Regardless of the strength of your defense, the number of resources you have, or the time you have invested in your case, a spoliation claim can significantly impact a case outcome. Whether you primarily practice in pre-suit matters or are in the thick of litigation, understanding how to navigate preservation of evidence requests to avoid claims for spoliation is crucial to ensuring the best outcome for your clients.
What is Spoliation?
Spoliation occurs when a party (or their agent) intentionally or inadvertently destroys or loses critical evidence when they had a duty to preserve. The essential elements of a spoliation claim consist of:
- Existence of a potential civil action
- A legal or contractual duty to preserve relevant evidence relevant to a civil action
- Destruction of that evidence
- Significant impairment in the ability to prove the lawsuit
- A causal relationship between the evidence destruction and the inability to prove the lawsuit, and
- Damages
Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088, 1091 (Fla. 4th DCA 2001) (citations omitted); Fla. Std. Jury Inst. (Civil) 301.11. In Florida, there are two types of spoliation claims: first party and third party.
First-Party Spoliation
First party spoliation occurs when the alleged spoliator is either the plaintiff or defendant in the underlying litigation. (Silhan v. Allstate Ins. Co., 236 F. Supp. 2d 1303, 1307 (N.D. Fla. 2002)). Florida courts first addressed first party spoliation in 1984, and after various rulings, the Florida Supreme Court clarified the appropriate remedies from parties affected by spoliation. Bondu v. Gurvich, 473 So. 2d 1307 (Fla. 3d DCA 1984), rev. denied, 484 So. 2d 7 (Fla. 1986), disapproved of by Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005). Florida courts grappled with whether first party spoliation could create a separate cause of action or if the proper remedy was sanctions imposed in the underlying tort litigation instead.
The key case in understanding Florida’s position on first party spoliation is Martino v. Wal-Mart Stores. In 1997, Ronna Martino was injured when a shopping cart collapsed on her hand at Wal-Mart. After suing Wal-Mart for negligence, she requested the shopping cart involved in the accident as part of discovery, but Wal-Mart refused. Martino added a spoliation count to her complaint, which the trial court dismissed, ruling that Wal-Mart had no contractual or statutory duty to preserve the cart.
During the trial, Martino requested a jury instruction regarding Wal-Mart’s negligence for failing to produce the cart, but the trial court rejected this and directed a verdict in favor of Wal-Mart. The Fourth District Court of Appeal affirmed the trial court’s decision, holding there was no first party cause of action for spoliation.
On appeal, the Florida Supreme Court examined whether an independent cause of action for first party spoliation should exist or if the proper remedy should involve a presumption and sanctions as set forth in Valcin v. Public Health Trust, 473 So. 2d 1297 (Fla. 3d DCA 1984), approved in part, quashed in part, 507 So. 2d 596 (Fla. 1987). Ultimately, the Martino court held that an independent cause of action for first party spoliation does not exist in Florida. Instead, the appropriate remedy against a first party defendant for spoliation consists of presumption and sanctions remedies described in Valcin. See Martino, 908 So. 2d at 347.
The Martino court explained that if the evidence is “intentionally lost, misplaced or destroyed by one party, trial courts should rely on sanctions found in Florida Rule of Civil Procedure 1.380(b)(2) and that ‘a jury could well infer from such a finding that the records would have contained indications of negligence.’” Id. at 346 (citations omitted). “If the loss of the evidence was determined to be negligent, the … rebuttable presumption of negligence for the underlying tort applied.” Id. at 346. However, before the rebuttable presumption could apply, it must be shown that the “absence of the records hinders [the plaintiff’s] ability to establish a prima facie case.” Id. at 346 (citations omitted).
Of note, before addressing whether sanctions apply, it must be determined that the alleged spoliator had a legal or contractual duty to preserve the evidence. If no duty exists, there can be no repercussions for failure to maintain evidence. The significance of Martino and its progeny lies in the fact that if a duty is found and evidence was actually destroyed — whether intentionally or negligently — the only remedy is sanctions and not separate monetary damages. However, subsequent courts have noted that in first party scenarios, an adverse inference may arise even in the absence of a duty to preserve evidence. See Adamson v. R.J. Reynolds Tobacco Co., 325 So. 2d 887, 895 (interpreting Leave of Women Voters of Fla. v. Detzner, 172 So. 3d 363, 391 (Fla. 2015) and Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 781 (Fla. 4th DCA 2006) as both holding an adverse inference may arise even in the absence of a duty in a first party spoliation case as the adverse inference is different than an adverse presumption).
