Brooks v. OwensBrooks v. Owens
Maxwell J. BROOKS, Petitioner,
v.
Lаrry OWENS, a minor by his next friend and natural guardian, Bernice Kleiser, Respondent.
Supreme Court of Florida.
*694 James A. Dixon and Dixon, DeJarnette, Bradford & Williams, Miami, for petitioner.
John M. Kelley, Jr., and Shutts, Bowen, Simmons, Prevatt & Julian, Miami, for respondent.
O'CONNELL, Justice.
Maxwell J. Brooks, petitioner, was defendant in an action in the Circuit Court brought by the plaintiff, Larry Owens, a minor, by his next friend, Bernice Kleiser, arising out of an intersection collision between the defendant's automobile and the plaintiff-respondent's motorcycle. The parties will be referred to as plaintiff and defendant.
Defendant filed his answer to the complaint. He denied negligence and alleged contributory negligence. The plaintiff-respondent then took defendant's deposition, in which defendant was asked (1) whether the automobile involved was the only one owned by the defendant; (2) whether defendant had automobile liability insurance; and (3) what were the limits of the liability insurance.
Defendant refused to answer the above three questions and plaintiff made a motion he be required to answer. Defendant responded, answering the first two questions affirmatively, but refusing to answer the third. Grounds given by the defendant for his refusal were that disclosure of the policy limits would deprive him of liberty and property without due process of law and deny to him other constitutional rights guaranteed by the federal and state constitutions, and would subject him to oppression and embarrassment. He alleged the questions were propounded to him in bad faith, and their sole purpose was to enable the plaintiff to make a demand for settlement within the policy limits and thereby put pressure upon him to require settlement by his insurance carrier within such limits. He also contended the plaintiff did not show good cause for the relief prayed for in his motion, as required by, 30 F.S.A.
A hearing was held on plaintiff's motion and defendant's response and argument of counsel was heard. The judge entered his order requiring the defendant to answer and, defendant having announced his intention not to comply, the judge then ordered that defendant's answer to the complaint be stricken and he be adjudged to be in default.
Defendant entered his notice оf appeal and also filed the subject petition for certiorari addressed to the same order dismissing his answer and declaring him to to be in default.
If the defendant is entitled to review of the order complained of, it must be by certiorari and not by appeal. The order of default was not a final order, subject to appeal, as it does not meet the test set out in Slatcoff v. Dezen, Fla., 1954, *695
This court will review an interlocutory order in law оnly under exceptional circumstances. Where it clearly appears that there is no full, adequate and complete remedy by appeal after final judgment available to the petitioner, this court will consider granting the writ, as where the lower court acts without and in excess of its jurisdiction, or the order does not conform to essential requirements of law and may cause material injury throughout subsequent proceedings for which the remedy by appeal will be inadequate. Kauffman v. King, Fla., 1956,
We must determine, therefore, whether the facts of the instant case wаrrant the special dispensation of this court as prayed for in the petition. If the lower court erred in its ruling that the policy limits were a proper matter of discovery, but this petition were denied, defendant would have two alternatives. For one, he could do nothing further, whereupon a judgment would be entered against him, for his liability would be admitted by the default. A jury would assess the damages. Defendant would then be gambling on the amount of damages the jury would assess and on the possibility of having this court, on appeal, fail to reverse the trial court. This court, on the appeal, would not be reviewing the sufficiency of the evidence to convict the defendant of the negligence alleged, but would be reviewing the action of the trial court in striking defendant's answer and adjudging him to be in default. If this court reversed the trial court, defendant would then be gambling on whether a jury in a new trial would find him liable on the merits of the case. If this Court were to affirm the trial court's action, defendant would be adjudged liable as a matter of record, with no trial ever having been had on the merits. Under these circumstances, this gamble, whether or not this court would reverse the trial court, is one we do not find the defendant should be compelled to take. If legality of the trial court's action were determined before final judgment were ever entered, the defendant would not be subjected to such possible, subsequent injury in further proceedings to be had in the trial court.
As for the second alternative, defendant could comply by disclosing the policy limits and thus have his answer re-entered. If this were done, defendant contends, his constitutional rights against deprivation of liberty and property without due process of law and against unreasonable searches and seizures would be violated. If disclosure were properly ordered, the deprivation would have been with due process, and the search and seizure would have been reasonable, but if it were improperly ordered, we are inclined to agree with the defendant as to the constitutional violations.
