgment, and the circuit court denied Brazelton's motion on September 16, 2016. On October 11, 2016, Brazelton filed a timely notice of appeal to the Alabama Supreme Court. The appeal was transferred to this court by the supreme court pursuant to § 12-2-7(6), Ala. Code 1975.

Brazelton submitted its appellate brief to this court on January 17, 2017. On February 1, 2017, the city moved to dismiss Brazelton's appeal as moot, citing as authority Rule 27, Ala. R. App. P. In support of its motion, the city alleged that Brazelton had submitted a second application to the city seeking its approval for a lounge retail liquor license regarding the property in September 2016 ("the 2016 application"), that the committee had approved the application in November 2016, and that the city council had upheld the committee's decision on January 12, 2017. Thus, citing, among other cases, South Alabama Gas District v. Knight, 138 So.3d 971, 974 (Ala. 2013), the city argued that this court "lacks power to further adjudicate this matter."

On February 8, 2017, Brazelton submitted a response to the city's motion to dismiss. In its response, Brazelton conceded that the city had approved the 2016 application but argued that its amended complaint "ha[d] raised claims not only seeking injunctive relief, but also seeking compensatory damages resulting from the [city]'s denial of its liquor license in 2014," and it asserted that "claims exist in the [circuit] court which are not resolved by [the city]'s issuance of a liquor license to Brazelton." Specifically, Brazelton argued:

"Brazelton's request for a liquor license was initially denied on September 24, 2014, and the denial was affirmed by the Huntsville City Council on September 25, 2014.... It has been over two years since [the city] denied Brazelton's request-two years in which Brazelton's property could have been generating income absent [the city]'s denial of its liquor license. Brazelton has also been forced to incur over two years' worth of attorneys' fees and costs in litigating this matter with [the city], which fees and costs have been requested as damages.
"Regardless of [the city]'s action granting Brazelton a new liquor license, an actual controversy still exists between the parties regarding the monetary relief requested by Brazelton as a result of [the city]'s long delay in granting its license. If this Court reverses the trial court's order granting summary judgment for [the city], then Brazelton still retains its opportunity to seek monetary damages against [the city] for the deprivation of its constitutional rights. Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690 (1978). If this Court fails to rule on Brazelton's appeal, Brazelton's collateral right to seek monetary damages from [the city] for constitutional violations remains undetermined. As a result, this appeal is not moot. Coaker[ v. Washington Cty. Bd. of Educ., 646 So.2d 38,] 41 [ (Ala. Civ. App. 1993) ]."

We issued an order on February 14, 2017, denying the city's motion to dismiss. The city submitted its appellate brief to this court that same day.

Analysis

In its appellate brief, the city first reasserts its argument that Brazelton's appeal is moot. Brazelton did not discuss whether its appeal is moot in its principal appellate brief, and it did not file a reply brief in response to the city's appellate brief. Therefore, Brazelton's only argument before this court regarding the issue whether its appeal is moot is the argument set forth in its response to the city's motion to dismiss. Because of its jurisdictional implications, we first reconsider the city's mootness argument. See Ex parte Hampton, 189 So.3d 14, 17 (Ala. 2015) ("A moot case lacks justiciability, and an action that originally was based on a justiciable act cannot be maintained on appeal if subsequent acts or events have made the questions raised on appeal moot."); Birmingham Bd. of Educ. v. Boyd, 877 So.2d 592, 594 (Ala. 2003) ("A justiciable controversy is a prerequisite to this Court's subject-matter jurisdiction."); and C.J.L. v. M.W.B., 868 So.2d 451, 453 (Ala. Civ. App. 2003) ("[A] court's lack of subject-matter jurisdiction may be raised at any time ... and may even be raised by a court ex mero motu.").

Regarding the specific claims set forth in Brazelton's amended complaint, the parties do not dispute that Brazelton's claim requesting that the circuit court order the city to approve the 2014 application has become moot because the city has since approved the 2016 application. See, e.g., Board of Adjustment, City of Montgomery v. Priester, 347 So.2d 530, 531-32 (Ala. Civ. App. 1977) ("The Board of Adjustment originally denied Priester's request for a variance to allow the mobile homes to remain on her premises. However, subsequent to the entry of the judgment by the Circuit Court of Montgomery County, Priester and the Board of Adjustment reached agreement concerning the disposition of the mobile homes. ... Hence, there is no longer a conflict or controversy between the parties."), and Ex parte Hampton, 189 So.3d at 17 (noting that, because the plaintiff had died while the litigation was pending, the "parties agree[d] that [the plaintiff]'s claim for injunctive relief in the form of compelling the [defendants] to install [the plaintiff] to the teaching position is moot").

