Di Pietruntonio v. Superior Court In and For Maricopa County

Decision Date02 July 1958
Docket NumberNo. 6676,6676
Citation327 P.2d 746,84 Ariz. 291
PartiesLivio DI PIETRUNTONIO, Petitioner, v. The SUPERIOR COURT of the State of Arizona IN AND FOR COUNTY OF MARICOPA and The Honorable Lorna Lockwood, one of the Judges thereof, Respondent.
CourtArizona Supreme Court

Lewis, Roca, Scoville & Beauchamp, Phoenix, by John P. Frank, Phoenix, and Walter Linton, by Nathan Holt, Phoenix, for petitioner.

Langerman & Begam, Phoenix, for respondent.

PHELPS, Justice.

This matter comes to us on an original writ of prohibition directed against respondent, The Honorable Lorna Lockwood. The facts upon which the writ is based are those in the case of Susan Bronk, Plaintiff, v. Livio Di Pietruntonio, defendant. Plaintiff is seeking damages from defendant for personal injuries alleged to have been sustained by her as the result of an automobile accident involving defendant and his pickup truck.

Pursuant to Rule 33, Rules of Civil Procedure, 16 A.R.S., plaintiff requested the defendant, petitioner herein, to answer the following interrogatories:

(1) 'Did you on November 18, 1957, at approximately 6:45 p. m. have an automobile insurance policy covering the 1957 Chevrolet pickup in which you were involved in an accident at said time?

(2) 'If your answer to the first interrogatory is in the affirmative, please state the name of the insurance carrier.

(3) 'If your answer to the first interrogatory is in the affirmative, please state whether or not the said automobile insurance, at the said time included bodily injury coverage.

(4) 'If your answer to the third interrogatory is in the affirmative, please state the limits of bodily injury coverage of the said insurance policy at the said time.'

Thereafter timely objections were made to the foregoing interrogatories by petitioner upon the grounds that the information sought therein was 'immaterial, irrelevant and outside of all lawful issues in said cause.' After hearing thereon, and at the conclusion thereof, respondent ordered petitioner to answer the questions contained in the interrogatories. It is the position of petitioner that the Honorable Lorna Lockwood was without lawful authority to make such an order and that in doing so she exceeded the jurisdiction of the court over which she presided. Thereupon, petitioner instituted these proceedings for writ of prohibition. There is no question but that prohibition is a proper remedy to test the jurisdiction of the lower court in a case of this kind.

Rule 33, Rules of Civil Procedure, authorizes a party litigant to employ the use of interrogatories as a means of discovery, subject to the limitations upon their use by the provisions of Rule 26(b) thereof which reads as follows:

'Scope of examination. Unless otherwise ordered by the court as provided by Rule 30(c) or (e), the deponent may be examined regarding any matter, nor privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.'

The precise question presented to us as stated by petitioner in his brief is: whether in the ordinary automobile accident case the discovery process may be used to compel a defendant to reveal to a plaintiff the extent and nature of the insurance coverage of the defendant. It appears to be the universal rule that in order to comply with the purpose of the rules they should be given a liberal construction. McNelley v. Perry, D.C., E.D.Tenn.1955, 18 F.R.D. 360.

This question has been before a number of federal district courts resulting in conflicting results. A federal district court in New York in Orgel v. McCurdy, D.C., S.D.N.Y.1948, 8 F.R.D. 585, and a federal district court in Tennessee in Brackett v. Woodall Food Products, Inc., D.C., E.D.Tenn.1951, 12 F.R.D. 4, 5, both required defendant to disclose information concerning liability insurance carried by defendant. The district judge in New York based his decision upon the ground that 'it may be generally relevant' which seems to be a more or less nebulous reason. To say that a thing may be generally relevant implies with equal weight that it may not be relevant.

The language of Rule 26(b) requires that it shall be relevant to the subject matter involved in the pending action in order to authorize its production. It does not authorize such discovery if perchance it may be relevant. If its disclosure would be 'reasonably calculated to lead to the discovery of admissible evidence', it would be sufficiently relevant to require its disclosure, but, with due respect to the district judge in the New York case, we do not believe the above-quoted phrase used by him is sufficient ground upon which to rest his decision. The decision of the federal district court in the Brackett case, supra, is based, in part, upon the ground that the Tennessee legislature in 1951 passed a law requiring all operators of motor vehicles under certain circumstances to 'show financial responsibility' which is defined as requiring specified minimum limits of liability in insurance policies. The court concluded from the tenor and purpose of such legislation that such insurance policies '* * * are definitely relevant to the subject matter of the pending actions growing out of accidents covered by such policies * * *.'

