Abstract

In Di Pietruntonio v. Superior Court, facing for the first time the problem of whether in the ordinary automobile negligence action the plaintiff should be permitted to use discovery procedures to determine the existence and limits of any liability insurance policies held by the defendant, the Arizona Supreme Court joined the ranks of those jurisdictions which disallow such discovery. Upon defendant's request, the court granted an original writ of prohibition against an order of the superior court requiring the defendant to answer interrogatories concerning whether the defendant had insurance, the name of the insurer, and the limits of the policy. The court reasoned that the plaintiff was not entitled to such information under Rule 33 of the Arizona Rules of Civil Procedure, in light of the public policy of the state, and the limitations of Rule 26(b), which it interpreted as restricting discovery to evidence for use in the trial, or to information that will reasonably lead to the discovery of admissible evidence.

There is scarcely a more controversial and unsettled area in the law of discovery than that of disclosure of insurance. Although the discovery procedures of the states vary, many of them, like Arizona, have adopted the Federal Rules of Civil Procedure. Other states have a procedure similar enough that their case decisions can be considered along with a discussion of those of federal courts and states which have adopted the Federal Rules. The methods used for such discovery are, in general, limited to submission of interrogatories under Rule 33, moving for production of the policy under Rule 34, or use of oral examination under Rule 30. The scope of the examination is governed by Rule 26(b) which reads as follows:

Unless otherwise ordered by the court as provided by Rule 30(c) or (e), 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 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 relevant facts. It is not ground for objection that the testimony will be inadmissible at trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.

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