CHARLESTON – The West Virginia Supreme Court agreed with Ohio Circuit Court that there was no indication that Werner Enterprises knew or should have known of a potential lawsuit against it when it destroyed evidence.
"The tort of intentional spoliation of evidence requires a plaintiff to prove that a defendant had 'knowledge' of a pending or potential civil action, at the time that the defendant disposed of evidence vital to the plaintiff's action," the March 2 opinion states. "In this appeal from the Circuit Court of Ohio County, the circuit court granted summary judgment and dismissed two plaintiffs' claims that the defendant intentionally spoliated evidence vital to a product liability action by the plaintiffs."
The circuit court determined that there was no indication whatsoever in the record to establish the defendant knew of any pending or potential civil action when it disposed of the evidence, and, after a review of the record, The state Supreme Court of Appeals affirmed the circuit court’s summary judgment order.
Justice Menis Ketchum authored the majority opinion, with Justice Brent D. Benjamin concurring.
Chief Justice Margaret Workman and Justice Robin Jean Davis dissented and authored separate dissenting opinions.
On Jan. 12, 2009, sometime around 2:30 a.m., Quentin Rutledge was driving northbound on I-79 near Jane Lew and Kenneth Williams was located in the tractor-trailer's sleeper berth.
A winter storm began and a police report indicates that the roadway was covered in snow. As Rutledge crossed a bridge, he lost control of the tractor-trailer and the vehicle hit a guardrail, jackknifed overturned and then went off the road and slid 30 feet down a steep embankment.
Witnesses who arrived on the scene discovered a small fire started that could not be extinguished and the fire eventually consumed the tractor-trailer. Rutledge and Williams died before they could be extracted.
By 5:30 a.m., Werner Enterprises had hired an adjuster from Crawford & Company and the adjuster arrived at the scene of the accident shortly after and gathered information. The adjuster informed Werner that it was a single-vehicle accident caused by weather conditions and that it involved two Werner employees, which meant Werner would be responsible to pay workers' compensation death benefits to the drivers' families, regardless of who was at fault for the accident.
The adjuster also told Werner that there were two other potential "claimants" from the accident, the first being West Virginia.
The adjuster stated that Werner would likely receive from the state a claim for damage done to the guardrail, for the cost of cleaning up diesel fuel spilled from the tractor-trailer and for the removal of any hazardous substances left behind from the burning of the cargo and equipment.
The second potential claimant was the owner of the cargo, as the adjuster thought there might be some scrap value that could be salvaged from the cargo, but also thought that the cost to handle and transport the scrap materials would exceed its scrap value. The adjuster therefore deemed the cargo a total loss.
Within 48 hours of the accident, the assistant director of Werner's fleet maintenance program reviewed photos of the fire-burned tractor-trailer and immediately decided it was damaged beyond repair and directed the towing company to dispose of the wreckage.
Approximately one month after Werner disposed of the remains of the tractor-trailer, Williams' widow's attorney wrote a letter to Werner, requesting preservation of the vehicle and all evidence associated with the accident. Within one week, Werner's general counsel informed the attorney that the vehicle had been disposed of.
On Dec. 9, 2009, Jannell Williams and Cheryl Rutledge filed their suite against Werner, alleging it acted with deliberate intent in violation of West Virginia's workers' compensation law and that it caused the wrongful death of Kenneth Williams and Quentin Rutledge.
On Jan. 24, 2014, Ohio Circuit Court granted Werner's motion for summary judgment, stating that it could find nothing in the record suggesting that Werner, prior to disposing of the vehicle had examined its records and had actual knowledge that the tractor-trailer was defective.
"Because there was no material question of fact favorable to the plaintiffs on this critical point, the circuit court concluded that the plaintiffs could not establish their intentional spoliation claim," the opinion states.
Jannell Williams and Cheryl Rutledge appealed the circuit court's order.
"We agree with the plaintiffs that Werner is a sophisticated entity, with on-staff lawyers familiar with trucking accidents," the opinion states. "But, until Werner received the letter on February 18, 2009, we can see no evidence indicating Werner perceived or even suspected impending future litigation over tractor-trailer defects by the plaintiffs."
All of the evidence of record suggests that when the tractor-trailer was hauled to the landfill, Werner knew only that the plaintiffs had claims for workers' compensation benefits. The remains of the tractor-trailer were irrelevant to that claim.
