Baker v. American Paper and Twine Co.

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE

JOHNNY RAY BAKER, SR., )
Individually and as Surviving
Husband of ANITA MAE BAKER,
Deceased, and JOHNNY RAY
)
)
)
FILED
BAKER, JR., A Minor, Individually )
and as Surviving Minor Child of ) January 27, 2000
ANITA MAE BAKER, Deceased, by )
and through his father and next ) Cecil Crowson, Jr.
friend, JOHNNY RAY BAKER, SR., ) Appellate Court Clerk
)
Plaintiffs/Appellees, ) Davidson Circuit
No. 98C-3145
)
VS. ) Appeal No. M1999-00142-COA-R9-CV
)
AMERICAN PAPER AND TWINE )
COMPANY, )
)
)
Defendant/Appellant. )

APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE CAROL SOLOMAN, JUDGE

WILLIAM B. JAKES, III
HOWELL & FISHER
Nashville, Tennessee
Attorney for Appellant

RANDALL L. KINNARD
KINNARD, CLAYTON & BEVERIDGE
Nashville, Tennessee
STEVEN R. WALKER
Memphis, Tennessee
Attorneys for Appellees

REVERSED AND REMANDED

ALAN E. HIGHERS, J.

CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

DAVID R. FARMER, J.
American Paper and Twine Company (“Defendant”) appeals the trial court’s grant

of Baker’s (“Plaintiff’s”) motion to compel production of Defendant’s liability insurance
policies in this wrongful death and personal injury case. For the following reasons, the trial

court is reversed and Plaintiff’s motion to compel is denied.

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 Facts and Procedural History

Plaintiff filed a wrongful death and personal injury suit in the Davidson County Circuit

Court. During the course of discovery Plaintiff requested that Defendant produce
documents regarding Defendant’s liability insurance policies. Defendant refused to produce

the documents, asserting that the request exceeded the scope of discovery as allowed by

Rule 26.02 of the Tennessee Rules of Civil Procedure.1 Plaintiff filed a motion to compel
discovery of the requested documents. On the basis of this motion and oral argument, the

court granted Plaintiff’s request. As a result, Defendant sought interlocutory appeal on the

issue of whether liability insurance policies are discoverable under Rule 26.02. This appeal
arises from the facts as set forth below.

On October 13, 1998, Plaintiff, his wife, and his son were employed at a
construction site set up on Interstate 40 near Gordonsville, Tennessee. Plaintiff and his

family were in the process of removing some of the construction warning signs and

barriers. Plaintiff’s vehicle and utility trailer were parked in the right-side emergency lane.
Due to the construction, only one lane of the interstate was open for traffic and the posted

speed limit was forty miles per hour.

In the early afternoon, a truck owned by Defendant and driven by one of

Defendant’s employees crossed over into the emergency lane where Plaintiff’s vehicle and
trailer were parked. Plaintiff’s wife was working inside the trailer. Defendant’s truck hit the

rear end of the trailer, causing the Plaintiff’s wife to be thrown off the trailer. Her head hit

the rear window of Plaintiff’s truck while her body was smashed between Plaintiff’s truck
and Defendant’s truck. Her body was dragged between the trailer and Defendant’s truck

for nearly twenty feet before coming to rest.

Following the accident, Plaintiff filed suit against Defendant in the Davidson County

Circuit Court based on the alleged negligent and reckless behavior of Defendant’s driver.

In addition, Plaintiff alleged that Defendant was negligent per se because of the driver’s

1
Rule 26.02 TENN R. C IV. P. provides in pertinent part: U nles s oth erwis e lim ited b y orde r of th e cou rt in
accordance with these rules, the scope of discovery is as follows:
(1) In Ge nera l. Partie s m ay obt ain dis cove ry rega rding any m atter , not p rivileg ed, w hich is relevant
to the subje ct ma tter involved in the pending action, wh ether it relates to the claim or defen se of the party
seeking disco very o r to the claim or de fens e of a ny oth er pa rty, including the existence, description, nature,
cus tody, condition and loca tion of any bo oks, do cum ents, or oth er tangible th ings 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 in adm issib le at th e trial if t he inf orm ation soug ht ap pea rs re aso nab ly calculated to lead to the
discovery of admissible evidence.

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failure to obey several traffic laws. Plaintiff sought recovery for both the wrongful death of

his wife and the personal injury suffered by himself and his son as a result of witnessing

her death.

