Catholic Mutual Relief Society v. Superior Court

*375CORRIGAN, J., Dissenting.

I respectfully dissent. Code of Civil Procedure section 2017.210 unambiguously provides for discovery of reinsurance policies, by including “any agreement under which any insurance carrier may be liable to . . . indemnify or reimburse for payments made to satisfy the judgment.”1 The majority detects an ambiguity in the “satisfy the judgment” term, because a reinsurer is “derivatively” rather than “directly” liable. (Maj. opn., ante, at p. 370.) However, the Legislature has chosen terminology that expressly includes derivative liability. The obligation to “indemnify or reimburse” easily encompasses the duty assumed by reinsurers.

The majority finds further ambiguity in the third sentence of section 2017.210: “ ‘A party may also obtain discovery as to whether that insurance carrier is disputing the agreement’s coverage of the claim involved in the action, but not as to the nature and substance of that dispute.’ ” According to the majority, only the defendant’s liability insurer is in a position to dispute coverage. (Maj. opn., ante, at p. 369.) This is not the case; reinsurers can and do argue that their policies do not cover the claim involved in the action. (See, e.g., Royal Ins. Co. v. Caledonian Ins. Co. (1920) 182 Cal. 219, 224-226 [187 P. 748]; Fireman’s Fund Ins. Co. v. Aachen & Munich Fire Ins. Co. (1906) 2 Cal.App. 690, 694—695 [84 P. 253]; Travelers Cas. & Sur. v. Gerling Global Reinsur. (2d Cir. 2005) 419 F.3d 181, 193-194; Nat. American Ins. Co. of Cal. v. Underwriters (9th Cir. 1996) 93 F.3d 529, 536-537.) And as a matter of logic, the additional statutory authorization for discovery of coverage disputes does not make the broad terms of the section 2017.210’s opening sentence ambiguous. “[A]ny agreement under which any insurance carrier may be liable” includes reinsurance, whether or not coverage is contested.

Given the clarity of the statutory language, there is no need to resort to indications of legislative intent. (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 977 [90 Cal.Rptr.2d 260, 987 P.2d 727].) We may not rewrite the statute to make it conform to an intent that is not expressed in its terms. (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 633 [59 Cal.Rptr.2d 671, 927 P.2d 1175]; Seaboard Acceptance Corp. v. Shay (1931) 214 Cal. 361, 365-366 [5 P.2d 882].) In any event, the majority’s reliance on committee analyses reflecting an intent to authorize discovery of liability insurance is not persuasive. As the majority recognizes, reinsurance is presumptively a form of liability insurance. (Maj. opn., ante, at p. 368; Ins. Code, § 621; Staring, The Law of Reinsurance Contracts in California in Relation to Anglo-American Common Law (1988) 23 U.S.F. Law Rev. 1, 4—5.) What is clear from the legislative history, and from the language of the statute, is that the terms before us were framed on the example of rule *37626 of the Federal Rules of Civil Procedure (28 U.S.C.).2 (See Irvington-Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733, 737 [18 Cal.Rptr.2d 49].) The Legislature might have drawn instead on the rule developed by California case law, based on the right of direct action conferred by Insurance Code section 11580. However, it did not.

The federal rule has been inteipreted to require disclosure of reinsurance policies. Discovery has not been limited to cases “where the reinsurer was itself a party, or the reinsurance agreement was directly relevant to the parties’ claims or defenses in the litigation.” (Maj. opn., ante, at p. 370, fn. 8.) In Great Lakes Dredge & Dock v. Commercial Union Assur. (N.D.Ill. 1995) 159 F.R.D. 502, the court determined that the reinsurance documents sought by the plaintiffs were irrelevant, but nevertheless ordered the insurer to disclose its reinsurance policies under rule 26. (Great Lakes, supra, 159 F.R.D. at p. 504.)

In Tardiff v. Knox County (D.Me. 2004) 224 F.R.D. 522, reinsurance was not relevant to any issue in the underlying litigation; discovery was permitted simply because “the reinsurers are exposed to potential liability for reimbursing the [self-insurance] Pool when judgment is entered against the Pool’s member [i.e., the defendant County].” (Id. at p. 524.) The Tardiff court adopted the following language from Nat. Union Fire Ins. v. Continental Illinois Corp. (N.D.Ill. 1987) 116 F.R.D. 78, which has been widely accepted by the federal courts: “Reinsurers (‘personfs] carrying on an insurance business’) are Insurers’ own insurers. If Insurers are held liable under the Policies, they will turn to their reinsurers for partial indemnification, as provided in the reinsurance agreements, for any ‘payments made to satisfy the judgment.’ [Fn. omitted.] [ft] Insurers contend their reinsurance agreements are not ‘insurance agreements’ under [former] Rule 26(b)(2).[3] True enough, reinsurance agreements are a special breed of insurance policy. . . . [ft] But the English language remains the same: Reinsurers ‘carry[] on an insurance business’ and ‘may be liable ... to indemnify [Insurers] for payments made to satisfy the judgment’ that Movants hope to obtain. [Former] Rule 26(b)(2) does not require that a party’s insurer be directly liable to the other party. It is totally irrelevant that the reinsurers would pay Insurers and not the defendants and that Movants cannot directly sue the reinsurers.” (National Union, supra, 116 F.R.D. at p. 84; see Tardiff, supra, 224 F.R.D. at pp. 523-524.)

