Ellis v. Gilbert

¶1This is an interlocutory appeal granted to review a ruling of the district court that the defendant in a personal injury action •must answer in discovery procedure whether she is insured, and if so, the name ■of the insurer and the amount of coverage.

¶2Phillip E. Ellis and his wife, Carolyn, ■sue to recover for injuries to Mrs. Ellis ■and for the death of their unborn child resulting from a collision between their car .and that of defendant on February 12, 1965, just west of Roosevelt, Utah. The issues as to the cause of the accident and as to the resulting injuries are in dispute and are not of concern at this preliminary stage of the case.

¶3The ruling here challenged is based on the discovery procedure authorized in our Rules of Civil Procedure.1 Their purpose is to make procedure as simple and efficient as possible by eliminating any useless ritual, undue rigidities or technicalities which may have become engrafted in our law; and to remove elements of surprise or trickery so the parties and the court can determine the facts and resolve the issues as directly, fairly and expeditiously as possible. In accord with this is the beginning policy statement in Rule 1 (a) : that the rules “shall be liberally construed to secure the just, speedy, and inexpensive determination of every action.”

¶4The primary rule applicable to the question here presented is Rule 26(b), U.R.C.P. which provides:

… the deponent may be examined regarding 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.

¶5It will be noted from the emphasized language that there are two aspects of the discovery permitted by this rule. The latter one, which relates to “testimony” and provides that it is not objectionable because it would be “inadmissible at the trial,” is not a restriction upon the former and broader inquiry allowed into “any matter … which is relevant to the subject-matter’’ of the action.

¶6*191In considering what is the “subject matter” of a lawsuit we keep in mind that the ultimate objective of any lawsuit is a determination of the dispute between the parties; and that the earlier and easier this can be accomplished, with justice to both sides, the better for all concerned. Whatever helps to attain that objective is “relevant” to the lawsuit.

¶7Any lawyer or judge who is confronted with the duty of dealing with a claim for personal injuries will surely agree that there are involved two main aspects of the problem: the first is whether there is liability; and the second, of equal or perhaps more importance, is what is the prospect of actually recovering damages. A candid and forthright approach to the disposition of such a case demands recognition of the fact that the parties are more concerned with what money might actually be recovered by the plaintiff, or saved by the defense, than they are with the mere obtaining of a paper judgment as to whether there is or is not liability. The recognition of these facts is undoubtedly the reason that our rule describes the scope of inquiry in the broader term: “the subject matter of the action,” rather than the more limited one: the “issues” to be tried in the case.2

¶8Cognate to the thought just expressed is the fact that among the proper purposes of the proceedings prior to trial is the exploration of the possibility of resolving the dispute without trial. It seems quite indisputable that the court and counsel should have the benefit of all of the material facts bearing upon both of the essential aspects of the total lawsuit just mentioned, so that there can be a more realistic and meaningful discussion concerning any prospect of settlement. This view also finds corroboration in another of our Rules, 16, which provides with respect to pre-trial procedure: “ … the court may … direct the attorneys for the parties to appear before it for a conference to consider … (S) [sjuch other matters as may aid in the disposition of the action.”

¶9We here observe that neither in the order of the trial court, nor in this decision, is it postulated that information concerning insurance should be disclosed to the jury.3 The reasons for this appear to be that because of their lack of professional training and experience in such matters the jurors might be motivated by improper considerations in resolving the issues. But this should not be true of the judge and the *192attorneys. They are presumably conditioned by education, training and experience to render service of a professional character under a discipline which should involve a . high degree of integrity.

¶10It is indeed true that the lawyer has an obligation to discharge his duties of this character in loyalty and fidelity to the interest of his client. But he also has over-arching responsibilities of the same nature to the court as one of its officers, and to the profession itself, in its duty to serve the public according to the ideal which is the purpose of all procedure: to seek the truth and to do justice. It runs contrary to this purpose and casts an unfavorable reflection upon the integrity of the court and the attorneys if they must treat such an essential aspect of the case as the existence of insurance as though it would corrupt the whole procedure if the lawyers and the court knew about it.4

¶11We do not regard it as an insuperable objection to the discovery in question that it would violate the defendant’s rights as an unwarranted intrusion into his private affairs. There are valid reasons why to inquire into insurance coverage is of a different character than to inquire into his other assets. Of perhaps minor importance, but worthy of noting, is the fact that insofar as defendant’s other assets are concerned, plaintiff may have other means of knowing something about defendant’s financial responsibility, whereas, insurance is but a special type of resource the defendant may possess, whose only value is to protect defendant’s other assets and persons he might wrongfully injure.

¶12Another important consideration is the fact that in passing the Safety Responsibility Act the legislature has indicated as a matter of public policy its recognition of the dangers, injury and destruction on our highways, from which the public has a right to some measure of protection.5 When one is so injured, he becomes in effect a third-party beneficiary of the insurance of a wrongdoer who injures him.6

¶13Such policies often have various covenants which are of concern to the injured plaintiff, e. g.: relating to voluntary medical coverage; that the insured must give notice of an accident; that he must extend cooperation to the company. It is only reasonable that the plaintiff should have some means of discovering whether a policy exists, and what its provisions are so he can know whether covenants upon which his rights may depend are being complied with. This is especially true since the plaintiff charges the defendant with carelessness in *193injuring him, and may suspect he would be careless about other duties.

¶14There are further considerations which we regard as having some cogency and persuasiveness in- support of the discovery. The court is concerned with the rights of the parties: the plaintiff and the defendant. The bare facts of life may as well be faced and reckoned with. If we look behind the facade it is to be seen that where there is insurance, the company actually takes over, employs counsel, investigates the case, interviews the witnesses, controls offers of settlement, and in fact, handles the entire matter. Thus the arguments against discovery concerning insurance are actually made by and for the benefit of the insurance company rather than of the insured. Whereas, from the standpoint of the defendant, in most cases there would be no reason why he would have any objection to allowing the discovery. In fact, it may prove advantageous to him, since the likelihood is that it would lessen his individual concern with the lawsuit, increase the possibility of settlement, and reduce the risk of a judgment in excess of the policy limits.

¶15Finally, there are some very practical reasons why the refusal to disclose whether insurance exists seems like almost useless shadow boxing anyway. Due to the almost universal carrying of liability insurance on automobiles because of financial responsibility acts, there is very little likelihood that the court and lawyers will think otherwise than that the defendant is insured. Furthermore, our statute requires a person involved in an automobile accident to file proof of insurance or financial responsibility, or have his driver’s license suspended.7 This information can be obtained by the parties. Refusal to disclose serves the cause of neither efficiency nor fairness. It just adds to the difficulty and delay by forcing the plaintiff to resort to other sources than court procedure to get necessary information. However, fairness does suggest taking note of the fact that in actual practice some insurance companies and their attorneys willingly make such disclosure, while others decline to do so. The position taken by the trial court puts them all on equal footing and puts the control in the court where it belongs.

¶16We are not unaware of the arguments against disclosure, but in weighing them against the various considerations hereinabove discussed in favor of disclosure we have concluded that the ruling of the trial coúrt is correct in unmasking the truth, at least to the attorneys and to the court, so that the proceedings can be carried on with candor and honesty and without cunning and deception. This serves the desired objective of encouraging in*194formed and enlightened procedure in accordance with the hereinabove stated purpose of our rules, “to secure the just, speedy, and inexpensive determination of every action.” (All emphasis added.)

¶17Affirmed. Costs to plaintiff (respondent).