Spoliation of Evidence

A recent decision in the 5th district discussed an insurance carrier’s liability for spoliation of evidence. Generally, a duty to preserve evidence only exists if the duty is imposed by an agreement or contract, if the duty is imposed by statute, or if a duty is warranted because of a special circumstance. In this case, a wheel flew off of a truck which struck another car, resulting in the death of the driver. The truck owner’s insurance carrier asked that the owner retain the tire as evidence, yet later when the truck was repaired, the wheel was discarded. The plaintiff sued for spoliation of evidence, and the court found that the carrier was liable.

The contractual agreement between insurance carrier and insured party does not create a duty to preserve evidence, but the court held that once an insurance carrier has voluntarily assumed a duty to preserve evidence, the carrier may be liable for spoliation. In addition to having voluntarily assumed the duty, the court must also find that the carrier had enough control over the evidence to be able to preserve it. In this case, by asking the insured to keep tire, the carrier had assumed a voluntary undertaking, and because the insured agreed to do so, the carrier had control.