Meritplan Insurance Co. v. Superior Court
| Decision Date | 05 October 1981 |
| Citation | 124 Cal.App.3d 237,177 Cal.Rptr. 236 |
| Court | California Court of Appeals Court of Appeals |
| Parties | MERITPLAN INSURANCE COMPANY, Petitioner, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent. Fara WEXLER, et al., Real Party in Interest. Civ. 63210. |
Stockdale, Ritner, Peckham, Lockwood & Estes by David C. Werner, and Paul F. Sowa, Los Angeles, for petitioner.
Sackin & Gold, Los Angeles, for Fara Wexler, real party in interest.
Good & Novack by Barry B. Novack, Los Angeles, for Burt Simmons, real party in interest.
No appearance for respondent.
In this proceeding in mandamus we review a protective order issued by the trial court, which order, inter alia, prevents one party to an action from deposing attorneys for opposing parties and subpoenaing certain records of those attorneys for use in conjunction with the taking of the deposition. We have determined that the protective order should be vacated.
The dispute has its origin in a personal injury action entitled Simmons v. Wexler, Los Angeles Superior Court No. NEC 18803. Meritplan Insurance Company, petitioner herein, insured Wexler under a general liability policy with $15,000 and $30,000 limits.
Wexler was a teacher employed by the Los Angeles Unified School District, which entity was itself insured by Central National Insurance Company. Wexler's policy with Meritplan Insurance Company contained an endorsement for an additional $25,000 coverage for activities arising out of her "business pursuits."
Meritplan took the position that that endorsement was not applicable to the facts of this case and, in any event, was "excess" to other insurance coverage. It offered to settle the case for $15,000. Meritplan advised Wexler that her potential exposure exceeded the policy limits and she engaged the services of the firm of Sackin & Gold, attorneys at law. Extensive settlement negotiations ensued. Simmons, through his attorney, Barry Novack, proposed a settlement which required Meritplan to pay $40,000. Meritplan refused.
A judgment was entered awarding Simmons $125,000 in damages against Wexler. The judgment was paid by Central National.
In the interim, Meritplan filed the present action for declaratory relief (Sup.Ct.No. NEC 22474) which underlies this petition for mandate. In that action, Meritplan sought a declaration of the extent of its coverage under the policy.
Following entry of the judgment in the personal injury action, Wexler, Simmons and Central National all filed cross-complaints in the declaratory relief action alleging a wrongful refusal to settle on the part of Meritplan.
In the course of discovery in this latter action, Meritplan noticed the depositions of Messrs. Novack, Sackin & Gold, and in conjunction therewith caused a subpoena duces tecum to issue for the records of the firm of Sackin & Gold.
Messrs. Novack, Sackin & Gold moved for, and obtained, a protective order which prevented the taking of the depositions and quashed the subpoena duces tecum.
Approximately six months later, cross-complainant Central National Insurance Company noticed the deposition of one Frank Hardin, claims representative for Meritplan. Meritplan moved for a protective order on the grounds that it was unfair and inequitable to permit the deposition of its representative without also permitting the deposition of the opposing parties' representative who had participated in the settlement negotiations.
The trial court denied Meritplan's request on the basis that "a deposition of a claims agent cannot be equated to a deposition of a lawyer." This writ proceeding followed.
We agree with the trial court that the deposing of a claims representative for an insurance company in an action for bad faith against the company, presents issues and considerations which differ markedly from an attempt to depose the attorneys for the opposing parties.
On the other hand, the underlying purpose of the entire scheme of discovery is to eliminate "gamesmanship" and the "sporting theory of litigation" from the trial of actions and to promote the ascertainment of the truth. (Greyhound Corp. v. Superior Court, 56 Cal.2d 355, 15 Cal.Rptr. 90, 364 P.2d 266.) Thus, insofar as is legally permissible, trial courts should permit discovery in a manner which will promote that general objective and the parties seeking discovery must be ready to engage in an equitable exchange of information. (Sanders v. Superior Court, 34 Cal.App.3d 270, 109 Cal.Rptr. 770.)
We recognize, however, that in the instant case, in view...
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