RICKY TEEL V DORIS MEREDITH
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STATE OF MICHIGAN
COURT OF APPEALS
RICKY TEEL, Individually and as Personal
Representative of the Estate of LILLIAN TEEL,
Deceased,
FOR PUBLICATION
July 2, 2009
9:05 a.m.
Plaintiff-Appellant,
v
No. 280215
Wayne Circuit Court
LC No. 06-604695-NO
DORIS MEREDITH,
Defendant,
Advance Sheets Version
and
ALLSTATE INSURANCE COMPANY,
Defendant-Appellee.
Before: Saad, C.J., and Davis and Servitto, JJ.
SERVITTO, J.
Plaintiff appeals as of right the trial court’s order granting summary disposition in favor
of defendant Allstate Insurance Company. Because Michigan does not yet recognize as a valid
cause of action spoliation of evidence that interferes with a prospective civil action against a
third party, we affirm.
Plaintiff initiated this action after a fire broke out in his family’s rented apartment,
causing the death of his wife, Lillian Teel, and extensive damage to the apartment. Allstate, the
liability insurer for the property pursuant to a policy issued to a defendant Doris Meredith, the
owner/landlord of the apartment, sent a representative to the apartment, without notice to or the
presence of plaintiff, to inspect the apartment.
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Apparently, during the inspection, the
investigator altered the scene and removed certain items from the apartment, thereby allegedly
spoiling evidence concerning the origin and cause of the fire and affecting plaintiff’s ability to
bring, or succeed in, litigation relating to the fire. In his complaint, plaintiff alleged that
defendant Meredith breached her duty to maintain safe premises. Plaintiff also alleged that
defendant Allstate failed to, among other things, notify plaintiff of its intended inspection of the
premises as required by statute, properly document and preserve the fire scene and the evidence,
and avoid spoliation of the evidence. Allstate moved for summary disposition pursuant to MCR
2.116(C)(8), and the trial court granted the motion, ruling, in part, that Michigan does not
recognize spoliation of evidence as a valid cause of action.
On appeal, plaintiff asserts that the trial court erred by granting summary disposition
because the complaint presented sufficient allegations to establish a claim of intentional or
negligent spoliation of evidence that interferes with a civil action against a third-party, and that
Michigan should recognize the same as an actionable tort. We disagree.
This Court reviews de novo a trial court’s decision regarding a motion for summary
disposition pursuant to MCR 2.116(C)(8). Kisiel v Holz, 272 Mich App 168, 170; 725 NW2d 67
(2006). Where summary disposition is sought pursuant to MCR 2.116(C)(8), “the motion tests
whether the complaint states a claim as a matter of law, and the motion should be granted if no
factual development could possibly justify recovery.” Feyz v Mercy Mem Hosp, 475 Mich 663,
672; 719 NW2d 1 (2006). When reviewing such a motion, “all well-pleaded allegations are
accepted as true, and construed most favorably to the nonmoving party.” Wade v Dep’t of
Corrections, 439 Mich 158, 162-163; 483 NW2d 26 (1992).
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In arguing that the trial court erred, plaintiff cites Panich v Iron Wood Products Corp,
179 Mich App 136; 445 NW2d 795 (1989). Panich (which is not binding precedent pursuant to
MCR 7.215, because it was decided before November 1, 1990) held that a cause of action arising
out of the alleged spoliation of evidence, under the facts before it, was not recognized in
Michigan. Plaintiff asserts that the factual circumstances in this case, however, warrant the
recognition of such a cause of action.
The function of this Court is to correct errors. Burns v Detroit (On Remand), 253 Mich
App 608, 615; 660 NW2d 85 (2002). As stated above, MCR 2.116(C)(8) provides that summary
disposition is appropriate where a party fails to state a claim for which relief can be granted.
Here, no error occurred where the lower court granted summary disposition after plaintiff’s
complaint alleged a cause of action that has not been recognized in Michigan. Although plaintiff
now invites this Court to legally recognize the cause of action and to reverse and remand, we
decline to do so.
