Fort v. Neal, 8693

• Docket Nº: No. 8693
• Citation: 79 N.M. 479, 1968 NMSC 149, 444 P.2d 990
• Case Date: September 09, 1968
• Court: Supreme Court of New Mexico

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.

[79 N.M. 480]

Page 991

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 [79 N.M. 481]

Page 992

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...