Insight

What Mrs. O'Leary's Cow Has to Do With Spoliation

Published on: April 29, 2016

For more than a century, the debate has raged over whether Mrs. O'Leary and her famous cow truly started The Great Chicago Fire of 1871. Were the tragic events of that conflagration to happen today, someone would ask Mrs. O'Leary to produce the "RFID" chip in her bovine. (You know they would). They would contend that this key evidence could show the whereabouts and movement of the cow at the time the fire began. When she could not produce it, they would claim not only that she started the fire that destroyed a swath of Chicago, but that she also destroyed the evidence of her guilt. They would cry "spoliation."

"Spoliation" is the legal term for the improper destruction or alteration of evidence to prevent its use in litigation. It is also an ugly word and its presence in litigation can lead to ugly results. While this doctrine has existed in some form or the other for hundreds of years, understanding the concept may prove to be even more important now in a time when reams of documents can be stored on a "zip drive" smaller than a stick of gum and information can be maintained in a multiplicity of ways previously unthinkable.

To prove spoliation, a litigant must demonstrate that their adversary in litigation: (1) knew of a lawsuit or had a reasonable expectation that a lawsuit would follow; (2) failed to produce relevant evidence without an explanation; and, (3) participated in intentional conduct to alter, secret, or destroy the evidence. It is important to note that a defendant is not responsible under the doctrine of spoliation when the defendant’s failure to produce evidence is adequately explained.

A party who discovers that evidence has been spoliated has options. They may ask the court to enter an adverse presumption. If allowed, a court may instruct the jury that the missing or altered evidence would have been unfavorable to the party who destroyed it. Depending upon the nature and relevancy of the evidence, the court may have grounds to strike claims or defenses relevant to the evidence.

Another option is to file a formal claim against the party who spoliated the evidence. This type of claim alleges that the alleged “spoliator” impaired a party's ability to win or defend a law suit. In Louisiana, all five appellate circuit courts have recognized the tort of spoliation.

The issues surrounding spoliation have been magnified by technology. Meaningful information can now be found on almost anything: "smart refrigerators"; product sensors; a car's "black box" that may reveal the speed at the time of impact; SMS information on a phone, computer, or tablet; and on and on. Consider further the increasing scope of surveillance video recorded at businesses, schools, hospitals, and even homes, which is complicated by the fact that many systems automatically "write over" prior video in a matter of days, weeks, or months.

In short, it’s a good time for everyone to understand the doctrine of spoliation. The chance that some party will loudly proclaim that your spoliation of evidence adversely affected their case continues to increase. Being aware of the potential spoliation issues that may arise when a suit has been filed, or is expected to be filed, may save your case. It may also save you the time, money, and distraction involved in defending a claim that you have spoliated key evidence.

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Keogh Cox & Wilson, Ltd. provides this blog as a public service for general information only. The materials contained herein may not reflect the most current legal developments or even express the opinion of all or even most of Keogh Cox attorneys. Such material does not constitute legal advice or form any attorney-client relationship. Keogh Cox and all contributing author(s) expressly disclaim all liability to any person with respect to the contents of this Web site and Blog and expect that no reliance will be made upon the information provided.

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Insight

When the Stakes are High: Class Actions in Louisiana

They make movies about “class actions” exactly because they can involve high stakes, with millions, even billions of dollars on the line. The class action procedure can create exposure at this level because of the large numbers of potential claims involved. Class actions are used to address losses experienced from unfair or fraudulent business practices, natural disasters, industrial explosions, or any event or action which is alleged to have damaged a large group in a similar way.

As a procedural device, the class action combines several claims (often hundreds or thousands) into a single action. A key battle in most Louisiana class actions is whether the proposed claim can properly be “certified” as a class action under Louisiana procedure. The recent Fourth Circuit decision in Duhon v. Harbor Homeowners’ Ass’n., Inc., 2016 WL 3551620 (La. App. 4 Cir. 6/30/16) addressed whether the lower court’s class “certification” was proper under Louisiana Code of Civil Procedure Article 591.

Duhon involved damages experienced following hurricanes Katrina and Rita. In particular, the class representatives sought damages against the Harbor View Condominium Association and its insurers claiming that the association was guilty of faulty repairs following these two hurricanes. In deciding whether certification was proper, the Duhon court considered the following elements, all of which must be present to certify a proper class action:

Numerosity- the class must be so numerous that joinder of all involved persons would prove impractical;

Commonality- the case must present questions of law and fact that are common to the class;

Typicality- the claims and defenses of the representative parties must be typical of the claims or defenses of the class; and,

Adequacy of representation- the representative parties must be positioned to fairly and adequately protect the interest of the class.

After analyzing each of these “elements,” the Duhon court upheld the Trial Court’s certification of the claim as a class action. Further, the court concluded that the questions of law and fact common to the members of the class predominated over any questions affecting only individual members such that a class action was superior to other available methods to fairly and efficiently adjudicate the controversy.

While the class action procedure has its detractors, it is sometimes the only real option to address a harm to a large group. Now that the class in Duhon has been certified, the case will proceed through discovery and towards trial on the merits. Who knows, they may make a movie about it someday.

