Dowdle Butane Gas Co., Inc. v. Moore

Decision Date05 December 2002
Docket NumberNo. 2000-IA-01884-SCT.,2000-IA-01884-SCT.
Citation831 So.2d 1124
CourtMississippi Supreme Court
PartiesDOWDLE BUTANE GAS COMPANY, INC., and Jean L. McDowell v. Walter S. MOORE.

J. Stephen Wright, Ringland, Troy Philip Huskey, Ocean Springs, Walter William Dukes, Stephen M. Cozart, Gulfport, for appellants.

Grady F. Tollison, Jr., Jerry P. "Jay" Hughes, Jr., Oxford, Beverly Davis Buskirk, New Albany, for appellee.


SMITH, Presiding Justice, for the Court:

¶ 1. This matter is before this Court on interlocutory appeal from an order of the Circuit Court of Lafayette County granting leave for Walter S. Moore ("Moore") to amend his original complaint against Dowdle Butane Gas Company, Inc. ("Dowdle"). The amended complaint added a claim for intentional spoliation of evidence and joined, as defendants, Reliance Insurance Company ("Reliance") and Jean L. McDowell ("McDowell"). Because this Court has not yet recognized spoliation of evidence as an independent cause of action, we granted the defendants' petition for interlocutory appeal pursuant to M.R.A.P. 5. Reliance has since been dismissed as a party to this appeal.


¶ 2. On September 23, 1999, the underground propane tank on Moore's residence in Lafayette County, Mississippi, exploded. The accident occurred while John Currie, an employee of Dowdle Gas, was delivering propane into the tank. Both Moore and Currie were injured.

¶ 3. Dowdle Gas reported the accident to the State of Mississippi's Liquefied Compressed Gas Division of the Department of Insurance, and the State dispatched James Thompson to investigate the scene. Thompson and G.W. Harrell, an employee of Dowdle Gas, approached Moore in the hospital to obtain permission to enter Moore's property. According to Thompson and Harrell, Moore verbally consented to their entry onto the property and investigation of the accident scene, but because Moore was unable to sign a consent form, a friend of Moore's in the hospital room signed Moore's name on Moore's behalf. Moore, however, alleges that he never consented to the investigation.

¶ 4. Reliance, as insurer of Dowdle Gas, contacted Jean L. McDowell, a propane expert and professional engineer, and requested that he participate in an initial inspection of Moore's premises and excavation and removal of the underground tank. Thompson and McDowell entered Moore's property to investigate the accident and ultimately removed the tank from the premises with the assistance of Dowdle Gas employees. The tank is currently held in storage by Dowdle Gas in Oxford, Mississippi.

¶ 5. On September 31, 1999, Moore filed suit against Dowdle Gas in the Circuit Court of Lafayette County. On June 19, 2000, Moore filed a motion to amend his complaint, and Circuit Judge R. Kenneth Coleman granted leave to amend on August 1, 2000. Moore's amended complaint added Reliance and McDowell as defendants. The complaint alleged that Dowdle Gas was liable under three counts—strict liability, negligence per se, and sine qua non.1 The complaint also alleged that all three defendants were liable for trespass, conversion of chattels, and intentional spoliation of the evidence. Finally, the complaint asserted a claim for fraud against Dowdle and Reliance.

¶ 6. The circuit court certified its ruling for interlocutory appeal, and this Court granted Dowdle's petition for interlocutory appeal, joined by Reliance and McDowell, on February 9, 2001. Dowdle's petition raises the following issues for review:




¶ 7. Moore's complaint alleged that Dowdle Gas, Reliance, and McDowell intentionally destroyed the propane tank, valves, regulator, and gas lines when they removed the same from his property and conducted destructive testing, depriving Moore of the ability to discover the cause of the explosion and, thus, the ability to recover from Dowdle Gas. Tort liability has never been imposed in this jurisdiction for the destruction of evidence. This is a legal issue of first impression that this Court reviews de novo. Blailock v. O'Bannon, 795 So.2d 533, 534 (Miss.2001) (citing Starcher v. Byrne, 687 So.2d 737, 739 (Miss.1997)). Since Moore has asserted a claim only for intentional spoliation of evidence, the question of whether we will recognize a separate cause of action for negligent spoliation of evidence we leave for another day.


