Oral argument was heard October 2, 2008, in Nashville, Davidson County, Tennessee, as a part of the Supreme 1

Court Advancing Legal Education for Students (S.C.A.L.E.S.) project.

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

October 2, 2008 Session Heard at Nashville1

JAMES G. THOMAS, JR., Brother and Next of Kin of Karen G. Thomas,

Deceased v. ELIZABETH OLDFIELD, M.D. ET AL.

Appeal by Permission from the Court of Appeals

Circuit Court for Davidson County

No. 05C-3207 Walter C. Kurtz, Judge

No. M2006-02767-SC-R11-CF - Filed February 2, 2009

The plaintiff filed interrogatories and requests for production seeking information concerning the

defendants’ liability insurance coverage. When the defendants objected to providing this

information, the plaintiff filed a motion to compel discovery pursuant to Tennessee Rule of Civil

Procedure 37.01. The trial court ruled that the information was subject to discovery pursuant to

Tennessee Rule of Civil Procedure 26.02 and granted the plaintiff’s motion to compel and the

defendants’ request for an interlocutory appeal. The Court of Appeals reversed the trial court’s

order, holding that information concerning the defendants’ liability insurance coverage was not

discoverable under Rule 26.02. We affirm the judgment of the Court of Appeals.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed

JANICE M. HOLDER, C.J., delivered the opinion of the court, in which CORNELIA A. CLARK, GARY

R. WADE, and WILLIAM C. KOCH, JR., JJ., and E. RILEY ANDERSON, SP. J., joined.

William D. Leader, Jr., and Erin P. McDaniel, Nashville, Tennessee, for the appellant, James G.

Thomas, Jr.

Darrell G. Townsend, Nashville, Tennessee, for the appellees, Charles V. Love, M.D., and

Emergency Coverage Corporation.

Bradford D. Box and Spencer R. Barnes, Jackson, Tennessee, for the amicus curiae, Tennessee

Defense Lawyers Association.

H. AnthonyDuncan, Nashville, Tennessee, for the amicus curiae, Tennessee Association for Justice.
 Dr. Love and ECC are the only defendants who filed an interlocutory appeal. For purposes of this opinion, 2

we refer to Dr. Love and ECC as “the defendants.”

2

OPINION

Facts and Procedural History

On December 8, 2004, Karen Thomas underwent abdominal surgery at Centennial Medical

Center in Nashville, Tennessee. She was discharged on December 11, 2004, and went to her father’s

home in Lawrenceburg, Tennessee, to recover from her surgery. On December 13, 2004, Ms.

Thomas was admitted to the emergency department of Crockett Hospital in Lawrenceburg

complaining of abdominal pain. Dr. Charles Love and Dr. June McMillin diagnosed Ms. Thomas

with a urinary tract infection and sent her home. The following day, Ms. Thomas returned to the

Crockett Hospital emergency department complaining of increased abdominal pain, slurred speech,

and shortness of breath. Dr. McMillin made a preliminary diagnosis of sepsis. Ms. Thomas was

transferred by helicopter to Baptist Hospital in Nashville, where she later died of sepsis.

On October 18, 2005, James Thomas, Ms. Thomas’ brother, filed a complaint for the

wrongful death of Ms. Thomas against several doctors and hospitals, including Dr. Love and

Emergency Coverage Corporation (“ECC”), which provides the emergency department physicians

to Crockett Hospital. Mr. Thomas thereafter propounded interrogatories to and requests for

production from both Dr. Love and ECC seeking “information concerning the extent and amount of

liability insurance coverage for the claims forming the basis of this lawsuit.” When the defendants

objected to providing the requested information, Mr. Thomas filed a motion to compel discovery.

Dr. Love and ECC argued that the information was not subject to discovery under Rule 26.02

because the extent and amount of liability insurance coverage is not relevant to the subject matter

of the lawsuit.

On November 29, 2006, the trial court entered an order compelling Dr. Love and ECC to

respond to the plaintiff’s interrogatories and requests for production regarding their liability

insurance coverage. On December 18, 2006, the trial court granted Dr. Love and ECC permission

to seek an interlocutory appeal of the court’s ruling on Mr. Thomas’ motion to compel.2

The Court of Appeals granted the defendants’ application for an interlocutory appeal and

reversed the trial court, holding that information concerning the defendants’ liability insurance

coverage is not relevant to the merits of the suit and is not reasonably calculated to lead to the

discovery of admissible evidence. We granted the plaintiff's application for permission to appeal.