Defendant also contends that if the discovery be allowed, the plaintiff would be in a position to "entrap" the defendant's insurance carrier into the position whereby it could have asserted against it a claim for damages returned by the jury in excess of the policy limits due to its bad faith refusal to compromise within the policy limits. Defendant maintains that the sole purpose of plaintiff's request for the policy limits is to place him in a position to bring about such a result.
While we cannot agree that plaintiff's sole purpose is as contended above, or that the use of the word "entrap" is proper in such case, we do not believe that the rules of civil procedure concerning discovery should be interpreted merely to aid the plaintiff in achieving such a result.
It is our conclusion, therefore, that the defendant presents to us a case qualifying *696 for the review by this court at this time the interlocutory order in law of the lower court, since we are convinced that should defendant be compelled to wait for remedy by appeal irreparable harm would have already resulted.
This court, in Kilgore v. Bird, 1942,
We have determined, on the general principles expressed above and on the specific authority of Kilgore v. Bird, supra, that if there was a violation of essential requirements of controlling laws, the reasonable result would be an injury to the defendant not subject to remedy by apрeal. We must now determine whether there has been a violation of the law.
The controlling laws in question are the rules of civil procedure relating to discovery. The most pertinent rule is
"(b) Scope of Examination. Unless otherwise ordered by the court as provided herein, the deponent may be examined 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 examining party, or to the claim or defense of any other party including the existence, description, nature, custody, condition аnd location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial of the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. * * *"
Also of possible relevancy is
"Rule 1.28 Discovery And Production Of Documents And Things For Inspection, Copying Or Photographing.
"Upon motion of any party showing good cause therefor and upon notice to all other parties, and subject to the provisions ofRule 1.24(b) , the court in which an action is pending, may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted byRule 1.21(b) and which are in his possession, custody, or control; or (2) order any party to permit entry upon designated land or other property in his possession or control for thе purpose of inspecting, measuring, surveying, or photographing the property or any designated object or operation thereon within the scope of the examinations permitted byRule 1.21(b) . The order shall specify the time, place, and manner of making the inspection and taking the copies and photographs and may prescribe such terms and conditions as are just."
These rules are similar to corresponding federal rules of civil procedure. Although the specific question has never confronted this court, it has come before some federal courts and before courts in other jurisdictions with similar rules. There is a conflict in those opinions.
*697 Plaintiff cites several cases in which the courts have ruled policy limits are proper matters of discovery: Maddox v. Grauman, Ky., 1954,
In Maddox v. Grauman, supra, the rule in question was substantially the same as the federal rule, Rule 26(b), 28 U.S.C.A. The court held that the requirement of the rule that the matter be relevant to the subject matter should be more loosely construed upon pre-trial examination than at trial, and required only that the subject matter be relеvant to the subject matter involved in the action. The court reasoned that if the insurance question (matter of limits) is relevant to the subject matter after the plaintiff prevails, it is also relevant while the action is pending. The court relied heavily upon its reasoning that automobile liability policies inure to the benefit of every person who may be negligently injured by the insured. Since the rule provides that matter subject to discovery should be relevant to subject matter in a pending case, defendant in the suit before us argues that the Kentucky court stretched to the breaking point the meaning of the word "relevаnt".
The federal court in Orgel v. McCurdy, supra, ruled that the defendant must testify as to all issues relating to liability insurance carried by him on the motor vehicle involved in the accident. The court said the old principle of keeping the opponent in the dark was now out of date and that any matter generally relevant to the issues in the case were subject to discovery. The defendant had objected to the discovery on the ground that the purpose of the plaintiff in seeking information about liability insurance was to spell out operation and control by the defendant of the subject vehicle from the fact of liability coverage.
