Mecke v. Bahr

• Decision Date: 17 July 1964
• Docket Number: No. 35689,35689
• Citation: 129 N.W.2d 573,177 Neb. 584
• Parties: Elma MECKE, Appellee, v. Max BAHR, Appellant.
• Court: Nebraska Supreme Court

Page 573

129 N.W.2d 573

177 Neb. 584

Elma MECKE, Appellee, v. Max BAHR, Appellant.

No. 35689.

Supreme Court of Nebraska.

July 17, 1964.

Syllabus by the Court

The discovery statute does not permit, before liability is determined, the discovery of coverage and limits of liability under an insurance policy issued to the owner of an automobile involved in an accident where the information sought will not be admissible at the trial of the pending action nor where the disclosure of such information does not appear reasonably calculated to lead to the discovery of admissible evidence.

Frederick M. Deutsch, William I. Hagen, James P. Monen, Norfolk, for appellant.

George F. Johnson, Gregory, S.D., Rice & Rice, Frank Roubicek, Creighton, for appellee.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ.

CARTER, Justice.

This is an appeal from the imposition of a fine of $100 on the defendant for contempt of court for refusing in open court to answer an interrogatory as ordered by the court. The defendant has appealed.

The record discloses that the plaintiff commenced an action against the defendant, seeking damages for personal injuries and property damage sustained in an automobile accident.

During the pendency of the case for trial, plaintiff directed the following interrogatory to the defendant: 'What is the name of the insurance company, policy number, coverage and limits of liability insurance coverage issued by the automobile insurance company that had your 1961 Chevrolet sedan insured on October 6, 1962, at the time of the accident involved herein?'

The defendant objected to answering the interrogatory as follows: 'The objection is that the information sought is not relevant to the subject matter involved in the pending action; that the information sought would not be admissible at the trial of the pending action nor would the disclosure of said information appear reasonably calculated to lead to the discovery of admissible evidence.'

The record shows that on the hearing before the court on defendant's objections to the interrogatory, and after the overruling of the objections, counsel for defendant advised the court that he had been directed by his client not to disclose the amount of coverage under the insurance policy, and without intending any personal disrespect for the court, to stand in contempt of the court's order in order that the question could be appealed to the Supreme Court and a final disposition of the issue obtained. The trial court thereupon assessed a fine of $100 on defendant for contempt of court and this appeal was taken therefrom.

It is provided in part by section 25-1267.38, R.R.S.1943: 'Interrogatories may relate to any matters, not privileged, which are relevant to the subject matter involved in the pending action, and the answers may be used by any party to the same extent as testimony taken by deposition.'

By section 25-1267.02, R.R.S.1943, it is provided as to the scope of the examination in the taking of depositions: 'Unless otherwise ordered by the court, 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.'

The statute governing the use of interrogatories is patterned after Rules 26(b), 26(d), and 30(b) of the Federal Rules of Civil Procedure. The adoption of a rule of a foreign jurisdiction ordinarily requires that great weight be given to the construction given such rule by the courts of such foreign jurisdiction, except where it is violative of some established state policy. The rule is of little aid in the instant case because of the division of authority in the federal courts on the construction to be given to the applicable federal rules. The division in authority also extends into the holdings of the state courts. Since the case is one of first impression in this state, our construction of the applicable statutes necessarily rests on sound reasoning rather than on the weight of authority in other jurisdictions.

Under Federal Rule 26(b), there is included the provision: '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.' This provision is not contained in section 25-1267.38, R.R.S.1943, but it is contained in section 25-1267.02, R.R.S.1943, and must be considered in pari materia in view of the provision in section 25-1267.38, R.R.S.1943, stating 'and the answers may be used by any party to the same extent as testimony taken by deposition.' It seems to us, therefore, that the issue resolves itself into the question as to whether the information sought, admittedly not admissible at the trial, 'appears reasonably calculated to lead to the discovery of admissible evidence.'

Cases which hold that the coverage and limits of liability insurance are proper subjects of discovery rely largely upon the following reasons: The Legislature has, by statute, conferred an interest in such a policy upon every member of the public who is negligently injured, and its existence and amount are related to the merits of the matter in litigation. People ex rel. Terry v. Fisher, 12 Ill.2d 231, 145 N.E.2d 588. To be relevant to the subject matter involved, the matter inquired about need not be evidence which will be admissible at trial, nor need it be reasonably calculated to lead to discovery of admissible evidence, and the existence of liability insurance and the policy limits of such insurance were relevant to the subject matter of an automobile accident case. Lucas v. District Court, 140 Colo. 510, 345 P.2d 1064. Since the standard liability policy evidences a contract which inures to the benefit of every person who may be negligently injured by the insured and recovery may be had against the insurer upon judgment being entered against the insured, the insurance carrier is in fact a party in interest. The insurance carrier ordinarily does the investigation work, employs counsel for its insured, and assumes control of the litigation. An insurance contract is no longer a secret, private, confidential arrangement between the insurance carrier and the individual, but is an agreement that embraces those whose person or property may be injured by the negligence of the insured. The questions are relevant to the subject matter of the litigation and within the spirit and meaning of the rule. Maddox v. Grauman (Ky.), 265 S.W.2d 939, 41 A.L.R.2d 964. See, also, Brackett v. Woodall Food Products, D.C., 12 F.R.D. 4; Orgel v. McCurdy, D.C., 8 F.R.D. 585.

Cases holding that the coverage and limits of liability insurance are not properly subjects of discovery before trial rely upon the following reasons: Purpose of discovery rules is to take surprise out of trials of cases by permitting all relevant facts and information to be ascertained in advance of trial, but information which can have no bearing on the merits is not subject to discovery. Amounts and limits of insurance liability coverage, sought for the purpose of evaluating the case for purposes of possible settlement, are not relevant and subject to discovery. Jeppesen v. Swanson, 243 Minn. 547, 68 N.W.2d 649. The rule permitting discovery of matters relevant to subject matter in pending action is applicable only to matters admissible in evidence or calculated reasonably to lead to the discovery of admissible evidence in a pending action. Discovery on the theory that it would aid in negotiation of a settlement is not within the purview of the rule. Brooks v. Owens (Fla.), 97 So.2d 693. The purpose of Rule 26(b) was to limit the meaning of the term 'which is relevant to the subject matter involved' to the discovery of facts either to use in the trial, or to use it as a lead to information for use in a trial. The California and Illinois cases are based in part upon their interpretation of statutes which, in our opinion, in nowise justify the broadening of the language used in Rule 26(b). The public policy declared in Tom Reed Gold Mines Co. v. Morrison, 26 Ariz. 281, 224 P. 822, is diametrically opposed to defendant's position and Rule 26(b) construed most favorably in favor of the right of discovery does not justify it. Di Pietruntonio v. Superior Court, 84 Ariz. 291, 327 P.2d 746. The Federal Rules of Civil Procedure clearly limit discovery to matters which are relevant to the subject matter of the pending action or are reasonably calculated to lead to the discovery of matters which are relevant to the subject matter. The answers to the interrogatories propounded as above set forth would do neither. The subject matter is the charge of negligence against the defendant which caused the injury to the plaintiff. Answers to the propounded interrogatories would not be relevant to show negligence nor would they be reasonably calculated to lead to the discovery of admissible evidence showing negligence. The policy, if any, would not prove nor tend to prove the alleged negligence. The proof of such negligence must be made dehors the policy. If the plaintiff is permitted to discover the existence, amount, and provisions of liability coverage under the discovery provisions of Federal Rules of Civil Procedure prior to the determination of liability against the defendant, then it would logically follow that the same latitude would extend to defendant's other assets. Requiring the...