Analysis

This case presents an issue of first impression for this Court: whether information

concerning a defendant’s liability insurance coverage is discoverable under Tennessee Rule of Civil

Procedure 26.02(1).
 We may look to the interpretation of comparable federal rules for guidance. Williamson County v. Twin Lawn 3

Dev. Co., 498 S.W.2d 317, 320 (Tenn. 1973) (“[O]ur Rules having been taken from the Federal Rules of Civil

Procedure, and the object of our virtual adoption of the federal rules being to have similar rules of procedure in state trial

courts and federal district courts, it is proper that we look to the interpretation of the comparable Federal Rule . . . .”);

see also 1 Tenn. Juris., Rules of Court § 2.

3

Tennessee Rule of Civil Procedure 26.02(1) states, in pertinent part:

Parties may obtain discovery regarding any matter, not privileged, which is relevant

to the subject matter involved in the pending action, whether it relates to the claim

or defense of the party seeking discovery or to the claim or defense of any other

party, including the existence, description, nature, custody, condition and location of

any books, documents, or other tangible things and the identity and location of

persons having knowledge of any discoverable matter. It is not ground for objection

that the information sought will be inadmissible at the trial if the information sought

appears reasonably calculated to lead to the discovery of admissible evidence.

Tenn. R. Civ. P. § 26.02(1) (2008). Interpretation of the Tennessee Rules of Civil Procedure is a

question of law, which we review de novo with no presumption of correctness. Lacy v. Cox, 152

S.W.3d 480, 483 (Tenn. 2004). Although the rules of civil procedure are not statutes, the same rules

of statutory construction apply in the interpretation of rules. See Crosslin v. Alsup, 594 S.W.2d 379,

380 (Tenn. 1980); see also 1 Tenn. Juris., Rules of Court § 2 (2004). Our goal “‘is to ascertain and

give effect to the legislative intent without unduly restricting or expanding a statute’s coverage

beyond its intended scope.’” Overstreet v. TRW Commercial Steering Div., 256 S.W.3d 626, 630

(Tenn. 2008) (quoting Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002)).

We determine legislative intent by giving words their natural and ordinary meaning. Green v.

Johnson, 249 S.W.3d 313, 319 (Tenn. 2008). In construing the rules of this Court, however, our goal

is to ascertain and give effect to this Court’s intent in adopting its rules. See State v. Mallard, 40

S.W.3d 473, 480-81 (Tenn. 2001) (“[T]he [Tennessee] Supreme Court has the inherent power to

promulgate rules governing the practice and procedure of the courts of this state.”); see also Tenn.

Code Ann. § 16-3-401 & 402 (1994).

In construing the meaning of Tennessee Rule of Civil Procedure 26.02(1), we must determine

whether information concerning the defendants’ liability insurance coverage is “relevant to the

subject matter involved in the pending action.” The United States Supreme Court has interpreted

the identical phrase in Federal Rule of Civil Procedure 26(b) to “encompass any matter that bears

on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the

case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Thus, the subject matter of 3

a case is not limited to the merits of the case because “a variety of fact-oriented issues may arise

during litigation that are not related to the merits.” Id. Under this broad interpretation, information

concerning the existence and extent of liability insurance coverage may be relevant to settlement

negotiations or trial preparation. See Johanek v. Aberle, 27 F.R.D. 272, 278 (D. Mont. 1961); Hill

v. Greer, 30 F.R.D. 64, 66 (D.N.J. 1961); Terry v. Fisher, 145 N.E.2d 588, 593 (Ill. 1957).
 Tennessee Rule of Evidence 401 defines “relevant evidence” as “evidence having any tendency to make the 4

existence of any fact that is of consequence to the determination of the action more probable or less probable than it

would be without the evidence.”

 Tennessee Rule of Evidence 411 states: 5

Evidence that a person was or was not insured against liability is not admissible upon issues of

negligence or other wrongful conduct. This rule does not require the exclusion of evidence of

insurance against liability when offered for another purpose, such as proof of agency, ownership, or

control, or bias or prejudice of a witness.

