• Spoliation of Evidence in Fire Cases: Insurers Better Be Careful
  • October 26, 2009 | Authors: Kevin Cox; Paul N. Farquharson
  • Law Firm: Semmes, Bowen & Semmes, A Professional Corporation - Baltimore Office
  • Erie Insurance Exchange v. Davenport Insulation, nc., No. L-08-33 (D. Md. September 30, 2009)

    This case concerns a fire at a residential home and spoliation of evidence. The origin of the fire was the fireplace. During the time that the firefighters were extinguishing the fire they tore apart much of the fireplace. Debris was scattered throughout the house and the metal firebox had been torn out and deposited in the master bedroom.

    Due to the nature of the fire, the insurer of the home, Plaintiff Erie Insurance Exchange ("Erie"), immediately began to seek potential subrogation targets. Erie sued its sole subrogation target, Defendant Builder Services Group, Inc. ("BSG"), for negligent installation of the fireplace.

    Even though Erie immediately recognized that this could be a subrogation claim, less than three months after the fire, all of the physical evidence had been destroyed. The evidence was clear that Erie's adjuster did not take any affirmative steps to protect the evidence. By the time that the restoration of the home was complete, Erie had still not provided any notice to any potential subrogation target. In fact, BSG did not receive notice of the possible subrogation claim until over one year after restoration of the home was complete. Erie had originally tried to go after the general contractor of the home, Bay Country Builders, as a subrogation target; however, Erie quickly learned that it was Bay Country Builders' insurer as well.

    Erie had hired three experts to determine the fire's origin: (1) a fire and arson investigation consultant; (2) an electrical engineer; and (3) a mechanical engineer. The electrical engineer opined that the fire was not caused by a defect in the wiring or by an appliance malfunction. The fire and arson investigator opined that the clearances between the firebox and the supporting wooden framework were too tight, allowing excessive heat to be radiated from the metal firebox and to the wooden supports (i.e. the "clearance theory"). The mechanical engineer rejected the "clearance theory" and concluded that the fire started because a metal safety strip was not installed between the fireplace and the wooden base of the hearth extension (i.e. the "safety strip theory"). The fire, therefore, had no obvious and incontrovertible origin. The experts, however, eventually settled on the theory that BSG, the firebox installer, omitted a safety strip designed to protect the wooden framing from burning embers. The alleged omission of the safety strip and the fact that the fireplace was discarded shortly after the fire was the heart of the spoliation of evidence defense asserted by BSG.

    Because the fireplace was discarded shortly after the fire, there was no direct evidence of whether BSG had installed the firebox with a metal safety strip. To the contrary, however, there was indirect evidence that one was installed. When the house was built in 1999, the general contractor, Bay Country Builders, fabricated the framing for the fireplace and hired BSG, a sub-contractor, to install the firebox. BSG's employee who installed the firebox stated that he always places a metal safety strip between the edge of the firebox and the plywood base to prevent embers from igniting the plywood. Additionally, the building inspector inspected and passed the fireplace and the insureds used the fireplace for over five years without incident.

    In making its decision as to whether BSG was entitled to summary judgment because the only evidence of its alleged negligence had been destroyed, the court found the following noteworthy: (1) Erie had the means to track down and notify BSG before the fire scene was destroyed, thus it did not have an excuse for its long delay in notifying BSG; (2) Erie's experts were careful not to remove any physical evidence from the site which demonstrated that they appreciated that any subrogation target would want the opportunity to inspect the scene before it was disturbed; and (3) no independent third-party investigated the fire, its origin, and its cause, thus, the only record that existed was created by agents retained by Erie.

    The controlling case on spoliation of evidence in the Fourth Circuit is Silvestri v. General Motors Corp., 271 F.3d 583 (4th Cir. 2001), which posits an either/or test. Dismissal is warranted if either the spoliators conduct was so egregious to make forfeiture of its claim and apt remedy, or if the loss of the evidence is so prejudicial that it substantially denies the defendant the ability to defend the claim. In this case, both prongs of the test were satisfied.

    Erie's conduct was so egregious because it did not take any steps to preserve the fire scene or to seasonably notify a potential subrogation target. The court found that this lapse could only be characterized as negligent. Moreover, the court found that the evidence spoliation irreparably prejudiced BSG's case. Specifically, the court found that if BSG had been put on seasonable notice of the fire, it would have been able to search the debris of the fire for the safety strip that Erie claimed did not exist and was not installed. In addition, the destruction of the fire scene deprived BSG of the opportunity to establish defenses such as that the clearance theory may have been correct and/or that the fire may have been caused by an electrical problem.

    Because dismissal of the case met the either/or Silvestri test, the court held that summary judgment in favor of BSG was the only appropriate sanction given Erie's negligent actions. The court further found that a jury spoliation instruction would not have leveled the playing field because BSG would still have been required to rely on a record compiled almost exclusively by Erie's experts.