Fireman's Fund Insurance v. Superior Court

[788]

Opinion

THE COURT.

*

Proceeding in mandate to compel the superior court to vacate an order denying petitioner’s motion to compel the taking of a deposition, and to enter a new and different order granting said motion. We granted an alternative writ.

Facts

This petition arises out of an action entitled John Hicks v. Fireman’s Fund Insurance Company, a dispute over disability insurance coverage. Hicks was insured under a group policy issued to his employer, Garrett Airesearch. On June 18, 1973, he slipped and fell while working part time as a watchman for the Los Angeles Unified School District, and filed a claim dated August 14, 1975, alleging total and permanent disability commencing on or about May 13, 1975. Apparently negotiations between the insurer and counsel for plaintiff did not proceed smoothly and on February 17, 1976, counsel for plaintiff sent to Fireman’s Fund a letter making demand for payment in good faith. A complaint for compensatory and punitive damages was filed April 7, 1976.

Fireman’s Fund noticed the deposition of Michael Smolen, counsel for plaintiff Hicks, for May 13, 1977. No protective order was sought and Mr. Smolen informed counsel for the insurer that he would not attend the deposition and in fact failed to appear. Fireman’s Fund thereupon filed a motion to compel the taking of the deposition; opposition was filed; the matter was argued and the superior court denied the motion.

Petitioner alleges that a physician for Hicks advised that Hicks was in fact able to work at his regular occupation. As a consequence petitioner requested additional medical information from Hicks. Mr. Smolen, Hicks’ counsel, provided an additional medical report based on a physical examination of Hicks and results of prior examinations that had been furnished to the examining doctor.

Petitioner then requested of Mr. Smolen information as to whether the latest examining doctor had been furnished with certain medical reports. Smolen did not reply and the action was filed.

[789]