During the course of trial preparation, Plaintiff served Defendant with a request for

production of documents. Among the requests was the following item:
“7. Please provide any documents in your possession, care, custody, or control
concerning any insurance agreements under which any person or entity carrying on
an insurance business may be liable to satisfy part, or all, or any judgment which
may be entered in this action or to indemnify or reimburse for payments made to
satisfy such judgment.”
In other words, Plainitff was seeking to discover what, if any, liability insurance policies

Defendant possessed, along with the coverage limits on those policies. Defendant refused

to provide the requested information, citing that the policies were not discoverable under
Rule 26.02 of the Tennessee Rules of Civil Procedure.

Following the Defendant’s refusal to provide the insurance information, Plainitiff filed
a motion to compel the discovery of the Defendant’s liability insurance. In support of its

motion, Plaintiff cited a memorandum opinion from the Fifth Circuit Court for Davidson

County. See Sharon D. Greene, et al. v. Nashville Otolaryngology Consultants, et al., No.

95C-3947*. The memorandum opinion held that Rule 26 did allow for discovery of

insurance information as long as the information was either relevant or reasonably
calculated to lead to the discovery of relevant or admissible evidence. In sum, the opinion

stated that liability insurance information did fall within the ambit of Rule 26.02. Defendant

reargued its position that liability insurance policies fell outside the scope of Rule 26.02,
and therefore were not subject to discovery. Following oral argument on Plaintiff’s motion,

the trial court ordered that Defendant produce the requested documents. 2

Defendant filed an application for interlocutory appeal that was granted by the trial

court and this court. On appeal, Defendant asserts that the trial court erred in holding that

Defendant’s liability insurance policy is within the scope of discovery as defined by Rule

26.02 of the Tennessee Rules of Civil Procedure.

Analysis

The single issue before the court on appeal is whether or not the liability insurance

2
In its o rder , the tr ial court cited and inco rporated by referen ce the m emo randum opinion fro m the Fifth
Circ uit Co urt of Dav idso n Co unty.

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policy held by Defendant is discoverable under Rule 26.02. For the following reasons we

find that it is not. Accordingly, the trial court erred in granting Plaintiff’s motion to compel

discovery of the information.

In the proceeding below, Plaintiff relied solely on the memorandum opinion from

Sharon D. Greene, et al. v. Nashville Otolaryngology Consultants, et al. to support the idea

that insurance information falls within the ambit of discovery allowed under Rule 26.

Without addressing the merits of the Greene opinion, we find it appropriate to note that we

are unpersuaded by the reasoning put forth in the underlying opinion. Therefore, we find
that it does not present adequate support for Plaintiff’s motion. We now turn our attention

to Rule 26.02 itself.

A. Function of Rule 26.02

As a preliminary matter, it is appropriate to discuss the role and function of the

Tennessee Rules of Civil Procedure. In general, the Tennessee Rules of Civil Procedure
carry the same weight and effect as any other law promulgated by the State. As stated in

Vaughn, “ they [the Tennessee Rules of Procedure] are ‘laws’ of this state, in full force and

effect, until such time as they are superseded by legislative enactment or inconsistent rules

promulgated by this Court and adopted by the General Assembly.” Dept. of Human Serv.

v. Vaughn, 595 S.W.2d 62, at 63 (Tenn. 1980). Likewise, when determining the application
of the rules, the power of the Court is limited to that of interpreter and the Court cannot

interpret a rule in such a way that would make the rule broader or more narrow than

intended. See Roseman v. Roseman, 890 S.W.2d 27, 29 (Tenn. 1994); Lyons v. Rasar.

872 S.W.2d 895, 897 (Tenn. 1994). As in statutory construction, the Court’s interpretation

must give effect to the “plain meaning” of the words used absent some contradiction or

ambiguity in the language of the rule. See Heiskell v. Lowe, 153 S.W. 284, 290 (Tenn.

1912); Austin v. Memphis Publishing Co., 655 S.W.2d 146, 148 (Tenn. 1983).

With this background in mind, we now turn to the text of Rule 26.02. This rule

allows for the discovery of “relevant information” or information that is “reasonably
calculated to lead to the discovery of admissible evidence.” We find no inherent ambiguity

or contradiction presented by this language. Therefore, the Court is limited to the plain

meaning of the words used. Accordingly, discovery is limited to either relevant information
or information that will lead to admissible evidence.

