Cambridge Mutual Fire Insurance Company v. Fox Heating Service, Inc. (2014)

MEMORANDUM OF DECISION ON DEFENDANT FOX HEATING SERVICE, INC.'S MOTION TO STRIKE

I. INTRODUCTION

This matter arises out of the defendant's alleged spoliation of a water heater, which the plaintiff claims was vital evidence for the plaintiff's impending claims against the product manufacturer, seller, and/or installer.   On September 13, 2013, the plaintiff, Cambridge Mutual Fire Insurance Company, filed an amended complaint against the defendant, Fox Heating Service, Inc., alleging that the defendant unilaterally, intentionally, and in bad faith disposed of the defective water heater, thereby foreclosing the plaintiff from any causes of action it may have had with regard to the defective product.   The plaintiff does not allege that the defendant manufactured, sold or installed the water heater.

Before the court is the defendant's motion to strike the plaintiff's amended complaint on the grounds that an independent cause of action for third-party spoliation has not been recognized in Connecticut, and even if recognized, no such claim has been properly alleged here.   The plaintiff has objected to the defendant's motion to strike, arguing that Connecticut does recognize such a cause of action.   Moreover, the plaintiff argues that it has sufficiently pled each element necessary to establish a claim for intentional spoliation of evidence.

II. RELEVANT FACTS AND ALLEGATIONS

The plaintiff alleges the following facts, which are accepted as true for purposes of this motion.   In August 2011, Carl and Nadine Dalbon's (the insureds) property, which was insured by the plaintiff, was extensively damaged as a result of a failed water heater.   Upon discovering the damage, the insureds contacted the defendant to come to the property and inspect the water heater.   After inspection, the defendant informed the insureds that the failure of the water heater was covered by warranty.   Thereafter, the defendant replaced the damaged water heater, took possession of it, and disposed of it.   Pursuant to the manufacturer's warranty, prior to honoring its warranty obligation, the manufacturer maintained the right to examine the allegedly defective water heater.   As a result of the defendant's disposal of the water heater, however, no such examination could be conducted.

The plaintiff alleges that the defendant's disposal of the water heater constitutes intentional spoliation of evidence.   That is, the defendant knew or should have known that there existed an impending civil action involving the insureds for which the water heater would need to be preserved as evidence, and that the plaintiff intentionally, and in bad faith, destroyed the evidence.   The plaintiff further alleges that the defendant's disposal of the water heater has deprived the plaintiff of its ability to recover the payments made to its insureds for damage caused by the failure of the water heater.

III. LEGAL STANDARD

The standard for ruling on a motion to strike is well established.  “The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”   (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).   Nevertheless, “[a] complaint which alleges conclusions of law that are unsupported by the facts alleged may be stricken.”  Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011).

IV. DISCUSSION

A. Intentional Spoliation of Evidence

In Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 905 A.2d 1165 (2006), our Supreme Court held intentional, first-party spoliation to be a valid cause of action.  “Intentional spoliation of evidence is defined as the intentional destruction, mutilation, or significant alteration of potential evidence for the purpose of defeating another person's recovery in a civil action ․ [T]he tort of intentional spoliation of evidence consists of the following essential elements:  (1) the defendant's knowledge of a pending or impending civil action involving the plaintiff;  (2) the defendant's destruction of evidence;  (3) in bad faith, that is, with intent to deprive the plaintiff of his cause of action;  (4) the plaintiff's inability to establish a prima facie case without the spoliated evidence;  and (5) damages.”  (Citations omitted;  internal quotation marks omitted.)  Id., pp. 243–45.

“A first party [defendant] spoliator is a party to the underlying action who has destroyed or suppressed evidence relevant to the plaintiff's claims against that party.”  (Internal quotation marks omitted.)   Id., 234 n.5. In deciding whether to recognize the tort of intentional spoliation of evidence, the court in Rizzuto considered a number of factors.  “The key factors were the presence of other remedies for destruction of evidence, the difficulty of proving spoliation of evidence, the difficulty of proving damages, the increased burden on possible defendants of saving every piece of potential evidence, and the possibility of numerous spoliation of evidence claims arising in the course of litigation and confusing juries.”   Prada v. Bova, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–12–6014139–S (January 30, 2013, Adams, J.T.R.) [55 Conn. L. Rptr. 451].  “The underlying premise for recognition of [the tort of intentional spoliation of evidence] is that a victim of spoliation is entitled to recover compensatory, and possibly punitive, damages for the loss of a prospective lawsuit.   The ineffectiveness of judicial sanctions in deterring spoliation prompted, in part, the recognition of this tort ․ The spoliation tort protects a litigant's interest in bringing a prospective cause of action by compensat[ing] the non-spoliating litigant for uninvited interference with the prospective lawsuit resulting from destroyed evidence.”  Rizzuto v. Davidson Ladders, Inc., supra, 280 Conn. 236.