*377Discovery of reinsurance policies is a routine matter in federal court. (E.g., Ohio Management, LLC v. James River Ins. Co. (E.D.La.) 2006 WL 1985962, *2; Bondex Int’l, Inc. v. Hartford Accident & Indem. Co. (N.D. Ohio) 2006 WL 355289, *1-2; Country Life Ins. Co. v. St. Paul Lines Ins. Co. (C.D.Ill.) 2005 WL 3690565, *9-10; Medmarc Cas. Ins. Co. v. Arrow Internat'l Inc. (E.D.Pa.) 2002 WL 1870452, *3; Missouri Pac. R.R. Co. v. Aetna Cas. & Surety Co. (N.D.Tex) 1995 WL 861147, *2; FDIC v. Marsiglia (E.D.La.) 1992 WL 300830, *1; Rhone-Poulenc Rorer Inc. v. Home Indemnity Co. (E.D.Pa.) 1991 WL 237636, *2; Potomac Elec. Power v. California Union Ins. (D.D.C. 1990) 136 F.R.D. 1, 2.) The cases reflect no judicial concern over any resulting burden on nonparty reinsurers. Thus, the majority’s suggestion that allowing discovery of reinsurance would lead to abuse and absurdity seems not to have been borne out by experience.4 (Maj. opn., ante, at pp. 373-374.) While any discovery process is susceptible to abuse, a protective order is the answer provided by statute. (§ 2017.020.)

I agree with the majority that section 2017.210 does not “authorize[] broad discovery of the financial health of the liability insurer or its ability to meet its contractual obligations under its policies.” (Maj. opn., ante, at p. 374.) The statute permits only limited discovery of “the existence and contents” of an insurance policy, including “the nature and limits of the coverage.” (§ 2017.210.) No general exposure of insurers’ assets is at issue. Reinsurance is a unique kind of asset; it is not fungible, and is designed solely to respond to liability. (Cf. Pettie v. Superior Court (1960) 178 Cal.App.2d 680, 689-690 [3 Cal.Rptr. 267].) Most importantly, it is expressly included by the terms of section 2017.210. An insurer that chooses to back up its policies with a discoverable asset is in no position to complain about disclosure.

The majority creates an exception for discovery of reinsurance agreements that are “directly on the risk to satisfy a judgment.” (Maj. opn., ante, at p. 374.) In such a case, the majority acknowledges that discovery of the policy “would be appropriate.” (Id. at p. 374.)5 No statutory authority is offered for this exception. Nor is there any need for it; the discovery statutes *378should simply be applied as they are written. Reinsurance is plainly discoverable under section 2017.210. If the insurer objects, it may seek a protective order under section 2017.020.

Kennard, J., and Werdegar, J., concurred.

Further statutory references are to the Code of Civil Procedure unless otherwise indicated.

Further references to enumerated rules are to the Federal Rules of Civil Procedure. Rule 26(a)(1)(D) mandates the disclosure of “any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.”

The terms quoted by the National Union court are now found in rule 26(a)(1)(D). (See fn. 2, ante.)

Here, there can be little doubt that petitioners have, for their own purposes, marshalled the reinsurance available to meet the church’s potentially massive liability in the molestation litigation. Moreover, Catholic Relief Insurance Company, like any insurer, must make detailed disclosures of its reinsurance policies to the Insurance Commissioner in order to claim those policies as assets. (Ins. Code, § 922.1 et seq.) Complying with plaintiffs’ request for discovery of the church’s reinsurance policies would not appear to be unduly burdensome.

The majority also recognizes a “narrow exception[]” permitting discovery of a reinsurance policy that is the subject matter of the litigation, as in a coverage dispute between a liability insurer and its reinsurer. (Maj. opn., ante, at p. 374.) However, no exception is required in this circumstance; any policy that is “relevant to the subject matter involved in the pending action” is discoverable as a matter of right under section 2017.010, without resort to the provisions of section 2017.210.