As noted above, however, Brazelton argued in its response to the city's motion to dismiss this appeal that its request for compensatory damages entails a controversy regarding a "collateral right" that remains justiciable. In Coaker v. Washington County Board of Education, 646 So.2d 38, 41 (Ala. Civ. App. 1993), this court stated:

"We agree that '[t]he general rule in this state is that if, pending an appeal, an event occurs which makes determination of it unnecessary, or renders it clearly impossible to grant effective relief, the appeal will be dismissed.' Grant v. City of Mobile, 50 Ala.App. 684, 687, 282 So.2d 285, 287 (Ala. Civ. App.), cert. denied, 291 Ala. 458, 282 So.2d 291 (1973). Essentially the same rule applies to cases pending a judgment by the trial court. Chisolm v. Crook, 272 Ala. 192, 130 So.2d 191 (1961). However, an exception to the general rule exists where the appellate court's failure to render a decision on an issue would leave collateral rights of the parties undetermined. Grant, supra."

See also, e.g., National Iranian Oil Co. v. Mapco Int'l, Inc., 983 F.2d 485, 489 (3d Cir. 1992) ("A case is saved from mootness if a viable claim for damages exists.").

In its amended complaint, Brazelton specifically requested compensatory damages stemming only from its inverse-condemnation claim. In the second footnote of its appellate brief, however, Brazelton states that it "acknowledges that the [c]ity is entitled to [a] summary judgment as to Count III of its amended complaint for unlawful taking without just compensation." Therefore, we will consider neither whether that claim implicated a "collateral right," such that it remains justiciable, nor whether the circuit court erred in granting the city's summary-judgment motion regarding that claim. See Chunn v. Chunn, 183 So.3d 985, 998 (Ala. Civ. App. 2015) (explaining that an appellant's failure to assert an argument on appeal results in a waiver of that argument).

In its response to the city's motion to dismiss this appeal, however, Brazelton also specifically argued that its claim regarding the city's alleged failure to provide it "equal protection under the laws" formed the basis for its request for compensatory damages:

"In the count alleging an equal protection violation, Brazelton alleged that it had 'suffered substantial financial harm as a result of the selective and arbitrary enforcement by the [c]ity of its regulations,' and requested all appropriate legal and equitable relief, including attorneys' fees and costs from the [c]ity ...."

Brazelton cited Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), in support of its argument. In Monell, the United States Supreme Court held, in relevant part: "Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom [ 42 U.S.C.] § 1983 applies." 42 U.S.C. § 1983 provides, in relevant part:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ...."

Furthermore, " § 1983 provides a damages remedy." Guardians Ass'n v. Civil Serv. Comm'n of City of New York, 463 U.S. 582, 637, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983) (Stevens, J., dissenting and citing Monell, supra). Additionally, the United States Supreme Court has held that "state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United States." Tafflin v. Levitt, 493 U.S. 455, 458, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990).

We must therefore consider whether Brazelton's amended complaint included a claim for damages under § 1983 such that Brazelton's appeal remains justiciable. In Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), the Supreme Court considered the appropriate pleading standard to be applied in § 1983 actions against municipalities. In so doing, it held that

" Rule 8(a)(2)[, Fed. R. Civ. P.,] requires that a complaint include only 'a short and plain statement of the claim showing that the pleader is entitled to relief.' In Conley v. Gibson, 355 U.S. 41 (1957), we said in effect that the Rule meant what it said:
" '[T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is "a short and plain statement of the claim" that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.' Id., at 47 (footnote omitted)."

Id. (emphasis added).

In its amended complaint, Brazelton neither specifically indicated that it was asserting a claim pursuant to § 1983 nor alleged a violation of the United States Constitution or other federal law regarding the city's purported failure to afford it equal protection. Although in various filings in the circuit court and its brief on appeal Brazelton has relied upon our supreme court's analysis in Bratton v. City of Florence, 688 So.2d 233 (1996), a case involving an appeal from a summary judgment in a § 1983 action, its amended complaint did not allege that the city had deprived it of protections guaranteed by the United States Constitution.

