VOLUME XVIII, NUMBER 2
February, 2006

FROM THE CORNER OFFICE  

Anna D. Torres will be a presenter at the 2006 Property Loss Research Bureau (PLRB) Claims Conference to be held April 2 - April 5, 2006 at the Gaylord Opryland Resort & Convention Center, Nashville , TN. The topic will be Spoliation of Evidence: A Primer.

If you are interested in further information, please do not hesitate to contact us.

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AUTO EXCLUSION OF CGL POLICY BARS COVERAGE FOR ALLEGED NEGLIGENT TRAINING OF EMPLOYEE

In Moises Isaias Choxom v. Bankers Insurance Company , 29 FLW D1728 (Fla. 4 th DCA 2004), the Fourth District Court of Appeal held that a commercial general liability (CGL) policy did not provide coverage on a claim that an employer failed to properly train an employee who left the keys in the ignition. The case arose from a summary judgment entered in favor of Bankers Insurance Company, the CGL insurer.

The facts are as follows: Moye's Irrigation owned a van which it assigned for use to its employee. The employee left the keys in the vehicle and the vehicle unattended.

The vehicle was stolen and the thief negligently operated the vehicle causing an accident which injured two people and killed two people. The issue raised on this appeal was whether there was coverage under a CGL policy which included an exclusion for accidents arising out of the use of an automobile, where the plaintiff claimed that the employer negligently failed to train its employee not to leave the keys in the ignition. In this matter, there was evidence that showed that the employer negligently failed to train the employee by failing to tell him that it was illegal and improper to leave keys in an unattended vehicle. The court stated that the negligent failure to instruct the employee is not independent of the negligent driving, which would trigger the automobile exclusion. As such, the summary judgment was affirmed determining there was no coverage for the subject accident as the automobile exclusion barred coverage for the owner's failure to train the employee not to leave keys in the ignition leading to an accident involving the vehicle.

Anna D. Torres

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SUPREME COURT SETTLES CONFLICT: NO INDEPENDENT CAUSE OF ACTION FOR FIRST PARTY SPOLIATION OF EVIDENCE CLAIM

The Florida Supreme Court recently reviewed the Fourth District's decision in Ronna Martino v. Wal-Mart Stores, Inc. , 835 So. 2d 1251 ( Fla. 4 th DCA 2003), which certified conflict with the Third District's decision in Bondu v. Gurich , 473 So. 2d 1307 ( Fla. 3d DCA 1984), 30 FLW S537 and ruled that a first-party spoliation of evidence claim does not lie where the alleged spoliator and the defendant in the underlying litigation are one and the same. The remedy against a first-party defendant for spoliation of evidence should be the presumptions and sanctions set forth in Public Health Trust of Dade County v. Valcin , 507 So. 2d 596 ( Fla. 1987) as discussed in detail below.

Plaintiff Ronna Martino was injured in March 1997 when the shopping cart she was using collapsed while at the check out line at Wal-Mart. She was purchasing two heavy bags of salt. The cashier told her to lift the bag so that she could scan the price. Martino placed one bag of salt on the top of the shopping cart when the cart collapsed injuring Martino's arm. Martino completed the sale, went home and after she returned home she called the Wal-Mart store, spoke to the assistant manager who advised her to go to the hospital. After her visit to the hospital, Martino returned to Wal-Mart and filled out an incident report. She testified that while at the store, she showed the assistant manager where the shopping cart was in the parking lot and requested that he obtain the videotape of the incident from the surveillance camera in the store.

Martino did not file her lawsuit until August 29, 1999, two years after the incident, basing her claims on negligent maintenance and negligent mode of operation theories. During discovery, Martino requested the shopping cart and a copy of the video surveillance tape. When Wal-Mart could not produce either item, Martino amended her complaint, alleging a separate cause of action for spoliation of evidence. The trial court granted Wal-Mart's motion to dismiss Martino's spoliation of evidence claim on the basis that Wal-Mart had no contractual or statutory duty to preserve the evidence.

The case proceeded to trial on the negligence claim and Martino argued that she was entitled to a jury instruction on the inference of negligence because of Wal-Mart's failure to preserve the evidence. The trial court ruled that Martino was not entitled to an inference of negligence based on the spoliation of evidence and further granted Wal-Mart's motion for directed verdict.

On appeal, the Fourth District concluded that when the defendant who allegedly caused the spoliation of evidence is also the defendant who allegedly committed the underlying tort, the plaintiff cannot maintain a separate cause of action against that defendant for damages based on spoliation of evidence. The Fourth District certified conflict with Bondu , in which the Third District recognized a first party spoliation of evidence claim. Bondu was a medical malpractice case in which the defendant hospital failed to produce Mr. Bondu's medical records. The court found the hospital had both an administrative and statutory duty to maintain and furnish Bondu's records and held that as this duty was breached, causing Mrs. Bondu damages in that she lost her malpractice action, her complaint for spoliation of evidence states a cause of action.

