Superior Boiler Works Inc. v. Kimball

• Decision Date: 12 August 2011
• Docket Number: No. 103,367.,103,367.
• Citation: 259 P.3d 676,292 Kan. 885
• Parties: SUPERIOR BOILER WORKS, INC., Appellant,v.F. Robert KIMBALL, Mark Stuerman, and Ferris Kimball Company, LLC, Appellees.
• Court: Kansas Supreme Court

292 Kan. 885

259 P.3d 676

SUPERIOR BOILER WORKS, INC., Appellant,

v.F. Robert KIMBALL, Mark Stuerman, and Ferris Kimball Company, LLC, Appellees.

No. 103,367.

Supreme Court of Kansas.

Aug. 12, 2011.

Syllabus by the Court

1. The tort of spoliation of evidence is not recognized in Kansas absent an independent tort, contract, agreement, voluntary assumption of duty, or special relationship of the parties.

2. A party does not voluntarily assume a duty unless one agrees to provide the service or acts affirmatively.

3. One does not have a duty to preserve records simply because one is in the chain of distribution of a product or in the stream of commerce related to a product.

4. An independent tort of spoliation will not be recognized in Kansas for claims by a defendant against codefendants or potential codefendants, including potential indemnitors under a theory of comparative implied indemnification.

Vincent F. Reilly, of Reilly, Janiczek & McDevitt, P.C., of Merchantville, New Jersey, argued the cause, and Lewis C. Miltenberger, of the Miltenberger Law Firm, PLLC, of Southlake, Texas, and Thomas E. Rice, Jr., of Baker Sterchi Cowden & Rice, L.L.C., of Overland Park, were with him on the brief for appellant Superior Boiler Works, Inc.Dennis L. Horner, of Horner & Duckers, Chartered, of Kansas City, Kansas, argued the cause, and Keith C. Sevedge, of Lenexa, was with him on the brief for appellee F. Robert Kimball.Eric D. Barton, of Wagstaff & Cartmell, LLP, of Kansas City, Missouri, argued the cause, and Tyler Hudson and Adam S. Davis, of the same firm, were with him on the brief for appellees Mark Stuerman and Ferris Kimball Company, LLC. The opinion of the court was delivered by LUCKERT, J.:

In Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 734 P.2d 1177 (1987), this court concluded that “absent some independent tort, contract, agreement, voluntary assumption of duty, or special relationship of the parties, the new tort of ‘the intentional interference with a prospective civil action by spoliation of evidence’ should not be recognized in Kansas.” Koplin, 241 Kan. at 215, 734 P.2d 1177. In reaching this holding, this court reserved the question of whether Kansas would recognize the tort if a defendant or potential defendant in an underlying case destroyed evidence to their own advantage. Koplin, 241 Kan. at 215, 734 P.2d 1177.

In this appeal, Superior Boiler Works, Inc. (Superior), argues a special relationship existed between it and F. Robert Kimball, Mark Stuerman, and Ferris Kimball Company, LLC (FK Company) (collectively Defendants), that required the Defendants to preserve evidence. Alternatively, Superior argues the facts of this case require us to address the question the Koplin court reserved and further argues we should answer the reserved question by recognizing the tort and applying it to give Superior the right to recover from the Defendants. The district court rejected these arguments and granted the Defendants summary judgment, finding there was not a contract, agreement, voluntary assumption of duty, or special relationship requiring the Defendants to preserve evidence and the reserved question did not apply to spoliation claims between those who are potential codefendants in the underlying action. We affirm.

Factual and Procedural Background

Superior brought suit against the Defendants on two counts, labeling Count I as “Intentional Interference with Actual and Prospective Actions by Destruction of Evidence” and Count II as “Negligent Interference with Actual and Prospective Actions by Destruction of Evidence.” Eventually, all parties filed motions for summary judgment. The district court denied Superior's motion and granted those of each defendant.

In one of those summary judgment decisions, specifically the order granting summary judgment to Kimball, the district court recited the following uncontroverted facts that explain the relationship of all of the parties and provide the context of Superior's allegations:

“Defendant Kimball was affiliated with Ferris Kimball Company [FK Company] through 1999. Specifically, Kimball was a partner with his father in the [FK] Company. In 1984, Kimball became the owner of the sole proprietorship doing business as [FK] Company. Kimball sold [FK] Company to Mark Stuerman in 1999. [There were various business forms of FK Company that we will generically refer to as FK Company, accepting, without analysis, Superior's argument that successor liability principles apply.]

