York Ins. Co. v. Snow Flake Holdings

• Court: Superior Court of Maine
• Decided: March 20, 2015
• Docket: CUMcv-14-236
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION Docket No. CV-14-236 ./

YORK INSURANCE CO.,

Plaintiff ORDER ON PLANTIFF'S MOTION v. FOR DEFAULT JUDGMENT ON LIABILITY SNOW FLAKE HOLDINGS, d/b/a/ DOWNEAST ENERGY,

Defendant

Before the court is the plaintiff's motion for default judgment on liability

based on defendant's alleged spoliation of evidence. For the following reasons,

the motion is denied.

Background

Defendant Snow Flake 1 performed annual maintenance on Eugene

Hanscom's house at 94 Old Ocean House Road in Cape Elizabeth. (Pl.'s Ex. Al Annual maintenance includes replacement of the nozzle that feeds heating oil

into the burner for the boiler. (Harrison Dep. 42:12-21; Trudelle Dep. 29:8-11.) On

January 14, 2011, the boiler failed and no longer heated Mr. Hanscom's house.

(Harrison Dep., Ex. 1.) As a result, the pipes froze and caused extensive water

damage to the house. (Id.) A technician for Snow Flake, Richard Harrison,

responded to a service call to the house. (Harrison Dep. 17:1-5.) Mr. Harrison

tested various components on the boiler, which all appeared normal. (Harrison

1 Snow Flake does business as Downeast Energy. 2 Defendant objects to plaintiff's exhibit A because it is an unsworn letter. Dep. 23:6-12.) He then changed the nozzle and the boiler started working

normally again. (Id.)

Plaintiff's representative first contacted defendant by letter dated

February 7, 2011. (Pl.'s Ex. G.) Plaintiff retained an expert, AI Letellier, who

contacted Downeast's service manager, Tim Kiely, about inspecting the nozzle.

(Pl.'s Ex. A.) According to Mr. Letellier's report of June 13, 2011, Mr. Kiely was

not responsive to Mr. Letellier's requests and he was never able to inspect the

nozzle. (Pl.'s Ex. A.) Mr. Letellier spoke to Steven Trudell, an employee of

defendant, about Mr. Kiely's lack of response. Mr. Trudell stated he would ask

Mr. Kiely to call Mr. Letellier. (Pl.'s Ex. A.) Mr. Trudell testified that because he

never heard again from Mr. Letellier, Mr. Trudell assumed Mr. Letellier had the

nozzle. (Trudell Dep. 19: 1-15- 20:1-15.) Mr. Lettelier died in October 2011. (Pl.'s

Ex. F.) The defendant's incident reports mention that the nozzle was defective.

(Pl.'s Exs. E, H.)

Doug Morrell, an officer of defendant, did not recall receiving any oral or

written request to save any evidence from the incident at the Hanscom residence.

(Morrell A££. 3.) Downeast Enegy was sold through an asset sale in May 2012.

(Id.

Plaintiff, as Mr. Hanscom's insurer, reimbursed him for the damage and

states it is now subrogated to Mr. Hanscom's right of action against defendant.

(Am. Compl.

alleges that defendant's technician negligently serviced the furnace in December

2010. Defendant is now unable to locate the nozzle.

2 This case was listed for trial in March and April 2015 on the trial list

mailed to counsel on January 20, 2015. Plaintiff moved for default judgment on

liability on February 4, 2015.

DISCUSSION

The Law Court has not addressed the issue of sanctions for the spoliation

of evidence in a civil case. Town of Winthrop v. Bailey Bros., 2014 Me. Super.

LEXIS 34, at *16 (Mar. 18, 2014). The Superior Court has generally followed the

District of Maine and First Circuit federal cases on the issue. kL; see also Morin v.

Harley-Davidson Motor Co. Group, 2013 Me. Super. LEXIS 174, at *6 (Aug. 6,

2013).

The two goals of the spoliation doctrine are to rectify the prejudice

suffered by the loss of evidence and to deter future conduct leading to a loss of

evidence. Driggin v. Am. Sec. Alarm Co., 141 F. Supp. 2d 113, 120 (D. Me. 2000).

The court must therefore consider: (1) "prejudice to the non-offending party" and

(2) "the degree of fault of the offending party." Id. Because sanctions for

spoliation are primarily remedial in nature, prejudice to the non-offending party

is accorded more weight, absent a showing of willful destruction of evidence. Id.

While a finding of bad faith is not required, some degree of fault on the part of

the offending party makes imposing a sanction more appropriate. Id. at 123.

In Morin, plaintiff alleged that a defect in her motorcycle ignited her jeans,

causing her to crash and suffer injuries. Morin, 2013 Me. Super. LEXIS 174, at *2-5

(Aug. 6, 2013). After leaving the hospital and learning that her jeans were torn

and stained, she had the jeans thrown away. Id. at *4. Defendant moved to

exclude plaintiff's testimony about seeing embers on her jeans moments before

the crash on spoliation grounds because it could not inspect the jeans for burn

3 marks. Id. at *5-6. The court found that defendant was somewhat prejudiced and

that plaintiff had been careless, but declined to impose defendant's requested

sanction because it would be "tantamount to dismissal." Id. at *7-9. The court

specifically noted that "the extent of the prejudice" to defendant was uncertain

because it was unclear what, if any, relevant information could have been

learned by inspecting the jeans. Id. *8.

In this case, similar to Morin, it is difficult to determine the extent to

which plaintiff is prejudiced by defendant's failure to preserve the nozzle. It is

unclear what the nozzle would have shown after three years and whether any

expert would be able to determine if it was defective by examining it. (Heutz

Aff.)

Defendant's culpability in the loss of the nozzle is also difficult to gauge.

Defendant's own incident reports state that the nozzle was defective and caused

the furnace to fail, which suggests that defendant was aware that the nozzle

might be a key item in any litigation. However, plaintiff's own delay in following

up on the request for the nozzle and filing suit has compounded the spoliation

problem. Plaintiff filed its complaint three years and four months after the

incident at the Hanscom home, three years and three months after plaintiff's

representative contacted defendant, and two years and eleven months after the

request to examine the nozzle. During that intervening time, plaintiff's expert

died and defendant went through an asset sale. There is no evidence of any

requests to inspect the nozzle after June 2011. There is also no evidence that

plaintiff ever wrote a letter to defendant requesting that the nozzle be preserved.

4 Finally, plaintiff's only evidence of defendant's wrongdoing is an

unsworn letter written by Mr. Letellier. There is no evidence that defendant

willfully, or even negligently, destroyed the nozzle.

Given these facts, sanctions, and especially the sanction of a default

judgment on liability, are not warranted. The court will leave for trial any

consideration of permitting the fact-finder to draw a permissive negative

inference based on defendant's failure to produce the nozzle. See Testa v. Wal-

Mart Stores, 144 F.3d 173, 178 (1st Cir. 1998) ("district court properly told the jury

that it could (but need not) draw a negative inference if the plaintiff proved by a

preponderance of the evidence that, when Wal-Mart destroyed the documents, it

had notice both of a potential lawsuit and of the documents' relevance to the

claim that underlay such a suit").

The entry is

Plaintiff's Motion for Default Judgment on Liability is DENIED.

Date: March 20, 2015

5 JEFFREY EDWARDS ESQ f' PRETI FLAHERTY BELIVEAU & PACHIOS PO BOX 9546 PORTLAND ME 04112-9546

STEPHEN WADE ESQ SKELTON TAINTOR & ABBOTT 95 MAIN ST AUBURN ME 04212-3200