Stremke v. Fisher & Paykel Appliances, Inc.
| Decision Date | 14 September 2015 |
| Docket Number | No. 71424-4-I,71424-4-I |
| Court | Washington Court of Appeals |
| Parties | CHERYL STREMKE, a single person; and TYE PANZONE and JAMI PANZONE, husband and wife; and UNITRIN, INC., dba UNITRIN AUTO AND HOME INSURANCE COMPANY, dba KEMPER, a foreign corporation, Respondents, v. FISHER & PAYKEL APPLIANCES, INC., a California corporation, Appellant, and LOWE'S HIW, INC., a Washington Corporation, Defendant. |
UNPUBLISHED OPINION
SPEARMAN, C.J. — Cheryl Stremke, her family, and her subrogating insurer, Unitrin Auto and Home Insurance Company (Unitrin),1 brought this consumer protection and product liability action to recover losses sustained when a dryer manufactured by Fisher & Paykel Appliances, Inc. (F&P) caught fire and damaged Stremke's home and property therein. The jury found in Stremke's favor and the court entered judgment on her behalf and against F&P. F&Pchallenges the judgment, arguing that the trial court erred when it (1) refused F&P's request for a jury instruction on spoliation; (2) excluded the testimony of F&P's expert witness on damages; (3) incorrectly instructed the jury on the measure of damages; and (4) denied its motion for directed verdict. K&P also argues that the award of attorney fees and costs was improper. We find no error and affirm.
FACTS
On the evening of July 1, 2008, Cheryl Stremke, her son, Tye Panzone, daughter-in-law Jami Panzone, and Tye's2 and Jami's children were preparing for bed at their home in Auburn, Washington. Around midnight, Jami smelled smoke inside the home. After investigating, she discovered smoke coming from the dryer in the family's laundry room. Jami called her husband and her mother-in-law for help. They found her in the laundry room, where the dryer was flaming and smoking badly. The family made an unsuccessful attempt to extinguish the fire with water, but the flames emerging from behind the dryer began to engulf the room. As the fire grew out of control, the family called 911 and fled from the home.
The City of Kent Fire Department responded to the 911 call and extinguished the blaze. Once it was safe to enter the house, an investigator with the fire department, Fritz Wininger, set about determining the cause of the fire. Wininger interviewed Stremke and her family and conducted a walk-through ofthe house, during which he observed burn patterns and other evidence related to the source and cause of the fire. Based on his investigation, Wininger concluded that the fire had originated in the laundry room inside the dryer. He eliminated all other possible sources, including the dryer's ventilation system and other components in the wall behind the dryer, the dryer's power cord, the electrical outlet near the dryer, clothing inside the dryer drum, and cigarettes located in the laundry room.
The next day, Stremke notified her insurer, Unitrin. Unitrin sent its fire investigator, Thomas Miller, to the residence to determine the cause of the fire. Based on his investigation, Miller also concluded that the fire started inside the dryer and, like Wininger, he ruled out other possible sources for the fire. Miller arranged the transportation of the dryer from Stremke's house to Unitrin's Whidbey Island storage facility for testing. But, because he did not view any other items from the laundry room as relevant to the investigation, he made no effort to preserve things such as the dryer's ventilation system or electrical components.
Following Miller's investigation, Unitrin released the home back to Stremke, who arranged for repairs to the house, which commenced five to six weeks later. The fire and smoke damage to the home and the resulting restoration work were extensive. Parts of the house were gutted to the bare framing and many of Stremke's personal belongings were lost in the fire. Stremke submitted a claim to Unitrin, which paid $538,571.55 in dwelling repair and personal property costs.
Stremke and Unitrin, as the subrogating insurer, brought this product liability and consumer protection action against F&P, the manufacturer of thedryer, to recover the $538,071.55 paid to Stremke by Unitrin, additional damages claimed by Stremke that her insurance company declined to pay, and claims for treble damages and attorney fees under Washington Consumer Protection Act (CPA). At the end of trial, the jury determined that a defect in F&P's dryer proximately caused Stremke's damages. It awarded $537,612 on the subrogation (product liability) claim and $537,612 on the CPA claim, but concluded that the entire CPA award was duplicative of the subrogation award. The trial court declined to award treble damages under the CPA, but awarded Stremke attorney fees and costs in the amount of $627,982.62. F&P appeals.
