Howard v. Alegria

739 S.E.2d 95, 321 Ga. App. 178, 2013 Fulton County D. Rep. 646, 2013 WL 1137026, 2013 Ga. App. LEXIS 186
CourtCourt of Appeals of Georgia
DecidedMarch 13, 2013
DocketA12A1883
StatusPublished
Cited by17 cases

This text of 739 S.E.2d 95 (Howard v. Alegria) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Howard v. Alegria, 739 S.E.2d 95, 321 Ga. App. 178, 2013 Fulton County D. Rep. 646, 2013 WL 1137026, 2013 Ga. App. LEXIS 186 (Ga. Ct. App. 2013).

Opinion

Ellington, Chief Judge.

In this negligence and personal injury case, the defendants, AAA Cooper Transportation, Inc. (“ACT”), Ace American Insurance Company (“AAIC”), and Robert Lee Howard, Jr. (collectively, “the appellants”), appeal from the trial court’s order, which denied their motion to withdraw an admission in judicio and sanctioned them for discovery abuse.1 In its order, the court struck the appellants’ joint answer and counterclaim as a sanction for intentionally destroying material evidence, for committing fraud on the court and the plaintiff, and for intentionally filing false responses to discovery requests. The appellants contend that the court erred in concluding that they wilfully committed discovery abuse, fraud, or spoliation of evidence and that it abused its discretion in denying their motion to withdraw and in striking their answer and counterclaim as a sanction for their alleged misconduct. For the following reasons, we affirm the trial court’s order.

1. The appellants contend that the trial court erred in finding that they wilfully and intentionally provided false discovery responses, abused the discovery process, and committed fraud on the court. They argue that the court ignored evidence that they acted reasonably under the circumstances and that the alleged improprieties were unintentional and the result of inadvertent acts or mistakes.

“In determining whether a party has abused discovery, the trial court sits as trier of fact, and this Court will uphold a finding of wilful discovery abuse if there is any evidence to support it.” (Citation and punctuation omitted.) City of Griffin v. Jackson, 239 Ga. App. 374, 377 (1) (520 SE2d 510) (1999). Moreover, the imposition of a sanction for failure to comply with discovery provisions of the Civil Practice Act does not require that a party displays, and the trial court finds, actual wilfulness; instead, it requires at least a conscious or intentional failure to act, as distinguished from an accidental or involuntary noncompliance. Id.; sqq Resource Life Ins. Co. v. Buckner, 304 Ga. App. 719, 734-735 (4) (698 SE2d 19) (2010) (while actual wilfulness is [179]*179not required for the imposition of a sanction, the presence or absence of wilfulness remains relevant to the choice of sanction).

In this case, the relevant, undisputed facts are as follows. On September 10, 2008, plaintiff/appellee Alan Alegria was driving his pickup truck on Interstate 20 in Greene County when he lost control of his truck. The truck swerved onto the shoulder and then back onto the highway before coming to a stop in the right eastbound lane of the interstate. Shortly thereafter, a tractor trailer owned by ACT and being driven in that lane by Howard collided with the plaintiffs truck. During the collision, the plaintiff sustained severe, permanent injuries.

On September 16, six days after the collision, ACT’s claim manager, Jerry Hill, sent an e-mail to ACT employees notifying them that, “in anticipation of a law suit,”2 the tractor trailer involved in the collision should be “grounded]” and asking them to send him copies of personnel records, driver logs, maintenance records, and numerous other documents related to Howard, the tractor trailer, or the materials Howard was transporting at the time of the collision. A few days later, Hill received a letter (the “spoliation letter”) from the plaintiff’s attorney requesting information about “every known policy of insurance” held by ACT that was pertinent to the collision, including excess liability insurance and umbrella coverage. The spoliation3 letter also advised ACT to preserve and maintain the tractor trailer’s post-collision condition, “any downloadable computer data” from the tractor trailer’s computer system, several specific business records and documents relating to Howard’s employment, the tractor trailer, and/or the collision, and all other material that was, or may be, relevant to the incident.

In September 2010, the plaintiff filed a personal injury complaint against Howard, as the driver of the tractor trailer; ACT, as the owner of the tractor trailer and as Howard’s employer; and AAIC, ACT’s liability insurance provider. The appellants filed a joint answer and a counterclaim against the plaintiff, asserting that the plaintiff’s negligence in failing to maintain control of his car caused the collision and resulted in damage to the tractor trailer.

During discovery, the plaintiff sent ACT requests for admissions, interrogatories, and requests for the production of documents. In [180]*180November 2010, ACT responded4 as follows: it denied having an excess liability or umbrella insurance policy; it admitted that it had begun repairing the tractor trailer on September 15, 2008, five days after the collision, adding that the repairs were performed “as a result of the accident caused by Plaintiff’s negligence”; and it stated that most of the requested documents “have been destroyed pursuant to [ACT’s] six (6) month record retention policy.” Further, ACT responded “no” to both of the following interrogatories: “Please state whether the tractor trailer involved in the collision contained or utilized an on-board recording device, an on-board computer, tachograph, trip monitor, trip recorder, trip master, or device known by any other name which records the information concerning the operation of the truck[,]” and “Was a tracking device, recording device and/or GPS or Black Box device in or on the [tractor trailer] on 09/10/08?”5 (Emphasis supplied.) Finally, in response to a request for

[c]opies of any and all printouts of any on-board recording device and on-board computer, tachograph, trip monitor, trip recorder, trip master, or device known by any other name which records information concerning the operation of the truck for the thirty (30) days before the collision through and including thirty (30) days after the collision,

ACT responded that it had “no responsive documents” to that request. (Emphasis supplied.) In fact, a month later, ACT repeated these denials in response to an e-mail from the plaintiff’s counsel requesting clarification of the company’s discovery responses.

In March 2011, the plaintiff’s attorney sent a letter to the defendants’ counsel expressing concerns about the responses to the requests for production and warning the defendants that they had ten days to either produce the requested documents or at least confirm that the documents had been irrevocably destroyed, and, if they failed to comply, he would file a motion to compel. In an e-mailed response, the defendants’ counsel produced a few of the requested documents.

Then, in April 2011, the plaintiff deposed Hill, ACT’s claims manager and the employee who had verified ACT’s responses to [181]*181interrogatories. Although Hill initially stated that he did not remember whether he had received a spoliation letter from the plaintiff in September 2008, he later admitted that he had received the letter. Hill also admitted that he had immediately anticipated that the collision may result in litigation and, as a result, he had attempted to collect relevant documents from others in the company so they could be preserved, even before he received the spoliation letter.

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Bluebook (online)
739 S.E.2d 95, 321 Ga. App. 178, 2013 Fulton County D. Rep. 646, 2013 WL 1137026, 2013 Ga. App. LEXIS 186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-v-alegria-gactapp-2013.