¶ 8. Though the question at hand is an issue of first impression, evidence spoliation is not a new concept. The traditional response to the problem of evidence spoliation frames the alleged wrong as an evidentiary concept, not as a separate cause of action. Trevino v. Ortega, 969 S.W.2d 950, 952 (Tex.1998). In Mississippi, as in the majority of jurisdictions, proof of spoliation gives rise to a "spoliation inference," recognized by this Court as early as 1878 in Bott v. Wood, 56 Miss. 136 (1878). The inference entitles the non-offending party to an instruction that the jury may infer that spoliated evidence is unfavorable to the offending party. DeLaughter v. Lawrence County Hosp., 601 So.2d 818, 822 (Miss.1992). Other remedies exist as well, namely discovery sanctions pursuant to Miss. R. Civ. P. 37, criminal penalties provided by Miss.Code Ann. § 97-9-55 (2000), contempt sanctions under Miss.Code Ann. § 9-1-17 (2000), and disciplinary sanctions imposed against attorneys who participate in spoliation. See Miss. R. Prof'l. Conduct 8.4.

¶ 9. Mississippi law recognizes that a chose in action constitutes personal property under Miss.Code Ann. § 1-3-41 (1998). In Garrett v. Gay, 394 So.2d 321, 322-23 (Miss.1981), we held that the right to sue for tort damages was personal property which could be contracted away. See also Estate of Waitzman, 507 So.2d 24, 26 (Miss.1987) (acknowledging that rights of action are property rights). Moore argues that because an individual's right to sue for damages is a property right, we should permit persons to be compensated for interference with these rights through an action in tort. It is our view that sufficient remedies exist for litigation-related misconduct such as spoliation of evidence and that the policy concerns espoused by our sister states which have rejected recognition of a separate tort counsel that this Court, likewise, refuse to recognize a separate tort for intentional spoliation of evidence.

¶ 10. In general, the tort of spoliation of evidence has not been widely adopted in other jurisdictions, nor has much agreement emerged on its contours and limitations. Amidst those jurisdictions that recognize an independent cause of action for spoliation, some recognize the tort of intentional spoliation, but not negligent spoliation, while some recognize both. See, e.g., Coleman v. Eddy Potash, Inc., 120 N.M. 645, 905 P.2d 185 (1995), overruled on other grounds, Delgado v. Phelps Dodge Chino, Inc., 131 N.M. 272, 34 P.3d 1148 (2001) (recognizing cause of action for intentional spoliation, but not negligent spoliation, against first and third parties); Smith v. Howard Johnson Co., 67 Ohio St.3d 28, 615 N.E.2d 1037, 1038 (1993) (same). Also, some jurisdictions that permit an independent cause of action permit it only as against third-party spoliators, but not first-party spoliators. See, e.g., Smith v. Atkinson, 771 So.2d 429 (Ala. 2000) (recognizing cause of action for negligent spoliation against third party, but not against first party); Oliver v. Stimson Lumber Co., 297 Mont. 336, 993 P.2d 11 (1999) (recognizing cause of action for negligent and intentional spoliation against third parties, but not against first parties).

¶ 11. It is necessary to here digress for a brief discussion regarding the distinction between first and third-party spoliators. Third-party spoliation is particularly problematic because not all of the litigation-related remedies for spoliation apply to third parties. The distinction between third and first party spoliators has proved crucial in many jurisdictions, underscored by the philosophical divide on third-party spoliation. See, e.g. Smith v. Atkinson, 771 So.2d 429 (Ala.2000); and Oliver v. Stimson Lumber Co., 297 Mont. 336, 993 P.2d 11 (1999) (recognizing cause of action for third party spoliation only).

¶ 12. Inexplicably, the parties to this appeal make no distinction between first and third-party spoliators. Moore simply states in his brief to this Court that this case involves third party spoliators. McDowell merely states in his brief that he is a first-party spoliator because he was acting as an agent of Dowdle Gas. McDowell states that if this Court determines that spoliation should be recognized as an independent tort, it should limit the tort's application to third parties. This assertion, however, begs the question as to which party McDowell considers to be a third-party spoliator. If McDowell considers Reliance to be a third party spoliator, it would necessarily follow that McDowell is as well because it was Reliance who retained McDowell. Regardless, there is no caselaw supporting the assertion that a party's status as a first or third party spoliator depends upon principles of agency. Unfortunately, neither party cites authority or makes further argument as to how the distinction applies the case sub judice or how the distinction should affect our decision. The joint brief filed by Dowdle Gas and Reliance makes no distinction.

¶ 13. The case at bar involves both a first party spoliator, Dowdle Gas, and third party spoliators, Reliance and McDowell. A first party spoliator is a party to the underlying action who has destroyed or suppressed evidence relevant...

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