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 “Relevant” information under Rule 26.02 is information that is relevant to the subject

matter of the litigation. In this case, the existence and monetary limits of any liability

insurance policy does not relate to the subject matter in the underlying case, namely the
actual accident. The second prong of 26.02 allows for discovery of information that will

lead to admissible evidence. Again, the existence and limitations of Defendant’s insurance

policy does not fit within this prong. Insurance information is not generally admissible, and
there is no logical connection between the information and the discovery of any admissible

evidence. See Crowe v. Provost, 374 S.W.2d 645, 653 (Tenn. Ct. App. 1963); Puckett v.

Broome, 385 S.W.2d 762, 769-770 (Tenn. Ct. App. 1964). Therefore, discovery of the
Defendant’s liability insurance does not fall within the scope of Rule 26.02.

B. Legislative History of Rule 26.02

On appeal, Plaintiff argues that Rule 26.02 of the Tennessee Rules of Civil

Procedure should be interpreted as allowing discovery of Defendant’s liability insurance.

Plaintiff bases this argument on the analogous Rule 26 of the Federal Rules of Civil
Procedure which has been interpreted to allow discovery of such information. See Rule

26(b)(2) FED . R. CIV . P. While the Tennessee rule was initially modeled after the federal

rule, we do not believe that the current Tennessee rule mirrors the development of the

federal rule.

The federal rule in question was amended to allow discovery of liability insurance

information in 1970. See Rule 26(b)(2); Rule 26(a)(1)(D) FED . R. CIV . P. The majority of

states applied a similar interpretation or adopted a comparable amendment during the
following years. Such an amendment or interpretation was not adopted in Tennessee. On

the contrary, several amendments that would allow such extensive discovery were

proposed and rejected. Among these proposed amendments were specific attempts to
allow for the discovery of liability insurance policies.3 None of these attempts were

successful. Baker v. Promark Products West, Inc., 692 S.W.2d 844, 847 (Tenn. 1985) (in

construing an issue, the Court can consider the General Assembly’s rejection of a

proposed amendment as well as the amendment’s legislative history). Therefore, we find
that Rule 26.02 of the Tennessee Rules of Civil Procedure is in no way affected by the

interpretation of Rule 26 of the Federal Rules of Civil Procedure.

3
Betwee n 1974 and 199 0, the Te nness ee Ge neral As sem bly conside red sev eral Hou se and Senate Bills
that would have allowed for discovery of liability insurance information. None of the proposed bills were
accepted and im plem ented. See legislative history House Bill 1453 (1975); Senate Bill 1301 (1975); H.J.R.
34 (1976); Tennessee State Library and Archives, Tape #S-59, (F eb. 26, 19 76); Ho use Bill 60 (1 977), Se nate
Bill 118 (19 77); Sen ate Bill 24 (19 79); Sen ate Bill 284 (1987); House Bill 2214 (1990); Senate Bill 1827 (1990).

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 C. Case law

In our review of this case, we take note of Plaintiff’s argument and supporting case

law. While Plaintiff undoubtedly presents a well-researched and articulated argument, it
is an argument based almost exclusively on case law and rules from other jurisdictions.

The Court is not adverse to such authorities but we are less inclined to follow the

precedents of other jurisdictions when the issue involves construction of a Tennessee rule
of procedure..

Admittedly, the question at issue in this case has not been addressed by our Court
since the adoption of the Tennessee Rules of Civil Procedure.4 However, prior to the
adoption of these rules, the discoverability of liability insurance policies was addressed by

the Tennessee Court of Appeals. Crowe v. Provost 374 S.W.2d 645 (Tenn. Ct. App.

1963). In Crowe, a medical malpractice case, the Court barred discovery of the doctor’s

liability insurance policy because the policy was “a privileged matter; and, of course, not

relevant to the issues in the case.” Crowe at 653.

With Crowe in mind, we hold that as stated above, the function and history of Rule

26.02 leave little doubt as to how the rule should be interpreted. Discovery of liability

insurance information is not within the scope of discovery as defined by Rule 26.02.5

Accordingly, the trial court erred in granting Plaintiff’s motion to compel discovery of
Defendant’s liability insurance policy.

Conclusion

Based upon the foregoing, the trial court is reversed and Plaintiff’s motion to compel

production is denied. This case is remanded to the trial court for further proceedings
consistent with this holding. Costs of the appeal are assessed to the appellees, Johnny

Ray Baker, Sr., et al., for which execution may issue if necessary.

4
The Tennessee Rules of Civil Procedure were adopted in 1971.
5
We find it unnecessary to address the parties’ remaining arguments regarding the effect of discovery on
the settlem ent of ca ses an d wheth er an insu rance c arrier is a “re al party in interes t.”

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 HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

FARMER, J.

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