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Turning to a 3rd party for evidence in a lawsuit? Ensure it’s available

Litigation

From Berman Fink Van Horn

Whether a matter involves divorce, criminal matters, contracts or anything in-between, the strength of a case or defense is largely dependent on the evidence presented by each party.  Yet, in some situations, a party does not possess the evidence it needs and must rely on a third-party to ensure that evidence is available for use in a lawsuit.  When a party to a case or third-party improperly disposes of evidence, this act is referred to as spoliation.  So what action can a party take if they believe a third-party has spoliated evidence?

This was the question faced by Kenneth and Cathy Phillips in Phillips v. Owners Ins. Co., A17A0215 WL 2806718 (Ga. Ct. App. June 29, 2017).  The Phillips sought access to a blown tire that was the subject of a separate products liability suit they brought against that tire’s manufacturer.  The Phillips believed that the tire was still in the possession of the Phillips’ insurance company, Owners Insurance Company (“Owners”).  Actually, Owners had already sold the car to which the tire was attached.

The Phillips’ products liability suit against the tire manufacturer arose out of an automobile accident following a tire blowout.  Mr. Phillips sustained severe injuries and the car was declared a total loss.  Following the accident, the Phillips stored the vehicle in a facility in Swainsboro Georgia and filed an insurance claim with Owners.  Owners came to possess the vehicle while investigating that claim.  Around that time, Phillips’ attorney notified Owners that the Phillips intended to file a products liability suit and that the vehicles’ tires needed to be preserved for that purpose.  Owners agreed with the Phillips’ attorney that if Owners ever wanted to move the vehicle that it would notify Phillips’ attorney before moving it.  Soon thereafter, the Phillips settled their insurance claim with Owners and, as part of that settlement Owners took title to the vehicle.

The vehicle remained in the same storage facility from June, 2013 through October, 2014, when the owner of the storage facility notified Owners that rent was going up.  Owners sold the vehicle (including its tires) a few days later.  Owners did not notify the Phillips or their attorney.

Two months later, the Phillips filed their products liability claim.  The Phillips and their counsel only learned that the vehicle had been sold when the Phillips’ attorney called Owners to procure the damaged tire for the products liability case.  The products liability case went on to settle, but only for a portion of Mr. Phillips’ actual medical expenses.

The Phillips believe that the sale of the car foreclosed their opportunity to recover full damages from the manufacturer.  Thus, following settlement of the products liability claim, the Phillips’ sued Owners for third-party spoliation, breach of contract, promissory estoppel and negligence.  Owners moved for summary judgment on each claim.  The trial court granted the motion with respect to the claim of third-party spoliation.

On appeal, the Court of Appeals affirmed the trial court’s ruling, noting that while certain states recognize a third-party action for spoliation, Georgia does not.  The Court highlighted two earlier decisions, Owens v. Amer. Reduse Sys., Inc, 244 GaApp. 780, 781 (physical precedent only) and Gardner v. Balckston, 185 Ga. App. 754, 755 (1) (365 SE2d 545) (1988) (physical precedent only).  Starting with the latter, the dicta in Gardner suggests that there is neither a cause of action for third-party spoliation of evidence in Georgia, nor any similar cause of action of even as between two direct parties to a particular case.

On the other hand, Owens represents a previous case in which the Court of Appeals explicitly declined to recognize an independent cause of action for third-party spoliation.  See 244 Ga. App. At 781.  Instead, the Owens Court suggested that litigants seeking to preserve evidence should enter into a preservation agreement with the property owner or obtain a court order directing preservation.  See Id. at 781 (2).

Here, the Phillips allege that they and Owners had contracted to preserve the tire. Because the Phillips could potentially obtain a complete remedy on their breach of contract claim, the Court found that the facts of the case did not support the creation of a new tort.

The Court of Appeals also declined to recognize a right of action for third party spoliation because neither a statute nor any ruling of the Supreme Court has established this cause of action in Georgia. Should the Phillips appeal this ruling to the Supreme Court of Georgia, the Supreme Court could agree to review the Appellate Court’s ruling and establish a claim for third-party spoliation.  For now, the best way to protect evidence held by a third party is to follow the recommendations of the Owens court to obtain a court order directing preservation, early on in litigation.