Party Skipping Joint Scene Exam Can't Later Cry "Spoliations"

How many of you have encountered this scenario?   A fire occurs and your investigator’s initial scene exam indicates there is the possibility of subrogation and has identifies a possible culprit.  You stop the scene exam and send a letter to the possible culprit(s) inviting him/her to set up a joint scene exam so their representative can view the fire scene before the area is cleaned out and rebuilt.  The possible culprit (or their carrier) either doesn’t respond or refuses to cooperate in setting a date in the very near future for the joint scene exam.  What do you do?

An intermediate appellate court in New York has held (correctly, I believe) that a party which was given adequate opportunity to inspect a fire scene, but fails to take advantage of that opportunity, has waived any later claim of “spoliation.” [1]  In the summer of 2001, a summer camp in Sullivan County (Catskills) purchased two gas-operated clothes dryers from Wascomat.  Bottini connected the dryers to existing gas lines.  One of the dryers would not work properly.  Bottini shut off the gas to this non-operating dryer and told the camp owner not to use it.  A camp employee put a sign on the dryer telling people not to use it.  However, someone removed the sign and used the dryer anyway.  A fire occurred in August 2001 which started in the laundry room and spread to a nearby dining room.

The camp submitted its claim to Markel Insurance.  Markel put both Bottini and Wascomat on notice of the fire and invited them to inspect the fire scene.  Bottini responded.  Wascomat initially did not respond to Markel’s notice.  Markel notified Wascomat a second time, in October 2001, informing them that any inspection must occur promptly, since restoration of the premises could not be further delayed.  Wascomat responded by stating it did not manufacture dryers.  Markel wrote Wascomat one more time offering a final inspection opportunity; Wascomat did not respond.  The joint evidence exam occurred without Wascomat, and the evidence from the scene (including the dryer and a circuit breaker panel box) were removed and stored. 

In moving for summary judgment, Bottini offered the affidavit of an expert (who had never been to the scene) who argued that bulldozing activity had spoliated the scene.  The court rejected this argument, noting that, while earthmoving equipment was used to extinguish the fire in other areas, no such activity occurred in the area of origin (the laundry room).

Bottini and Wascomat also complained that the correct electrical panel box was not retained.  While a panel box was removed from the scene, it was later learned that the subject dryer had been connected to a different box (which had not been preserved).  The court rejected this spoliation argument as well.  The court noted that defendants’ experts could have discovered the significance of the panel box (i.e., traced wires back from the dryer to the box) had defendants’ experts done so when they were afforded an opportunity to perform a scene exam.  Moreover, the failure to preserve the panel did not prevent defendants’ experts from examining the dryer and from giving an opinion that the dryer was not defective.

Finally, Wascomat argued that the case should be dismissed because the camp was told not to use the dryer yet continued to use it anyways.  They argued the use of the dryer even after being warned not to was an “intervening cause” which barred the claim against Wascomat.  The court dismissed this argument as well.  The court found it was not so “extraordinary” or “unforeseeable” that someone at a summer camp would use a dryer that was somewhat operational even after being told not to.  The question of whether or not the use of the dryer relieved Wascomat of liability is a question that the court felt should best be decided by a jury.

Bottom Line:   You can lead a horse to water but you cannot make him drink.  Likewise, you can invite a suspected culprit to participate in a fire scene inspection, but you cannot force him/her to come.  So long as you document your file that you contacted the suspect multiple times (and used certified mail to show they actually received the notice), any party that fails to or refuses to come to fire scene exam should be later prevented from raising a “spoliation” defense.

[1] Markel Insurance Company a/s/o Chai Lifeline, Inc. v. Bottini et al., Case No.: 517380 (3rd Dept April 3, 2014)