Our appellate courts, however, have expressed no opinion as to whether this state recognizes a cause of action for intentional, third-party spoliation of evidence.  “A third party defendant spoliator ․ is oftentimes a stranger to the underlying litigation, but ․ is alleged to have destroyed evidence relevant to the plaintiff's causes of action against another defendant ․ [I]n other words, a third party spoliator is a party not alleged to have committed the underlying tort as to which the lost or destroyed evidence related ․ We express no opinion as to whether this state recognizes a cause of action for third-party spoliation of evidence.”  (Citations omitted;  internal quotation marks omitted.)   Id., 234 n.5. Although our appellate courts have not determined whether intentional, third-party spoliation is actionable in this state, since the Supreme Court decided Rizzuto, our superior courts have consistently held that it is.  “In [Diana v. NetJets Services, Inc., 50 Conn.Sup. 655, 974 A.2d 841 [44 Conn. L. Rptr. 696] (2007) ], the court, Bellis, J., allowed a third-party spoliation claim on the ground that such a claim addresses the same concerns that led the Supreme Court to recognize first party spoliation in Rizutto.   The court further noted that the defined elements of intentional spoliation protect potential third-party spoliation defendants from excessive burden.”   Krayeske v. Boyle, Superior Court, judicial district of Hartford, Docket No. CV–13–5036724–S (September 11, 2013, Peck, J.) [56 Conn. L. Rptr. 816].¹  The reasoning in Diana is persuasive.

A third-party, intentional spoliation of evidence claim would be the only avenue left for the plaintiff to recover the damages it may have recovered had the manufacturer of the water heater inspected the water heater and honored the warranty.   Additionally, if the plaintiff was able to plead sufficient facts to support a cause of action for intentional spoliation of evidence, it would not be too difficult or speculative to determine damages, as the plaintiff could fairly easily demonstrate the cost of replacing the water heater, as well as the cost of fixing the resulting water damage.   Furthermore, recognition of the tort is a necessary deterrent to the collusive destruction of evidence.   Where the defendant knows that a pending or impending action exists and intentionally takes steps to defeat the claim, the defendant should not be shielded from liability for such conduct.   Finally, this court recognizes that the high burden of proof described in Rizzuto limits its applicability, thereby protecting potential third-party spoliation defendants from excessive burden.   Consequently, this court agrees that a plaintiff may pursue a claim for intentional spoliation of evidence by a third party where the complaint alleges facts that meet the five elements set forth in Rizzuto.

In the present case, the defendants argue that even if this court recognizes an independent cause of action for intentional spoliation of evidence, the plaintiff's claim is still legally insufficient because it has not alleged facts to support its allegation that the spoliation was done intentionally and in bad faith.   This court agrees.

Connecticut is a fact pleading jurisdiction.  Practice Book § 10–1;  see also Bridgeport Harbour Place I, LLC v. Ganim, supra, 303 Conn. at 214 n.7. The pleading party cannot merely set forth conclusions of law without alleging facts which would bring the case within any of the recognized grounds for that particular cause of action.  Cavallo v. Derby Savings Bank, 188 Conn. 281, 283, 285, 449 A.2d 986 (1982).  “Whether bad faith is adequately pled must be determined on a case by case basis.”   Gurevitch v. James River Ins. Co., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X10–CV–12–6016794–S (July 3, 2013, Dooley, J.).   Although the specificity required where bad faith is alleged has not been addressed in the context of intentional spoliation claims, it has been discussed in the context of breach of the covenant of good faith and fair dealing claims.

