730 So. 2d 135 | Ala. | 1999
Frances Badham and Crawford Badham, the plaintiffs in an action pending in the Jefferson Circuit Court, petition for a writ of mandamus directing the circuit court to enter an order compelling discovery of the policy limits of any insurance policies held by The Lingerie Shoppe, Inc. (the "Shoppe"), under which it would be insured against liability to the Badhams. The Badhams claim that the circuit court erred in denying their motion to compel discovery of the policy limits, because, they argue, the Alabama Rules of Civil Procedure provide for the discovery of such information. Because we hold that Rule 26(b)(2), Ala.R.Civ.P., does provide for the discovery of the policy limits, and because the Badhams have demonstrated a clear legal right to the discovery they seek, we grant their petition for the writ.
When the Shoppe objected to supplying the information regarding the liability limits of its insurance policies, the Badhams moved to compel discovery. The trial court granted their motion, but on the Shoppe's motion for reconsideration, the trial court set aside its order and denied the motion to compel discovery. Thus, the Badhams have petitioned this Court for a writ of mandamus directing the trial court to order the Shoppe to disclose the information concerning the policy limits of the Shoppe's insurance policies.
"A writ of mandamus is an extraordinary remedy, requiring the showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court."
Ex parte Conference America, Inc.,
Rule 26(b)(2) was amended in 1995 to read as follows:
"(2) Insurance Agreements. A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this paragraph, an application for insurance shall not be treated as part of an insurance agreement."
Although this Court has not interpreted this provision since its 1995 amendment, the Court of Civil Appeals recently held that "pursuant to Rule 26(b)(2) the limits of [the defendant's] liability insurance policy were discoverable." Phillips v. Winsett,
"Subdivision (b). This amendment conforms this subdivision to F.R.Civ.P.
26 (b) as it existed before the 1993 amendments to F.R.Civ.P.26 . The revised rule authorizes restrictions on the frequency and extent of use of discovery methods. It also makes insurance agreements generally discoverable."
(Emphasis added.) Based on the fact that the amendment conformed Rule 26(b)(2) to the federal rule, the Court of Civil Appeals looked to the interpretation of Rule
"Under the plain language of the Rule, the plaintiff is entitled to discover the `existence and contents' of the insurance policy. As Professors Wright and Miller explain, `The rule allows discovery of the . . . contents of an insurance agreement and is not confined to the policy limits.' 8 C. Wright and A. Miller, Federal Practice and Procedure § 2010 at 94 (1984). Thus, defendant's attempt to limit discovery to the policy limits is contrary to the express mandate of the Rule."
(Requiring the defendant to "produce the entire policy.") See also Hall v. Aetna Cas. Sur. Co.,
Moreover, as the Court of Civil Appeals noted in Phillips, 717 So.2d at 821, the Author's Comments to Rule 26, Ala.R.Civ.P., in Alabama Rules of Civil Procedure Annotated state in pertinent part:
"Perhaps the most closely divided question to come before the Supreme Court of Alabama Advisory Committee during the time of initial consideration of [the Rules of Civil Procedure] had to do with the discoverability of the limits of an insurance policy. The debate is now academic. Effective October 1, 1995, Rule 26(b)(2) was amended to permit discovery of the limits of insurance coverage."
1 Champ Lyons, Jr., Alabama Rules of Civil Procedure Annotated § 26.13 at 560 (3d ed. 1996) (emphasis added).
The Shoppe contends that these comments and the Court of Civil Appeals are in error because this Court held in Ex parte Lord,
"Insurance Agreements. The amount of coverage under any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment shall not be subject to discovery, but nothing contained in this subparagraph shall restrict the discoverability of the existence of coverage under such insurance agreements, nor, where relevant under (b)(1),[2] of the existence or contents of an insurance agreement for purposes other than determination of the amount of coverage."
Thus, the 1973 version of Rule 26(b)(2) permitted the discovery of the "existence or contents" of an insurance policy, but specifically excluded the policy limits from discovery. The present version of Rule 26(b)(2), as amended in 1995, provides for the discovery of the "existence and contents" of an insurance policy and does not exclude the policy limits from discovery. This Court is required to interpret the rule as it is written:
"This Court is not permitted to `legislate by construction.' City of Birmingham v. Hendrix,
257 Ala. 300 ,312 ,58 So.2d 626 ,638 (1952); see also State v. Tuscaloosa Bldg. Loan Ass'n,230 Ala. 476 ,161 So. 530 (1935). Neither are we permitted arbitrarily to disregard the marked differences in terminology illustrated by these distinct types of amendments. Indeed, where there is a `material alteration in the language used in the different clauses, it is to be inferred' that the alterations were not inadvertent. Lehman, Durr Co. v. Robinson,59 Ala. 219 ,235 (1877); cf. 2A Sutherland Stat. [Constr.] § 51.02 (4th ed.) (`"where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject is significant to show that a different intention existed"') (quoting Western States Newspapers, Inc. v. Gehringer,203 Cal.App.2d 793 ,22 Cal.Rptr. 144 (1962))."
House v. Cullman County,
The Badhams have demonstrated a clear legal right to the order sought. The trial court is directed to vacate its order denying the Badhams' motion and to enter an order compelling the Shoppe to answer the interrogatories concerning the policy limits of its relevant insurance policies or to make available to the Badhams copies of the policies.
WRIT GRANTED.
Hooper, C.J., and Maddox, Houston, Kennedy, Cook, and Brown, JJ., concur.
"In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."