To Spoil or Not to Spoil
When can spoliation of evidence be actionable? Litigants can rejoice that a promise , once it is made, cannot be broken with impunity. In Cooper v. State Farm Mutual Auto Insurance Co. (2009, 4th Dist. , Div 2)) 177 Cal. App. 4th 876, an insurer promised its insured that it would preserve vital evidence that was required for the insured to prosecute a personal injury action against a tire manufacturer that was the alleged tortfeasor. The insurer failed to preserve the evidence.
The insured sued the insurer for the damages he could have recovered if the evidence had been preserved by the insurer, despite the fact that there is no tort for intentional spoliation of evidence in California. The claim is too speculative. See Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 74 Cal Rptr.2d 248 and Temple Community Hospital v. Superior Court (1999)20 Cal.4th 464, 84 Cal.Rptr.2d 852. (Here's a good blog on the topic.)
However, the Court in Cooper determined that the insured may proceed with a suit against the insurer to recover damages that might have been recovered if the evidence had been preserved with the actionable claim being based on a theory of voluntary undertaking or promissory estoppel. The mere fact that the evidence wasn’t preserved did not, per se, render the plaintiff’s legal claims speculative.
Bryan Cooper was a State Farm insured who was involved in a single vehicular accident allegedly caused by tread separation. State Farm retained a tire expert who, after his inspection of the tire, opined that it had been defectively manufactured. State Farm informed its insured accordingly and settled Mr. Cooper’s claim for insurance benefits based on its expert’s conclusion.
Despite the fact that State Farm agreed to maintain the tire for Mr. Cooper, so that he could use it as evidence in his product liability case against the tire manufacturer, State Farm sold the vehicle for salvage inclusive of the tire. Mr. Cooper was prevented from pursuing his products liability case, and he sued State Farm on several theories. State Farm’s motion for a nonsuit after opening statement was granted and the Court of Appeal reversed.
In Temple, the Supreme Court extended the legal axiom of no tort action for intentional spoliation of evidence. However, the Court recognized that it was possible that a duty to preserve evidence could arise independently, either from statute or contract. In Cooper, the Court factually distinguished Cedars-Sinai and Temple on the basis that neither of those cases involved a defendant who had agreed to preserve the evidence at issue. The Cooper Court determined that State Farm owed a duty to Mr. Cooper based on its agreement with him, and not on general tort principles.
Since State Farm obtained an opinion from an expert that the tire was defectively manufactured, Cooper’s claim was not unduly speculative. Coupled with State Farm’s promise to preserve the evidence, there was a sufficient factual basis for the jury to rely on to rule in Cooper’s favor, and a nonsuit was improper.
