"This cause is before this Court on a motion to dismiss filed by the defendant, Synergy Gas Corporation, due to the failure of the plaintiffs to preserve certain evidence in this cause.
"Certain facts are undisputed:
"1. On or about April 25, 1986, the residence of Tolbert and Mildred Shelby was destroyed by fire. Cincinnati Insurance Company had a policy of insurance in effect on the dwelling, insuring the Shelbys against loss to the residence and contents due to fire.
"2. On April 28, 1986, ... Cincinnati Insurance Company sent Mr. Jack R. Mitchell, special investigator, to the fire scene to determine the cause and origin of the fire. Photographs were made of the fire scene. On May 5, 1986, Mr. Mitchell brought Dr. Marion McKinley of Alchem Engineers, also a professor at the University of Alabama in Tuscaloosa, to look at the fire scene. Dr. McKinley examined the water heater, furnace, tank, LP gas piping, furnace burner ribbons, a broken pipe fitting on the LP gas line and the regulator located on the 500-gallon tank.
"3. Subsequent to the fire, after ... Cincinnati Insurance Company's experts had examined the premises and during the rebuilding of the ... Shelbys' home, all of the fire debris, including appliances, pipes, and all of the LP gas system (with the exception of the regulator) was removed from the premises and either
destroyed or taken to places unknown. The removal of the debris was allowed by the Shelbys and done at their direction. The regulator had previously been removed from the LP tank by the Alabama LP Gas Board representative.
"4. Two years later (3 days short of the [running] of the statute of limitations) the Shelbys and Cincinnati Insurance Company filed suit against Synergy....
"The sole issue in defendant's motion is whether this case should be dismissed due to the plaintiffs' allowing the destruction of evidence which could be used in determining the cause of the fire.
"In deciding this issue the Court looks at several factors:
"1. Importance of the Evidence Destroyed: The defendant's expert, Eleanor P. Posey, states in her affidavit ' ... I now have almost no evidence available to me with which to formulate soundly based opinions as to the cause(s) of this fire; no physical evidence whatsoever was preserved from this fire scene by either the plaintiffs or their experts! Only one item of physical evidence was available for me to examine and test first hand and that was the LP-Gas service (tank) regulator, which was removed and preserved, not by the plaintiffs, or any of their experts, but by the LP-Gas Board investigator, Mr. Joe Scoggins.'
"The Plaintiffs' claim that the cause of their damages was the defective design, installation, maintenance or inspection of the LP-Gas system and/or appliances by the defendant. Yet substantially all of the evidence has been allowed by the plaintiffs to be destroyed or lost.
"2. Culpability of Offending Parties: While there has been no allegation of malicious intent on the part of the plaintiffs in the destruction of the evidence, the failure of the plaintiffs to preserve, or even attempt to preserve, the evidence is difficult for this Court to comprehend.
"While such negligence on the part of [the Shelbys] might be excusable due to a lack of knowing the importance in later litigation, it is inconceivable that an insurance company who had investigators on the fire scene three days after the fire could fail to realize the importance of such evidence in future litigation.
"Absolutely no efforts were made to preserve any of the evidence at the fire scene.
"3. Fundamental Fairness: The plaintiffs' experts had ample opportunity to inspect, test, photograph and preserve all evidence at the fire scene. Based upon all of the circumstances, the plaintiff's experts concluded that the [defendant was] negligent, however, the same experts who [recognized] the implications of the fire debris, refused to preserve that same important evidence for examination by the defendant.
"The affidavit of the defendant's expert states that she is unable to draw any conclusions as to the cause of the fire due to [the] lack of preservation of the evidence by the plaintiffs.
"The Court considers of further significance the fact that the plaintiffs waited almost two years after the fire to file this lawsuit, although the conclusions of their experts as to the cause of the fire were made only days after the occurrence.
"4. Alternative Sources of Information: In addition to failing to preserve the actual pieces of physical evidence, very little tangible alternatives exist. Of the photographs taken by plaintiffs' experts at the scene, none visibly [demonstrates] a fire cause. No objective testing or measurements were performed. Very limited field notes were taken by plaintiffs' experts.
"There exist no alternative or second-hand sources of information from which the cause of the fire could accurately be assessed independently.
"APPLICATION OF LAW
"The precise question of what sanctions, if any, are appropriate where the plaintiff permits or allows the apparatus made the subject of a lawsuit to be lost or destroyed prior to the filing of the
complaint, has not been addressed by Alabama Courts.
"The closest Alabama case is Iverson v. Xpert Tune, Inc., 553 So.2d 82 (Ala.1989). In that case, the Supreme Court of Alabama affirmed a trial judge's dismissal of a lawsuit for failure of the plaintiff to produce an alleged faulty fuel pump made [the] basis of the complaint. In Iverson, the plaintiff permitted the fuel pump to be lost or destroyed after a request for production had been filed by the defendant.
"In this matter, not only was there no outstanding [request] for production of the appliances and other LP gas apparatus, but the lawsuit had not been filed at the time the plaintiffs permitted the loss or destruction of the evidence.
"However, the Illinois case of Graves v. Daley, [172 Ill.App.3d 35, 122 Ill.Dec. 420, 526 N.E.2d 679 (1988),] bears a striking resemblance to the facts of this case. That case involved a house fire; an insurance company investigation of the cause; a report by the insurance company that a defective furnace was a suspected cause; and the homeowner allowing the heating system to be lost or destroyed ... prior to the filing of the complaint.
"In Graves, the Illinois Court affirmed the trial court's dismissal of the lawsuit and held that:
" 'Although it is correct that the plaintiffs did not violate court orders, the fact remains that the furnace was destroyed by plaintiffs at Western State's suggestion. The plaintiffs are not free to destroy crucial evidence simply because a court order was not issued to preserve the evidence. Further, the furnace was destroyed by the plaintiffs after their expert had examined it and before the suit was filed, thus, the court could not have issued a preservation order.'
" 526 N.E.2d 679 at 681.
"In the present case Cincinnati Insurance Company made no efforts to preserve the LP gas equipment and appliances after a determination had been made by [its] experts that the fire was caused by the LP gas system. [Tolbert] Shelby, according to his deposition, was allowed by the insurance company to remove and destroy all of the physical evidence after the fire loss was paid.
"Based upon the acts and failure to act of the [the Shelbys] and Cincinnati Insurance Company, and the fact that the lawsuit was not filed until two years after the fire, the Court is of the opinion that the defendant would be unable to defend the allegations and [that] the inability to defend is based solely on the conduct of the plaintiffs. This Court finds that this is the type of situation which the spirit and letter of Rule 37 [A.R.Civ.P., were] meant to address.
"In accordance with the facts and the law, it is, therefore,
"ORDERED that the defendant's motion to dismiss is hereby granted and the claims of Cincinnati Insurance Company and Tolbert and Mildred Shelby against Synergy Gas Corporation are hereby dismissed with prejudice, costs taxed to the plaintiffs."
