Preserving evidence in the event of an accident is crucial to minimizing one's liability exposure. This is Part 9 in a nine part series of related discussions. The full list of the parts to this series appears following this installment.

Part 9 - The Impact of Failure to Preserve Evidence

In some jurisdictions (e.g. D.C., Florida), spoliation of evidence creates a separate cause of action which can support a separate judgment. If the spoliation conduct is deemed to have risen to a certain level (e.g. "gross negligence"), punitive damages may become available, depending upon the standard for awarding them in a given jurisdiction, when they wouldn't have been available in the underlying tort claim premised upon simple negligence (e.g. driver error).

A separate spoliation claim, and verdict, may also create insurance coverage issues for the offending party. That party's commercial auto insurer may claim that the spoliation conduct did not "arise out of the use of the motor vehicle", and thus is not covered. If the claim results in punitive damages, such damages are often not covered by a negligence-based policy. Indeed, in a number of states, punitive damages are not insurable, on the basis of public policy.

Even in jurisdictions where spoliation does not create a separate cause of action (e.g. Maryland, Virginia), such a finding may result in direct and significant sanctions in a given lawsuit. For example, if the court finds that the opposing party needed the missing evidence in order to prove a certain fact, that fact may be deemed to have been established, and the jury may be instructed to assume it was so established. A finding of spoliation may also result in certain witnesses, or other evidence, of the offending party being excluded. The court might impose the ultimate sanction, by entering judgment against a party based on a finding of spoliation by such party.

Even if direct sanctions, like those noted above, are not imposed, a finding of spoliation can result in an extremely detrimental "inference". The jury may be instructed to "infer" that the missing evidence would have been detrimental to the offending party. That may result in a finding against a party on a given fact. Moreover, it may have a negative "gut equity" impact of having the jury disbelieve and dislike the offending party. That is significant, as credibility and "likeability" of a party is one of the most important factors in any jury trial.

Those representing motor carriers may also affirmatively use spoliation as a "sword". For example, defense counsel should seek to have evidence preserved by a potential plaintiff (e.g. his or her damaged vehicle). The party should also document efforts to obtain the needed evidence (e.g. being refused the opportunity to inspect the adverse vehicle at a salvage yard). That party should also attempt to document the "prejudice" caused by the unavailability of the evidence in question. For example, an expert may be able to testify that the missing evidence was crucial for an important calculation in the case, such as the speed of the vehicles at the time of impact. Any of the sanctions noted above may be awarded on the basis of such spoliation and prejudice.

As is readily apparent from the foregoing discussion, the failure to properly preserve evidence may result in serious adverse consequences. A comprehensive, and well planned out, plan for preserving evidence may avoid such consequences, and significant reduce one's litigation exposure in general.

Conclusion

This series has addressed issues pertaining to "Preservation of Evidence" all the way from the accident scene to the courtroom. One can readily see that there are many pitfalls along the way, with potentially significant consequences. It is, accordingly, crucial for motor carriers, and their claims representatives and counsel, to have a comprehensive plan in place, in advance, in order to avoid potential "spoliation" claims. While such efforts require the use of resources, that "cost" pales in comparison to the potential exposure with which one may be faced in the absence of them.

The "Preservation of Evidence" Series

• Part 1 - At the Scene
• Part 2 - Field Adjuster
• Part 3 - Related Traffic Citations
• Part 4 - Repairs to Equipment Involved
• Part 5 - Internal Company Investigations

• Part 6 - Records Retention
• Part 7 - Electroncially Stored Information
• Part 8 - Dealing With the "Litigation Hold"
• Part 9 - The Impact of Failure to Preserve Evidence"

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