Lucas v. District Court of Pueblo County in Tenth Judicial Dist., 18859

• Decision Date: 09 March 1959
• Docket Number: No. 18859,18859
• Citation: 345 P.2d 1064,140 Colo. 510
• Parties: Mary V. LUCAS and William E. Lucas, Sr., Plaintiffs, v. DISTRICT COURT of the COUNTY OF PUEBLO in the TENTH JUDICIAL DISTRICT and the Honorable John H. Marsalis, one of the Judges thereof, Defendnats.
• Court: Colorado Supreme Court

Page 1064

345 P.2d 1064

140 Colo. 510

Mary V. LUCAS and William E. Lucas, Sr., Plaintiffs, v. DISTRICT COURT of the COUNTY OF PUEBLO in the TENTH JUDICIAL

DISTRICT and the Honorable John H. Marsalis, one

of the Judges thereof, Defendnats.

No. 18859.

Supreme Court of Colorado, En Banc.

March 9, 1959.

On Rehearing Nov. 2, 1959.

Dissenting Opinion Nov. 16, 1959.

Petersen, Evensen & Evans, Pueblo, for plaintiffs.

Phelps, Fonda & Hays, Pueblo, for defendants.

Kenneth M. Wormwood, Samuel M. January, William K. Ris, Walter A. Steele and Myron H. Burnett, Denver, amici curiae.

DOYLE, Justice.

This is an original proceeding under Rule 106 in which the plaintiff seeks an order directing the District Court of Pueblo County to require the defendants to furnish information pertaining to liability insurance. The matter arose during the taking of the defendants' depositions. This was brought to the attention of the District Court by motion and that court refused to grant the requested relief.

The complaint contains the following facts: That there is now pending in the Pueblo District Court a certain suit in which the plaintiffs here are plaintiffs and George M. and Grace Elaine Moore are defendants; that in the course of taking the depositions of the defendants, questions were propounded relative to the existence of liability insurance and the policy limits thereof; that the defendants refused to answer the questions; that thereupon a motion was filed to compel the disclosure of the liability limits of the insurance policy which the defendants admittedly had, and the trial court denied this motion. It is alleged that the liability policy is subject to the Safety Responsibility Law of Colorad; that this statute was enacted for the protection of the public; and that following the collision, the provisions of the insurance policy became active under C.R.S. '53, 13-7-23(a), and the plaintiffs have a right to discover the information as bearing on the extent of trial preparation and so as to obtain full benefit to the existence of the insurance coverage. It is also alleged that the matter is relevant within the terms of Rule 26(b), Rules of Civil Procedure.

Hearing on the issues raised by the motion was had in the district court and it held:

'That the discovery in question was sought prior to the trial and judgment, and plaintiffs desired this information for the purpose of using it in an attempted compromise of the action and not for the purpose of satisfying a judgment already obtained.'

Following the filing of the complaint herein, we issued an order directed to the trial court to show cause why the requested relief should not be granted. Within the time, defendants filed their motion to dismiss the complaint. This motion questioned the validity and propriety of mandamus as a remedy. The averments of the motion are that the question is one which called for the exercise of discretion by the District Court, and for that reason its action is not subject to review by means of this extraordinary remedy.

Although the case purports to arise under Rule 106, it is our view that this rule does not apply to original proceedings. The Constitution of Colorado, Article VI, Section 3, declares in referring to this Court that 'It shall have power to issue writs of * * * mandamus, quo warranto, certiorari, injunction, and other original and remedial writs, with authority to hear and determine the same. * * *'

In Leonhart v. District Court, 138 Colo. 1, 329 P.2d 781, 783 we said:

'Our authority to entertain remedial writs is conferred by the Constitution, and 'is not dependent upon, or governed by the statute' or rules of civil procedure on the subject. People ex rel. Lindsley v. District Court, 30 Colo. 488, 71 P. 388. 'Those writs, however, are the common law writs * * *'. Bulger v. People, 61 Colo. 187, 156 P. 800, 803.'

We shall treat this complaint as if it were a petition seeking the issuance of a writ of mandamus or certiorari as the same existed at common law. Although the procedure question here presented was determined when the rule to show cause issued, we shall comment on it (since defendant has filed a motion to dismiss which raises the issue.)

