Case Note: Litigating Third Party Spoliation Of Evidence Claims In Florida
The duty to preserve evidence relevant to a case can apply before a complaint is ever filed and before an action exists, and is triggered once litigation is reasonably anticipated. The duty to preserve evidence extends to any evidence that the party knows, or reasonably should know, is relevant to the anticipated litigation. Sanctions for spoliation can include the impositions of a presumption and shifting of the burden of proof or monetary sanctions. When evidence is destroyed, it can seriously affect an aggrieved party’s ability to obtain legal redress; thus, knowledge of spoliation law and claims is of fundamental importance in the litigation process.
There are two different types of spoliation claims: first party and third party. “First-party spoliation claims are claims in which the defendant who allegedly lost, misplaced, or destroyed the evidence was also a tortfeasor in causing the plaintiff’s injuries or damages.” Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342, 346 n.2 (Fla. 2005). Third-party spoliation claims “occur when a person or an entity, though not a party to the underlying action causing the plaintiff’s injuries or damages, lost, misplaced, or destroyed evidence critical to that action.” Id. No independent cause of action for spoliation exists against a first-party tortfeasor. Id. at 346-47. To address spoliation against a first party, sanctions should be sought from the trial court in the relevant underlying action. However, with respect to third party spoliation claims, an independent cause of action does exist, and the Third District Court of Appeal very recently clarified how and when such an action accrues and when it is ripe, seemingly receding from prior opinions.
In Amerisure Ins. Co. v. Rodriguez, No. 3D18-1524 and 3D18-1058 (Fla. 3d DCA 2018), the Third District Court of Appeal addressed two petitions for writ of certiorari relating to spoliation of evidence claims against third parties to the underlying trial court action. In the underlying action, the plaintiff was collecting workers compensation benefits from his employer, BV Oil, through the employer’s insurance carrier, Amerisure Insurance Company, due to an accident that occurred on the job. The plaintiff separately sued a company called Cosme Investment, claiming that he was an invitee on Cosme’s property when he was injured, and that Cosme’s negligence contributed to his injury. While the case against Cosme was pending, the plaintiff allegedly learned that BV Oil and Amerisure, who were third parties to that case, had possession of a videotape of the accident, but negligently lost or destroyed the videotape. Plaintiff then amended his complaint against Cosme, to include a count suing third parties BV Oil and Amerisure, for spoliation of evidence, claiming that “the loss of the video ‘significantly impairs the Plaintiff’s ability to prove his claim and/or to address the comparative negligence defense, thereby affecting Plaintiff’s potential recovery in this case.” The trial court in the action entered orders scheduling both the underlying negligence action, and the spoliation claims, for trial at the same time, and also entered discovery orders requiring BV Oil and Amerisure to provide discovery. Amerisure sought certiorari review of these orders, and the Third District Court of Appeal granted certiorari review and held that, because a cause of action cannot be maintained until it accrues, and because a third party spoliation action does not accrue until the underlying negligence action is final, the two cases cannot be tried together and discovery was not appropriate.
Interestingly, while the Third District claimed that it did not “overrule” two previous decisions, Miller v. Allstate Ins. Co., 573 So. 2d 24, 28 (Fla. 3d DCA 1990) and Yoder v. Kuvin, 785 So. 2d 679, 681 (Fla. 3d DCA 2001), “which indicated that products liability claims and third-party spoliation claims concerning the allegedly defective products could be tried together[,]” the Rodriguez opinion is highly critical of these previous decisions, even indicating that their “status as ongoing authority is doubtful at best.” Thus, any litigator should be familiar with the new Rodriguez opinion, and weary when citing to Miller or Yoder.
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Robert Stone Jeffrey, Esq., is an attorney admitted to the Florida Bar in 2010, the United States District Court for the Middle District of Florida, the United States District Court for the Southern District of Florida, and the Supreme Court of the United States. Mr. Jeffrey has experience handling complex and high asset family law disputes, and has authored chapters in various publications relating to Florida family law. Mr. Jeffrey is currently a member of the Family Law Section of the Florida Bar Rules and Forms Committee. Mr. Jeffrey was named a 2019 "Top Up and Comer" by South Florida Legal Guide and a "Rising Star" by Superlawyers, and was awarded the prestigious AV Rating by Martindale-Hubbell (2017 – 2019), as “Peer Rated For Highest Level of Professional Excellence.” Robert also has a perfect 10/10 rating by Avvo.com, and various client reviews can be accessed through that platform. See https://www.avvo.com/attorneys/33134-fl-robert-jeffrey-3341362.html. More information about Mr. Jeffrey, and Jeffrey Law, PA, can be found at www.rsjlegal.com.
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