A review of decisions of the trial courts in this state reveals that the majority have held that where bad faith is alleged, “a plaintiff is required to plead factual specificity as to how the defendant's actions were done in bad faith and in what manner the conduct was done with ill purpose ․ See, e.g., Martin v. Am. Equity Insurance Company, 185 F.Sup.2d 162 (D.Conn.2002) (mere conclusory allegations are an inadequate bases for an inference of bad faith);  Brouillard v. United Illuminating Co., Superior Court for the Judicial District of New Haven, Dkt. No. 98–0418595 (June 1, 1999) (Silbert, J.) (allegation that defendant omitted to include its credit reporting policies in service agreement coupled with conclusory allegation that information provided to credit reporting agency was adverse and fraudulent was inadequate);  Crespan v. State Farm Mutual Auto Insurance Co., Judicial District of Litchfield, Dkt. No. 05–4002121 (January 13, 2006) (Pickard, J.) (Despite multiple allegations of improper conduct by the insurer, the complaint did not rise to the level necessary to sustain a claim of bad faith as it lacked any allegation of “some interested or sinister motive or dishonest purpose”);  Liquore v. Assurance Co. Of America, Judicial District of New London, Dkt. No. 01–0124151 (March 19, 2002) (McLachlan, J.) (allegations that the insured failed to act promptly, failed to cover a claim and failed to defend and indemnify, were insufficient as to a claim of bad faith).  Id. This court finds the majority view persuasive.

Similarly, the degree of specificity demanded by this state's fact pleading standard has been addressed in the context of recklessness claims.   Although, again, the issue has not been addressed at the appellate level and there has been a split of authority among our superior courts,² this court agrees with the view that when recklessness is alleged, the plaintiff must “plead the specific conduct that is reckless, above and beyond what must be pleaded for mere negligence ․ [T]he reiteration of facts previously asserted to support a cause of action in negligence, without more, cannot be transformed into a claim of reckless misconduct [by mere] nomenclature.”  (Citations omitted;  internal quotation marks omitted.)   Harkless v. Lynwood, Superior Court, judicial district of New Haven, Docket No. CV–11–6019548–S (August 13, 2012, Wilson, J.).

The same analysis is applicable here.   In order for the plaintiff to support a cause of action for intentional spoliation of evidence, the plaintiff must allege specific facts from which the court could infer that the defendant's conduct was intentional and done in bad faith, rather than just negligent.

In its amended complaint, the plaintiff makes conclusory allegations that are unsupported by the facts alleged.   Put another way, the plaintiff has simply stated the elements necessary to establish an intentional, third-party spoliation claim without providing facts to support its contentions.   Specifically, the plaintiff alleges that the defendant “unilaterally and willfully disposed of the water heater without the consent or knowledge of the insured or the plaintiff in bad faith.”   The plaintiff, however, fails to allege any facts from which the court could infer that the defendant's actions were done in bad faith with the intent to deprive the plaintiff of its cause of action.   The plaintiff makes no suggestion that the defendant had any relationship with the manufacturer of the water heater, from which the court could infer that the defendant had a motive to prevent a cause of action against the manufacturer.   It does not allege that the defendant would be affected in any way by a cause of action arising from the damage caused by the allegedly defective water heater.   In fact, the plaintiff does not even allege any facts suggesting that the defendant had reason to know that the plaintiff would attempt to pursue a cause of action against the manufacturer of the water heater.   Moreover, even if the court could find that, based on the facts alleged, the defendant should have known that the insurance company would pursue a cause of action against the manufacturer of the water heater, the plaintiff makes no factual allegations that even suggest that the defendant knew that, prior to honoring its warranty obligation, the manufacturer maintained the right to examine the allegedly defective water heater.

Therefore, even construing the allegations in the plaintiff's complaint broadly, the plaintiff has failed to allege any facts that in any way support the plaintiff's legal conclusion that the defendant's actions were done in bad faith with the intent to deprive the plaintiff of its cause of action.

What the plaintiff alleges is essentially a cause of action for negligent spoliation of evidence.   The plaintiff, however, does not argue that it is asserting such a claim, nor does it claim that such a cause of action is even recognized in Connecticut.   Nevertheless, the court will consider whether Connecticut recognizes a third-party claim of negligent spoliation in light of the allegations set forth in the amended complaint.

B. Negligent Spoliation of Evidence

“There is no Supreme Court or Appellate Court authority in the State of Connecticut to support a cause of action for negligent spoliation.”  (Internal quotation marks omitted.)  Embry v. City of Hartford, Superior Court, judicial district of Hartford, Docket No. CV–07–5014615–S (Sept. 13, 2012, Peck, J.).  “Of the few Connecticut superior courts that have addressed the issue, there is no consensus on whether to recognize a cause of action for negligent spoliation of evidence.   Compare [Lage v. Stop & Shop Supermarket Co., LLC, Superior Court, judicial district of New Haven, Docket No. CV 10 6012081 (November 16, 2011, Fischer, J.) (52 Conn. L. Rptr. 878) ] (granting motion to strike count alleging negligent spoliation), with [Basso v. Boston Scientific Corp., Superior Court, judicial district of Fairfield, Docket No. CV 07 60001429 (November 21, 2008, Hiller, J.) (46 Conn. L. Rptr. 642, 645) ] (denying motion to strike count alleging negligent spoliation).”  Id. Of course, even if recognized, such a claim must allege all of the elements of any other negligence claim.   Basso v. Boston Scientific Corp., Superior Court, judicial district of Fairfield, Docket No. CV–07–60001429 (November 21, 2008, Hiller, J.) (46 Conn. L. Rptr. 642, 645);  see also Embry v. City of Hartford, supra.  “An action for negligent spoliation can be stated under existing negligence law without creating a new tort ․ To state a cause of action for negligence, a plaintiff must plead the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, an injury proximately caused by the breach, and damages ․ The general rule is that there is no duty to preserve evidence;  however, a duty to preserve evidence may arise ․ if a reasonable person in the defendant's position should have foreseen that the evidence was material to a potential civil action.”  (Internal quotation marks omitted.)  Id.

