Fedonczak et al v. State Farm Mutual Automobile Insurance Company et al

Filing 59

MEMORANDUM OPINION AND ORDER directing that it is hereby ORDERED: (1) State Farm's 51 Motion to Opt Out is GRANTED; (2) EMC's 54 Motion to Opt Out is GRANTED; and (3) the Clerk of Court is DIRECTED to remove Staet Farm and EMC as parties to this lawsuit. Signed by Hon. Chief Judge Mark E. Fuller on 12/3/10. (scn, )

Download PDF
Fedonczak et al v. State Farm Mutual Automobile Insurance Company et al Doc. 59 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION J O N EDWARD FEDONCZAK, et al., P la in tif f s , v. S T A T E FARM MUTUAL AUTOMOBILE IN S U R A N C E COMPANY, et al., D e f e n d a n ts. ) ) ) ) ) ) ) ) ) ) C A S E NO. 2:10-cv-61-MEF M E M O R A N D U M OPINION AND ORDER T h is cause is before the Court on Defendant State Farm Mutual Automobile In s u ra n c e Company's ("State Farm") Motion to Opt Out (Doc. # 51), filed November 16, 2 0 1 0 ; and Defendant EMC Insurance Company's ("EMC") Notice of Opting Out (Doc. # 5 4 ), filed November 17, 2010. The Court construes EMC's Notice of Opting Out (Doc. # 5 4 ) as containing a Motion to Opt Out. For the reasons stated below, these Motions are d u e to be GRANTED. T h e Alabama Supreme Court's opinion in Lowe v. Nationwide Insurance C o m p a n y , 521 So.2d 1309 (Ala. 1988) gives underinsured motorist carriers who are jo in e d as parties to a lawsuit the right to choose not to participate in the proceedings. The in s u re r's election to opt out of the proceedings must be timely, but "whether the insurer's m o tio n to withdraw is timely made is left to the discretion of the trial court, to be judged a c c o rd in g to the posture of the case." Ex parte Edgar, 543 So.2d 682, 684 (Ala. 1989). However, under Alabama law, it "would not be unreasonable for the insurer to participate Dockets.Justia.com in the case for a length of time sufficient to enable it to make a meaningful determination a s to whether it would be in its best interest to withdraw." Id. at 685. The Plaintiff argues that in this case, State Farm should not be able to exercise it's rig h t to opt out under Lowe because State Farm has participated in the case through the c lo s e of discovery. It is the opinion of this Court, however, that State Farm's p a rtic ip a tio n has not been unreasonable. State Farm filed its Motion to Opt Out less than tw o weeks after the last deposition was taken in this case. While State Farm still has a d u ty to defend Defendant Kenneth Ray Grissom, as his primary liability insurer, that duty s h o u ld not affect State Farm's right to be dismissed from the lawsuit as a named party. Plaintiffs have not contested EMC's Motion to Opt Out, and therefore this Motion is also due to be granted. It is hereby ORDERED: 1 . State Farm's Motion to Opt Out (Doc. # 51) is GRANTED. 2 . EMC's Motion to Opt Out (Doc. # 54) is GRANTED. 3 . The Clerk of the Court is DIRECTED to remove State Farm and EMC as p a rtie s to this lawsuit. Done this the 3 day of December, 2010. rd /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?