Matter of the Petition of Johnson T

No. 8 6 - 4 2 7
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
IN THE MATTER OF THE PETITION OF
STANLEY W. JOHNSON TO PERPETUATE
THE TESTIMONY OF WIL CLARK
APPEAL FROM: The District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presidinq.
COUNSEL OF RECORD:
For Appellant:
Robert L. Johnson, Lewistown, Montana
For Respondent:
Herndon, Harper & Munro; Rodney T. Hartman, ~illings,
Montana
Submitted on Briefs: Oct. 30, 1 9 8 6
Decided: December 12, 1 9 5 6
Filed: DEC 1 2 1986
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This appeal arises from the Eighth Judicial District in
and for the County of Cascade. The District Court denied
appellant's petition to perpetuate the testimony of a
witness. We affirm.
Appellant, Stanley Johnson, was injured in an
automobile accident on November 11, 1985, allegedly due to
the negligence of one Ross Butcher. Mr. Butcher is insured
by National Farmers Union Property and Casualty Company
(National). The claims adjuster for National who is handling
appellant's claim is Wil Clark.
The underlying personal injury action has yet to be
resolved. Appellant has not filed a complaint and the claim
has not been settled, though offers and counter-offers have
apparently been exchanged. Once this personal injury issue
has been resolved, and liability affixed, appellant then
intends to pursue a bad faith action against National. But
because he fears that the underlying determination of
liability "may take years," appellant seeks to preserve the
testimony of Wil Clark for use in the bad faith action.
To this end, appellant filed a petition to perpetuate
the testimony through deposition of Mr. Clark pursuant to
Rule 27, M.R.Civ.P. He further sought a subpoena duces tecum
to require Mr. Clark to bring his claims file with him to the
deposition.
The District Court denied the petition on the ground
that it was prohibited under this Court's recent decision of
Fode v. Farmers Insurance Exchange (Mont. 19861, 719 P.2d
414, 43 St.Rep. 814. We agree.
In Fode, we held that all proceedings in a bad faith
insurance case, alleging violations of the code which require
a showing that issues of liability be reasonably clear, must
be suspended until the liability issues have been determined.
The bad faith case may be filed, but no discovery may he
engaged. Fode, 719 P.2d at 417.
Initially, we note that before a petition such as the
one at issue may be filed, Rule 27(a) requires a petitioner
to show that he is presently unable to bring his action or
cause it to be brought. This rule states:
A person who desires to perpetuate [the
testimony of another] ... may file a
verified petition in the district court
... The petition ... shall show: 1,
that the petitioner expects to be a party
to an action ... but is presently
unable to bring it or cause it to be
brought, ...
Appellant has failed to satisfy this element. As
noted, Fode allows a party to file a bad faith action before
the liability issues are resolved. So long as appellant is
entitled to file a complaint, he is able to bring an action.
Moreover, consistent with our opinion in Fode, we
require that such a petitioner make a proper showing to the
district court that the testimony sought to be perpetuated is
separate and distinct from the testimony likely to be sought
in discovery of a contemplated bad faith action.
We hold that the District Court's denial of appellant's
petition was net in error.
Affirmed.
Mr. Justice Frank B. Morrison, Jr., specially concurring.
I concur in the result because of the facts here at
issue. Petitioner seeks to perpetuate testimony because the
bad faith issues must be held in abeyance pending resolution
of the underlying tort case. This is not sufficient
allegation to spring the Court's discretion under Rule 27(a!.
However, we should not prevent the taking of a
deposition to perpetuate testimony under the appropriate
circumstances. If a bad faith action is being held in
abeyance, and critical witness testimony will be otherwise
lost, the court should be able to authorize perpetuation of
testimony under Rule 27(a). In other words if a witness has
a terminal illness or is going to move to a foreign country
while the bad faith issues are being held in abeyance, the
petitioner should be able to prevent an injustice by taking
those person's depositions.
I concur in the result but feel these explanatory
rema-rksare necessary.