No. 86-427 

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, 1986 

Decided: December 12, 1956 

Filed: DEC 12 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-rks are necessary.