McGrath v. Ward North America, Inc.

955 So. 2d 25, 2007 Fla. App. LEXIS 1477, 2007 WL 403630

• Court: District Court of Appeal of Florida
• Decided: February 7, 2007
• Docket: 3D06-542
• Status: Published

Opinion

955 So.2d 25 (2007)

Randal J. McGRATH, Appellant,
v.
WARD NORTH AMERICA, INC., Appellee.

No. 3D06-542.

District Court of Appeal of Florida, Third District.

February 7, 2007. Rehearing and Rehearing Denied May 3, 2007.

Charles B. Draper, Kissimmee, for appellant.

Atkinson & Brownell, Miami, and Krystina N. Jiron and John Bond Atkinson and Jeremy M. Kissel, for appellee.

Before WELLS and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.

Rehearing and Rehearing En Banc Denied May 3, 2007.

SCHWARTZ, Senior Judge.

In this proceeding, the plaintiff, who was injured when a chair at the Holiday Isle Resort and Marina in Islamorada collapsed under him, raised a claim of actionable spoliation against Ward North America, Inc., the corporate adjuster for Holiday Isle's liability insurer. The basis of the action was that a Ward adjuster took possession of and failed to preserve the chair, purportedly resulting in a reduction of the value of his claim for damages against Holiday Isle. We affirm the dismissal of the action.

Even if, as it must be assumed, the alleged facts are all true, it is apparent that the "spoliation" complained of was committed only by agents or representatives of Holiday Isle, which would give rise, at most, to a presumption of negligence and possible sanctions in the case against the hotel itself, and does not support an independent action for spoliation. See Martino v. Wal-Mart Stores, Inc., 908 So.2d 342 (Fla.2005).

Affirmed.