DISCUSSION
F&P contends the trial court erred when it refused to instruct the jury regarding the alleged spoliation of evidence by Stremke.3 We review the trial court's decision regarding spoliation for abuse of discretion. Henderson v. Tyrrell, 80 Wn. App. 592, 604, 910 P.2d 522 (1996). A trial court abuses its discretion80 Wn. App. 592, 604, 910 P.2d 522 (1996). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or reasons. Will v. Frontier Contractors, Inc., 121 Wn. App. 119, 128, 89 P.3d 242 (2004). In deciding whether to provide a remedy for spoliation, a trial court's discretion must be guided by consideration of (1) the potential importance or relevance of the missing evidence and (2) the culpability or fault of the adverse party. Taval v. Walmart Stores, Inc., 176 Wn. App. 122, 135, 307 P.3d 811 (2013); Homeworks Const., Inc. v. Wells, 133 Wn. App. 892, 899, 138 P.3d 654 (2006).
"In weighing the importance of the evidence, we consider whether the adverse party was given an adequate opportunity to examine it." Tavai, 176 Wn. App. at 135 (citing Henderson 80 Wn. App. at 605). Evidence is relevant if it is probative of a material fact in the litigation. ER 401. Here, the missing evidence (i.e., the dryer's ventilation system and related parts, as well as other items from the laundry room) was undisputedly probative of the central issue in the case—the cause of the fire—even if only to rule out possible alternative causes. And, since F&P had no opportunity to examine this evidence before it was destroyed, it was, at least arguably, important under the standard in Tavai.
F&P's argument that it was entitled to a spoliation instruction still fails, however, because it cannot show that Stremke was culpable in the destruction of the evidence at issue. In determining a party's culpability or fault in the destruction of evidence, "[w]e examine whether the party acted in bad faith orconscious disregard of the importance of the evidence or whether there was some innocent explanation for the destruction." Tavai, 176 Wn. App. at 135.
In this case, approximately three weeks passed between the fire and Stremke's notice to F&P that the suspected cause of the fire was a dryer it manufactured. F&P received the notice no later than August 5, 2008 and, that same day, made arrangements to inspect the dryer, which had been moved to Unitrin's storage facility. But F&P did not inquire about any other evidence from the home, ask that any items related to other possible sources of the fire be preserved, or request that repairs to the home be postponed pending an independent evaluation. Thus, while F&P had the opportunity to advise Stremke of the potential importance of the dryer's ventilation system and other missing evidence before it was destroyed or otherwise take steps to preserve the evidence, it failed to do so.
In addition, F&P presented no evidence that Stremke had reason to know of the importance or relevance of the evidence. Her decision to not preserve additional items from the laundry room, followed determinations by two fire investigators that the fire began in the dryer and that the other items were irrelevant to the investigation. In light of this information, as well as F&P's own inaction and the passage of time, Stremke had a reasonable basis to conclude that any additional evidence in the laundry room was irrelevant to the cause of the fire and any future litigation. On these facts, F&P fails to show that Stremke acted in bad faith or in conscious disregard of the importance of the evidence when she failed to preserve it.
Another factor related to the culpability of a party who destroys evidence is whether the party violated a duty to preserve the evidence. Tavai, 176 Wn. App. at 135. F&P asserts that even if Stremke did not act in bad faith when she failed to preserve the missing evidence, she is nevertheless culpable because of an independent legal duty to preserve evidence, apart from the general duty to avoid spoliation. But F&P offers no authority for the proposition that such a duty existed.4 In Washington, potential litigants have no general duty to preserve evidence. See Homeworks Construction, 133 Wn. App. at 901. Accordingly, we reject F&P's argument on this issue.
Because F&P failed to establish that Stremke was culpable in the destruction of the missing evidence, it was not entitled to a spoliation instruction. The trial court did not err in refusing to give one.
At the conclusion of Stremke's case-in-chief, F&P moved for a directed verdict on her CPA claim. F&P assigns error to the trial court's denial of this motion. We review a trial court's decision to deny a motion for a directed verdict in favor of allowing a claim to be considered by a jury de novo. Hizey v. Carpenter, 119 Wn.2d 251, 271-72, 830 P.2d 646 (1992). "A directed verdict isappropriate if, as a matter of law, there is no substantial evidence or reasonable inference to sustain a verdict for the nonmoving party." Chaney v. Providence Health Care, 176 Wn.2d 727, 732, 295 P.3d 728 (2013) (citations omitted).
Stremke's consumer protection claim is governed by the CPA, which prohibits "'[...
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