that such matter is not admissible as evidence at the trial; that an inquiry concerning such insurance is not reasonably calculated to lead to the discovery of admissible evidence; and that to permit such discovery is an invasion of a defendant's right of privacy before there is any determination of liability.
There can be no doubt that the objectives of the proponents of discovery of insurance coverage are laudable, especially in view of the increasing number of lawsuits for personal injury, death, and property damage, arising out of automobile accidents. But however desirable it may be to to expedite the settlement of cases and thus relieve calendar congestion, we must recognize that the discovery rules, even if, as we must concede, they should be liberally construed to accomplish their general purpose, do nevertheless have certain limitations and boundaries which we are not at liberty to ignore. In my opinion, the cases which deny discovery of insurance coverage are more consistent, more logical and more persuasive, than those allowing such discovery.
In New Jersey, the existence or non-existence of liability insurance is not evidentiary matter in negligence actions. Sutton v. Bell, 79 N.J.L. 507, 77 A. 42 (E. & A. 1910); Patterson v. Surpless, 107 N.J.L. 305, 151 A. 754 (E. & A. 1930); Hansson v. Catalytic Construction Co., 43 N.J.Super. 23, 127 A.2d 431 (App.Div.1956). Moreover, prior to the amendment of Rule 4:16-2 of the New Jersey Civil Practice Rules,
interrogatories propounded for the purpose of compelling disclosure of insurance coverage were held to be improper. Goheen v. Goheen, 9 N.J.Misc. 507, 154 A. 393 (1931). The amendment of Rule 4:16-2 now specifically permits such disclosure, and provides that the insurance information thus obtained 'shall not be introduced in evidence but shall be used solely for the purpose of enabling the party to evaluate the advisability of making or accepting an offer of settlement.' Thus, in New Jersey it was considered necessary to amend the discovery rules in order to provide for disclosure of insurance coverage in negligence actions. Rule 26(b) of the Federal Rules of Civil Procedure as now written is substantially the same as the New Jersey rule prior to its amendment.
The 'settlement of cases' and the 'relief of calendar congestion' seem to be the principal factors considered in those cases favoring disclosure of insurance coverage in negligence actions. It is undoubtedly true, as stated by Judge Lane in the Hill opinion, that low insurance limits will expedite settlements. But it is likewise true that disclosure of high insurance limits will retard, if not prevent, settlements. Human nature being what it is, it is not unreasonable to assume that, in the eyes of a plaintiff, the value of his case will increase in proportion to the amount of insurance coverage available.
There can be no quarrel with the utilization of proper procedures to encourage the settlement of cases and to relieve calendar congestion. And it may even be assumed that compelling discovery of insurance limits is a step in the right direction to bring about such a result. But I question the propriety of using Rule 26(b) for this purpose. If, as the cases agree, the fact of insurance is not evidentiary matter, what admissible evidence can possibly result from disclosure of a defendant's insurance coverage? It is difficult to see what relevancy the existence or non-existence of insurance can possibly have to the subject matter of the ordinary run-of-the-mill negligence action.
Rule 18 of the General Rules of this Court, which governs the applicability of state court procedure in this District, provides:
'In circumstances not provided for by the Federal Rules of Civil Procedure, * * * or these General Rules, the procedure and practice of the courts of the State of New Jersey shall govern.'
This rule would have no application here because, in my opinion, we are not dealing with a situation 'not provided for by the Federal Rules of Civil Procedure'. Rule 26(b) does make full provision for discovery within the limitations of its own language. The rule, as presently written, does not, as I see it, permit discovery of insurance coverage in advance of a judicial determination of liability or damages in a negligence action. If disclosure of insurance coverage is thought to be desirable, the discovery provisions of the Federal Rules of Civil Procedure should be amended (along the same lines as the amendment of Rule 4:16-2 of the New Jersey Civil Practice Rules) to allow such discovery.
For the foregoing reasons, the interrogatory propounded by plaintiff demanding that the defendant disclose the limits of his liability insurance policy, need not be answered. Submit order.
After conference, the judges of the District are in agreement with the views expressed herein.