KENNETH PHILLIPS et al.
OWNERS INSURANCE COMPANY.
MCFADDEN, P. J., BRANCH and BETHEL, JJ.
Phillips ("Phillips") and Cathy Phillips brought
suit against Owners Insurance Company ("Owners")
alleging third-party spoliation of evidence, breach of
contract, promissory estoppel, and negligence. This appeal
follows the trial court's order granting Owners'
motion for summary judgment with respect to Phillips'
claim for third-party spoliation of evidence. Although
Phillips asks us to recognize an independent tort of
negligent third-party spoliation of evidence under Georgia
law, we decline to do so and therefore affirm the trial
court's grant of summary judgment.
this case arises from a decision on Owners' summary
judgment motion, we view the facts in a light most favorable
to Phillips as the non-moving party. Lau's Corp.,
Inc. v. Haskins, 261 Ga. 491, 491 (405 S.E.2d 474)
(1991). So viewed, on May 11, 2013, Phillips was involved in
an auto accident in which his vehicle flipped following a
tire blowout. He sustained severe injuries and required
extensive medical treatment. Phillips held an auto insurance
policy with Owners at the time, and Owners became aware of
the accident and Phillips' injuries a few days later.
Because of the severity of the property damage, the vehicle
was deemed to be a total loss.
vehicle was stored at a garage in Swainsboro, Georgia. In a
May 17, 2013, letter from Phillips' attorney, Owners was
notified that Phillips was investigating the cause of the
accident and that the vehicle needed to be held for that
purpose. An adjuster from Owners later contacted
Phillips' attorney and asked if the vehicle could be
moved to a different garage in Savannah in order to reduce
storage costs. During a May 31, 2013, phone conversation, a
paralegal for Phillips' attorney again spoke with
Owners' adjuster to discuss storage of the vehicle and
preservation of the tires for inspection as part of a
potential products liability suit. During this conversation,
they agreed that Owners would store the vehicle at the
Savannah lot and would notify Phillips' attorney before
moving it. Later that day, Phillips' attorney faxed a
letter to the adjuster confirming the parties'
understanding from the telephone call regarding the
vehicle's storage location and Owners' agreement to
notify Phillips' attorney before making any "change
in the agreed upon storage location of Mr. Phillips'
vehicle." Owners' adjuster received this fax and
placed it in Phillips' claim file. The vehicle was moved
to the Savannah facility, and the adjuster placed a
"seller hold" on the vehicle.
on or around May 20, 2013, in exchange for Phillips'
agreement to execute a power of attorney and transfer the
vehicle's title to Owners, Owners offered to settle
Phillips' property damage claim arising from the
accident. The parties agreed to this settlement on or about
June 12, 2013, and the paperwork settling the property damage
claim was prepared the next day. Phillips signed title to the
vehicle over to Owners a week later.
vehicle remained at the Savannah facility under Owners'
seller hold for nearly a year and a half. In mid-October
2014, the owner of the storage lot indicated to the
Owners' adjuster that Owners would begin incurring
additional storage charges. After receiving that
notification, Owners released the seller hold, and the
vehicle (including the tires) was sold a few days later.
Owners did not notify Phillips or his attorney that the
vehicle had been sold.
December 2014, Phillips' attorney communicated a demand
for damages to the tire manufacturer. In response to a
request from the tire manufacturer, Phillips' attorney
contacted Owners' adjuster in February 2015 to procure
the damaged tire from Phillips' vehicle. This was
apparently the first communication between Phillips (through
his attorney) and Owners regarding the vehicle since the
title to the vehicle was transferred to Owners, and it was
the first time Phillips' attorney became aware that the
vehicle had been sold.
later brought suit against the tire manufacturer, and the
parties reached a settlement on the claim for a portion of
Phillips' medical expenses from the accident. Claiming
that the sale of the car foreclosed Phillips' opportunity
to recover his full damages from the tire manufacturer,
Phillips brought suit against Owners alleging third-party
spoliation of evidence, breach of contract, promissory
estoppel, and negligence. Owners moved for summary judgment
on each claim. The trial court granted that motion with
respect to the claim of third-party spoliation of evidence,
but denied it with respect to Phillips' remaining claims.
This appeal followed.
brief, Phillips correctly points out that only the
non-binding decision in Owens v. Amer. Refuse Sys.,
Inc., 244 Ga.App. 780, 781 (2) (536 S.E.2d 782) (2000)
(physical precedent only) explicitly declines to recognize an
independent cause of action for third-party spoliation of
evidence. Pointing to a statement in this Court's
decision in Sharpnack v. Hoffinger Industries, Inc.,
231 Ga.App. 829, 830 (499 S.E.2d 363) (1998) and noting
further developments in the law since Owens was
decided, he suggests that the facts of this case call for a
"fresh look at this issue."
number of states have recognized causes of action for
third-party spoliation of evidence (including many in the
years since Owens was decided), neither a statute
nor any ruling of the Georgia Supreme Court has established
third-party negligent spoliation of evidence as an
independent tort in this state. Likewise, dicta in Gardner v.
Blackston, 185 Ga.App. 754, 755 (1) (365 S.E.2d 545)
(1988) (physical precedent only) suggests that spoliation of
evidence is not recognized as an independent cause of action
in Georgia, even as a remedy between parties to underlying
addition to his spoliation claim, Phillips also brought
claims against Owners for breach of contract, promissory
estoppel, and negligence, all based generally on the same
underlying conduct. Despite the fact that Owners' motion
for summary judgment was denied on Phillips' other
claims, Phillips argues that he will be left without an
adequate remedy for the injuries he suffered in the accident
if a cause of action for third-party spoliation against
Owners is not available to him. The facts of this case do not
support that argument because Phillips has other potential
avenues of recovering from Owners under existing law.
discussed in Owens, even without a cause of action
for third-party spoliation of evidence,
[a] vigilant litigant already has traditional means of
securing evidence available. Those means include, for
example, a court order directing preservation, along with
remedies for a violation of that order, or ...