Opinion
June 19, 1967
Appeals by defendant from orders of the Supreme Court which, upon defendant's motion for a protective order pursuant to CPLR 3103, modified in certain respects plaintiff's notice of the taking of defendant's deposition and otherwise denied said motion. The action is to recover the $1,050 cost of of a polished white marble cemetery stone erected to mark the grave of plaintiff's testatrix, the claim being made pursuant to the provisions of a so-called family automobile policy issued by defendant insurer to testatrix' father and covering him and each member of his family injured or killed as the result of an automobile accident for "all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, X-ray and dental services, including prothetic devices, and necessary ambulance, hospital, professional nursing and funeral services." Defendant has paid all the items of coverage claimed except the claim for the cost of the monument or marker, which defendant contests, asserting that it is not an item of "funeral services" and in any event is not "reasonable" in amount, within the meaning of the respective policy provisions hereinbefore quoted. Plaintiff seeks the examination of defendant and the production of such of its books and papers as will disclose its treatment and disposition of similar claims, as indicating defendant's practical construction of the perhaps ambiguous term "funeral services" (cf. Green v. Travelers Ins. Co., 286 N.Y. 358, 363) and possibly as constituting admissions against interest. The orders of Special Term limit the examination "to payments made under similar policies for cemetery markers, monuments or gravestones during the period July 1, 1964 to December 31, 1964 * * * pursuant to claims therefor filed by Defendant's field offices located in Buffalo, Syracuse and Utica, New York." Defendant's proof in opposition to the motion clearly indicates that the production of the information demanded would require a massive, time-consuming and expensive operation because of problems, among others, of indexing and filing, computerization, information interchanges between home office, and regional and local offices, and computer programming to be directed solely to this data. Defendant argues, cogently enough, that if every claimant under a policy may ascertain the company's action in every similar case, any procedures taken by way of settlement will be cited as admissions of liability and endless collateral issues will be raised in attempted explanation of differing treatments; and defendant urges further that in other cases, as in this, the costs of compliance with the disclosure demands will often exceed the amounts claimed, resulting, on occasion, in unfair and unwarranted pressures. At least a partial answer to these arguments is the fact of the courts' duty and responsibility to afford protection against prejudice and exploitation in cases involving bona fide issues of legal interpretation as in every other case. Upon the oral argument, appellant's counsel indicated his willingness to produce any intracompany communications, particularly legal opinions and directive bearing generally upon appellant's construction of, and its policy concerning the language of its insurance contract now in issue. Such production may yield all the information to which plaintiff may reasonably be entitled, under all the circumstances and the conflicting considerations, or so Special Term may determine. Additionally, we note that the answering affidavit detailing the procedures that would be involved in complying with plaintiff's notice was prepared and submitted prior to the second order of modification, which limited the examination and production to payments, papers and records respecting claims originating in three of defendant's field offices; and thus the effect of that limitation upon the work and processes outlined in the affidavit does not appear and should be demonstrated on any future application to the Special Term, whether made by plaintiff or by defendant. Orders modified, on the law and the facts and in the exercise of discretion, so as to provide that in lieu of the examination and production demanded by plaintiff, the defendant shall produce for examination and inspection all intracompany legal opinions and directives issued within the period of time to be specified in the order to be entered hereon, and construing, or bearing upon the construction of the policy provision set forth in the complaint herein and providing for payment of "all reasonable expenses incurred within one year from the date of accident for necessary * * * funeral services", and that defendant's motion be in all other respects granted, without costs, and without prejudice to an application by plaintiff, upon a proper showing, to further modify said order after such examination and production or upon defendant's failure of compliance with said order; and, as so modified, the orders appealed from are affirmed, without costs. Settle order on notice. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gibson, P.J. [ 49 Misc.2d 28.]