As Justice Weaver has stated in a concurring opinion, “[t]he legislative power includes
the power to create new legal rights. And, where the Legislature chooses, it may exercise its
discretion to create and define new causes of action.” Nat’l Wildlife Federation v Cleveland
Cliffs Iron Co, 471 Mich 608, 668-669; 684 NW2d 800 (2004). See, also, Phillips v Mirac, Inc,
470 Mich 415; 685 NW2d 174 (2004). While it is true that this Court may determine as a matter
of law whether a duty is owed, our Supreme Court has also noted that in certain instances it is
preferable for a duty to be statutorily declared. Harts v Farmers Ins Exch, 461 Mich 1, 12; 597
NW2d 47 (1999). We believe that this is one of those instances.
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There are certainly considerations that would support the recognition of an independent
tort claim for spoliation of evidence. There is no doubt, for instance, that the preservation of
evidence is a compelling policy consideration and that the destruction of crucial evidence may
undermine the fairness of an underlying lawsuit and the justice sought to be achieved. However,
there are also countervailing policy considerations that weigh against the adoption of a tort for
spoliation of evidence.
The traditional response to the problem of evidence spoliation frames the alleged wrong
as an evidentiary concept, not as a separate cause of action. The proposed cause of action carries
with it many potential concerns and effects, resulting in more complications than clarifications.
For example, the scope of a duty to preserve evidence would need to be defined. It would be
unreasonable to impose a boundless scope of duty to preserve evidence, particularly where the
spoiler of evidence is a third party, i.e., not a party alleged to have committed the wrong that
serves as the basis for the underlying or potential litigation. The extent and the amount of
damages in a spoliation case are also highly speculative, because it is impossible to know what
the destroyed evidence would have shown, and there is no way to determine whether a plaintiff
would have had a significant possibility of success in the potential civil action if the evidence
were available. It would prove difficult for a trier of fact to meaningfully assess what role the
missing evidence would have played in the determination of the underlying action and, if the
evidence would not actually have helped to establish a plaintiff’s case, an award of damages for
its destruction would work as a windfall to the plaintiff.
The Legislature would have the resources and tools needed to investigate the
consequences of the proposed cause of action and to study the long-term effects of the cause of
action in the jurisdictions that have recognized it. We leave it to the Legislature to do so, should
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it choose. Because plaintiff has not established that the lower court committed error, and
because the Legislature is the body best suited to creating new causes of action, plaintiff is not
entitled to relief.
Contrary to the dissent’s assertions, by permitting this case to proceed, we would not
simply be recognizing the existence of a legal “duty”1 on the part of the insurance industry, but
we would be creating a new cause of action in this state, which would necessarily require us to
define which parties may bring a cause of action and within what time limits, how a plaintiff may
establish a prima facie case, and what remedies would be available. Not only is the Legislature
in a superior position to gather information regarding the propriety of such changes in the law,
public policy dictates against our creation of an entirely new cause of action where the Michigan
Legislature has taken upon itself to comprehensively regulate the insurance industry. Indeed, our
insurance statutes contain more than 1,000 sections, showing a clear intent by the Legislature to
define the parameters and regulate the conduct of those conducting business in this arena as well
as the rights and remedies available to the public. See Harts v Farmers Ins Exch, 461 Mich 1,
11-12; 597 NW2d 47 (1999). To that end, we are mindful of our Supreme Court’s observations
in Henry v Dow Chemical Co, 473 Mich 63, 88-89; 701 NW2d 684 (2005):
Although the caution engendered by our difficulty in identifying, much
less weighing, the potential costs and benefits of a decision in plaintiffs’ favor is
an important factor militating against recognizing plaintiffs’ proposed cause of
action, there is a stronger prudential principle at work here: the judiciary’s
1
The dissent mistakenly conflates the ordinary job of a common-law judge to decide whether
there is a legal “duty” in the first instance in a garden variety tort case, with the much different
question, before us: whether the state of Michigan should create an entirely new cause of action
in an arena, insurance, that is comprehensively regulated by the Legislature.
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obligation to exercise caution and to defer to the Legislature when called upon to
make a new and potentially societally dislocating change to the common law.
Ours, after all, is a government founded on the principle of separation of
powers. In certain instances, the principle of separation of powers is an
affirmative constitutional bar on policy-making of this Court. In other cases,
however, the separation of powers considerations may operate as a prudential bar
to judicial policy-making in the common-law arena. This is so when we are asked
to modify the common law in a way that may lead to dramatic reallocation of
societal benefits and burdens. [Emphasis in original.]