1. Validity of the Procedure. We have concluded that the matter should be determined on its merits and that the motion to dismiss should be denied. In our view, the procedure which has been followed by the plaintiffs is the only procedure which would permit them to test the validity of the trial judge's ruling. Had they permitted this question to await final judgment it would then have become moot, because concededly the testimony in question would not have been admissible at the trial with the result that the final judgment of the trial court would not have been affected by the instant ruling. Since the order is interlocutory and thus not reviewable by writ of error, there is in truth no adequate remedy available to the plaintiffs.

Defendants have argued that since the substantive issue is one of first impression in Colorado and since there is a division of viewpoint in other jurisdictions, the trial court exercised a discretion in selecting one viewpoint and in rejecting the other. This, it is argued, cannot be reviewed by mandamus. This argument does not take into account that the ruling of the trial court in pre-trial matters would as a general rule become final and the aggrieved party would be helpless to obtain relief by writ of error. The situation is analogous to that which was presented to this Court in Town of Glendale v. City and County of Denver, 137 Colo. 188, 322 P.2d 1053, 1055, wherein it was held in an eminent domain proceeding that writ of error would not issue to review an interlocutory order granting immediate temporary possession. The court cited Swift v. Smith, 119 Colo. 126, 201 P.2d 609 and said:

'The proper proceeding for relief from an interlocutory order as stated in Swift v. Smith, supra, is by certiorari. Later in Potashnik v. Public Service Co. of Colorado, 126 Colo. 98, 247 P.2d 137, 138, this court, we think, intended to and did in fact remove all confusion as to procedure by carefully outlining the proper remedy as follows:

"* * * within the period of stay of execution granted by the trial court, the owners, not having the right of review of said interlocutory order upon writ or error, filed original action by way of certiorari in this court, alleging that otherwise they were without remedy whatsoever to protect their property from seizure under the order of the district court, which they contend was without lawful authority. * * *'

'The court then went on to say, 126 Colo. at page 101, 247 P.2d at page 138:

"That a writ of error to review an interlocutory order of the district court will not lie is conceded. That an original proceeding in the nature of certiorari under Rule 106, R.C.P. Colo., when directed to an endangered, fundamentally substantive and substantial right, is maintainable and recognized as a proper remedy is settled.

Swift v. Smith, 119 Colo. 126, 201 P.2d 609."

We hold that the denial of a right such as that here asserted (in pre-trial proceedings), which action is not reviewable otherwise, may be determined by means of an original proceeding in certiorari in this court.

We conclude that the complaint should be entertained and that this question should be determined on its merits.

2. Scope of Discovery. In order to decide whether inquiring into the existance and extent of liability insurance is proper in pre-trial depositions, we must consider Rule 26(b) R.C.P.Colo., which provides in pertinent part:

'* * * 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, * * *. It is not grounds 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 specific question for determination is whether the mentioned inquiry is 'relevant to the subject matter involved in the pending action' within the meaning of this rule, or whether relevancy as here used is restricted to evidence which is admissible at the trial or testimony which is reasonably calculated to lead to the discovery of admissible evidence.

As bearing on this question, our attention has been directed to the Automobile Safety Responsibility Law, C.R.S. '53, 13-7-1 et seq., and specifically to Sections 13-7-19, 22 and 23. In general, the purpose of the provisions cited is to foster and promote insurance coverage or, in the event of accident, a bond to insure financial responsibility. Its ultimate object is to provide compensation for innocent persons who might be injured through faulty operation of motor vehicles. Toward these ends, it provides inter alia that (1) the insurance carrier's liability shall become absolute whenever loss or damage covered by the policy occurs; (2) that attempted satisfaction of final judgment by insured shall not be a condition precedent to the obligation of carrier to make payment; (3) that fraud, misrepresentation or other act of insured in obtaining the policy shall not constitute a defense available to the insurer against a judgment creditor; and (4) limitations upon the cancellation of a policy. See 13-7-23 supra.

It is often said that the injured person is a third party beneficiary in these insurance contracts. Cf. Ewing v. Colorado Farm Mutual Casualty Co., 133 Colo. 447, 296 P.2d 1040. See also Superior Insurance Co. v. Superior Court, 37 Cal.2d 749, 235 P.2d 833 and State ex rel. Allen v. Second Judicial Court, 1952, 69 Nev. 196, 245 P.2d 999, 1003, holding that policies issued pursuant to acts similar to that here in question are enforcible by injured parties.

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