Continental Ins. Co. v. Herman
| Decision Date | 18 December 1990 |
| Docket Number | Nos. 89-45,89-341,s. 89-45 |
| Citation | 16 Fla. L. Weekly 19,576 So.2d 313 |
| Parties | 16 Fla. L. Weekly 19, 16 Fla. L. Weekly 793 CONTINENTAL INSURANCE COMPANY, and Underwriters Adjusting Company, Appellants, v. Joseph HERMAN, as Guardian of the Person and Property of Ina Herman, an Incompetent, and Joseph Herman, individually, and Marrero and Martinez Corporation, d/b/a Rastro-74, Appellees. |
| Court | Florida District Court of Appeals |
Corlett, Killian, Ober, Hardeman, McIntosh & Levi and Love Phipps, Miami, for appellants.
Preddy, Kutner, Hardy, Rubinoff, Brown & Thompson and G. William Bissett, Miami Stewart Tilghman Fox & Bianchi and Larry S. Stewart, Miller, Selig & Kelley, Hicks, Anderson and Blum, Miami, for appellee Joseph Herman.
for appellee Marrero and Martinez Corp. d/b/a Rastro-74.
Before NESBITT, FERGUSON and GODERICH, JJ.
Continental Insurance Company and Underwriters Adjusting Company (Continental) appeal an adverse judgment entered on a jury verdict awarding damages for negligent destruction of evidence relevant to a prospective civil litigation. A primary contention on appeal is that the Hermans could not state a cause of action in tort for negligent destruction of evidence because the Herman's underlying personal injury action was resolved in an arbitration proceeding which resulted in an $860,000 award in favor of the Hermans. We agree that because the Hermans successfully proved their underlying personal injury action, they are not entitled to sue in tort for negligent spoliation of evidence.
Ina Herman was severely injured when her automobile was broadsided at an intersection by an uninsured southbound vehicle after she made a left turn from the northerly direction she had been travelling. She made a claim against her own insurer, Continental, under the uninsured motorist coverage provision of the policy. Continental asserted Mrs. Herman's negligence as a defense to the uninsured motorist claim. Herman demanded an arbitration hearing as provided for by the insurance contract.
Prior to the arbitration hearing, Herman's attorney contacted Continental to learn the whereabouts of the Herman automobile which he wanted examined by an accident reconstructionist. The attorney was informed that the vehicle had been towed to Rastro-74, a salvage business, where it had been partially disassembled. Continental agreed with Herman's attorney that the damaged automobile would be preserved in the custody of Rastro-74. By mistake, what was left of the Herman automobile was crushed and shredded.
Notwithstanding the destruction of the automobile, the parties proceeded to arbitration before a three-person panel. During the two-day hearing, experts for both sides presented accident reconstruction testimony. Photographs of the exteriors of the both vehicles, taken on or shortly after the date of the accident, were introduced as part of the accident reconstruction evidence. Although Herman's experts testified that their findings would have been more refined and reliable if the actual automobile had been available for examination, they nevertheless gave convincing opinions as to the speed of the vehicles, the angle of impact, and the cause of the accident.
Herman put on evidence as to Continental's negligence in destroying the automobile, contending that if the arbitrators found Continental guilty of negligent destruction they should presume that an examination of the vehicle would have disclosed a mechanical defect--a finding which would have been materially favorable to Herman on Continental's comparative negligence defense. Continental contended that the evidence of the destruction of the car was irrelevent to the personal injury claim. The arbitration panel reserved ruling on whether a presumption would apply.
The arbitrators found the uninsured motorist 20% negligent, Herman 80% comparatively negligent, and assessed damages at $4.3 million, giving the Hermans a net award of $860,000. The award does not indicate whether the arbitrators found Continental negligent in the destruction of material evidence. Continental filed a circuit court motion to vacate the award. Herman moved for confirmation of the arbitration award. The parties reached a court-approved $860,000 settlement wherein Continental was released "from the aforesaid arbitration award."
Herman then brought this action for negligent destruction of evidence contending that the arbitration of the personal injury claim was not a bar. Continental's motion to dismiss, alleging that Herman's action One of Continental's contentions in this appeal, and the only one we address, is that Herman had no cause of action for destruction of evidence because she was not, as a result of the destruction, deprived of an opportunity to fully and successfully present a personal injury claim. Herman responds that she need show only that she was "hindered" in presenting her uninsured motorist claim as the essential element to the second tort action.
was precluded by the $860,000 personal injury award, was denied. The case proceeded to trial where the jury was given two presumptions to apply if it found Continental negligent in the destruction of Herman's wrecked automobile. 1 The jury found by its verdict that Continental was negligent in failing to preserve the Herman vehicle which was a legal cause of loss to the Hermans, and found Herman 65% percent negligent in causing the collision--15% less negligent than the arbitrators found. A final judgment was entered awarding the Hermans $645,000 above the $860,000 arbitration award, plus prejudgment interest and costs
Destruction of evidence, as an independent cause of action, has...
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Florida Evergreen Foliage v. Ei Du Pont De Nemours
...causal relationship between the evidence destruction and the inability to prove the lawsuit; and (6) damages. Continental Ins. Co. v. Herman, 576 So.2d 313, 315 (Fla. 3rd DCA 1990). 8. Alta Labs of California was one of the few laboratories in the country capable of performing the sophistic......
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