Washoe County Bd. of School Trustees v. Pirhala

• Decision Date: 02 January 1968
• Docket Number: No. 5402,5402
• Citation: 435 P.2d 756,84 Nev. 1
• Parties: WASHOE COUNTY BOARD OF SCHOOL TRUSTEES, Edward Reed, William O'Brien, III, Lloyd Diedrichsen, Frank Stokes, Edward Pine, Betty Cassard, Lawrence Mellott, Robert Singleton, Appellants, v. Thomas PIRHALA, Antoinette Pirhala, and Robert Pirhala, a Minor, by and through his Guardian Ad Litem, Thomas Pirhala, Respondents.
• Court: Nevada Supreme Court

Page 756

435 P.2d 756

84 Nev. 1

WASHOE COUNTY BOARD OF SCHOOL TRUSTEES, Edward Reed, William O'Brien, III, Lloyd Diedrichsen, Frank Stokes Edward Pine, Betty Cassard, Lawrence Mellott, Robert Singleton, Appellants, v. Thomas PIRHALA, Antoinette Pirhala, and Robert Pirhala, a Minor, by and through his Guardian Ad Litem Thomas Pirhala, Respondents.

No. 5402.

Supreme Court of Nevada.

Jan. 2, 1968.

[84 Nev. 2] Echeverria & Osborne, Reno, for appellants.

Gordon W. Rice, Leo P. Bergin, Reno, for respondents.

OPINION

BATJER, Justice.

On or about February 11, 1966, one of the respondents, eight year old Robert Pirhala, a student at the Libby Booth School, Reno, Washoe County, Nevada, while on the playground, during school hours, was hit in the eye and injured.

The respondents filed suit for personal injuries suffered by the minor, and asked for damages for past and future medical expenses, and for loss of services.

The defendants denied the claim of negligence and alleged contributory negligence on the part of the minor plaintiff.

The issues as to the cause of the accident and as to the resulting injuries remain in dispute and are not of concern at this preliminary stage of the case.

After issue was joined on the pleadings, respondents filed interrogatories under NRCP No. 33, ¹ propounded to the appellants, among which were the following:

'23. Is there and was there on February 11, 1966, any personal liability insurance in force, covering defendants and which covers accidents such as the one referred to in the complaint?

'24. If so, state:

(a) Name of insurer.

(b) Type of coverage.

(c) Name of insured.

(d) Policy number.

(e) Policy limits.

(f) Expiration date of policy.' ²

The appellants' objections to the above interrogatories were overruled by the trial court, and thereafter the court entered an Order to Show Cause, against appellants, for failure to answer the interrogatories. On July 3, 1967 a Judgment of Contempt was entered against the appellants and they appeal.

As their specification of error, appellants contend the trial court exceeded its jurisdiction when it ordered them to answer the interrogatories concerning liability insurance and the extent of the coverage. This question under NRCP has not been decided by this court.

Appellants rely upon State ex rel. Allen v. Second Judicial District Court, 69 Nev. 196, 245 P.2d 999 (1952), as precedent, for their position, that the discovery of liability insurance should be denied.

In that case an attempt was made, under earlier statutory provisions, for the perpetuation of testimony and the issuance of a subpoena duces tecum, to learn the amount of maximum liability of the insurer and the premiums paid. Discovery was denied on the ground that such information was inadmissible at trial.

While we do not disagree with the holding in the Allen case, we are unable to rely thereon because it was decided before the sweeping changes wrought in the field of discovery by the NRCP. Wright's Barron and Holtzoff, Vol. 2A, Sec. 647.1, p. 79, n. 45.6.

NRCP No. 33 refers to NRCP No. 26(b) for the scope of discovery, which in part reads as follows:

'* * * any matter, not privileged, which is relevant to the subject matter involved in the pending action * * *. 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.'

Appellants contend that the information sought to be discovered by respondents in the above mentioned interrogatories was not shown to be material to their cause of action.

In the various state and federal decisions, the courts are divided on this particular question of discovery, and in many of the cases vigorous dissents are recorded. There appears to be no middle ground.

