Toogood v. Watkins, 709

CourtCommonwealth Court of Pennsylvania
Writing for the CourtSPORKIN, J.
Citation46 Pa. D. & C.2d 365
PartiesToogood v. Watkins, Jr
Docket Number709
Decision Date14 February 1969

46 Pa. D. & C.2d 365

Watkins, Jr

No. 709

Common Pleas Court of Philadelphia County, Pennsylvania

February 14, 1969

September term, 1966.

Gordon W. Gerber, for plaintiff.

James J. McEldrew, for defendant.


Objections to interrogatories.


This case presents to the court a question over which controversy swirls in both Federal and State tribunals throughout the nation: Should defendant in an accident suit be compelled, in a pretrial discovery proceeding, to disclose to plaintiff the existence and extent of his insurance coverage?

Plaintiff, Anna Coxe Toogood, suing for injuries allegedly sustained in an automobile accident, has filed a pretrial interrogatory addressed to defendant, William E. Watkins, Jr., asking that he state whether he is insured for automobile liability, and if so that he disclose the insurer, the policy limits, and whether the insurer is defending the suit under a " reservation of rights on a non-waiver agreement" . Defendant Watkins objects to the interrogatory as immaterial, irrelevant and violating the Pennsylvania Rules of Civil Procedure.

The civil procedure rules relating to the subject of " Depositions and Discovery" are those numbered from 4001 to 4025 inclusive. The immediately pertinent rules are 4005 and 4007, with limitations imposed [46 Pa. D. & C.2d 366] upon them by 4011, and subject to the use of answers permitted by 4020. [1]

From the rules quoted in the footnote we deduce:

(1) Though we are not specifically so informed, the interrogatory in this case was filed under Rule 4005. That rule permits a party to " file and serve upon any adverse party written interrogatories." Rule 4007, on the other hand, permits a party to take the deposition of anyone (though including a party ), either orally or through written interrogatories. The query filed in the instant case is not a deposition; it is a single [46 Pa. D. & C.2d 367] question, which clearly falls under Rule 4005. The distinction is not crucial; the courts in discussing our question have seemed to treat it as arising under Rule 4007. Actually, Rule 4005(c) limits the subjects of interrogatories to those permissible under Rule 4007, so that in practice the two rules must be considered together. However, Rule 4005(c) contains a further limitation which we do regard as important; it restricts the use of answers to the extent allowed by Rule 4020. We will return to that in a moment.

(2) Rule 4007(a), with which, as we have remarked, Rule 4005 must be construed, permits discovery as to: (a) identity and whereabouts of witnesses: (b) matters not privileged; (c) topics relevant to the subject of the suit; and (d) topics of substantial aid in preparing pleadings, preparing for trial, or trying the case.

(3) Rules 4005 and 4007 are both made expressly subject to the limitations of Rule 4011. We would not charge the defense with filing its interrogatory in bad faith, or causing unreasonable annoyance, or the other objections in Rule 4011; we restrict ourselves to the one relating to privileged matter.

(4) Rule 4020(a) and (c), quoted in the footnote, would not permit the use of information as to defendant's insurance coverage at the trial unless the rules of evidence made such information admissible. While its inadmissibility at trial may not be a conclusive answer to our problem (conceivably, for instance inadmissible evidence still might aid in preparation of pleadings or preparation for trial), yet we consider it a factor to be regarded.

We add a further observation, not derivable from our rules themselves but nevertheless worthy of note: As pointed out in 5 Anderson Pa. Civ. Pract. § 4001.54001-6, our rules at many points make innovations adopted from the Federal Rules of Civil Practice -- [46 Pa. D. & C.2d 368] but at the same time important differences exist; the discovery allowed by our rules " is not as broad as that permitted by the Federal rules, and the present rules, although liberally construed, are subject to certain limitations not found in the federal practice" . Hence Federal decisions on the topic, though often cited and often illuminating, may not always have the pertinence they might seem on their face to possess.

One highly material difference between the two systems of discovery is that the federal rules allow discovery of matter, even though it may be inadmissible at the trial, which might reasonably be likely to lead to divulgence of admissible material. [2]

Our Pennsylvania rules are devoid of that provision, and thus are more narrowly limited than are the Federal rules. The difference should be borne in mind in reading those federal decisions which open the door more widely than our own rules would seem to justify. In addition, it goes without saying that state rules in other jurisdictions are bound to differ from ours, and that such differences are likely to play a part in various state court rulings.