Were we persuaded to ignore the Legislature’s pervasive role in this area of law and feel inclined
to create a new cause of action, prudence would counsel against it because such a significant
departure from Michigan law should only come from our Supreme Court, not an intermediate
appellate court. See Dahlman v Oakland Univ, 172 Mich App 502, 507; 432 NW2d 304 (1988).
Moreover, if we were to adopt the reasoning of the dissent and recognize an independent
cause of action for spoliation of evidence as merely a remedy for a violation of the alreadyestablished right to the preservation of evidence, we would nevertheless decline to find such
remedy appropriate under the specific facts and circumstances before us.
First, there are
remedies available to a party claiming prejudice resulting from the loss or destruction of
evidence.
When a party destroys or loses material evidence, whether intentionally or
unintentionally, and the other party is unfairly prejudiced because it is unable to challenge or
respond to the evidence, a trial court has the inherent authority to sanction the culpable party to
preserve the fairness and integrity of the judicial system. Brenner v Kolk, 226 Mich App 149,
160; 573 NW2d 65 (1997). There is also a general rule that if a party intentionally destroys
evidence that is relevant to a case, a presumption arises that the evidence would have been
adverse to that party’s case. Ward v Consolidated Rail Corp, 472 Mich 77, 84; 693 NW2d 366
(2005).
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We acknowledge that there is a distinction between the destruction of evidence by a party
to the underlying litigation and spoliation of evidence by a third party in that not all the
litigation-related remedies for spoliation are applicable to third parties. However, as aptly
observed in Dowdle Butane Gas Co, Inc v Moore, 831 So 2d 1124, 1132 (Miss, 2002):
The victim of third party spoliation, however, is not entirely helpless.
Some discovery sanctions are available to punish third party spoliation, including
monetary and contempt sanctions against persons who flout the discovery process
by suppressing or destroying evidence. A criminal sanction remains available
under Penal Code section 135, as are disciplinary sanctions against attorneys who
may be involved in spoliation. As we have pointed out, the victim of third party
spoliation may deflect the impact of the spoliation on his or her case by
demonstrating why the spoliated evidence is missing. It also may be possible to
establish a connection between the spoliator and a party to the litigation sufficient
to invoke the sanctions applicable to spoliation by a party. We do not believe that
the distinction between the sanctions available to victims of first party and third
party spoliation should lead us to employ the burdensome and inaccurate
instrument of derivative tort litigation in the case of third party spoliation. We
observe that to the extent a duty to preserve evidence is imposed by statute or
regulation upon the third party, the Legislature or the regulatory body that has
imposed this duty generally will possess the authority to devise an effective
sanction for violations of that duty. To the extent third parties may have a
contractual obligation to preserve evidence, contract remedies, including agreedupon liquidated damages, may be available for breach of the contractual duty.
Criminal sanctions, of course, also remain available.
Where, as here, plaintiff has not alleged or demonstrated a complete lack of an available remedy
for the spoliation of evidence by a third party, we decline to announce an as-yet unrecognized
cause of action as the single appropriate remedy.
In addition, very few states recognize spoliation of evidence as an independent tort, and
those that do have not only faced considerable disapproval, but have varied among themselves in
the parameters and application of such a tort. Notably, the state generally acknowledged as
providing the origin of a distinct cause of action for the tort of spoliation of evidence, California
(in Smith v Superior Court of Los Angeles Co, 151 Cal App 3d 491; 198 Cal Rptr 829 [1984]),
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has recently moved away from its prior holding. In Cedars-Sinai Medical Ctr v Superior Court
of Los Angeles Co, 18 Cal 4th 1, 17-18; 954 P2d 511 (1998), the California Supreme Court
expressly disapproved of Smith, and held that “there is no tort remedy for the intentional
spoliation of evidence by a party to the cause of action to which the spoliated evidence is
relevant, in cases in which, as here, the spoliation victim knows or should have known of the
alleged spoliation before the trial or other decision on the merits of the underlying action.”