4

We construe Tennessee Rule of Civil Procedure 26.02(1) consistently with its federal

counterpart and conclude that information concerning liability insurance coverage is “relevant to the

subject matter” involved in the pending lawsuit. That conclusion, however, does not end our inquiry.

Rule 26.02(1) further provides that an “objection that the information sought will be inadmissible

at the trial” is not sufficient to defeat a discovery request if the “information sought appears

reasonably calculated to lead to the discovery of admissible evidence.” In other words,

inadmissibility under other rules of relevancy, such as Tennessee Rule of Evidence 401, will not 4

necessarily bar the production of this information if the rule of relevancy contained in the second part

of Rule 26.02(1) is met.

In this case, the parties concede that information concerning the defendants’ liability

insurance coverage would be inadmissible at trial pursuant to Tennessee Rule of Evidence 411.5

However, the plaintiff does not argue that discovery of this inadmissible evidence “appears

reasonably calculated to lead to the discovery of admissible evidence.” After a considered review,

we are unable to conclude that discovery of this information appears reasonably calculated to lead

to the discovery of admissible evidence. Therefore, the existence and extent of the defendants’

liability insurance is not subject to discovery in this case.

The history of Rule 26.02 supports our conclusion. The Tennessee Rules of Civil Procedure

were adopted in 1970 and were modeled on the Federal Rules of Civil Procedure prior to their 1970

amendments. Federal courts construing the pre-1970 version of the federal rules were divided on

the question of whether information concerning insurance coverage was subject to discovery under

Federal Rule 26(b). Johanek, 27 F.R.D. at 274 & n.2. Several decisions reasoned that the language

in Rule 26(b) permitted discovery only of matters admissible at trial or reasonably calculated to lead

to admissible evidence. See, e.g., Beal v. Zambelli Fireworks Mfg. Co., 46 F.R.D. 449, 450 (W.D.

Pa. 1969); Clauss v. Danker, 264 F. Supp. 246, 249 (S.D.N.Y. 1967); Bisserier v. Manning, 207 F.

Supp. 476, 479 (D.N.J. 1962). Other courts concluded that a defendant’s financial information was

beyond the scope of Rule 26(b). See, e.g., Langlois v. Allen, 30 F.R.D. 67, 68-69 (D. Conn. 1962);

McClure v. Boeger, 105 F. Supp. 612, 613 (E.D. Pa. 1952). Still other courts found that information

concerning liability insurance coverage was discoverable because it was relevant to settlement or

trial preparation. See, e.g.,Johanek, 27 F.R.D. at 280; Hill, 30 F.R.D. at 65-66; Brackett v. Woodall

Food Prod., Inc., 12 F.R.D. 4, 5-6 (E.D. Tenn. 1951).
 Ala. R. Civ. P. 26(b)(2); Alaska R. Civ. P. 216(a)(1)(F); Ariz. R. Civ. P. 26(b)(2); Ark. R. Civ. P. 26(b)(2); 6

Cal. Code Civ. P. § 2017.210 (2008); C.R.C.P. 26(a)(1)(D) (Colorado); Conn. Gen. Stat. § 52-200a (2008); Del. Super.

Ct. R. 26(b)(2); Ga. Code Ann. § 9-11-26(b)(2); Haw. R. Civ. P. 26(b)(2); Idaho R. Civ. P. 26(b)(2); Ind. R. Trial P.

26(B)(2); Iowa R. Civ. P. 26(b)(2); Kan. R. Civ. P. 60-226(b)(3); Ky. R. Civ. P. 26.02(2); L.S.A.-C.C.P. Art. 1423

(Louisiana); Me. R. Civ. P. 26 (b)(2); Md. R.C.P. Cir. Ct. R. 2-402(b); Mass. R. Civ. P. 26(b)(2); Mich. R. Civ. P.

