Madison v. Travelers Ins. Co.

• Decision Date: 24 February 1975
• Docket Number: No. 55136,55136
• Citation: 308 So.2d 784
• Parties: Huey MADISON v. TRAVELERS INSURANCE COMPANY et al.
• Court: Louisiana Supreme Court

Page 784

308 So.2d 784

Huey MADISON v. TRAVELERS INSURANCE COMPANY et al.

No. 55136.

Supreme Court of Louisiana.

Feb. 24, 1975.

A. R. Occhipinti, C. T. Grace, Jr., George M. Leppert, New Orleans, for plaintiff-applicant.

Stewart E. Niles, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Danegre, New Orleans, for defendants-respondents.

DIXON, Justice.

Writs were granted in this case to determine whether the trial court had abused its discretion in ordering defendant, Travelers Insurance Company, to pay expenses of plaintiff's counsel in taking out-of-state depositions requested by defendant. C.C.P. 1452.

This litigation arose out of an automobile-pedestrian accident which resulted in the filing of suit on October 25, 1971. Plaintiff, an attendant at a parking lot, alleged that he was injured when Malcolm Kline backed up his car and struck him with the open left front door of the car while plaintiff was trying to collect the parking fee at the parking lot. Plaintiff was injured seriously and sought recovery of $85,262.00 from Kline, Commercial Credit Industrial Corporation (CCIC), Kline's employer, and Travelers Insurance Company, CCIC's insurer. Aetna Casualty and Surety Company, the workmen's compensation insurer of plaintiff's employer, intervened claiming reimbursement from defendants for all compensation it had paid or would pay plaintiff.

Trial was originally set for April 5, 1973 and on the pretrial order defendant listed three witnesses, Malcolm Kline, Dr. H. R. Soboloff and John Henry; all were listed as having their residence in Orleans Parish. Three continuances were granted at the request of defendants prior to the filing of the notice of deposition which initiated the present dispute. One continuance was granted because of conflict with another trial of defense counsel; the other two were granted because the case's position on the court's docket did not assure that it would be reached on the day scheduled. Without this assurance defendant did not wish to bring its out-of-state witnesses to New Orleans. Trial was scheduled for March 28, 1974 as the first case on the docket when, on March 22, defendant filed a notice that the deposition of Mr. John Henry, an alleged eyewitness, would be taken in San Francisco on March 25. The trial was continued indefinitely and plaintiff filed a motion for a protective order seeking to have defendant pay all reasonable traveling expenses of plaintiff's and intervenor's attorneys to attend the deposition, as plaintiff was unable to advance the necessary costs. The trial court granted plaintiff's motion and ordered Travelers to prepay the 'reasonable and necessary expenses for travel, lodging and meals for the attorneys for Plaintiff and Aetna Casualty and Surety Company for attendance at the depositions of Martin Bates and John Henry if these depositions are set outside of the Parish of Orleans, State of Louisiana.' Defendant applied for writs to the Court of Appeal, which court determined that the trial court had acted without authority and unreasonably under the circumstances; it ordered the trial court to recall its order. We granted certiorari to review this decision of the Court of Appeal.

I. The Authority of the Trial Court Under Article 1452

Defendant argue that Louisiana C.C.P. 1452 does not authorize a trial court to order a litigant to pay the travel expenses of the attorneys for other parties to take out-of-state depositions.

The pertinent part of C.C.P. 1452 reads as follows:

'After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and upon notice and for good cause shown, the court in which the action is pending may order . . .; or the court May render any other order which justice requires to protect the party or witness from annoyance, embarrassment, oppression, or undue expense.' (Emphasis added).

This provision of the Code of Civil Procedure (adopted by Acts 1960, No. 15) was taken from former R.S. 13:3762 with only minor stylistic changes. In turn, former 13:3762 (adopted by Acts 1952, No. 202) was identical to its source, former Rule 30(b) of the Federal Rules of Civil Procedure. See Hubert, 'The New Louisiana Statute on Depositions and Discovery,' 13 La.L.Rev. 173 (1953). In 1970 the Federal Rules of Civil Procedure were amended, and the provisions of Rule 30(b) dealing with protective orders were incorporated into Rule 26(c) so that they would apply to all discovery; there was no substantive change in the scope of the trial court's authority. The pertinent part of Rule 26(c) reads as follows:

'Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken May make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression or Undue burden or expense, . . .' (Emphasis added).

