SUPERIOR INS CO v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY

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District Court of Appeal, Second District, Division 1, California.

SUPERIOR INS. CO. et al. v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY.

Civ. 18160.

Decided: January 25, 1951

Joseph W. Jarrett, Robert L. Moore, Los Angeles, for petitioners. Harold W. Kennedy, County Counsel, William E. Lamoreaux, Deputy County Counsel, Los Angeles, for respondent Superior Court. Paul Leiter, Beverly Hills, for respondent Sally Priscilla Hays, real party in interest.

On August 29, 1950, Sally Hays filed in the Superior Court of Los Angeles County an application for perpetuation of testimony under sections 2083 to 2089 of the Code of Civil Procedure, in which application she alleged that she expected to be a party to an action against Paul Witten and Superior Insurance Company (the petitioners herein) ‘to enforce payment of a judgment which petitioner expects will be rendered in favor of petitioner’ in an action against Paul Witten and others for personal injuries arising out of an automobile accident; that the applicant sought to establish the existence of automobile caualty insurance insuring Paul Witten against liability for personal injuries and property damage. The superior court granted the application and ordered that the depositions be taken of Paul Witten and one F. O. Hoffman. Hoffman is president of Superior Insurance Agency, Inc., the sole agent of Superior Insurance Company for the writing of certain types of casualty insurance in this state, and is also its authorized agent in this state for service of process. The court further ordered the issuance of subpoenas duces tecum requiring Witten to produce all liability policies insuring him on the date of the accident, June 27, 1950, together with receipts for premiums and notices or correspondence pertaining to the effective period of such policies, and requiring Hoffman to produce ‘copies of all policies of insurance issued to Paul Witten covering said person for liability for personal injury and property damage in effect on June 27, 1950, together with all records of receipts for premiums paid by said Paul Witten pertaining to said policies, and all records and correspondence pertaining to the effective dates of said policies.’

On September 15, 1950, petitioners herein moved in the superior court to vacate the order for perpetuation of testimony and quash the subpoenas duces tecum, or in the alternative to modify the order so as to relieve petitioners from producing any documents and further limiting their oral examination to the following: ‘Testimony as to whether a public liability and property damage automobile insurance policy was in full force and effect on June 27, 1950, covering the ownership and operation of a certain 1949 Oldsmobile sedan owned and operated by Paul Witten, the named insured; testimony as to whether or not there are any known policy defenses affecting said policy or pertaining to said accident; testimony as to whether premiums due upon said policy have been paid; and testimony as to whether said insurance company will satisfy any final judgment rendered against Paul Witten as a result of the personal injury action referred to in said petition to the full contractual indemnity liability under said policy of insurance.’

Their motion being denied, petitioners appeared on September 16, 1950, for the taking of their depositions, and, as is alleged in their petition, Hoffman answered ‘all questions concerning the issuance of said public liability and property damage automobile insurance policies, * * * specimen policies were introduced in evidence, including all provisions of the policies in question, with the exception of policy limits and amount of premium payments; and in substance, all information which could constitute a valid basis of perpetuation proceedings with respect to said insurance coverage, was supplied; that the only information withheld was the amount of the policy limits of said public liability and property damage automobile insurance policy and the amount of premiums paid; that with the exception of production of said specimen policies said F. O. Hoffman did not produce any of the documents required * * * and said Paul Witten produced no documents * * *.’

F. O. Hoffman was thereupon directed to show cause before the superior court why he should not answer the questions which he had refused to answer. Before the hearing of the order to show cause this court issued its alternative writ of mandate, requiring the superior court to grant petitioners' motion to vacate its previous orders (or in the alternative to limit the scope of the examination as aforesaid) or to show cause why it had not done so.

The issue presented herein, therefore, is whether a person who is, or expects to be, a party plaintiff in an action for personal injuries, has the right, through proceedings for perpetuation of testimony, to ascertain not only the existence and terms of a policy of insurance indemnifying the defendant, but also the amount thereof, and this in advance of the recovery of any judgment by plaintiff against the defendant, and prior to the institution of any action against the latter.

In Demaree v. Superior Court, 10 Cal.2d 99, 73 P.2d 605, 607, the application for examination alleged that an action was pending and undetermined wherein the applicant sought damages for personal injuries arising out of an automobile accident; that defendant Dawley was operating the automobile with the consent of defendant Appling; that Appling carried a policy of insurance; that it was believed that the policy contained an omnibus clause indemnifying any person operating the automobile with the consent, express or implied, of Appling. The Superior court issued an order authorizing the taking of Appling's deposition and a subpoena duces tecum requiring Appling to produce the policy. Appling declined to produce the policy at the time of his examination. Subsequently the superior court vacated its order and declined to compel Appling to produce the policy. The Supreme Court issued a peremptory writ of mandate. In response to the objections raised by the respondents to the petition for mandate, the court held that the petitioners had sufficiently met the requirements of sections 2083 to 2086 of the Code of Civil Procedure, and that the application, considered as an application for a subpoena duces tecum, sufficiently specified “the exact matters or things desired to be produced,” and sufficiently showed the materiality thereof, and that ‘Appling had the * * * policy in his possession or under his control’. The court further said: ‘We think it must be conceded that the provisions of the policy of insurance are germane to petitioners' cause and material to their anticipated action, when and if brought. We are of the view, therefore, that the applicants laid a sufficient basis for the issuance of the order providing for the perpetuation of testimony and the production of the insurance policy.’