With the foregoing introduction, we turn to the consideration of the specific question confronting us in this case.

At the outset we observe: (a) that we have found no Pennsylvania appellate court ruling on the point; (b) that a few scattered lower court decisions have been cited to us; (c) that we have found three federal decisions in Pennsylvania, each with a different conclusion; (d) that throughout the nation the various [46 Pa. D. & C.2d 369] courts, both state and federal, range themselves on diametrically opposite sides of the question; but (e) that a marked preponderance of the states oppose requiring disclosure of insurance coverage prior to a judgment for the plaintiff.

To take the last observation first, we find listed in a Tennessee Law Review article, [3] among states which have ruled on the question 16 refusing to compel disclosure as against seven that have required it. Iowa amended its rules in 1957 to prohibit expressly any order for inspection of a liability policy unless the policy would be admissible in evidence: Iowa R.C.P. 141(a) (Supp. 1966). Contrarily, New Jersey added a 1961 rule amendment requiring disclosure of the " policy limits", solely for the purpose of evaluating the advisability of a settlement: N. J. Civ. Prac. Rule 4:16-2 (Supp. 1967). However, the New Jersey court construed the rule strictly, and held that nothing more than policy limits were to be disclosed, in Myers v. St. Francis Hospital, 91 N.J.Super. 377, 220 A.2d 693 (App.Div. 1966).

It is understandable that a claimant's attorney would wish to ascertain the existence and nature of the defendant's insurance coverage. The vice in compelling disclosure of the coverage, even if only for the restricted [46 Pa. D. & C.2d 370] purpose of evaluating a settlement possibility, has been well expressed by the Supreme Court of Oklahoma in Carman v. Fishel, 418 P.2d 963, 974 (1966):

" We have in mind the natural, human temptation that would confront the plaintiff if she knew, for example, that the policy limits were $ 100,000 to 'evaluate' her claim for personal injuries for settlement discussions based on this amount, rather than upon a reasonable and careful analysis of her actual damages and compensable loss. Would the knowledge of how much money is available to pay plaintiff cause a departure from the real purpose of the suit, i.e. to fully and adequately compensate the plaintiff her damages?"

The contrary thought obviously is that disclosure of insurance may facilitate settlements and the disposal of cases without trial. We therefore face the question as to whether a procedural rule designed for discovery of " relevant" information that " will substantially aid in the preparation of the pleadings or the preparation or trial of the case" should be distorted to elicit data that might effect settlement and reduce court congestion. We are especially impressed with the answer given by the Minnesota Supreme Court in Jeppesen v. Swanson, 243 Minn. 547, 562, 68 N.W.2d 649, 658 (1955):

" Under the guise of liberal construction, we should not emasculate the rules by permitting something which never was intended or is not within the declared objects for which they were adopted. Neither should expedience or the desire to dispose of lawsuits without trial, however desirable that may be from the standpoint of relieving congested calendars, be permitted to cause us to lose sight of the limitations of the discovery rules or the boundaries beyond which we should not go. If, perchance, we have the power under the enabling act to extend the discovery rules to permit discovery of information desired for the sole purpose of encouraging [46 Pa. D. & C.2d 371] or assisting in negotiations for settlement of tort claims, it would be far better to amend the rules so as to state what may and what may not be done in that field than to stretch the present discovery rules so as to accomplish something which the language of the rules does not permit" .

We note that the Supreme Court of Idaho was " particularly impressed" with the reasoning of the Minnesota decision and has followed its lead, in Sanders v. Ayrhart, 89 Idaho 302, 309, 404 P.2d 589, 592 (1965).

The contrary view, that disclosure of insurance coverage facilitates settlement and may be compelled, is exemplified by the U.S. District Court for the District of Columbia in Cook v. Welty, 253 F.Supp. 875, 877 (1966):

" It is not to be doubted that information concerning liability insurance coverage and its extent is conducive to fair negotiations and to just settlements. For example, in cases where injuries are very great, but insurance coverage is very low, and the defendant is otherwise impecunious, the plaintiff might well be led to accept a smaller settlement than the extent of the injuries would otherwise warrant. On the other hand, if in such an instance the limits of the insurance policy are high, there appears to be no fair reason for refraining to disclose such...

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