"The tort of intentional spoliation is designed to preclude a party from destroying evidence with the intent to harm another party’s ability to bring or defend a legal claim," the opinion states. "But the tort is not intended to unduly interfere with the rights of individuals to dispose of their property lawfully."
Because there is no evidence of record to say Werner was aware, informed, perceived or had any knowledge that would lead it to the conclusion the plaintiffs had a pending or potential suit when it destroyed the tractor-trailer, the circuit court was correct in granting summary judgment, according to the opinion.
"The circuit court correctly determined that there was no question of material fact as whether Werner had knowledge of the plaintiffs’ potential claim when it disposed of the tractor-trailer," the majority opinion states. "The circuit court’s January 24, 2014, summary judgment order is therefore affirmed."
In her dissenting opinion, Workman stated that the court violates a bedrock principle of its summary judgment jurisprudence: a court’s function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine whether there is a genuine issue for trial.
"The majority, sitting as a three-member jury, examined the record and could not uncover the proverbial smoking gun in Werner’s documents that prove it had actual knowledge of a potential lawsuit against the manufacturer of the tractor-trailer," her dissenting opinion states. "I emphasize the word potential because there is virtually no way the plaintiffs could have a pending lawsuit within 48 hours of the fatal vehicle accident. Undoubtedly, the families were making funeral arrangements while the evidence was being destroyed."
This decision is clearly wrong because it creates a new and unattainable burden on a plaintiff in an intentional spoliation claim.
"Even more disturbing, the decision sends an iniquitous message: a defendant who rushes to destroy evidence will be rewarded, not sanctioned," her opinion states. "Viewing the record in a light most favorable to the plaintiffs, material issues of fact exist as to whether Werner had actual knowledge of potential litigation involving the tractor-trailer’s manufacturer at the time it sent this essential evidence to a landfill. Therefore, the plaintiffs presented sufficient evidence to survive Werner’s motion for summary judgment."
In this case, the plaintiffs’ lawsuit against the manufacturer of the tractor-trailer was dismissed on summary judgment because they lacked this critical piece of evidence to determine if a design defect caused this fatal fire, according to Workman's opinion.
"It is patently unfair to now deny the plaintiffs their day in court on their claims against Werner for its intentional spoliation of this evidence," she stated. "For the foregoing reasons, I respectfully dissent"
Davis stated in her dissenting opinion that she strongly dissented from the majority's opinion in the case.
"Let me be clear at the outset," she stated. "The majority opinion has abolished the tort of spoliation of evidence. I do not say this lightly. Under the majority’s decision, no plaintiff will ever be able to withstand a summary judgment motion for spoliation of evidence, as long as a defendant destroys evidence within 48 hours of the accident and without immediate notice from the victim to preserve the evidence."
The ramification of the majority’s ruling is mind-boggling, because it effectively removes even the possibility of a sanction for such outrageous and devious conduct, according to Davis' dissenting opinion.
The plaintiffs presented sufficient circumstantial evidence to permit a jury to consider whether they had satisfied the elements of a claim for intentional spoliation of evidence, according to her opinion.
"I further agree with the analysis set forth in Chief Justice Workman’s dissenting opinion detailing the myriad of ways in which the plaintiffs’ evidence is sufficient to survive Werner’s summary judgment motion," she stated. "Werner learned from its investigator that there had been damage to a guardrail, the tractor-trailer had overturned, there had been a significant diesel fuel leak and a subsequent fire engulfed the tractor-trailer."
Werner further learned that both of its employees were killed in the crash and was also informed that the state would be making a claim for damage done to the guardrail and that claims likely would be made for environmental remediation.
"If a defendant is going to be permitted to destroy evidence within two days of an accident, then no plaintiff will ever be able to present evidence of the defendant’s 'knowledge' that a potential lawsuit would follow," the opinion states. "In other words, the majority has accomplished its implicit intent of abolishing a cause of action for intentional spoliation of evidence. Based upon the foregoing, I strongly dissent from the majority’s opinion in this case."
The petitioners were represented by Frank P. Bush Jr. of the Law Office of Frank P. Bush Jr.; and Christopher J. Heavens of Heavens Law Offices.
The respondent was represented by Mary H. Sanders and Cindy D. McCarty of Huddleston Bolen LLP.
West Virginia Supreme Court of Appeals case number: 14-0212