Third-Party Spoliation
Third party spoliation occurs when a person or entity (who is not a party in the underlying cause of action) loses, misplaces, or destroys relevant evidence to the claim.
Arguably, the most notable Florida case addressing third party spoliation is Miller v. Allstate, 573 So. 2d 24, (Fla. 3d DCA 1990), wherein the plaintiff brought a third party action for spoliation against her insurer, Allstate, after it sold plaintiff’s damaged vehicle to a salvage yard where it was disassembled and disposed of. The Plaintiff and her passenger were severely injured when her new vehicle collided into a wall. After the accident, Allstate took possession of the vehicle to appraise it. While the vehicle was in Allstate’s control, the plaintiff notified Allstate she intended to sue the manufacturer, claiming the accident was caused by a product defect. Allstate verbally agreed to preserve the vehicle. The Third District allowed an independent spoliation lawsuit to proceed against Allstate since the insurer had specifically promised to maintain the evidence, voluntarily undertaking a duty to preserve. Id. at 31. An insurer must be careful not to voluntarily undertake a duty it normally does not have, including the duty to preserve a vehicle. Had it not made this agreement, the Third District alluded there otherwise would not have been a duty to preserve.
Furthermore, it appears “neither the Florida Supreme Court nor Florida’s intermediate appellate courts have imposed a common law duty on a third party to preserve evidence based on foreseeability, or even actual knowledge, of litigation.” See Shamrock-Shamrock, Inc. v. Remark, 271 So. 3d 1200, 1203 (Fla. 5th DCA 2019). However, in Silhan v. Allstate Ins. Co., the Northern District recognized although there is no common law duty to preserve evidence for a third party, a legal duty is created upon a plaintiff giving a carrier notice to preserve in anticipation of litigation. See Silhan v. Allstate Ins. Co., 236 F. Supp. 2d 1303, 1313 (N. D. Fla. 2002) (citing Pennsylvania Lumberman’s Mut. Ins. Co. v. Fla. Power & Light Co., 724 So. 2d 629, 630 (Fla. 3d DCA 1998)).
Additionally, before a party may maintain a cause of action against an alleged third party spoliator, there must be resolution of the underlying tort case. See Amerisure Ins. Co. v. Rodriguez, 255 So. 3d 302 (holding that third party spoliation claims should generally be abated or dismissed until the underlying tort claim is resolved and claim against plaintiff’s workers’ compensation carrier for spoliation of video of accident could not be maintained at same time as underlying tort case). Once this threshold is met, the damage in a third party spoliation claim is the inability to use the evidence in the underlying proceedings and the effect thereof. See Jimenez v. Community Asphalt Corp., 968 So. 2d 668, 672 (Fla. 4th DCA 2007).
Duty to Preserve
When does a party or carrier have a duty to preserve evidence? Arguably, a claim for spoliation cannot occur if there is no duty to preserve the evidence in the first place. The duty to preserve appears to differ depending on whether it is a first party (person involved in the accident) versus third party.
Generally, no common law duty to preserve exists. See Pena v. Bi-Lo Holdings, LLC, 304 So. 3d 1254, 1257 (Fla. 3d DCA 2020) (citing Gayer v. Fine Line Const. & Elec., Inc., 970 So. 2d 424, 426 (Fla. 4th DCA 2007)). In all instances, “A duty to preserve evidence can arise by contract, by statute, or by a properly served discovery request (after a lawsuit has already been filed).” Silhan v. Allstate Ins. Co., 236 F. Supp. 2d 1303, 1309 (N.D. Fla. 2002) (citing Bondu v. Gurvich, 473 So. 2d 1307, 1312 (Fla. 3d DCA 1990)).
For first party spoliation, different courts have interpreted the term “properly served discovery request” to include requests made pre-suit before inception of litigation. See e.g., Pena, 30 So. 3d at 1258 (finding pre-suit notice to Win-Dixie requesting preservation of surveillance video was akin to notification of potential litigation and triggered obligation to preserve “crucial evidence” related to slip and fall); St. Mary’s Hosp., Inc. v. Brinson, 685 So. 2d 33 (Fla. 4th DCA 1996) (finding trial court did not err in allowing spoliation claim against first party hospital although not providing specific basis for imposing duty on hospital); Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088 (Fla. 4th DCA 2001) (acknowledging duty was created to preserve bottle by virtue of preparation of incident report together with refusal to produce report to plaintiff based on work product grounds); Silhan, 236 F. Supp. 2d at 1309 (analyzing duty to preserve prior to lawsuit filing and holding although there is no common law duty to preserve evidence a duty could arise when a party is placed on notice of intended litigation). Moreover, some courts have gone so far as to create a duty when “a party should reasonably foresee litigation.” See League of Women Voters of Fla. v. Detzner, 172 So. 3d 363, (Fla. 2015) (citing Am. Hospitality Mgmt. of Minn. v. Hettiger, 904 So. 2d 547, 549 (Fla. 4th DCA 2005) (noting holdings that “a defendant could be charged with a duty to preserve evidence where it could reasonably have foreseen the claim”)).