In the California case of Superior Ins. Co. v. Superior Court, supra, the defendant refused to give the amount of his coverage. The plaintiff applied to the court seeking to have such information furnished her by the defendant. She alleged she expected to make defendant and the insurer defendants in a suit to enforce payment of a judgment she expected to get in an action pending against the defendant. This procedure was authorized by the Code of Civil Procedure in California. The court found that the provisions of the poliсy were germane to the plaintiff's cause and material to her anticipated action, when and if brought. In the case at bar, the defendant contends that the California court so ruled because its code of civil procedure provides for no discovery in aid of execution, whereas in our jurisdiction, there is such a specific rule,
Because the primary reasoning for the court's ruling in the above case was based on the fact the plaintiff expected to sue the insurer to enforce payment of the judgment she expected to receive against the defendant and that, therefore, the policy information was germane and subject to discovery, we are of the view the case is not of decisive significance in the case before us.
The federal court in Brackett v. Woodall Food Products, supra, also was of the opinion *698 automobile insurance coverage was, under the broad viewpoint, relevant to the subject matter of the litigation, citing Orgel v. McCurdy, supra. Thе court said that authorities were numerous to the effect that it was not necessary that the documents sought be competent evidence on trial and that plaintiff should be given opportunity, in the preparation of its case, to inspect the liability policy. The court reasoned thusly upon noting that the trend of modern legislation concerning motor vehicles, from its tenor and purpose, showed obviously that such policies are definitely relevant to the subject matter of pending action growing out of accidents covered by such policies.
Defendant cites in support of his view the cases of Jeppesen v. Swanson, 1955,
In Jeppesen v. Swanson, supra, plaintiff sought an order permitting him to inspect defendant's liability policy. Plaintiff furnished an affidavit stating he needed to know the policy limits so that he could properly evaluate a figure for settlement or trial. The applicable rule of civil procedure was identical to the federal rule and to
In an earlier case, McClure v. Boeger, supra, plaintiff moved for production of defendant's policy of insurance, but the court felt the plaintiff did not show sufficient good cause, as required. The court held it was not sufficient upon the sole statement by the plaintiff that production of the policy might afford him "rights" not othеrwise available. As in Jeppesen v. Swanson, supra, the court felt there was not much distinction between compelling a defendant to disclose his policy limits and in compelling him to disclose his financial worth. The judge stated that whatever advantages the plaintiff might gain were not advantages which had anything to do with his presentation of his case at trial and did not lead to disclosure of the kind of information which is the objective of discovery procedure.
McNelley v. Perry, supra, was also decided by a federal court in Tennessee, as was Brackett v. Woodall Foоd Products, supra, but was decided by a different division of the court. It was also decided subsequent to Jeppesen v. Swanson, supra. Most of the cases referred to above were cited by the court, on both sides of the question. The court found that it was not shown that the information sought (policy limits and *699 the name of the insurer, if insurance existed) was relevant to either of the two general purposes in seeking information from an adversary (1) to use in the trial, or (2) to use to lead to information for use in the trial. It felt that the facts of Brackett v. Woodall Food Products, supra, were suсh, as to constitute the information relevant, since it appeared that the defendant was insolvent, so that proration of insurance might have been an issue among various claimants. The court concluded that the information sought was not a proper matter of discovery.
We adopt the view expressed above that the limits of liability insurance on a policy covering an automobile of a defendant are not proper matters subject to discovery under
Plaintiff advances many arguments in favor of his interpretation. We have seen how some state and federal courts have agreed with his reasoning. Plaintiff summarizes those opinions on this subject by stating that in every case where the courts allowed the discovery, the subject rule, like ours, did not require that good cause be shown, but that in every case where the discovery was denied, the applicable rule, unlike ours, rеquired that good cause be shown. Consequently, he argues we should admit the discovery, as our rule 1.21(b) does not require good cause to be shown.
Following this argument if a party were desirous of learning his opponent's limits of insurance, he could ask for such information upon deposition taken in accordance with
Plaintiff also argues that the Jeppesen case, supra, was expressly limited to the situation where the sole purpose of the plaintiff's inquiry was to evaluate the case for the purpose of determining whether it would be advisable to settle. He draws attention to the fact he has stated that unlike the plaintiff in the Jeppesen case, he does not wish to obtain the information for the sole purpose of determining whether or not he will settle. Defendant informs us that in his reply brief in the lower court, the plaintiff stated that he intended to make it irrevocably plain that he would settle the case within the policy limits. At any rate, plaintiff has not convinced us his purpose is *700 superior or more compelling than the plaintiff's in the Jeppesen case. If defendant's contention is true that the plaintiff is attempting to "entrap" the insurer into liability for damages set by a jury in excess of policy limits, the purpose is less worthy than the plaintiff's in the Jeppesen case. We cannot, however, under the circumstances of this case, conceive of a purpose possessed by plaintiff to change the intent of the rules of civil procedure, as we ascertain such intent, so that the information sought would be considered subject to discovery. We of course recognize that under some conceivable, different circumstances information concerning a policy of insurance may be relevant to the issues of a pending cause.