Instead, the record indicates that Brazelton's equal-protection claim was predicated upon alleged guarantees provided by the Alabama Constitution rather than those provided by the United States Constitution. Indeed, in the portion of its amended complaint setting forth its equal-protection claim, Brazelton stated: "The [c]ity's application of its regulations and ordinances in denying the liquor license to Brazelton violated Brazelton's right to equal protection guaranteed it by Sections 1, 6[,] and 13 of the Alabama Constitution" (emphasis added). Brazelton also specifically requested that the circuit court "[f]ind that the [c]ity's actions were in violation of the equal protection clause afforded Brazelton under the Alabama Constitution" (emphasis added).

Our determination that the Alabama Constitution forms the basis of Brazelton's equal-protection claim is bolstered by our review of the argument portion of its appellate brief, a substantial portion of which is devoted to a discussion regarding our supreme court's decision in Ex parte Melof, 735 So.2d 1172 (Ala. 1999), namely whether that case is stare decisis for the proposition that the Alabama Constitution does not guarantee equal protection under the laws. Absent from Brazelton's appellate brief is an argument regarding whether the circuit court erroneously entered a summary judgment on a purported § 1983 claim, which Brazelton retrospectively implies was alleged within its amended complaint.

Because Brazelton's amended complaint expressly alleged that the city had violated its rights under the Alabama Constitution and specifically requested relief pursuant thereto, we do not view the allegations set forth in its amended complaint as "fair notice" to the city that its claims were instead predicated upon alleged violations of the United States Constitution such that it sufficiently pleaded a § 1983 claim under the standard articulated by the Supreme Court in Leatherman. Thus, we do not construe Brazelton's equal-protection claim as § 1983 claim for damages that could have prevented the mootness of this appeal.

Furthermore, to the extent that Brazelton's equal-protection claim requested damages based on the city's alleged violation of the Alabama Constitution, our supreme court has noted an absence of authority establishing "a private cause of action for monetary damages based on violations of the provisions of the Constitution of Alabama of 1901." Matthews, 787 So.2d at 698. It is clearly impossible for a court to grant effectual relief that is not provided by law; therefore, expressing an opinion regarding whether the city violated Brazelton's rights under the Alabama Constitution for that purpose would amount to contemplation of an abstract proposition-a task " 'that the judiciary of Alabama is not empowered' " to perform. Auburn Med. Ctr., Inc. v. East Alabama Health Care Auth., 908 So.2d 243, 245 (Ala. Civ. App. 2003) (quoting Ex parte Connors, 855 So.2d 486, 488 (Ala. 2003) ). Thus, to the extent that Brazelton's amended complaint included a request for compensatory damages based on the city's alleged violations of the Alabama Constitution, we conclude that that claim is moot.

Finally, to the extent that Brazelton has argued that its request for an award of attorney fees remains justiciable, we note that "[a]n outstanding request for attorney fees 'does not resuscitate an otherwise moot controversy.' " Chapman v. Gooden, 974 So.2d 972, 984 (Ala. 2007) (quoting Cammermeyer v. Perry, 97 F.3d 1235, 1238 (9th Cir. 1996) ). Furthermore, "it is not customary to decide moot questions merely to ascertain who is liable for costs." City of Mobile v. Scott, 278 Ala. 388, 390, 178 So.2d 545, 547 (1965). Because Brazelton has waived any argument regarding its inverse-condemnation claim, and because the other claims asserted in Brazelton's amended complaint are moot, we dismiss Brazelton's appeal from the circuit court's summary judgment in favor of the city.

APPEAL DISMISSED.

Thompson, P.J., and Pittman, Moore, and Donaldson, JJ., concur.

      Portions of the record indicate that the city had approved liquor-license applications regarding the property in the past, but those liquor licenses had reportedly been a different type than the kind Brazelton requested in the 2014 application.

      Similar to Rule 8(a)(2), Fed. R. Civ. P., Rule 8(a)(1), Ala. R. Civ. P., requires that a pleader provide "a short and plain statement of the claim showing that the pleader is entitled to relief."

      We also note that Brazelton argued in its response to the city's motion to dismiss its appeal that it "could have been generating income" if the city had not denied the 2014 application. To the extent that Brazelton asserts that it requested an award of lost profits in its amended complaint, we note that lost profits are special damages. Bayliss Mach. & Welding Co. v. Huntsville Ice & Coal Co., 265 Ala. 383, 389, 91 So.2d 483, 488 (1956). Rule 9(g), Ala. R. Civ. P., provides: "When items of special damage are claimed, they shall be specifically stated." Brazelton did not specifically state in its amended complaint that it was seeking an award of lost profits stemming from the city's denial of the 2014 application; therefore, Brazelton's amended complaint did not adequately plead a request for lost profits.