Fort v. Neal

• Decision Date: 09 September 1968
• Docket Number: No. 8693,8693
• Parties: Harvey W. FORT, Administrator of the Estate of Albert Anton Neller, Jr., Deceased, and Albert Neller, Petitioners, v. Honorable Caswell S. NEAL, Judge of the District Court of Eddy County, New Mexico, Respondent.
• Court: New Mexico Supreme Court

Page 990

444 P.2d 990

79 N.M. 479

Harvey W. FORT, Administrator of the Estate of Albert Anton

Neller, Jr., Deceased, and Albert Neller, Petitioners, v. Honorable Caswell S. NEAL, Judge of the District Court of

Eddy County, New Mexico, Respondent.

No. 8693.

Supreme Court of New Mexico.

Sept. 9, 1968.

Hinkle, Bondurant & Christy, Roswell, for petitioners

Donald S. Bush, Artesia, McCormick, Lusk, Paine & Feezer, Carlsbad, for respondent.

OPINION

MOISE, Justice.

The petitioners herein are defendants in an action filed in Eddy County, New Mexico, wherein damages are being sought as the result of the deaths of two persons and injuries to a third, allegedly resulting from the negligence of petitioner Fort's decedent while riding as passengers in an automobile being driven by him owned by petitioner Neller.

Plaintiffs, in the district court, moved for and obtained an order requiring petitioners to disclose the name of the public liability insurance carrier and policy limits of its insurance available in connection with said accident and the damages resulting therefrom. Petitioner then sought and we issued our alternative writ of prohibition directing respondent to take no action to implement the order requiring disclosure.

On oral argument petitioner expressed no objection to divulging the name of the interested public liability insurance carrier, and did disclose its name. However, he persists in his position that he not be required to disclose the limits of his public liability insurance. We thus are presented with a single question of whether under Rule 26(b) (§ 21--1--1(26)(b), N.M.S.A. 1953) such disclosure is required. Our rule is identical with Rule 26(b) of the Federal Rules of Civil Procedure and reads:

'Unless otherwise ordered by the court as provided by Rule 30(b) or (d), the deponent may be examined regarding any matter, not 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.'

Although the problem has not been considered by us previously, it has troubled many courts, both state and federal, and there is a considerable volume of decisions wherein the issue has been presented and resolved. The difficulties present in arriving at the proper interpretation of the rule and its application to the particular problem confronting us have resulted in conclusions both granting the right to force disclosure and refusing it, the conclusions both pro and con being supported by a wide variety of reasons. See Annot., 13 A.L.R.3d 822 (1967); Developments in the Law--Discovery, 74 Harv.L.Rev. 940, 1018 (1961); Jenkins, Discovery of Automobile Liability Insurance Limits: Quillets of the Law, 14 Kan.L.Rev. 59 (1965); Comment, 7 Natural Resources J. 313 (1967); 2A Barron & Holtzoff, Federal Practice & Procedure, § 647.1 (Rules Ed.1961); 4 Moore, Federal Practice, 26.16(3) (2 Ed.1962).

An examination of these authorities will quickly disclose the leading cases on the subject and the multitude of arguments on each side and, further, the total absence of basis for reconciliation between them.

We do not propose to traverse the many paths heretofore traveled, but to confine ourselves to a consideration of the wording of the rule and, if found to be ambiguous, to attempt to determine and apply the intent as disclosed therein.

We have over the years announced a number of rules of statutory construction which we consider pertinent. They are no less applicable because we are interpreting a rule and not a statute.

We first note the rule that statutes are to be given effect as written, Gonzales v. Oil, Chemical & Atomic Workers International Union, AFL-CIO, 77 N.M. 61, 419 P.2d 257 (1966), and where free from ambiguity, there is no room for construction. Martinez v. Research Park, Inc., 75 N.M. 672, 410 P.2d 200 (1966). Where there is ambiguity, however, and meaning is not clear, resort may be had to construction and interpretation, Montoya v. McManus, 68 N.M. 381, 362 P.2d 771 (1961; Weiser v. Albuquerque Oil & Gasoline Co., 64 N.M. 137, 325 P.2d 720 (1958), and, even then, intent is to be determined primarily from the language used, Montoya v. McManus, supra, and the entire provision is to be read together so that all parts are given effect in arriving at the intent of the drafters and promulgators. Drink, Inc. v. Babcock, 77 N.M. 277, 421 P.2d 798 (1967); Cox v. City of Albuquerque, 53 N.M. 334, 207 P.2d 1017 (1949).

What, then, is the meaning of the language stating, that 'the deponent may be examined regarding any matter * * * which is relevant to the subject-matter involved * * *.'? We do not interpret the rule as requiring a strict interpretation of subject matter as being negligence, proximate cause, injuries and damages, as opposed to the entire process of the litigation, including collection of a judgment. Rather, we accept a broad interpretation of this language which has been adopted by those courts applying the so-called liberal approach, and conclude that the subject matter should not be delimited by technical or confining definitions and matter 'relevant' thereto would conceivably include information concerning the fund available to pay any judgment, being specifically the public liability insurance. Also, if this were all that the rule stated, we could agree that possibly disclosure should be permitted as in accord with the purpose expressed in Rule 1, Federal Rules of Civil Procedure, 'to secure the just, speedy and inexpensive determination of every action.' We attach no significance to the fact these words were omitted when we adopted the rules. See New Mexico Rule of Civil Procedure 1 (§ 21--1--1(1), N.M.S.A. 1953). Section 21--3--1, N.M.S.A. 1953, provides for promulgation by the Supreme Court of rules to regulate pleading, practice and procedure for the purpose, among others, of 'promoting the speedy determination of litigation upon its merits.' This we interpret as indicating the end to be sought by our rules to be no different from that of the federal rules.

We run into problems, however, when we undertake to read the provision of Rule 26(b), permitting examination regarding anything 'relevant to the subject-matter involved,' with the last sentence of the rule, added in the federal rules in 1948 and in our own in 1949, which states that discovery is not to be denied because of the fact testimony to be elicited will not be admissible on trial, provided it appears 'reasonably calculated to lead to the discovery of admissible evidence.' The clear inference to be drawn from this language in our view, is that the material being sought must be admissible as evidence on the trial, or for the purpose of developing admissible evidence. Accordingly, when we read the first and last sentences of the rule together, giving meaning to both as required by the rules of construction, we are led unfalteringly to a conclusion that examination may be had concerning anything relevant to the subject matter of the action which will produce evidence admissible in the trial thereof, or which has for its purpose the development of leads to admissible evidence. We do not consider the language reasonably susceptible of interpretation so as to include evidence admissible in supplementary proceedings in the same case to establish assets available to satisfy a judgment, or in a separate suit to collect a judgment. By its express language it is limited to evidence or information leading to evidence admissible at the trial.

In so concluding, we do not consider that we are being either naive or hypertechnical. These names, and worse, have been applied to courts who have refused to follow the lead of those who find the language of the rule not limited to material which may be relevant and admissible in evidence or reasoanbly expected to develop admissible evidence. See Jenkins, supra.

In our approach to the problem we have tried to apply recognized rules of construction and, having determined the meaning of the rule, we see no room for expanding its operation in the name of public policy, changed circumstances, equalizing of positions of the parties, or any of the many other arguments advanced, both pro and con. The following language of District Judge Augelli, in Bisserier v. Manning, 207 F.Supp. 476, 479 (D.N.J. 1962), correctly sets forth our view:

'There can be no doubt that the objectives of the proponents...