Some of the decisions we have reviewed have expressed the view that an automobile liability insurance policy inures to the benefit of any and all suffering injury occasioned by such insured's automobile. While such a doctrine may develop in the foreseeable future, we do not believe it has yet been established. We would rather agree with the federal judge in Brackett v. Woodall Food Products, supra,
"* * * While, of course, such an insurance policy ordinarily inures to the benefit of persons injured by the wrongful acts of the insured, and in many cases and jurisdictions such insurance is required by law for that purpose, nevertheless such insurance is ordinarily considered to be for protection of the insured, and is in the nature of a reimbursement for a loss."
Plaintiff also contends that since the rules are designed for speedy "determination" of cases and "settlement" is in itself a "determination", the rules should be construed to allow discovery of policy limits to aid in determination by settlement. Again, we would not agree but adopt the following from Jeppesen v. Swanson, supra,
"It is next urged that the word `determination' inRule 1 contemplates a settlement as well as a trial. A reading of the enabling act, as well as the rules involved, it seems to us, can lead to only one conclusion that the word `determination' refers to the disposition of the action in some manner over which the court has control. That the court does not control a settlement is of course obvious * * *"
In reply to other arguments of the plaintiff, and of some other courts, we also adopt the following from the Jeppesen case,
"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. Neithеr 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 * * *"
Having reached the above conclusions that the essential requirements of the law have been violated whereupon the defendant would suffer thereby in subsequent proceedings, we grant the defendant's petition for writ of certiorari to review the interlocutory order entered in the cause at law in the court below.
The order of the court adjudging the defendant to be in default and striking defendant's answer is quashed.
TERRELL, C.J., and THOMAS, HOBSON, and ROBERTS, JJ., concur.
*701 DREW, J., dissents.
DREW, Justice (dissenting).
I am of the view that this Court should align itself with the courts of Kentucky and California which hold that a policy of liability insurance is a matter not privileged which is relevant to the subject matter involved in an action for damages arising out of an automobile accident.[1] It is my view that
Automobile liability insurance is closely related to the general welfare. A great number of states require that automobile owners carry such insurance. Obviously the public purpose involved in such legislation and the underlying purpose which prompts an enactment is the protection of the injured party and not the tort feasor. The state is not particularly interested in whether a tort feasor is required to pay a judgment but it is interested in protecting the publiс generally from injury occasioned by the operation of motor vehicles upon the public highways and public places. Moreover, it is a matter of common knowledge that the vast majority of claims arising out of such accidents are settled by negotiation rather than litigation. I assume also that it would not be difficult to show that a great majority of cases on which litigation is actually commenced are settled before trial.
I can see no harm which will come from requiring a defendant to disclose the limits and conditions of the policy of insurance which he carries for the obvious benefit of the injured party. Moreover in negotiations or litigation both sides should have access to all of the facts. The administration of justice should not be a game of hide and seek. One party should not be blindfolded in negotiating a settlement or a compromise. It is a fundamental concept that both sides should have all the facts in the settlement of disputes and this can never be achieved unless some method is provided of requiring the full disclosure by a process which will afford protection to the party entering into a settlement of the tеrms and extent of liability insurance policies.
California, Kentucky and at least one or two Federal district courts have construed rules almost identical to ours to allow discovery with reference to this matter.[2] I feel that this is the modern and better view and one which will tend to promote the speedy administration of justice and the disposition of claims arising out of automobile accidents which are becoming a serious consideration of all the courts of the land.
NOTES
Notes
[1] See the cases cited by plaintiff to which the majority opinion refers in connection with this point.
[2] See the cases cited by plaintiff to which the majority opinion refers in connection with this point.