More recently, in Temple Community Hosp v Superior Court of Los Angeles, 20 Cal 4th
464; 84 Cal Rptr 2d 852; 976 P2d 223 (1999), the California Supreme Court held that no tort
cause of action will lie for intentional third-party spoliation of evidence. In reaching its decision,
the court opined:
[T]he burdens and costs of recognizing a tort remedy for third party
spoliation are considerable—perhaps even greater than in the case of first party
spoliation. The same burdens identified in Cedars-Sinai exist, namely, jury
confusion and the potential for abuse in bringing the action and for inaccurate and
arbitrary verdicts, magnified by the potential for punitive damages, as well as the
obvious burden to the judicial system, litigants, and witnesses, inherent in
derivative litigation. Beyond these burdens, in the case of third party spoliation
additional burdens arise from the circumstance that the class of potential plaintiffs
and defendants is greatly expanded. As noted, both parties in the underlying
litigation may be injured by a third party’s single act of destruction of evidence,
thereby giving rise to two claims with potentially inconsistent or duplicative
verdicts. . . . In addition, although spoliation claims between parties have an
inherently limited number of potential defendants, if spoliation by nonparties
were actionable in tort, the cast of potential defendants would be much larger. We
believe the broad threat of potential liability, including that for punitive damages,
might well cause numerous persons and enterprises to undertake wasteful and
unnecessary record and evidence retention practices. [Id. at 476 (citation omitted;
emphasis in original).]
Given that the majority of states recognizing a cause of action for spoliation of evidence
generally relied heavily on California’s now disapproved-of Smith v Superior Court case, the
strength and longevity of the other states’ opinions are in question. Moreover, while we are
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certainly not bound by out-of-state decisions, we do find the rationale employed in Temple,
compelling.
In any event, the states recognizing such a cause of action appear to base their recognition
on a few key, interrelated factors: exclusive possession of the evidence by the person or
company that ultimately destroys the evidence; knowledge of a potential lawsuit involving the
evidence; and a specific duty to preserve the evidence. For example, in Boyd v Travelers Ins Co,
166 Ill 2d 188, 191; 652 NE2d 267 (1995), Tommie Boyd filed a claim for workers’
compensation benefits against his employer and his employer’s workers’ compensation insurer
for injuries he received when a portable heater Boyd owned exploded while he was working
inside his employer’s van. Employees of the workers’ compensation insurer took possession of
the heater and transported it to the insurer’s office for the express purpose of investigating
Boyd’s workers’ compensation claim.
Subsequently, when Boyd asked that the heater be
returned to him, the insurer was unable to locate it. The Illinois Supreme Court held that because
the insurer’s employees knew that the heater was evidence relevant to future litigation, the
insurer assumed a duty to preserve the heater. Because it failed to do so, an action for negligent
spoliation could be stated under existing Illinois negligence law. Id. at 195.
In Thompson v Owensby, 704 NE2d 134, 136 (Ind App, 1998), a dog broke free from the
cable restraining it in its owners’ yard and attacked a child causing her serious injuries. The
child’s parents sought compensation from the dog’s owners and the dog’s owners’ landlord. The
landlords’ insurer investigated the plaintiffs’ claim and, in doing so, took possession of the cable.
The insurer promptly lost the cable, before anyone had the opportunity to inspect it. The Indiana
Court of Appeals noted:
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A liability carrier like the Insurance Company can rationally be held to
understand that once a claim is filed, there is a possibility of litigation concerning
the underlying injuries. The Insurance Company’s knowledge and investigation
of the Thompsons’ claims and its possession of what would be a key item of
evidence in the event litigation ensued created a relationship between the
Company and the Thompsons that weighs in favor of recognizing a cognizable
duty to maintain evidence.
. . . Further, the foreseeability of the harm in losing evidence can be
inferred from the allegation that the Company’s investigator took possession of
the cable: if an insurance carrier’s investigator deems certain evidence important
enough to be collected, it is foreseeable that loss of the evidence would interfere
with a claimant’s ability to prove the underlying claim. [Id. at 137-138.]
See, also, the Alabama case of Smith v Atkinson, 771 So 2d 429 (Ala, 2000).