The court believes that the key element for purposes of this discussion is duty.  “Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action.   The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual ․ [T]he test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case.”  (Citation omitted;  internal quotation marks omitted.)  Sic v. Nunan, 307 Conn. 399, 406–08, 54 A.3d 553 (2012).   Applying this test here, even if the court were to assume that the defendant should have foreseen the harm its destruction of the water heater would cause to the plaintiff, the plaintiff's claim would still fail if the court concludes that extending liability to the defendant in this particular situation would be contrary to public policy.

In determining, on the basis of a public policy analysis, whether a defendant should be held liable for its alleged negligent conduct in a particular situation, the Connecticut Supreme Court has set out a four-factor test:  “(1) the normal expectations of the participants in the activity under review;  (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants;  (3) the avoidance of increased litigation;  and (4) the decisions of other jurisdiction.”  Jarmie v. Troncale, 306 Conn. 578, 603, 50 A.3d 802 (2012).

With regard to the first factor, it is unreasonable to expect individuals and entities that are strangers to a potential lawsuit to preserve evidence in each and every instance where that individual or entity is aware, or should be aware, that there could be a possible lawsuit.   For instance, creating such a duty would require a mechanic to preserve every broken, damaged, or defective part it removes from a vehicle, because there is a chance that the owner or the owner's insurance company will seek indemnification from the parts manufacturer, the mechanic who installed the part, or the company that engineered the vehicle.   The second factor is inapplicable to this particular situation.   With regard to the third factor, to impose such a duty would be extremely burdensome and would undoubtedly lead to increased litigation, as it would substantially expand the number of potential defendants.   Finally, “[m]ost jurisdictions that have considered the issue have declined to recognize ․ a cause of action [for negligent spoliation of evidence].” ³  Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 547, 773 N.E.2d 420 (Mass.2002).   In light of these factors, this court chooses to follow the majority view and declines to recognize a cause of action for negligent spoliation of evidence.

V. CONCLUSION

For the foregoing reasons, the defendant's motion to strike the plaintiff's complaint is granted.

Bright, J.

FOOTNOTES

FN1. For further authority, see also;  Prada v. Bova, Superior Court, judicial district of Stamford–Norwalk at Stamford.  Docket No. CV–12–6014139–S (January 30, 2013, Adams, J.T.R.) (holding that a cause of action for third-party spoliation is valid because, inter alia, the high burden of proof described in Rizzuto will limit its applicability to a limited number of cases);  Hollingsworth v. Nestle Purina Petcare Co., Superior Court, judicial district of Windham, Docket No. CV–09–6000817–S (July 20, 2010, Riley, J.) [50 Conn. L. Rptr. 327] (holding that Rizzuto sufficiently narrows the class of potential spoliation defendants to those who knowingly and wilfully destroy evidence with the intent to affect the outcome of litigation)..  FN1. For further authority, see also;  Prada v. Bova, Superior Court, judicial district of Stamford–Norwalk at Stamford.  Docket No. CV–12–6014139–S (January 30, 2013, Adams, J.T.R.) (holding that a cause of action for third-party spoliation is valid because, inter alia, the high burden of proof described in Rizzuto will limit its applicability to a limited number of cases);  Hollingsworth v. Nestle Purina Petcare Co., Superior Court, judicial district of Windham, Docket No. CV–09–6000817–S (July 20, 2010, Riley, J.) [50 Conn. L. Rptr. 327] (holding that Rizzuto sufficiently narrows the class of potential spoliation defendants to those who knowingly and wilfully destroy evidence with the intent to affect the outcome of litigation).