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Louisiana Supreme Court Addresses Mental Anguish Awards When No Other Injury Is Claimed

As a general rule of Louisiana law, a plaintiff cannot recover general damages for mental disturbance or distress unless the defendant’s act also causes physical injury, illness, or some other physical consequence. However, in Spencer v. Valero Refining Meraux, LLC, the Louisiana Supreme Court recently reexamined the circumstances under which a limited exception to this general rule may apply.

The Spencer case involved an explosion and fire that occurred shortly after midnight at the Valero refinery in Meraux, Louisiana. The plaintiffs claimed Valero should be liable for negligent infliction of emotional distress. Specifically, the plaintiffs alleged they heard loud sounds, experienced anxiety, and had difficulty sleeping after the event. None of the plaintiffs received any medical treatment or experienced physical injury/symptoms. The defendant argued that the plaintiffs could not recover damages under these circumstances.

The court held that recovery for negligent infliction of emotional distress is not precluded under Louisiana law. However, the court also cautioned that not every act that causes some harm also yields liability and compensatory damages. It held that Louisiana courts must also consider the goal set forth under Louisiana law to prevent “spurious” or false claims when examining these types of actions.

In review of the plaintiffs’ claims, the court cited Moresi v. State Through Dept. of Wildlife & Fisheries, to show that the plaintiffs were required to establish “the especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious.” The Spencer court held evidence of generalized fear or evidence of mere inconvenience is not enough to show that a plaintiff’s distress is “serious.” The court added that this rule must be “stringently applied,” because these types of cases, though fact intensive, are inherently speculative in nature.

In review of the facts presented in Spencer, the court found that Valero owed a duty to the plaintiffs and breached the “duty it owed, which was a cause-in-fact of plaintiffs’ generalized fear and anxiety.” However, the plaintiffs failed to produce evidence to show that their complaints, which included anxiety and difficulty sleeping, were sufficiently “serious” to support an award for negligent infliction of emotional distress, and their claims were dismissed. Although the result in Spencer may be limited to its facts, the Court’s decision appears to align with the general rule that a plaintiff usually cannot recover general damages for emotional distress in Louisiana absent an accompanying injury.

References:

Spencer v. Valero Refining Meraux, LLC, 2022-00469 (La. 1/27/23), 356 So. 3d 936.

Moresi v. State Through Dept. of Wildlife & Fisheries, 567 So.2d 1801 (La 1990).

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Louisiana Supreme Court Uses Reason to Decide Case Involving Tragic Facts

Sometimes in law, the facts of a case may threaten to eclipse the legal issue. However, Louisiana law instructs the fact finder to see through the facts, and their sometimes tragic nature, and apply the law as written. As Aristotle once wisely said, “The Law is reason free from passion.”

In Kazan, et. al. v. Red Lion Hotels Corporation, et. al., 2021-CC-01820 (La. 6/29/22), the Louisiana Supreme Court recently ruled on a case with tragic facts, and its ruling provides an example of Aristotle’s description of law in action. In Kazan, a female patron was in the parking lot of a motel when a male patron approached her and used Kazan’s vehicle to abduct her from the premises. The car was later found submerged in a lake, and Kazan’s body was recovered from the water. The family filed a tort suit against several parties, including the motel’s owner and its insurer, the Great Lakes Insurance Company SE.

Great Lakes filed a motion for summary judgment and asked to be dismissed on grounds that coverage for the event was excluded from its policy. Specifically, the insurer argued that bodily injury caused by an “assault,” “battery,” or “physical altercation” was excluded under the policy’s terms. Great Lakes further argued that the kidnapping and ultimate death of the patron was excluded under the policy as bodily injury caused by an assault, battery, or physical altercation. The Louisiana Supreme Court agreed and reversed the decision of the trial and appellate courts.

Under Louisiana law, “[a]n insurance policy is a contract between the parties and should be construed using the general rules for the interpretation of contracts.” Id. at p. 3. “When the words of an insurance policy are clear and explicit and do not lead to absurd consequences, courts must enforce the language as written.” Id. at p. 3. “Courts lack authority to alter the terms of an insurance policy under the guise of interpretation and should not create an ambiguity where none exists.” Id. at p. 3.

With these basic rules in mind, the Court carefully reviewed the wording of the exclusion in the Great Lakes policy which stated as follows: “This insurance does not apply to ‘bodily injury,’ ‘property damage,’ or ‘personal advertising injury’ arising out of an ‘assault,’ ‘battery,’ or ‘physical altercation.’” “Physical altercation” was defined in the policy as “a dispute between individual [sic] in which one or more persons sustain bodily injury arising out of the dispute.” Citing Merriam-Webster’s dictionary, the Court defined the term “dispute” as “verbal controversy” or “quarrel.”

Based upon the evidence in the case, the Court found the female patron was involved in a “dispute” with her male attacker, and ultimately sustained bodily injury as a result of the dispute. Therefore, the patron was injured in a physical altercation, as defined under the specific terms of the Policy, and coverage for the event was excluded under the policy’s terms.

The Court noted as follows: “The facts of this case are undoubtedly tragic. Nonetheless, absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability by imposing reasonable conditions upon the policy obligations they contractually assume. That is what Great Lakes did in the insurance policy at issue here.” Despite the tragic facts presented in the case, in so holding, it appears the court agreed with Aristotle’s belief that the Law is Reason Free from Passion.