An appellate court in Florida has ruled that a third-party spoliation action against an insurer for allegedly destroying evidence cannot be tried at the same time as the underlying case against the alleged tortfeasor.
The Case
Lazaro Rodriguez, an employee of BV Oil, Inc., sued Cosme Investment for personal injuries he allegedly suffered when he was knocked from the top of a gasoline tanker truck he was fueling at Cosme's gasoline storage warehouse.
Mr. Rodriguez learned that BV Oil and its worker's compensation insurance carrier, Amerisure Insurance Company, had possession of a videotape of his accident that he believed would help him prove his case against Cosme. However, according to Mr. Rodriguez, BV Oil and Amerisure negligently lost or destroyed the videotape.
Mr. Rodriguez amended his complaint against Cosme to add a count suing BV Oil and Amerisure for damages, alleging that the loss of the video “significantly impair[ed] [Mr. Rodriguez's] ability to prove his claim and/or to address the comparative negligence defense, thereby affecting [his] potential recovery in this case.”
The trial court scheduled a trial for Mr. Rodriguez's premises liability case against Cosme at the same time as his spoliation claim against BV Oil and Amerisure.
The trial court also ordered Amerisure to provide discovery relating to Mr. Rodriguez's spoliation claim, including the identity of the claims managers and adjustors who handled Mr. Rodriguez's worker's compensation claim, even though the underlying premises liability case had not been resolved.
Amerisure filed petitions for writs of certiorari seeking review of these trial court orders.
The Appellate Court's Decision
The appellate court quashed the trial court orders challenged by Amerisure.
In its decision, the appellate court explained that Mr. Rodriguez's spoliation claim against Amerisure and BV Oil was a “classic third-party spoliation claim” rather than a first-party spoliation claim (i.e., a claim in which the defendant who allegedly lost, misplaced, or destroyed the evidence also allegedly caused the plaintiff's injuries or damages).
The appellate court then pointed out that, under the “consensus of authority,” third-party spoliation claims should be abated or dismissed until the underlying tort claim is resolved. It noted that a cause of action for spoliation did not accrue until the underlying action was resolved, and reasoned that requiring Amerisure to provide discovery and proceed to trial regarding a claim that had not accrued, and that might never accrue if Mr. Rodriguez was successful in his underlying claim, would constitute irreparable harm.
The appellate court then held that a third-party spoliation claim generally should be abated or dismissed until the underlying tort claim was resolved.
The case is Amerisure Ins. Co. v. Rodriguez, Nos. 3D18-1524 & 3D18-1058 (Fla. Ct.App. Sep. 26, 2018). Attorneys involved include: Cole Scott & Kissane, P.A., and Kathryn L. Ender, Benjamin Esco, and Pedro Collazo, for petitioner. Dorta Law, and Matias R. Dorta and Gonzalo R. Dorta, for respondent.
Steven A. Meyerowitz
Steven A. Meyerowitz, a Harvard Law School graduate, is the founder and president of Meyerowitz Communications Inc., a law firm marketing communications consulting company. He may be contacted at [email protected].