FN2. See Alibrandi v. Romero, Superior Court, judicial district of Fairfield, Docket No. CV–08–5017380–S (November 7, 2008, Bellis, J.)..  FN2. See Alibrandi v. Romero, Superior Court, judicial district of Fairfield, Docket No. CV–08–5017380–S (November 7, 2008, Bellis, J.).

FN3. “See Moore v. United States, 864 F.Sup. 163, 164–65 (D.Colo.1994);  Christian v. Kenneth Chandler Constr.   Co., 658 So.2d 408, 413–14 (Ala.1995);  Goff v. Harold Ives Trucking Co., 342 Ark. 143, 150, 27 S.W.3d 387 (2000);  Temple Community Hosp. v. Superior Court, 20 Cal.4th 464, 477–78, 84 Cal.Rptr.2d 852, 976 P.2d 223 (1999);  Cedars–Sinai Med Ctr. v. Superior Court, 18 Cal.4th 1, 17–18, 74 Cal.Rptr.2d 248, 954 P.2d 511 (1998);  Lucas v. Christiana Skating Ctr., Ltd., 722 A.2d 1247, 1250–51 (Del.Super.Ct.1998);  Owens v. American Refuse Sys., Inc., 244 Ga.App. 780, 781, 536 S.E.2d 782 (2000);  Gardner v. Blackston, 185 Ga.App. 754, 755, 365 S.E.2d 545 (1988);  Meyn v. State, 594 N.W.2d 31, 34 (Iowa 1999);  Monsanto Co. v. Reed, 950 S.W.2d 811, 815 (Ky.1997);  Miller v. Montgomery County, 64 Md.App. 202, 214–15, 494 A.2d 761 (1985);  Trevino v. Ortega, 969 S.W.2d 950, 952–53 (Tex.1998);  Austin v. Consolidation Coal Co., 256 Va. 78, 82–84, 501 S.E.2d 161 (1998).   See also Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 215, 734 P.2d 1177 (1987) (declining to recognize tort of spoliation “absent some independent tort, contract, agreement, voluntary assumption of duty, or special relationship” of parties);  Guillory v. Dillard's Dep't Store, Inc., 777 So.2d 1, 4–5 (La.Ct.App.2000);  Panich v. Iron Wood Prods.   Corp., 179 Mich.App. 136, 142–43, 445 N.W.2d 795 (1989);  Elias v. Lancaster Gen. Hosp., 710 A.2d 65, 69 (Pa.Super.1998).”  Id..  FN3. “See Moore v. United States, 864 F.Sup. 163, 164–65 (D.Colo.1994);  Christian v. Kenneth Chandler Constr.   Co., 658 So.2d 408, 413–14 (Ala.1995);  Goff v. Harold Ives Trucking Co., 342 Ark. 143, 150, 27 S.W.3d 387 (2000);  Temple Community Hosp. v. Superior Court, 20 Cal.4th 464, 477–78, 84 Cal.Rptr.2d 852, 976 P.2d 223 (1999);  Cedars–Sinai Med Ctr. v. Superior Court, 18 Cal.4th 1, 17–18, 74 Cal.Rptr.2d 248, 954 P.2d 511 (1998);  Lucas v. Christiana Skating Ctr., Ltd., 722 A.2d 1247, 1250–51 (Del.Super.Ct.1998);  Owens v. American Refuse Sys., Inc., 244 Ga.App. 780, 781, 536 S.E.2d 782 (2000);  Gardner v. Blackston, 185 Ga.App. 754, 755, 365 S.E.2d 545 (1988);  Meyn v. State, 594 N.W.2d 31, 34 (Iowa 1999);  Monsanto Co. v. Reed, 950 S.W.2d 811, 815 (Ky.1997);  Miller v. Montgomery County, 64 Md.App. 202, 214–15, 494 A.2d 761 (1985);  Trevino v. Ortega, 969 S.W.2d 950, 952–53 (Tex.1998);  Austin v. Consolidation Coal Co., 256 Va. 78, 82–84, 501 S.E.2d 161 (1998).   See also Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 215, 734 P.2d 1177 (1987) (declining to recognize tort of spoliation “absent some independent tort, contract, agreement, voluntary assumption of duty, or special relationship” of parties);  Guillory v. Dillard's Dep't Store, Inc., 777 So.2d 1, 4–5 (La.Ct.App.2000);  Panich v. Iron Wood Prods.   Corp., 179 Mich.App. 136, 142–43, 445 N.W.2d 795 (1989);  Elias v. Lancaster Gen. Hosp., 710 A.2d 65, 69 (Pa.Super.1998).”  Id.

Bright, William H., J.