Here, assuming that Allstate was aware of a potential lawsuit at the time it inspected
plaintiff’s apartment, it did not have exclusive possession of the fan or lamp that plaintiff alleges
may have caused the fire. It should be noted that before Allstate’s investigation of the scene, the
Detroit Fire Department’s arson section and the Michigan State Police investigated and prepared
reports concerning the fire. The arson section’s investigative report concluded that the fire
originated within a leather loveseat in the living room of the apartment. However, the cause of
the fire was listed as “undetermined” by both the Detroit Fire Department and the Michigan State
Police. Approximately one week after the fire, the fire investigator hired by Allstate performed
his inspection. The Allstate investigator never removed the fan or the lamp from the apartment
and only removed two smoke detectors, some fire debris, and a carpet sample. The investigator
did not believe that either the fan or the lamp had been a source of igniting the loveseat. Allstate
maintains that the items collected by the investigator have been preserved, although plaintiff has
never requested to see them. Where Allstate was at least the third entity to inspect the apartment
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and at no time removed or otherwise took possession of the items plaintiff now alleges may have
caused the fire,2 it seems unreasonable to hold Allstate liable for the spoliation of such items.
Furthermore, there is no allegation that plaintiff’s representatives were barred from the
premises.3 While we recognize that a tragedy had just occurred in the Teel family, it appears that
someone on behalf of the family could have had equal access to the apartment to inspect and
preserve any potential evidence.
With regard to a cognizable duty to preserve evidence, as previously discussed, we
believe that identifying the existence and parameters of such a duty is best left to our Legislature.
Other states have recognized a duty to preserve evidence where there has been a voluntary
undertaking to preserve the evidence or a promise to maintain the evidence (see, e.g., Smith v
Atkinson) or where special circumstances surrounding the relationship of a potential plaintiff
with a holder of evidence exist. While plaintiff contends that a special relationship between
Allstate and plaintiff was created by virtue of Allstate’s undertaking to investigate the scene,
plaintiff’s reliance on Thompson to support this conclusion is misplaced. Instrumental in the
Thompson court’s determination that the insurer had a duty to preserve evidence was the fact that
the insurer took exclusive possession of the potential evidence.
Plaintiff has not articulated any basis for imposing a specific duty on Allstate to preserve
or maintain the evidence. There is no alleged statutory duty, no alleged promise by Allstate to
2
Plaintiff does not assert that Allstate actually took possession of any specific item of potential
evidentiary value and then destroyed it or lost it. Instead, the crux of his complaint is that
Allstate, by undertaking the inspection of the premises, assumed control and should have
prevented anyone else (including the owner) from entering the apartment, taking possession of
any items in the apartment, or renovating or repairing the apartment.
3
As pointed out in the dissent, Ricky Teel “was medically not competent.”
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maintain it, and no special relationship existing that would warrant the imposition of a duty on
Allstate to preserve evidence. Absent an articulable, legally recognized duty, there can be no
cause of action for the alleged tort of spoliation of evidence.
Finally, this case is similar to American Nat’l Prop and Cas Co v Wilmoth, 893 NE2d
1068, 1069 (Ind App, 2008). In that case, a fire broke out in a home that a family, consisting of
the parents and their two children, rented from Robert and Betty Bowers. Tragically, the two
children and one of the parents died as a result of the fire. While fighting the fire, firefighters
threw a couch and other items onto the front yard, where they remained for approximately six
weeks. The fire department concluded that the fire was accidental and was caused by an
electrical space heater and the Bowerses eventually discarded the items. The surviving parent’s
later-retained experts, however, believed that the fire started because of electrical arcing from an
air conditioner power cord “in the area of the sofa.” The parent brought an action against the
landlords’ insurer, alleging that it permitted spoliation of evidence concerning the origin of the
fire (specifically the couch), which evidence might have been needed in an action against the
Bowerses. Noting that the duty to preserve evidence has limits, the American Nat’l court
recognized that the insurer never had possession, much less exclusive possession, of the couch
and that when the Bowerses disposed of the couch, the fire department had determined that the
fire was an accident caused by an electrical space heater.
The Indiana Court of Appeals
ultimately held that the insurer was entitled to summary disposition of the parent’s claim,
“because it owed no duty to [the parents]. Its contractual relationship was with its insured, [the]
Bowers[es]; it never had exclusive possession of the couch . . . .” Id. at 1071. We find the above
reasoning sound.
Affirmed.
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Saad, C.J., concurred.
/s/ Henry William Saad
/s/ Deborah A. Servitto
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