Regarding third party spoliation claims, in Royal & Sunalliance v. Lauderdale Marine Center, 877 So. 2d 843 (Fla. 4th DCA 2004), the Fourth District clarified their rulings in Hagopian and Brinson, and specifically held that “neither Hagopian nor Brinson establishes a duty to preserve evidence when litigation is merely anticipated. Royal & Sunalliance, 877 So. 2d at 846. The Fourth District, however, did not address whether their holding was limited to third party spoliation (which the Royal & Sunalliance case was about) or both third party and first party spoliation cases.
The Fourth District again addressed the duty of a third party in Shamrock-Shamrock, Inc., v. Remark, 271 So. 3d 1200 (Fla. 4th DCA 2019), wherein it analyzed whether this duty for a non-party should exist. In this case, the Fourth District again noted that “no Florida court has yet to recognized (sic) a common law duty for third party preservation of evidence based on the knowledge or foreseeability of litigation” and considered whether it should recognize same. Remark, 271 So. 3d at 1204. Analyzing other jurisdictions throughout the country and considering competing concerns, the Fourth District concluded it should not recognize such a duty, noting that in this case there was no statute, contract or discovery request that would impose a clearly defined duty on Remark (third party) to preserve relevant evidence. Id. at 1206. The Fourth District made it clear that with respect to a nonparty, knowledge of a lawsuit, by itself, “should not give rise to a duty to safeguard the evidence in anticipation of litigation, absent a statute, contract or discovery request that would impose a clearly defined duty on the third party. Id. at 1206.
Carrier Strategies
In first party-cases, although there is no common law duty to preserve evidence, some courts have determined a duty can arise if litigation is reasonably foreseeable before a lawsuit is filed. Therefore, each case should be assessed individually to decide if steps should be taken to preserve critical evidence. It is also essential to address any pre-suit requests for preservation, as at least one court has interpreted these requests impose a duty on the party to maintain relevant evidence after Hagopian and Brinson. See Pena, 30 So. 3d at 1258.
For third party cases, Florida courts are consistent that no common law duty exists and that in order for a duty to be created, it appears a third party must be served with a “discovery request.” For instance, in Pennsylvania Lumberman’s Mut. Ins. Co. v. Fla. Power & Light Co., 724 So. 2d 629 (Fla. 3d DCA 1999), the Third District found that a third party had no duty to preserve evidence because they had not been properly notified of impending legal action, as the notification letter was sent to an incorrect address. Importantly, courts have yet to clarify whether a notice sent to a carrier could also serve as notice for preservation to an insured defendant who may possess critical evidence.
There may also be instances where a decision to undertake a duty to preserve may be appropriate. Any agreements to waive preservation requests should be confirmed through written correspondence, to document exactly what occurred should spoliation be alleged in the future. Carriers should also pay close attention to demands for preservation in Letters of Representation. It is essential to thoroughly review these letters to ensure timely responses.
Depending on the circumstances, a pre-suit inspection of a vehicle or of other evidence may be conducted to meet the obligations of preservation. Once the plaintiff has had the opportunity to inspect the evidence, it will be difficult for them to make the argument that there exists a causal relationship between the evidence destruction and the inability to prove the lawsuit. By providing the opportunity to inspect the evidence, such as a vehicle, this element likely cannot be met. Additionally, it allows for the vehicle repair, so that the insured can receive their vehicle back in the instance where it is not a total loss. However, this option should be weighed with any potential criminal implications the insured may have.
Defendants should also evaluate whether sending plaintiffs, potential co-defendants, or other third parties demands for preservation is also a good strategy. Doing so could lead to obtaining critical evidence early on to properly evaluate the plaintiff’s claims.
In the end, Florida law wavers as to specific duties in first party and third party scenarios. As a result, it is important each claim be evaluated specifically so that a strategy can be developed to protect the insured, as well as the carrier, from future claims of spoliation.