In Ex parte Littrell, [Ms. 1100344, Apr. 1, 2011] __ So. 3d __(Ala. 2011), the Alabama Supreme Court held that an underinsured motorist could not retain the attorney for the plaintiff's underinsured motorist ("UM") carrier as co-counsel once the UM carrier had opted out of the litigation. The plaintiff was injured in an automobile accident with an underinsured driver. Thereafter, the plaintiff filed suit against the underinsured driver and the plaintiff's UM carrier. After suit was filed, the underinsured driver's insurance carrier tendered his policy limits. However, the plaintiff's UM carrier rejected the tender and elected instead to advance the underinsured driver's policy limits to the plaintiff. At the same time, the plaintiff's UM carrier opted out of the case. Shortly before trial, counsel for the plaintiff's UM carrier sought to withdraw as counsel of record for the plaintiff's UM carrier and appear as counsel of record for the underinsured driver. The plaintiff filed a motion to disqualify counsel for the plaintiff's UM carrier from representing the underinsured driver. However, the trial court denied the motion. Thereafter, the plaintiff petitioned the Alabama Supreme Court for a writ of mandamus directing the trial court to grant the plaintiff's motion. On mandamus, the Supreme Court emphasized that the present case was distinguishable from other cases where a UM carrier was allowed to hire additional counsel for an uninsured driver after first opting out of the case. In particular, the Supreme Court noted that in the underinsured context, the underinsured driver and his or her insurance carrier still have a financial incentive to minimize the plaintiff's recovery, and in contrast to a case involving an uninsured driver, the risk of collusion and/or divergent interests is minimal. Thus, in cases involving an underinsured driver, the Supreme Court concluded that there is no compelling need to allow a UM carrier to retain counsel for an underinsured driver once the UM carrier has opted out of the litigation. As a result, the Supreme Court granted the plaintiff's petition.
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