The cases allowing discovery of insurance and the extent of insurance coverage generally do so on the basis that the scope of the meaning of relevancy has been expanded under the rules of discovery and also upon a prognosis that knowledge of the coverage, by the plaintiff, would lead to more meaningful discussions of settlement, and therefore such information is relevant to the subject matter of the lawsuit. Superior Ins. Co. v. Superior Court, 37 Cal.2d 749, 235 P.2d 833 (1951); Maddox v. Grauman, 265 S.W.2d 939, 41 A.L.R.2d 964 (Ky.1954); People ex rel. Terry v. Fisher, 12 Ill.2d 231, 145 N.E.2d 588 (1957); Lucas v. District Court, 140 Colo. 510, 345 P.2d 1064 (1959); Johanek v. Aberle, 27 F.R.D. 272 (D.Mont.1961).

We believe that those cases which deny the discovery of insurance coverage on the basis that it is not relevant to the subject matter present the better reasoning. McNelley v. Perry, 18 F.R.D. 360 (E.D.Tenn. 1955); Jeppesen v. Swanson, 243 Minn. 547, 68 N.W.2d 649 (1955); DiPietruntonio v. Superior Court, 84 Ariz. 291, 327 P.2d 746 (1958); Sanders v. Ayrhart, 89 Idaho 302, 404 P.2d 589 (Ida.1965).

In the case of Jeppesen v. Swanson, supra, the court said: 'It would seem to us that, even though the discovery is not to be limited to facts which may be admissible as evidence, the ultimate goal is to ascertain facts or information which may be used for proof or defense of an action. Such information may be discovered by leads from other discoverable information. The purpose of the discovery rule is to take the surprise out of trials of cases so that all relevant facts and information pertaining to the action may be ascertained in advance of trial. Where it is sought to discover information which can have no possible bearing on the determination of the action on its merits, it can hardly be within the rule. It is not intended to supply information for the personal use of a litigant that has no connection with the determination of the issues involved in the action on their merits. Balazs v. Anderson, D.C.N.D. Ohio, 77 F.Supp. 612.'

There is no assurance whatsoever that the discovery of defendants' liability insurance and the extent of the coverage would lead to widespread settlement of negligence cases, and the relief of crowded court calendars. Even if this very desirable result would become a fact, it should not be reached under the blessing of NRCP 1 ³ by torturing the clear and ordinary meaning of the phrase 'reasonably calculated to lead to the discovery of admissible evidence' and such words as 'relevant' and 'subject-matter.'

If, in the future, it becomes evident that there is a pressing need for this particular type of discovery, the NRCP should be appropriately amended. Acknowledging that information about insurance coverage would aid a plaintiff immeasurably in evaluating his claim, the court in Jeppesen v. Swanson, supra, very ably expressed itself in the following manner: '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 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.'

In Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947), the United States Supreme Court said: 'We agree, of course, that the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of 'fishing expedition' serve to preclude a party from inquiring into the facts underlying his opponent's case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession. The deposition-discovery procedure simply advances the stage of which the disclosure can be compelled from the time of the trial to the period preceding it, thus reducing the possibility of surprise. But discovery, like all matters of procedure, has ultimate and necessary boundaries.'

Furthermore, since a liability insurance policy is an asset of a defendant, we do not wish to open a Pandora's box where discovery might be permitted of all of the defendant's assets prior to securing a judgment against him.

In McClure v. Boeger, 105 F.Supp. 612 (E.D.Pa.1952), Chief Judge Kirkpatrick said: 'I can see certain advantages to the plaintiff in knowing the extent of the defendant's coverage in an accident case, at least in a case where the defendant is otherwise judgment proof and the policy is the plaintiff's only resort for a recovery. For example, it might help the plaintiff to determine whether or not to accept an offer of settlement or to decide how much expenditure of time and money by way of preparation the case justified. However, every argument that could be made in favor of requiring the disclosure could also be made in favor of compelling a defendant in any civil case, tort or contract, to furnish the plaintiff with full information as to his financial resources, and, in the case of an individual, as to the extent of his private fortune.

'Of course, the fact that the information would not be relevant and that the fact of liability insurance could not be introduced at the trial does not necessarily forbid discovery, but whatever advantages the plaintiff might gain are not advantages which have anything to do with his presentation of his case at trial and do...