Lucas v. District Court

Mr. Justice Sutton

dissenting:

I respectfully dissent.

The majority opinion states that “The specific question for determination is whether the mentioned inquiry is ‘relevant to the subject matter involved in the pending action’ within the meaning of this rule, or whether relevancy as here used is restricted to evidence which is admissible at the trial or testimony which is reasonably calculated to lead to the discovery of admissible evidence.” The majority conclude the former and I conclude that by reading the rule in its entirety, which by proper construction we should do, the latter conclusion is the applicable one. My reasons are:

(a) Rule 26 (b), R.C.P. Colo., clearly and unequivocably requires that “the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence ” (Emphasis supplied.) I cannot agree that knowing the amount of liability insurance leads to the discovery of any admissible evidence or to anything else relevant to the issues. It can only serve to force unjustified settlements before or during trial. The majority opinion admits that the evidence here sought is not admissible. Why then, as have some other courts, *528 do we grope for external and, as I believe, improper reasons to justify this invasion of privacy?

(b) Our Automobile Safety Responsibility Law, C.R.S. ’53, 13-7-1, et seq., does not require anyone to carry public liability insurance and should not be construed to have that effect. In fact it not only fails to affirmatively require insurance coverage before accidents occur but also provides that security for the payment of damages in the form of money or securities (section 28) may be made after an accident. Thus insurance need never be secured even by one who has been involved in an accident. While it is true that if a person has insurance coverage the liability of the insurance carrier shall become absolute whenever loss or damage covered by such policy occurs (section 23), yet I point out that this provision does not permit a plaintiff to name the insurance company as a defendant. In fact section 23 sets forth expressly when the insurance carrier, there being insurance coverage, is not to be held liable to a “judgment creditor

If the legislature so chooses it may declare the public policy of this state to require insurance coverage for all vehicles and drivers. It has not done so and this court has no power or right to invade the legislative field in this regard since that arm of government has already spoken.

The majority opinion proceeds on the false premise that the purpose of a driver or owner in carrying public liability insurance is to protect the public. I venture to suggest that human nature being what it is, the true purpose is to protect the insured from claims by injured parties which may be reduced to judgment. An examination of a modern liability insurance contract will disclose that its purpose is to defend and indemnify. Public liability insurance policies in Colorado are not issued “pursuant” to our Safety Responsibility Law and are not third party beneficiary contracts before judgment under *529 our statute. Authorities cited in this regard are not material to this matter.

In Goheen v. Goheen (1931), 9 N.J. Misc. 507 , 154 Atl. 393 , the court held that in a personal injury action plaintiff’s interrogatories concerning insurance on defendant’s automobiles were irrelevant and immaterial to the issue presented and ordered them stricken. This was because they would not lead to “competent evidence.” I would apply the same rule here.

People v. Fisher (1957), 12 Ill. (2d) 231, 145 N.E. (2d) 588, relied upon by the majority opinion is a similar case to the one before us. There the court, with one justice dissenting, interpreted such interrogatories as seeking “relevant” information for a pending action. That of course is where I disagree with that opinion. In the Fisher case the Illinois court is careful to state that their statute requires “ * * certain minimum liability insurance coverage for motor vehicles * * I point out this is not a requirement of the Colorado Statute. The Fisher decision discusses the division of authority on this problem, citing several cases pro and con. It further states:

“There is a plausible ring to the argument in the McClure and Jeppesen cases that if the existence and amount of liability insurance must be disclosed, logic demands that every defendant must be required to disclose his financial resources. That argument is advanced in this case. But in our opinion it is answered by the statutory provisions that confer an interest in such a policy on every member of the public that is negligently injured, and by the unique characteristics of a liability insurance policy.”

In Colorado a plaintiff does not have a statutory interest in a public liability policy.

I would follow the authorities which Fisher rejects because of reasons set forth in this dissent, and because based upon the different statutes prevailing in Illinois it is not precedent for our court.

*530 In the absence of express legislation I am not prepared to say or intimate or hold that an injured party has an interest in a public liability policy or has the right to sue an insurance carrier direct — and that is the actual effect of the majority opinion, though it is careful not to go that far yet.

(c) The stance of protective benevolence assumed by the majority opinion clothes a plaintiff in warm winter garb but leaves a defendant nude or at least ill clothed before the frigid stares of his opponents and the public. He can have no modesty. His financial virtues are exposed to public gaze and possible rapacious seizure without proper regard to whether the act is legitimate; i.e., without due regard to his actual negligence. All because undue emphasis is placed upon the then known but inadmissible ability of the defendant to pay.

It seems to me that the decisions letting the foot in the door on this matter have long since wandered from the Hornbook premise that tort liability suits are to be based and tried upon whether the defendant was negligent — not how rich he or his insurance carrier may be, or whether he can respond in damages. This whole “new” concept which the majority now adopts as the “modern rule” not only ravishes cherished principles of law but can lead only to troubles as yet unforeseen for defendants in trying to compromise fairly and to a substantial raising of insurance rates.

The majority opinion before making the rule absolute finally states, “This will have a tendency to eliminate secrets, mysteries and surprises and should promote disposition of cases without a trial as well as results on the trial which are substantially just.” I respectfully ask how can the existence vel non of public liability insurance create any justiciable secrets or mysteries or surprises? It has nothing to do with whether the defendant was negligent and should respond in damages, nor has it anything to do with the measure of damages. I then ask, why it should promote disposition of cases without *531 a trial? Clearly this is because it costs money to try lawsuits and it is common knowledge that insurance companies usually pay at least the cost of defending an action, even when there is slight chance of liability, just to avoid trying the case. Naturally that sort of case wouldn’t go to trial anyway, and would not have been filed in the first place if the amount of insurance wasn’t known or suspected. Thirdly, I ask why trial results will be “substantially just” when there is known insurance coverage and the implication that the opposite result must obtain where it is not known? By “substantially just” can only be meant that the plaintiff will receive a larger verdict or award where the amount of insurance coverage is known, but which fact may not be presented to the jury, than when it is not known.

Without impugning the motives of present able and conscientious counsel for plaintiffs in bringing this matter before us, I add the further objection that the majority opinion violates public policy. People v. Fisher, supra, approved by the majority opinion, states that one reason for forcing the disclosure of insurance coverage and amounts is so that the plaintiff’s counsel will have in advance a realistic appraisal of his opponent so that he will know how diligently he must apply himself on behalf of his client.

It seems to me that this concept of a lawyer’s duty to his client is a far cry from the historic and traditional ethics of the legal profession as taught in our law schools and as expressed in the lawyer’s oath. An attorney who undertakes a case on behalf of a client is in duty bound to prosecute it with all his ability, skill and energy. If the cause is meritorious it should be pursued to a conclusion, if that is the client’s desire; unwarranted claims should not be undertaken. I am sure that every member of the Bar of our state concurs that it is his duty to do his best possible work for his client and that the Bar itself will object to anything which may lower its standards and which might tend to justify a lawyer, who *532 is not cognizant of his duty, in only paying lip service to his client’s cause unless he knows there is insurance coverage or the possibilities of being paid.

I would deny this broad inquiry before judgment under present law because it flies in the face of the express language of Rule 26 (b). I would further deny it upon the ground that it sanctions a public policy out of harmony with all our concepts of justice.

The motion to dismiss the Rule should be granted.

Mr. Chief Justice Knauss and Mr. Justice Hall concur in this dissent.

Mr. Chief Justice Knauss dissents upon the further ground that he believes our court has no right to determine this matter upon a petition for Writ of Mandamus.