New York High Court Refuses To Recognize Third Party Negligent Spoliation Of Evidence As Independent Tort
March, 2004
by Robert A. Stern and
In Metlife Auto & Home v. Joe Basil Chevrolet, Inc., 775 N.Y.S.2d 754 (2004), the New York Court of Appeals – New York’s highest court – refused to recognize third-party negligent spoliation of evidence as an independent tort.
Facts
In Metlife, a fire started in a Chevrolet Tahoe owned by defendant and used, with permission, by plaintiff’s subrogor, Michael Basil of Clarence, New York. The vehicle was parked in Basil’s garage when it caught fire; the fire caused over $330,000.00 in property damage to the Basil home. MetLife Auto & Home (“Metlife”), Basil’s homeowners’ insurance carrier, paid the homeowners’ claim. Fire and sheriff investigators determined that the fire originated on the driver’s side of the vehicle dashboard. Royal Insurance Company (“Royal”), Chevrolet’s insurance carrier, took possession of the vehicle. A Royal representative orally agreed with representatives of MetLife, General Motors Corporation (which manufactured the vehicle), the Speaker Shop, Inc., (which installed a remote starting device in the dashboard) to preserve the vehicle. In November 2000, a joint inspection and testing of the vehicle was scheduled. However, shortly before the inspection took place, Royal notified the parties that the vehicle had been disassembled, disposed of, and that scientific analysis and examination were no longer possible.
Litigation ensued and MetLife commenced an action for money damages based upon negligence, breach of warranty, and strict liability. Metlife also brought an action solely against Royal due to its “negligence, carelessness and recklessness” which resulted in the destruction of “invaluable, necessary and important evidence” thereby irrevocably impairing MetLife’s right to successfully pursue Joe Basil Chevrolet, Inc., General Motors Corporation and Speaker Shop, Inc. Royal moved to dismiss MetLife’s Complaint, arguing that MetLife failed to state a cognizable cause of action. The Supreme Court granted Royal’s motion to dismiss the complaint, holding that no action against a third party for spoliation of evidence existed in New York. The motion was granted and affirmed on appeal to the Appellate Division.
Analysis
The Court of Appeals affirmed.
Noting up-front that “[a] cause of action for spoliation of evidence is a relatively recent phenomenon in the law,” the court examined the methods by which spoliation is addressed. “One traditional method of dealing with spoliation of evidence in New York,” the court wrote, “has been CPLR 3126 where sanctions, including dismissal, have been imposed for a party’s failure to disclose relevant evidence.” Another method of addressing spoliation has been to recognize a common law cause of action for it. However, New York courts have only recognized such a cause of action in circumstances where the spoliation impairs another’s right to sue a third-party tortfeasor. Here, the Court of Appeals found that such was not the case and so affirmed the dismissal of the spoliation complaint:
In this case it is clear that Royal had no duty to preserve the vehicle. There is no dispute that Royal owned the vehicle. Moreover, no relationship existed between MetLife and Royal that would give rise to such a duty. Additionally, MetLife made no effort to preserve the evidence by court order or written agreement. Although MetLife verbally requested the preservation of the vehicle, it never placed that request in writing or volunteered to cover the costs associated with preservation. The burden of forcing a party to preserve when it has no notice of an impending lawsuit, and the difficulty of assessing damages militate against establishing a cause of action for spoliation in this case, where there was no duty, court order, contract or special relationship.
Learning Points:
If a potential adversary or someone on behalf of a potential adversary is going to preserve evidence that you have an interest in, you must send a letter to that potential adversary, or to the entity acting on behalf of the potential adversary, clearly and unambiguously advising them that: (1) the evidence will be used in an impending litigation; (2) they have a duty to preserve the evidence for your benefit; (3) you are willing to pay for any storage costs, on a pro rata basis; (4) failure to preserve the evidence will constitute a breach of their duty to preserve the evidence; and (5) failure to preserve the evidence will result in a claim being filed against them in a court of law relative to their spoliation of the evidence. Naturally, if you can acquire a written statement from the person preserving the evidence that they will continue to do so and acknowledge that they have a duty to do so, you have protected your interests to assert a third-party spoliation claim if the evidence is discarded. Alternatively, if a potential adversary or someone on behalf of a potential adversary is going to preserve evidence that you have an interest in, you can seek a pre-litigation court order requiring that party to preserve the evidence. ¨
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