To the principal objection that requiring production of the policy would result in unreasonable search and seizure, the court said:

‘The authorities cited in support of this contention fail, in our judgment, to meet the case. They relate, for instance, to a subpoena to produce ‘all books,’ without specific description of particular and material documents. * * *

‘The comparatively recent decision of this court in Kutner-Goldstein Co. v. Superior Court, 212 Cal. 341, 298 P. 1001, 1003, sufficiently disposes of the issue. The author of the opinion in that case reviews the question at length, and says (212 Cal. 341, at page 345, 298 P. 1001): ‘Ordinarily nothing more than the statutory requirements is necessary to be shown in the application, and the courts of this state have so stated on several occasions' (citing leading previous decisions sustaining the point).’

While the court in the Demaree case, supra, upheld an order for the production of the policy, it is urged by petitioners that the case is distinguishable from the present one in several particulars. The sole question in the Demaree case was whether the insurance policy contained an omnibus clause insuring the operator as well as the owner, the latter being an automobile dealer. It was alleged in the petition in the Demaree case that the driver, Dawley, was not financially responsible, that the policy had lapsed, and that there was a possibility that the policy might be lost or destroyed. On the other hand, petitioners state that it appears from the affidavit of F. O. Hoffman that petitioners admit the existence of the policy, that it was in effect on the date of the accident, that there are no known policy defenses to date and none anticipated, that the premium has been paid, that the policy is a standard automobile public liability and property damage policy approved by the Insurance Department; that all policy records would be preserved. Further, that in the Demaree case there was a complete refusal to reveal anything except that Appling was insured under a policy of insurance which might or might not be in effect at the time of the accident. Further, it is pointed out that subsequent to the Demaree decision in 1937, the Vehicle Code has been amended (sec. 422.6), to require insurers to file with the Department of Motor Vehicles a certificate that a policy of public liability insurance was in effect at the time of the accident. This, it appears from the affidavit of Hoffman, was done in the present case, which act, say petitioners, ‘had the effect of perpetuating the existence of the policy, the fact of insurance effective at the date of the accident covering the same with at least minimum policy limits,’ which under the aforesaid Vehicle Code provisions must be not less than $5,000.00 for injury to any one person and $10,000.00 for any one accident.

Aside from the case above referred to, counsel on neither side have furnished any authority directly on the point in issue, and research on our part has been equally fruitless. Concededly, the weight of authority appears to hold that records must be produced or questions answered not only with reference to issues which will actually arise in the trial of a cause, but of and concerning issues which may potentially arise. McClatchy Newspapers v. Superior Court, 26 Cal.2d 386, 394, 395, 159 P.2d 944; San Francisco Gas & Electric Co. v. Superior Court, 155 Cal. 30, 99 P. 359; Rossbach v. Superior Court, 43 Cal.App. 729, 185 P. 879.

Proceeding on this theory, we are unable to perceive how the question of the amount of liability insurance or the premium paid thereon can even potentially be regarded as a possible issue on the trial of the contemplated action. Such an issue could only arise following the rendition of a judgment in favor of plaintiff, and then would arise, not in the action now proposed to be commenced, but in another and separate action, for any judgment the plaintiff might obtain against the defendant could not be enforced against the insurance company except by and through the commencement of another and distinct action predicated upon such judgment against the defendant.

As was held in New York etc. Co. v. Superior Court, 30 Cal.App.2d 130, 132, 85 P.2d 965, perpetuation proceedings should be for a legitimate purpose and not be oppressive. Here the fact of insurance has been determined and admitted under the provisions of the Vehicle Code, supra. The resident agent, Hoffman, at his deposition, provided the plaintiff with all the terms and conditions of the policy, and further offered to preserve all the records by filing them ‘as a sealed instrument’ with the court.

To permit the disclosure of the policy limits at the present time would not aid in the determination of any of the issues of the personal injury action, but merely provide the plaintiff with an advantage in negotiating for a settlement, which we do not regard as being within the purview of the applicable statutes providing for the perpetuation of testimony and the issuance of subpoenas duces tecum.

For the foregoing reasons let a peremptory writ of mandate issue as prayed, directing respondent court to quash the subpoena duces tecum heretofore issued and to modify or amend said respondent court's order of August 30, 1950, to the extent of specifically limiting the oral examination of F. O. Hoffman, the designated agent of petitioner in California for service of process, and said Paul Witten to the following: Testimony as to whether a public liability and property damage automobile insurance policy was in full force and effect on June 27, 1950 covering the ownership and operation of a certain 1949 Oldsmobile sedan owned and operated by Paul Witten, the named insured; testimony as to whether or not there are any known policy defenses affecting said policy or pertaining to said accident; testimony as to whether premiums due upon said policy have been paid; and testimony as to whether said insurance company will satisfy any final judgment rendered against Paul Witten as a result of the personal injury action referred to in said petition to the full contractual indemnity liability under said policy of insurance.

WHITE, Presiding Justice.

DORAN and DRAPEAU, JJ., concur.

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