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Keywords

depositiondiscoverynegligenceappealtrial
depositiondiscoveryappealtrial

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Klaiber v. Orzel, 148 Ariz. 320, 714 P.2d 813

Facts

This action arises out of a fatal car accident which occurred on November 27, 1983. At approximately 6:20 p.m., a car driven by Kathy Dilatush (Orzel) and carrying Sandra Hunt as a passenger, crossed the center line and crashed head-on into the Klaibers' car. Jeannette Klaiber was killed while Jerry and Leslie Klaiber were injured. It was determined that Dilatush had a blood alcohol content of .24 percent, more than twice the legal limit. Prior to the accident, Dilatush and Hunt were served alcohol at The Wagon Wheel Post Bar, owned by Jim Smith. Klaiber sued Dilatush for negligence and Jim Smith, dba The Wagon Wheel, alleging a violation of A.R.S. § 4–244, Arizona's dram shop law.

It was determined that Dilatush had a blood alcohol content of .24 percent, more than twice the legal limit. Prior to the accident, Dilatush and Hunt were served alcohol at The Wagon Wheel Post Bar, owned by Jim Smith.

Issue

Whether the statements obtained by an insurance agent from the bar owner and others were discoverable despite being classified as trial preparation materials.

Whether the statements obtained by an insurance agent from the bar owner and others were discoverable despite being classified as trial preparation materials.

Rule

Statements taken from an insured by insurance investigators are discoverable under the substantial need and undue hardship test of Rule 26(b)(3) when there is conflicting evidence regarding important facts.

However, it has previously been held that statements taken from an insured by insurance investigators in situations similar to the present are discoverable.

Analysis

The court determined that the statements were discoverable because the depositions of the witnesses revealed substantial conflicts regarding key facts about the alcohol consumed by the motorist prior to the collision. The court emphasized that the witnesses were considered hostile, and the substantial equivalent of the statements could not be obtained through other means, even though depositions had been taken.

We would allow the requested discovery not based on factor (4) above, but because the witnesses are, in fact, hostile and the depositions did produce major conflicting evidence.

Conclusion

The Supreme Court approved the Court of Appeals' decision as to its result and modified it, remanding the case to the trial court for further proceedings.

The appeals court chose an unnecessarily broad interpretation upon which to reverse the trial court, thereby unduly broadening the 'substantial need' and 'undue hardship' test of Rule 26(b)(3).

Who won?

Klaiber prevailed in the case because the court found that the conflicting deposition testimonies created a substantial need for the discovery of the statements.

Klaiber prevailed in the case because the court found that the conflicting deposition testimonies created a substantial need for the discovery of the statements.

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