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EXECUTIVE SUMMARY: This
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Florida Court Rejects Spoliation Claim When Litigation Merely Anticipated
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FLORIDA COURT REJECTS SPOLIATION CLAIM WHEN LITIGATION MERELY ANTICIPATED
In Royal & Sunalliance v. Lauderdale Marine Center, Case No. 4D03-2148 (July 27, 2004), the Court Of Appeal Of Florida, Fourth District, Royal & Sunalliance (“Royal”) appealed the trial court's order granting Lauderdale Marine Center's ("LMC") Motion to Dismiss Royal's spoliation of evidence claim and the trial court's Order granting LMC's Motion for Summary Judgment. In this case, a yacht, the Alicia, owned by R.R. & L.R. Corporation ("R.R.") was being repaired by Cleanse A Yacht, Inc. doing business as Cay Marine, Inc. ("Cay Marine"). Cay Marine leased space from LMC and uses the space leased from LMC for vessels it is repairing. The Alicia was in one of these spaces on July 4, 1998 when it caught fire and partially burned. A vessel docked in a space next to the Alicia was also partially burned. R.R. had insurance through Royal, and Royal indemnified R.R. and the owner of the adjacent vessel. Royal filed a subrogation action against Cay Marine to recover amounts paid to R.R. and the owner of the adjacent vessel. In January 2002, Royal added LMC as a defendant by serving its Second Amended Complaint in which Royal alleged causes of action for negligence and spoliation of evidence against LMC. The spoliation of evidence claim was dismissed without prejudice for failure to state a claim upon which relief could be granted. Royal filed a third complaint attempting to state a cause of action for spoliation of evidence against LMC; however, the trial court again dismissed this claim without prejudice. Next, Royal filed its Fourth Amended Complaint in which it again attempted to assert a spoliation of evidence claim. In the complaint, Royal asserted that the fire inspectors collected debris from the fire and placed it in barrels; however, at some point between July 4, 1998 and July 13, 1998, the contents of the barrels were thrown away. Royal argued that LMC had a common law duty to preserve the debris and that without this debris it could not prove the exact cause of the fire and who might be responsible. LMC filed a motion to dismiss on which the trial court heard oral argument. The trial court entered an order dismissing this claim with prejudice and eventually consolidated the order dismissing the spoliation of evidence claim with an order granting LMC's motion for summary judgment and issued a final order of dismissal. A complaint must contain the "ultimate facts" necessary to support the claim for relief. Fla. R. Civ. P. 1.110(b)(2). Here, in order to properly plead a cause of action for spoliation of evidence, Royal needed to plead facts that could establish the essential elements of this claim. The essential elements of a spoliation of evidence claim are: (1) existence of a potential civil action, (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action, (3) destruction of that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit, and (6) damages. In this case, the issue on appeal involved the second element, that is, whether LMC had "a legal or contractual duty to preserve evidence." "A duty to preserve evidence can arise by contract, by statute, or by a properly served discovery request (after a lawsuit has already been filed)." However, here, Royal had not alleged a contractual or statutory duty. Royal also had not alleged that a discovery request was served which required the evidence to be preserved. Royal argued that there can also be a common law duty to preserve evidence before litigation has begun. In Hagopian, a Publix customer, Cheryl Hagopian, brought suit against Publix and Coca-Cola after a Sprite bottle exploded and injured her foot while she was shopping in Publix. 788 So. 2d at 1089. The Sprite bottle explosion occurred in 1991; however, Hagopian did not file suit until 1994. Id. In the meantime, the Sprite bottle had been destroyed. Id. However, Hagopian does not expressly establish any common law duty to preserve evidence. Instead, in Hagopian, this court focused on Hagopian's ability to prove the case without the destroyed evidence, which involves the fourth and fifth elements of a spoliation claim. Id. at 1091-92. In Hagopian, this court did mention St. Mary's Hospital, Inc. v. Brinson, 685 So. 2d 33 (Fla. 4th DCA 1996; however, this case also does not establish a common law duty to preserve evidence in anticipation of litigation. In Brinson, the parents of Alonzette Brinson, a nineteen-month-old infant, brought suit against a hospital alleging negligence. Id. at 34. Alonzette suffered cardiac arrest after receiving an elevated amount of anesthesia during surgery to correct a drooping eyelid. Id. During discovery, the Brinsons found out that "the halothane vaporizer used in the anesthesia machine during Alonzette's surgery [had been] . . . disassembled." The Brinsons then filed a claim against St. Mary's alleging negligent and/or intentional destruction of evidence. Id. The trial court consolidated the two cases and a jury found for the Brinsons. Id. at 35. On appeal, this court stated "we find that the trial court did not err in allowing the Brinsons to proceed on an action for the spoliation of evidence." Other than this statement, there is no discussion of duty to preserve the evidence in the opinion at all. Thus, Brinson does not establish a common law duty to preserve evidence in anticipation of litigation. Furthermore, one commentator examined the appellate briefs and found that Brinson's spoliation claim was in fact based on a statutory duty of the hospital to preserve the vaporizer rather than a common law duty to preserve the vaporizer in anticipation of litigation. Robert D. Peltz, The Necessity of Redefining Spoliation of Evidence Remedies in Florida, 29 Fla. St. U. L. Rev. 1289, 1309 (2002). Thus, neither Hagopian nor Brinson established a duty to preserve evidence when litigation is merely anticipated. Accordingly, the court found Royal's argument that there was a common law duty to preserve the evidence in anticipation of litigation to be without merit, and thus, affirmed the trial court's dismissal of its claim for spoliation of evidence.
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