Federal Ins. Co. v. Allister Mfg. Co.

• Decision Date: 11 August 1993
• Docket Number: No. 92-2538,92-2538
• Citation: 622 So.2d 1348
• Parties: 18 Fla. L. Week. D1764 FEDERAL INSURANCE COMPANY, Appellant, v. ALLISTER MANUFACTURING COMPANY, a foreign corporation doing business in the State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1348

622 So.2d 1348

18 Fla. L. Week. D1764

FEDERAL INSURANCE COMPANY, Appellant, v. ALLISTER MANUFACTURING COMPANY, a foreign corporation doing business in the State of Florida, Appellee.

No. 92-2538.

District Court of Appeal of Florida Fourth District.

Aug. 11, 1993.

Shirley Jean McEachern of Sellars, Supran, Cole, Marion & Espy, P.A., West Palm Beach, for appellant.

Bradford A. Thomas of Kimbrell & Hamann, P.A., Miami, for appellee.

KLEIN, Judge.

Plaintiff, after paying its insured's claim for fire damage to his residence, brought this action against the manufacturer of the electric garage door opener system, alleging that it was defective and caused the fire. Plaintiff's expert discarded a part of the product alleged to be defective, resulting in the granting of a motion in limine which left plaintiff without the means to prove its case. The court then granted defendant's motion for a summary judgment. We reverse.

Immediately after this home was destroyed by fire a Palm Beach County fire investigator investigated the fire and removed the part of the garage door opener containing the motor, suspecting it to be a possible cause. The plaintiff insurer retained Peter Vallas Associates, Inc., an independent firm which investigates fires for insurers. Their employee, Richard M. Schwartz, investigated the fire scene soon after the fire. He removed evidence from the scene for analysis, and obtained the garage door opener from the county fire investigator. The garage door opener contained only a stub of the power cord. The remainder of the power cord was never found.

Schwartz rendered a report indicating that in his opinion the fire was caused by the power cord, at a point beyond where the stub of the cord came out from the opener. It was his opinion that the garage door opener, which he examined, was not the cause of the fire. The heat damage to that opener was, however, a fact, along with other evidence, which supported his conclusion that the fire started somewhere in the portion of the power cord which was never found. Neither the county fire investigator nor Schwartz found the cord at the scene.

When, during the litigation, the manufacturer requested production of evidence in possession of plaintiff or its expert, it was discovered that an employee of Peter Vallas Associates had mistakenly discarded the garage door opener. There was no evidence that the loss of the opener was other than inadvertent.

Plaintiff's expert had no opinion as to whether the power cord was defective when it was shipped from the manufacturer. It had been installed four years prior to the fire. The expert testified that the cord had to have been nicked, cut or broken in some manner, in order to cause the fire, but conceded that it could have happened while the unit was being installed or while it was in use.

This homeowner had only owned this four-year-old home for several months. About one week before the fire, he had a problem with the garage door opener. The door would not close all the way, and the motor continued to operate. When he investigated he discovered the chain was coming off the sprocket. He centered the chain on the sprocket, ran it several times thereafter, and it appeared to operate properly. It was initially speculated that perhaps this occurred on the night of the fire, and, when the motor kept running, it overheated, causing the fire. The experts who were going to testify at trial did not believe that was how the fire started.

The manufacturer's expert was of the opinion that the fire started in one of the branch electrical circuits, which were located in the attic above the garage. He could not specifically explain how this caused the fire, but concluded that it did because there could be no other possible cause. His opinion that the garage door opener did not cause the fire was based on the fact that the homeowner had left the garage door down when he left the house for dinner, and when the fire was discovered by a witness about 15 minutes later, the garage door was up. In his opinion the fire started somewhere else and damaged the control cable for the garage door opener, causing it to short and make the garage door go up.

After conducting several hearings relating to production and the loss of the unit, the trial court granted the manufacturer's motion in limine and held that the trial would be conducted without any evidence regarding the garage door opening system, which included the power cord which had never been found. The court also held that the inference that there is a manufacturing defect where a product malfunctions and is destroyed as a result of the malfunction would not be available to plaintiff. Cassisi v. Maytag Company, 396 So.2d 1140 (Fla. 1st DCA 1981). The plaintiff then conceded that it could not prove its case, and the court granted the manufacturer's motion for summary judgment.

Cases in which evidence cannot be produced because of inadvertent loss or intentional destruction involve the application of Florida Rule of Civil Procedure 1.380, because they are, essentially, discovery violations. Public Health Trust of Dade County v. Valcin, 507 So.2d 596 (Fla.1987). Our standard of review, therefore, is whether the trial court abused its discretion. Mercer v. Raine, 443 So.2d 944 (Fla.1983).

Plaintiff argues that because it did not wilfully destroy evidence, the court should not have imposed the "ultimate sanction of dismissal" citing New Hampshire Insurance Company v. Royal Insurance Company, 559 So.2d 102, 103 (Fla. 4th DCA 1990). In that case an insurer responded to a request to produce its underwriting file by stating that it had been destroyed. In reviewing an order striking the pleadings of that party, this court stated on page 103:

If appellant has destroyed relevant and material information by destroying the file, and that information is so essential to the appellee's defense that it cannot proceed without it, then the striking of appellant's pleadings may be warranted. See Depuy, Inc. v. Eckes, 427 So.2d 306 (Fla. 3d DCA 1983). Alternatively, where a party fails to produce evidence within his control, an adverse inference may be drawn that the withheld evidence would be unfavorable to the party failing to produce it. Valcin v. Public Health Trust of Dade County, 473 So.2d 1297 (Fla. 3d DCA 1984), modified, Public Health Trust of Dade County v. Valcin, 507 So.2d 596 (Fla.1987).

This court reversed an order striking pleadings, concluding that dismissal is only appropriate where there is a "deliberate and willful failure to submit to discovery." Although the sanction imposed here was that plaintiff would be precluded from presenting evidence regarding the garage door opening system, that ruling amounted to the equivalent of dismissal, since it left plaintiff without a means to present its case.

The facts involving the lost evidence in this case are unusual in that the expert who examined and then lost the garage door opener concluded there was nothing defective about it. He concluded that the fire originated in the portion of the power cord which he did not examine because it was never found after the fire. Plaintiff thus argues that the manufacturer has not been prejudiced by the loss of the garage door opener. The manufacturer counters that the lost garage door opener, with the stub of power cord still intact, might...