Since we obtained these discovery rules from the federal rules, we may look for guidance from the federal decisions which have interpreted identical provisions. The federal courts have consistently held that this rule grants a trial court the authority, on the showing of good cause, to order a party litigant to pay the reasonable expenses of the attorneys for the other parties to attend a deposition. This was the position of the federal jurisprudence prior to 1952 when the subject rule was incorporated into Louisiana law. E.g. Jones v. Pennsylvania Greyhound Lines, Inc., 10 F.R.D. 153 (E.D.Pa.1950); Gibson v. International Freighting Corp., 8 F.R.D. 487 (E.D.Pa.1947), affirmed 173 F.2d 591 (3d Cir. 1949); Stevens v. Minder Construction Corp., 3 F.R.D. 498 (S.D.N.Y.1943). ¹ Subsequent decisions of the federal and state courts applying the identical provision and local court rules pursuant to it have confirmed the authority of the trial court. See, e.g., Terry v. Modern Woodmen of America, 57 F.R.D. 141 (W.D.Mo.1972); Meredith v. Gavin, 51 F.R.D. 5 (W.D.Mo.1970); Haviland & Co. v. Montgomery Ward & Co., 31 F.R.D. 578 (S.D.N.Y.1962); Ganem v. Greene, 31 F.R.D. 175 (W.D.Pa.1962); Nagle v. U.S. Lines Co., 242 F.Supp. 800 (E.D.Va.1965); Johnston v. Manufacturers & Traders Trust Co., 22 F.R.D. 67 (W.D.N.Y.1956); State v. Mahoney, 103 Ariz. 308, 441 P.2d 68 (1968); Sears v. Doty, Del.Super., 8 Terry 442, 92 A.2d 604 (1952) (enforcement of local rule). See also, 4 Moore's Federal Practice, 26.41; Wright and Miller, Federal Practice and Procedure: Civil, § 2112 (1970) and Annotation, 70 ALR2d 685 (1960).

We concur with the uniform interpretation of the rule in the federal system, and are of the opinion that the clear wording of C.C.P. 1452 authorizes the trial court to grant orders protecting parties from undue expense involved in discovery procedures.

II. The Reasonableness and Good Cause of the Order

Defendant contends that the order, if authorized, was unreasonable because of plaintiff's failure to show 'good cause' as required by the article. The resolution of the issue of 'good cause' is within the sound discretion of the trial court. A per curiam of the judges of the Eastern District of Pennsylvania used the following language in Gibson v. International Freighting Corp., supra, to describe their authority:

'The opinion filed in this case may well have given the defendant the impression that the sole reason for making the order heretofore entered was that the plaintiff was without funds. To correct this impression we take this occasion to say that that fact is not to be deemed controlling in applications of this kind, but is merely one of the circumstances which may be taken into consideration by the judge to whom the application is made. We repeat, that the matter is entirely within the Court's discretion, to be exercised with regard to the particular circumstances of each case. Without intending to state a rule upon the subject, it may be said that where one party proposes to take the deposition of a witness at a place far distant from the place of trial, not as discovery but to be offered as evidence in the case, the testimony being for his sole benefit and not sought by the other party, it would ordinarily seem fair that he should bear the cost of taking it. If it appears to the Court that the testimony is of such nature that it warrants the presence at the taking of the deposition of the attorney who is to try the case, it would also seem proper to include the traveling expenses of such attorney.' (8 F.R.D. at 488). ²

In a situation similar to the instant case, a federal district court awarded expenses pursuant to a local rule of the district court. The case involved a boatswain who sued his employer for damages sustained when he was injured while employed aboard defendant's vessel. Defendant sought to examine by written interrogatories the vessel's chief mate, who was no longer employed by defendant. Plaintiff objected, contending the witness would be examined on matters central to the litigation and that he should be deposed on oral examination at defendant's expense. The trial court agreed and concluded that:

'If defendant desires to take the deposition of this former employee in San Francisco on the eve of trial on the matters specified in its interrogatories, it may not do so except upon oral examination with full oral cross-examination by plaintiff. Prior to taking such...