Stubli v. Big D International Trucks, Inc.

810 P.2d 785, 107 Nev. 309, 1991 Nev. LEXIS 49
CourtNevada Supreme Court
DecidedApril 30, 1991
Docket20260
StatusPublished
Cited by30 cases

This text of 810 P.2d 785 (Stubli v. Big D International Trucks, Inc.) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stubli v. Big D International Trucks, Inc., 810 P.2d 785, 107 Nev. 309, 1991 Nev. LEXIS 49 (Neb. 1991).

Opinions

[310]*310OPINION

By the Court,

Young, J.:

This is an appeal from an order, entered as a sanction pursuant to NRCP 37, dismissing appellant’s complaint due to appellant’s failure to preserve evidence. For the reasons expressed below, we affirm.

FACTS

On June 27, 1984, Appellant Lawrence Stubli, a self-employed truck driver, was involved in a single vehicle accident while driving his tractor-trailer rig on Interstate 80 in Wyoming. The accident occurred when the rig went off the highway into the median and rolled onto its right side. The damaged trailer was subsequently stored at a wrecking yard in Rock Springs, Wyoming.

Stubli’s 45-foot refrigerator trailer was manufactured by respondent The Budd Company (Budd) and purchased by Stubli in 1981. Stubli claims that, from the outset, he experienced misalignment problems with the trailer’s suspension system. As [311]*311an apparent consequence of these problems, one of the suspension system components, the right front “springhanger,” eventually separated from the trailer frame. Respondent Big D International Trucks (Big D) of Reno, Nevada, repaired the broken springhanger by welding it back to the trailer frame in December of 1983.

Following the accident, Stubli submitted a claim to his insurer, Northwestern National Insurance Company (Northwestern). The claim was handled by WRG Claims Management (WRG) of Milwaukee, Wisconsin, and investigated by Mark Ingersoll of Idaho Intermountain Claims. During the investigation and pursuant to WRG’s instructions, Ingersoll retained a mechanical engineer, Dr. Rudi Limpert, to inspect the trailer wreckage for mechanical defects before it was discarded as salvage.

After examining and photographing the damaged trailer, Lim-pert submitted the photographs and a detailed report of his findings to Ingersoll on September 20, 1984. In his report, Limpert opined that the right front springhanger had “fractured from the frame,” causing the right front dual wheels of the trailer to move backward and to lock up against the right center springhanger, which in turn caused the center springhanger to tear partially from the frame resulting in a similar rearward displacement of the right rear dual wheels. This sequence of events, concluded Lim-pert, caused the rear of the trailer to steer to the right, the tractor to steer to the left, and thus forced the entire rig into the median where it crashed. Limpert further concluded that the cause of this catastrophe was an inadequate weld repair job by Big D.

After receiving this information, Northwestern retained Ohio attorney John McCarthy, who was also representing Stubli’s interests in the matter, to handle its subrogation claim. In an October 30, 1984 letter confirming McCarthy’s retention, a Northwestern representative, J. C. Partleton, informed McCarthy that the trailer wreckage was in storage, that it would remain in storage until “all interested parties have had a chance to examine it,” and that Budd and Big D should be notified that Northwestern planned to assert a subrogation claim. In a January 18, 1985 letter to McCarthy, Northwestern Claim Supervisor Harold Gross advised McCarthy that fees for storing the trailer would soon surpass the trailer’s salvage value. Thus, Gross requested that McCarthy expedite any additional inspections and inquired whether “there would be any harm in inviting [Budd] to inspect” the trailer.

Neither Budd nor Big D received such an invitation to inspect the wreckage. Instead, McCarthy instructed Limpert by letter dated February 6, 1985, to go to the storage area and “disengage the bogie (sliding axle assembly) and transport the same to your [312]*312storage facility.” In turn Limpert instructed his assistant, a Mr. Andrews, to “go out and get the failed part.” Andrews then had a storage yard worker sever the right front springhanger, and that portion of the trailer frame from which the front springhanger had separated, from the remainder of the trailer. By letter dated February 18, 1985, Limpert advised McCarthy that the “slider assembly and associated parts” had been removed and placed in Limpert’s storage facility.

On February 22, 1985, McCarthy referred Stubli’s case to counsel in Reno, Nevada. On March 8, 1985, McCarthy informed Ingersoll that Limpert had removed “the basic assembly that we’re concerned with as it relates to the development of a product liability defect,” and advised Ingersoll that it was no longer necessary to store the trailer. As a result, the trailer wreckage, except for the front springhanger and frame section in Limpert’s custody, was discarded as salvage.

On May 14, 1985, Stubli filed a complaint against Big D in Washoe County, Nevada. On April 18, 1986, Stubli filed an amended complaint alleging that his damages to person and property were caused by Big D’s inadequately performed weld repair, and Budd’s defectively designed trailer. Despite discovery efforts by Big D as early as September 1985, Limpert’s report and photographs were not provided to respondents until August of 1988. At that time, respondents also learned that the trailer wreckage, less those portions in Limbert’s custody, had been discarded.

Big D thereafter filed the instant motion to dismiss pursuant to NRCP 37. Budd joined in the motion. Attached to the motion were the affidavits of two defense experts. Those experts claimed that, rather than failing prior to the crash, the front springhanger may well have fractured as a result of the crash impact. The experts further asserted that appellant’s failure to preserve the trailer, specifically the partially torn center springhanger and corresponding frame section, tires, axle bearings and torque rod bushings, had made it impossible for respondents to establish their defense theory. Respondents’ motion was submitted and on July 6, 1989, the district court entered an order granting the motion. This appeal followed.

DISCUSSION

Selection of a particular sanction for discovery abuses under NRCP 37 is generally a matter committed to the sound discretion of the district court. See, e.g., Fire Ins. Exchange v. Zenith Radio Corp., 103 Nev. 648, 649, 747 P.2d 911, 912 (1987); [313]*313Kelly Broadcasting v. Sovereign Broadcast, 96 Nev. 188, 192, 606 P.2d 1089, 1092 (1980). However, we have recently held that a somewhat heightened standard of review shall apply where the sanction is one of dismissal with prejudice. Young v. Johnny Ribiero Building, 106 Nev. 88, 787 P.2d 777 (1990).

In Young, we held that the discovery sanction of dismissal must be just and must relate to the claims at issue in the discovery order which has been violated, that dismissal should be imposed only after careful consideration of all relevant factors, and that the order of dismissal must be supported by an express, careful and preferably written explanation of the district court’s analysis. Young, 106 Nev. at 92-93, 787 P.2d at 779-80. We also set forth a non-exhaustive list of factors which a court may properly consider in deciding whether dismissal is an appropriate sanction.

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Stubli v. Big D International Trucks, Inc.
810 P.2d 785 (Nevada Supreme Court, 1991)

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Bluebook (online)
810 P.2d 785, 107 Nev. 309, 1991 Nev. LEXIS 49, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stubli-v-big-d-international-trucks-inc-nev-1991.