A Tale of Two Cases: The Continued Development of Claims of Spoliation

1. A Tale of Two Cases: The Continued Development of Claims of Spoliation Scott L. Howie Donald Patrick Eckler Pretzel & Stouffer, Chartered One South Wacker, Suite 2500 Chicago, IL 60606 312-346-1973

2. Both cases concerned claims against insurers for allegedly not preserving evidence. The Combs court held that the plaintiff has not alleged sufficient facts to establish that any defendant had a duty to preserve evidence. The Skridla court held that the plaintiff breached the statute of limitations, which court held was 2 years. Combs v. Schmidt, 2015 IL App (2d) 131053 Skridlav. General Motors, 2015 IL App (2d) 141168

3. Basics of the tort of spoliation Illinois courts do not recognize spoliation as an independent tort. Martin v. Keeley & Sons, Inc., 2012 IL 113270, ¶26; Martin, 2012 IL 113270, ¶26; Boyd v. Travelers Ins. Co., 166 Ill.2d 188, 194 (1995). The general rule in Illinois is that there is no duty to preserve evidence. Martin, 2012 IL 113270, ¶27. Spoliation is a form of negligence, and spoliation claims are analyzed under a negligence framework. Boyd, 166 Ill. 2d at 194–95; Andersen v. Mack Trucks, Inc., 341 Ill. App. 3d 212, 215 (2nd Dist. 2003).

4. Basics of the tort of spoliation Under that framework, a plaintiff must show 1) that the defendant in a spoliation case owed a duty to the plaintiff to preserve the evidence that was allegedly lost or destroyed, 2) that the defendant breached that duty by losing or destroying the evidence, 3) that the loss or destruction of evidence was the proximate cause of the plaintiff inability to prove an underlying lawsuit, and 4) that the plaintiff suffered actual damages. Martin, 2012 IL 113270, ¶27.

5. The Supreme Court of Illinois “tailored the duty element to spoliation claims” in Boyd by setting forth a two-prong test. Dardeen v. Kuehling, 213 Ill.2d 329 335–36 (2004) citing Boyd, 166 Ill. 2d at 195. The first prong requires the plaintiff to show that a duty arose through a contract, agreement, statute, or other special circumstance, or through the defendant’s voluntary assumption of such a duty by affirmative conduct. Boyd, 166 Ill.2d at 195. Indeed, Illinois courts have held that requesting that evidence be preserved does not create a duty for the defendant to preserve evidence. In Andersen, 341 Ill. App. 3d at 217, the Court held “[w]e decline to hold that a mere request that a party preserve evidence is sufficient to impose a duty absent some further special relationship.”

6. If the plaintiff satisfies the relationship prong, the plaintiff must still show that “a reasonable person in the defendant’s position should have foreseen that the evidence was material to a potential civil action.” Id. There is no need to consider the second prong, foreseeability, if the plaintiff fails to establish the needed relationship. Dardeen, 213 Ill. 2d at 335 citing Andersen, 341 Ill. App. 3d at 215.

7. In Martin, the Illinois Supreme Court rejected the argument that the status of a potential litigant might satisfy the foreseeability prong. Specifically, the Court held that Shimanovsky v. General Motors Corporation, 181 Ill.2d 112 (1998), which dealt with sanctions under Rule 219(c) for the destruction of evidence, that potential for future litigation was not sufficient to impose a tort duty in a spoliation action. Martin, at ¶¶ 49-51.

8. In addition, insurers would never be a party to a lawsuit brought by the plaintiffs because such direct actions against insurers are against Illinois public policy. Zegar v. Sears Roebuck & Company, 211 Ill. App. 3d 1025, 1027-1028 (1st Dist. 1991).