On the other hand, a federal district court in Pennsylvania in McClure v. Boeger, D.C., E.D.Pa.1952, 105 F.Supp. 612, and a federal district court in McNelley v. Perry, supra, refused to require disclosure concerning coverage on amount covered by a liability insurance policy in automobile accident cases. In the McClure case the court in denying the motion to disclose facts concerning the insurance policy stated that while such information might be advantageous to plaintiff in determining whether or not to accept an offer to settle out of court, but, if it constituted good cause for such discovery it would be equally sound in requiring every defendant in a civil case, tort or contract, to disclose his wealth to plaintiff. The federal district court in Tennessee in denying the motion for discovery in a like case stated that:

'* * * As a general rule, the purpose of seeking information from an adversary, or a witness, is two-fold: (1) To use it in the trial, or (2) to use it as a lead to information for use in the trial. * * *.' McNelley v. Perry, D.C., 18 F.R.D. 360 at page 361.

This appears to us to be fully justified by the language used in Rule 26(b), supra.

The claim of respondent that plaintiff is entitled to such information for evaluation of his case for settlement was repudiated in Jeppesen v. Swanson, 243 Minn. 547, 68 N.W.2d 649, 658. Specifically, the court said:

'* * * Our decision is intended to hold only that, where the information is sought for the sole purpose of evaluating a case for the purpose of determining whether it would be advisable to settle, it is not discoverable under this rule. * * *.'

In the case of Layton v. Cregan & Mallory Co., 263 Mich. 30, 248 N.W. 539, the court required the production of an insurance policy covering the automobile involved in an accident in which plaintiff was injured. This was done however, solely upon the issue raised in the pleadings in which defendant denied ownership of the car. Thereupon plaintiff sought production of the insurance policy under Rule 40. The court stated that if the insurance policy showed ownership of the car it was admissible for that purpose. This, of course, is thoroughly sound. In McDowell Associates Inc., v. Pennsylvania Railroad, D.C., S.D.N.Y.1956, 142 F.Supp. 751, the federal district court held that ownership of goods shipped over the Pennsylvania Railroad lines was an issue in the case and that the interrogatories relating to whether he had filed claim with insurance companies for loss of the goods should have been answered as relevant to the issues of ownership raised in the pleadings.

The case upon which respondent most strongly relies is People ex rel. Terry v. Fisher, 12 Ill.2d 231, 145 N.E.2d 588, 590. The court in that case reviewed most of the cases upon the question here involved and stated that the opinions on the subject were in conflict in both the state and in the federal district courts. The Illinois Supreme Court Rule, S.H.A. ch. 110, § 101.19-4, upon which the Illinois court relies in part in determining the issues in said case, insofar as pertinent, reads as follows:

'Upon a discovery deposition, the deponent may be examined regarding any matter, not privileged, relating to the merits of the matter in litigation, whether it relates to the claim or defense of the examining party or of any other party, including the existence description, nature, custody, condition and location of any documents or tangible things and the identity and location of persons having knowledge of relevant facts.'

The court stated however that:

'Section 388 of the Insurance Code (Ill.Rev.Stat.1955, chap. 73, par. 1000) requires certain standard provisions to be included in liability policies affording injured persons a right of action against the insurer if execution against the insured is returned unsatisfied; section 58(k) of the Motor Vehicle Act (Ill.Rev.Stat.1955, chap. 95 1/2, par. 58k) provides certain minimum liability insurance coverage for motor vehicles; and section 16 of the Truck Act (Ill.Rev.Stat.1953, chap. 95 1/2, par. 253) requires motor carriers to have specified liability insurance policies before permits may be issued. Moreover, we have construed section 388 of the Insurance...

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  • Great Am. Ins. Co. v. Murray
    • United States
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    • 29 Enero 1969
    ...with which he could satisfy a judgment. The great weight of authority has refused to shift this emphasis. Di Pietruntonio v. Superior Court, 84 Ariz. 291, 327 P.2d 746 (1958); McKee v. Walker, 21 Conn.Sup. 168, 149 A.2d 704 (1958); Verrastro v. Grecco, 21 Conn.Sup. 165, 149 A.2d 703 (1958);......
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    ...because it was not relevant to the merits of the case or infringed on the defendant's privacy. See Di Pietruntonio v. Superior Court, 84 Ariz. 291, 327 P.2d 746, 750-51 (1958); Ruark v. Smith, 147 A.2d 514, 515 (Del.Super.Ct.1959); Brooks v. Owens, 97 So.2d 693, 699 (Fla.1957); Sanders v. A......
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