“Throughout March and April 2002, [Superior] contacted [FK Company] seeking information regarding asbestos content in materials supplied to [Superior] for use in its boilers. On March 21, 2002, [Superior] asked [FK Company] and/or Mark Stuerman for information concerning Plibrico Products and asbestos material [Superior] had purchased. In March 2002, [FK Company] sent an inquiry to Plibrico seeking information to answer [Superior's] inquiry. [FK Company], via defendant Mark K. Stuerman, then transmitted correspondence to [Superior], answering its inquiry. The correspondence specified the names of all products sold and provided that one product may or may not have contained some asbestos. In April 2002, [Superior] submitted another inquiry to [FK Company] asking for poundage figures on sales of products, from [FK Company] to [Superior], between 1967 and 1983. In response, [FK Company] and/or Mark Stuerman transmitted a letter to [Superior] with attachments detailing sales, from [FK Company] to [Superior], between 1967 to 1983. [In doing so, Stuerman referenced company index cards, which contained the names of customers, dates of orders, and materials ordered.] The attachments categorized sales by year and product and provided specific weights purchased by invoice, year and product. [Superior] made no further requests for information or documents, from [FK Company], until 2007.”

Five years elapsed before there was further contact between Superior and any of the Defendants regarding the records. The district court found the following uncontroverted facts relating to what transpired when contact was renewed:

“In 2007, counsel for [Superior] contacted Robert Kimball and told Kimball that [Superior] was involved in asbestos related litigation; that Kimball's company had supplied products which were used in [Superior's] boilers; and thus, [Superior] was interested in ‘looking at whatever materials Kimball had’ regarding products supplied by [FK Company] to [Superior]. In March 2007, counsel for [Superior] forwarded correspondence to counsel for Stuerman and [FK Company] ‘stating that [Superior] intended to subpoena any and all documents related to the sale of refractory products from [FK Company] to [Superior],’ including ‘all documents reviewed or referred to in preparation of the 2002 correspondence as well as all documents which concerned the sale of products from [FK Company] to [Superior].’ Kimball did not expressly agree to preserve or maintain the index cards.”

After receiving this letter, the Defendants destroyed FK Company's old company records dating back to the 1930's, including those that had been used to compile the information provided in 2002. Of these destroyed records, the primary evidence sought by Superior consisted of index cards, which detailed product sales from 1967 through 1983, and so-called “gold sheets,” which recorded information regarding orders. Before destroying any records, Stuerman sought the advice of counsel. He then contacted Cintas Corporation, a shredding service, and on March 1, 2007, Cintas picked up three pallets of records and destroyed them, off site, the next day. The index cards were not included in the materials handed over to Cintas. Kimball gained possession of the index cards and destroyed them himself in early March 2007.

It was uncontroverted that at the time the Defendants “purged the records, neither Robert Kimball, Ferris Kimball Co., nor any of its other past or present employees had been served, subpoenaed or otherwise joined in any asbestos litigation.” On March 29, 2007, Superior subpoenaed documents relating to evidence of sales by FK Company to Superior. By that time, the company records had been destroyed by the Defendants.

Although there were factual disputes regarding the extent of the Defendants' knowledge about pending litigation or the threat of pending litigation, the district court adopted the view most favorable to Superior and assumed that the Defendants had knowledge of pending asbestos litigation against Superior and knew that FK Company (in its various business forms), Kimball, and Stuerman could be joined as parties in pending or future asbestos litigation. Even assuming those facts in the light most favorable to Superior, the district court concluded that “neither the parties' past, commercial relationship, nor defendants' knowledge of [Superior's] pending litigation created a duty to preserve the index cards.” Because there was “no agreement, contract, statute, voluntary assumption of duty, or other special circumstance creating a duty to preserve records,” the Defendants “were entitled to destroy them.”

Superior now appeals. Our jurisdiction arises from K.S.A. 20–3018 (c) (a transfer from the Court of Appeals on this court's own motion).

Analysis

Superior argues that the district court erred in finding the Defendants did not have a duty to preserve the old company records and in granting summary judgment to the Defendants on that basis. According to Superior, the Defendants had a duty to preserve evidence that they knew or should have known was important to Superior's defense in pending asbestos litigation.

Superior asks this court for a narrow holding, as is emphasized by two limitations it has placed on its argument. One limitation arises because Superior focuses only on intentional spoliation in its appellate brief and, therefore, has waived any issue concerning its negligent spoliation...