Moynan et al v. Nettles et al

Filing 88

ORDER granting 84 Motion to Opt Out filed by State Farm Mutual Automobile Insurance Company. State Farm has now withdrawn from active participation in this litigation and will not participate in the trial, provided, however, that it shall be bound by the factfinder's decisions as to liability and damages. Signed by Chief Judge William H. Steele on 8/3/2011. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

EILEEN MOYNAN, et al.,
Plaintiffs,
v.
BRYAN HEATH NETTLES, et al.,
Defendants.

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CIVIL ACTION 10-0541-WS-M

ORDER
This matter comes before the Court on defendant State Farm Mutual Automobile
Insurance Company’s Motion to Opt Out (doc. 84).
Plaintiffs, Eileen and William Moynan, brought this action against various defendants
arising from an automobile accident that occurred on Interstate 10 near Loxley, Alabama on June
7, 2009. The Moynans named State Farm as a defendant in this action because State Farm
provided underinsured or uninsured motorist coverage to the Moynans, such that plaintiffs seek
coverage and benefits under that policy.
State Farm has now invoked its opt-out rights under Alabama law, stating that it “elects
not to participate in the trial” and that it “acknowledges that it will be bound by the factual
determinations made by the trier of fact, as well as any judgment or verdict entered herein.”
(Doc. 84, at 2.) Alabama law expressly authorizes insurers to opt out in this manner. See, e.g.,
Ex parte Progressive Specialty Ins. Co., 985 So.2d 897, 899 (Ala. 2007) (“If the insurer is named
as a party [in a UM/UIM case], it would have the right, within a reasonable time after service of
process, to elect either to participate in the trial … or not to participate in the trial …. Under
either election, the insurer would be bound by the factfinder’s decisions on the issues of liability
and damages.”) (citing Lowe v. Nationwide Ins. Co., 521 So.2d 1309, 1310 (Ala. 1988)).

State Farm has timely elected not to participate in the trial.1 Accordingly, the Motion to
Opt Out is granted. State Farm has now withdrawn from active participation in this litigation
and will not participate in the trial, provided, however, that it shall be bound by the factfinder’s
decisions as to liability and damages.2

DONE and ORDERED this 3rd day of August, 2011.

s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

1

In deeming State Farm’s election timely, the Court does not rely on State Farm’s
assertion that “[p]ursuant to the Court’s Scheduling Order, Defendant State Farm has until
Thursday, August 4, 2011, to file a Motion to Opt Out.” (Doc. 84, ¶ 4.) The cited Rule 16(b)
Scheduling Order (doc. 58) prescribes no such opt-out deadline, and State Farm does not identify
any other document or ruling in the court file establishing same.
2

To be clear, State Farm’s opt-out of the trial is not tantamount to its dismissal as a
defendant; therefore, the Clerk’s Office shall not terminate State Farm as a party defendant in
this action. See, e.g., Ex parte Boles, 720 So.2d 911, 914-15 (Ala. 1998) (clarifying that when
insurer elects not to participate in trial, it is not dismissed as a defendant but “has simply
withdrawn from the litigation by exercising its option not to participate in the trial”) (citation and
internal quotation marks omitted). As a consequence of State Farm’s election, there is to be no
mention at trial of State Farm or its potential involvement. See Moore v. United Services Auto.
Ass’n, 898 So.2d 725, 728 (Ala. 2004) (when insurer opts out of litigation, trial court has “an
affirmative duty to ensure that the plaintiff’s insurer or its potential involvement is not mentioned
at trial”).

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