State ex rel. Guarantee Ins. Co. v. District Court of Eighth Judicial Dist., 81-346

• Decision Date: 14 October 1981
• Docket Number: No. 81-346,81-346
• Citation: 194 Mont. 64,634 P.2d 648,38 St.Rep. 1682
• Parties: STATE of Montana, ex rel. GUARANTEE INSURANCE COMPANY, Relator, v. DISTRICT COURT OF the EIGHTH JUDICIAL DISTRICT and Hon. Joel G. Roth, and Boyd Mahaffey and Nancy Mahaffey, d/b/a Mahaffey Trucking, Respondents.
• Court: Montana Supreme Court

Page 648

634 P.2d 648

194 Mont. 64

STATE of Montana, ex rel. GUARANTEE INSURANCE COMPANY Relator, v. DISTRICT COURT OF the EIGHTH JUDICIAL DISTRICT and Hon. Joel G. Roth, and Boyd Mahaffey and Nancy Mahaffey d/b/a Mahaffey Trucking, Respondents.

No. 81-346.

Supreme Court of Montana.

Submitted Sept. 17, 1981.

Decided Oct. 14, 1981.

Smith, Baillie & Walsh, Great Falls, for relator.

James, Gray & McCafferty, Great Falls, for respondent.

HASWELL, Chief Justice.

This is an application for a writ of supervisory control to review and reverse a District Court order denying relator's objections to two interrogatories by plaintiff and directing relator to answer them within 30 days.

On January 11, 1979, the complaint in the underlying action was filed in the District Court of Cascade County. Plaintiff was relator's insured whose tractor and trailer were damaged in an automobile accident. Plaintiffs allege two claims against defendant seeking compensatory and punitive damages for alleged violations of the policy provisions and state insurance statutes in connection with settlement of the collision loss.

In the course of pretrial discovery plaintiffs served interrogatories on defendant pursuant to Rule 33, M.R.Civ.P. The interrogatories involved in the present controversy read as follows:

"INTERROGATORY NUMBER 2 :

"Please state the number of total loss claims which were settled by your company between July 1, 1975, and July 1, 1978, by a direct payment from your company funds only in the amount of the insured value of the property less the salvage price and deductible, and where there was a direct payment of the salvage price from the salvage purchaser to the insured; and for each such settlement, please state:

"(a) The date of the loss;

"(b) The date of the payment from your company;

"(c) The date of the payment from the salvage purchaser;

"(d) The amount of the payment from your company funds "(e) The amount of the payment from the salvage purchaser;

"(f) Whether settlements in this matter were in accordance with standard company procedures or policy provisions; and if so, please identify any and all documentation which sets forth this standard company procedure and/or identify the policy provision involved."

"INTERROGATORY NUMBER 5 :

"Please identify in a manner sufficient for a motion to produce, each and every writing of whatever kind and nature which in any way pertains to the information requested by Interrogatory Number 2 above, including (without need of setting forth the name of the insured involved) the claim number and policy number."

Plaintiff contended in the District Court that these interrogatories are directly relevant to the allegations stated in the plaintiffs' complaint, have not been shown in any manner to be unreasonably burdensome or vexatious, and are the only avenue by which the plaintiff can collect the information needed to prove a regular course of business conduct in violation of the Montana Insurance Code.

Defendant contended in the District Court that these two interrogatories are unduly annoying, oppressive, burdensome and expensive; that they are outside the scope of permissible discovery; and that they are not reasonably calculated to lead to the discovery of admissible evidence.

Defendant filed objections to these interrogatories, requested a hearing which was granted, and following the hearing the District Court entered an order dated and filed on May 26, 1981, that the information sought was discoverable information, denied relator's objections, and allowed relator 30 days in which to answer said interrogatories.

On August 6, 1981, relator filed in this Court its application for a writ of supervisory control requesting us to accept jurisdiction, review and reverse the District Court's order of May 26, and enter an order sustaining relator's objections, or in the alternative order a response to the application.

This Court then ordered a response by the plaintiff in the District Court action which has now been received, examined and considered.

We now refuse to accept jurisdiction of the petition for writ of supervisory control on the following grounds:

1. The application is untimely.

2. Relator has not exhausted his available remedies in the District Court.

3. Relator has an adequate remedy at law precluding review by extraordinary writ.

4. Policy considerations move our discretion to refuse jurisdiction.

The District Court's order denying relator's objections to the interrogatories and directing relator to answer the same within 30 days was issued on May 26, 1981. The petition for a writ of supervisory control was not filed with this Court until August 6, 1981. Thus the application was not made until 40 days after the time for answering interrogatories had expired. As such, the application for a writ of supervisory control is untimely and in violation of the District Court's order.

Neither has relator exhausted his remedies in the District Court. Relator has not applied for a protective order under Rule 26(c), M.R.Civ.P., limiting the scope of the interrogatories nor has it applied for an order under Rule 37(a) (4), M.R.Civ.P., assessing costs including attorney fees against the losing party should the District Court order be reversed on appeal. The District Court has inherent discretionary power to control discovery and that power is based upon the District Court's authority to control trial administration. Massaro v. Dunham (1979),...