In the instant matter, the Supreme Court only considered the issue on which conflict was certified, (although issues regarding the directed verdict were also presented to the Fourth District): Whether an independent cause of action should exist for first party spoliation of evidence. The court had addressed a similar issue in Public Health Trust of Dade County v. Valcin , 507 So. 2d 596 ( Fla. 1987). In Valcin , the plaintiff sued the defendant hospital for its negligent performance of a sterilization procedure. The Third District found "the lack of an operative report" by the surgeon impaired Valcin's ability to prove a prima facia case of negligence against the hospital. The Third District created a set of presumptions which were to apply so that the plaintiff could still maintain the negligence action despite the absence of this key evidence: if defendant could demonstrate that the loss of evidence was only negligent, a rebuttable presumption that the defendant was negligent was to apply; if the loss was intentional, a conclusive, irrebuttable presumption of negligence would apply.

The Supreme Court in Valcin tempered the Third District's presumptions and held that where the loss of evidence was intentional , trial courts were to rely on sanctions found in Florida Civil Rule of Procedure 1.380(b)(2) and that "a jury could well infer from such a finding that the records would have contained indications of negligence." If the loss of evidence was determined to be negligent , the Third District's rebuttable presumption of negligence applied. However, the presumption only applied when "the absence of the records hinders [the plaintiff's] ability to establish a prima ficie case".

In the instant case, the Supreme Court ruled that no independent cause of action for spoliation exists but rather the remedy against such a first-party defendant for spoliation of evidence should be the Valcin presumption and sanctions, if found to be necessary.

However, in Martino , there was a strong concurring opinion criticizing the majority in ignoring making a finding as to whether Wal-Mart had a duty to preserve or maintain the evidence. This decision failed to address this critical issue but rather leaves the door open to impose severe sanctions and Valcin presumptions without a legal basis in cases where a potential defendant fails to preserve evidence in situations where it has no duty by reason of statute, regulation, court order or discovery rule to preserve the evidence. As Judge Wells noted, this decision may cause "very serious constitutional and practical concerns and issues".

Robin B. Rothman

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APARTMENT COMPLEX HAD A DUTY TO WARN TENANTS ABOUT A KNOWN SEXUAL PREDATOR LIVING IN DEVELOPMENT

In a case with a fairly obvious conclusion, the Fourth District Court of Appeals recently held that the landlord of an apartment complex had a duty to warn tenants about a known sexual predator also living in the apartment complex. The court, however, rejected the concept that the landlord had a duty to investigate the allegations of such a crime. T.W. and K.W. v. Regal Trace, LTD, Milton Jones Development Corp., et al , 30 FLW D 1514 (Fla. 4 th DCA, June 15, 2005).

In March, 2000 a Mr. Hassan Davis sexually assaulted a nine year-old girl in a meter room at an apartment complex owned and managed by Defendant Regal. Davis was himself a resident of the Regal apartment complex. The incident was reported to Regal, who did not warn other tenants about this incident.

Several weeks later, Davis saw T.W. and her two brothers slipping through a fence on their way to school. Davis followed them for three blocks and told the brothers that T.W. would join them later. Davis then took T.W. to an abandoned building (not owned or operated by any of the Defendants) and sexually assaulted her. T.W.'s mother, K.W., filed suit, arguing that Regal had a duty to warn tenants about Davis .

Regal argued that it had no legal obligation to warn the other tenants, in part because the police had allegedly told the apartment complex not to interfere in the investigation of Davis ' original assault on K.G. According to Regal, the police gave this direction because hysteria might result and the complete details of the incident were unclear. The apartment complex further argued that it had no duty to investigate the K.G. incident in order to clear up the confusion.

The court agreed that Regal did not have a legal duty to investigate the K.G. crime, since that was the obligation of the police. However, the court found that the apartment complex had a special relationship (that of landlord and tenant) between itself and its residents. Because there was a special relationship, the apartment complex had a legal duty to warn its tenants about known problems. In this case, because the apartment complex knew of the assault by Davis on K.G., (even if the details were unclear) it was legally required to warn the other residents of the increased risk posed by Mr. Davis.

In short, when adjusting a claim against a landlord who is accused of not providing a warning to its residents about criminal activity, we suggest an investigation of any prior incidents which might have put the apartment complex on notice. If the apartment complex is on notice, we recommend investigation of the types of warnings, if any, provided to the tenants. If the landlord warned the tenants, the T.W . court held that the sufficiency of the warning is typically a question for a jury to resolve.

Mark A. Greenberg