2.302(b)(2); Minn. R. Civ. P. 26.02(b); Miss. R. Civ. P. 26(b)(2); Mo. Sup. Ct. R. 56.01(b)(2); Mont. R. Civ. P. 26(b)(2);

Neb. R. Discovery 26(b)(2); Nev. R. Civ. P. 16.1(a)(1)(D); N.J. C.R. 4:10-2(b); N.M. R. Civ. P. 1-026(B)(3);

N.Y.C.P.L.R. § 3101(f); N.C. R. Civ. P., G.S. § 1A-1, Rule 26(b)(2); N.D. R. Civ. P. 26(b)(3); Ohio R. Civ. P. 26(b)(2);

Ore. R. Civ. P. 36B(2); Pa. R. Civ. P. No. 4003.2; R.I. Super. R. Civ. P. 26(b)(2); S.C. R. Civ. P. 26(b)(2); S.D. Codified

Laws § 15-6-26(b)(2); Tex. R. Civ. P. 192(f); Vt. R. Civ. P. 26(b)(2); Va. S. Ct. R. 4:1(b)(2); Wash. R. Super. Ct. Civ.

C.R. 26(b)(2); W. Va. R. Civ. P. 26(b)(2); Wisc. Stat. Ann. 5804.01(2)(b); Wyo. R. Civ. P. 26(a)(1)(D).

 See Vilord v. Jenkins, 240 So.2d 68, 68 (Fla. Dist. Ct. App. 1970); Terry, 145 N.E.2d at 593; Tuller, 886 P.2d 7

at 484.

 N.H. Rev. Stat. Ann. § 498:2-a (2008). 8

5

State courts were likewise divided. Several states permitted discovery of information

concerning liability insurance coverage because it facilitated settlement or apprised the parties of the

insurance company’s role in the action. See Superior Ins. Co. v. Superior Court, 235 P.2d 833,

835-36 (Cal. 1951); Lucas v. District Court of County of Pueblo, 345 P.2d 1064, 1068 (Colo. 1959);

Terry, 145 N.E.2d at 593; Maddox v. Grauman, 265 S.W.2d 939, 942 (Ky. Ct. App. 1954). Other

states held that this information was not subject to discovery because it was not relevant to the merits

of the case or infringed on the defendant’s privacy. See Di Pietruntonio v. Superior Court, 327 P.2d

746, 750-51 (Ariz. 1958); Ruark v. Smith, 147 A.2d 514, 515 (Del. Super. Ct. 1959); Brooks v.

Owens, 97 So.2d 693, 699 (Fla. 1957); Sanders v. Ayrhart, 404 P.2d 589, 592 (Idaho 1965);

Jeppesen v. Swanson, 68 N.W.2d 649, 658 (Minn. 1955); Bush v. Elliot, 363 S.W.2d 631, 636-37

(Mo. 1963); Carman v. Fishel, 418 P.2d 963, 975 (Okla. 1966), overruled by Tuller v. Shallcross,

886 P.2d 481 (Okla. 1994); Great Am. Ins. Co. v. Murray, 437 S.W.2d 264, 267-68 (Tex. 1969).

In 1970, Federal Rule 26(b) was amended expressly to allow for the discovery of information

regarding insurance coverage. Fed. R. Civ. P. 26(b), 1970 Amendment Note to Subdivision (b)(2).

The United States Supreme Court observed that “an amendment to Rule 26(b) was required to bring

within the scope of discovery the existence and contents of insurance agreements . . . for that

information ordinarily cannot be considered, and would not lead to information that could be

considered, by a court or jury in deciding any issues.” Oppenheimer, 437 U.S. at 352.

Following the 1970 amendment to Federal Rule 26(b), a majority of states amended their

rules to allow discovery of information concerning liability insurance coverage. Currently, forty-five

states allow discovery of such information by rule or statute. Courts in three other states have 6

construed their rules to allow discovery of information concerning liability insurance coverage, and 7

New Hampshire permits discovery of this information for settlement purposes in cases in which the

insurer is joined as a party. Moreover, in 1993, the Federal Rules of Civil Procedure were further 8

amended to make insurance agreements subject to mandatory initial disclosure. Fed. R. Civ. P. 26

(a)(1)(A)(iv) (2008).
The official Committee Comment to the 1979 amendments provides, in part: “Rules 26 through 37, inclusive, 9

relating to depositions and discovery, have been amended to conform substantially but not identically to Rules 26 through

37, inclusive, of the Federal Rules of Civil Procedure.” Vythoulkas, 693 S.W.2d at 355 n.7. The amendments included

new subsections (3) and (4) concerning discovery of work product and expert testimony. Id.

 Clearly there will be situations where information concerning a defendant’s insurance coverage is 10

discoverable. Rule 411 of the Tennessee Rules of Evidence allows such information to be admissible to show “proof

of agency, ownership, or control, or bias or prejudice of a witness.” In addition, even when the information sought will

be inadmissible at trial, it is discoverable when it is reasonably calculated to lead to the discovery of admissible evidence.

6

In 1979, the Tennessee Rules of Civil Procedure were amended, and Rule 26.02 was revised

to conform substantially to the amended Federal Rule 26(b). Vythoulkas v. Vanderbilt Univ. Hosp., 9

693 S.W.2d 350, 355 (Tenn. Ct. App. 1985), superseded by Tenn. R. Civ. P. 26.02(4)(B); see

Advisory Commission cmt. to 1987 amend. The 1979 revisions to Tennessee Rule 26.02 differed

from the 1970 version of Federal Rule 26(b) in one important respect: Rule 26.02 did not include

the provision expressly allowing discovery of information regarding insurance coverage. The

absence of this language from the 1979 revisions is conspicuous.

While we are constrained by both the language and the history of current Rule 26.02 from

holding that information concerning the defendants’ liability insurance coverage is subject to

discovery, we are convinced that the time has come to align Tennessee with the rules in forty-eight

states and the federal rule in allowing discovery of this information.

Our decision today leaves Tennessee in the extreme minority of jurisdictions that have not

amended or construed their rules to expressly provide for the discovery of a defendant’s liability

insurance coverage. We are persuaded that allowing discovery of such information reflects the 10

current realities of litigation and settlement of cases in Tennessee. First, discovery of insurance

coverage will encourage mediation and settlement of cases by “enabl[ing] counsel for both sides to

make the same realistic appraisal of the case, so that settlement and litigation strategy are based on

knowledge and not speculation.” Fed. R. Civ. P. 26(b), 1970 Amendment Note to Subdivision

(b)(2); see also Hill, 30 F.R.D. at 66 (“The plaintiff’s knowledge of defendant’s insurance permits

a more realistic appraisal of a case and undoubtedly leads to settlement of cases which otherwise

would go to trial.”). The majority rule is therefore in accord with the policy of the Tennessee Rules

of Civil Procedure, “to provide for the just, speedy, and inexpensive determination of every action,”

Tenn. R. Civ. P. 1 (2008), and with this Court’s commitment to make the process of dispute

resolution in Tennessee “more efficient, more economical, and equally fair.” See Order Establishing

Tenn. Sup. Ct. R. 31 Regarding Alternative Dispute Resolution pmbl. (Dec. 18, 1995).

Finally, the insurance company is often the “real party in interest to the suit to the extent of

its policy limits.” Tuller, 886 P.2d at 484. Thus, knowledge of the insurance agreement is helpful

to the plaintiff’s attorney “to prepare for the case he has to meet and be apprised of his real

adversary.” Johanek, 27 F.R.D. at 278. In these cases, it is the insurance company, rather than the

defendant, that objects to the disclosure of the policy and its limits. Tuller, 886 P.2d at 484. When

it is in the defendant’s interest to settle the case within the policy limits, the insurance company may
7

prefer to gamble on a jury verdict of non-liability “where the only one who stands to lose from that

gamble is the policyholder.” Szarmack v. Welch, 318 A.2d 707, 710 (Pa. 1974). Thus, it is

beneficial to both the plaintiff and the defendant to engage in “purposeful discussions of settlement,”

Johanek, 27 F.R.D. at 278, and “[a]llowing discovery in such circumstances apprises the parties of

information necessary to produce results fair to both sides,” Tuller, 886 P.2d at 484.

Conclusion

We hold that information concerning the defendants’ liability insurance coverage is not

subject to discovery under Tennessee Rule of Civil Procedure 26.02 because it is neither admissible

nor does it appear to be reasonably calculated to lead to the discovery of admissible evidence.

Accordingly, we affirm the judgment of the Court of Appeals and remand for further proceedings.

Costs of this appeal are taxed to the appellant, James G. Thomas, and his surety, for which execution

may issue if necessary.

___________________________________ 

JANICE M. HOLDER, CHIEF JUSTICE