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Cooper Tire & Rubber Company v. Koch

Supreme Court of Georgia

March 15, 2018

KOCH et al.


         This Court granted a writ of certiorari to determine whether the Court of Appeals in Cooper Tire & Rubber Company v. Koch, 339 Ga.App. 357 (793 S.E.2d 564) (2016), properly articulated the legal standard for when a plaintiff's duty to preserve evidence begins and properly applied that standard to the facts of this case. Like a defendant's duty, a plaintiff's duty to preserve relevant evidence in her control arises when that party actually anticipates or reasonably should anticipate litigation. Because the Court of Appeals appropriately identified and applied this standard, as did the trial court, we affirm.

         1. As summarized by the Court of Appeals:

The facts pertinent to this appeal are largely undisputed. On April 24, 2012, [Plaintiff Renee Koch's husband, 69-year-old Gerald Koch, ] was driving eastbound on Interstate 16 in his 2001 Ford Explorer when the tread on his left rear tire detached. According to the State of Georgia Traffic Crash Report, the Explorer then swerved out of control and traveled approximately 79 feet before striking a guardrail. The vehicle continued to travel in an easterly direction for approximately 134 feet, overturning several times before coming to an "uncontrolled" final rest in the eastbound ditch facing west.
Mr. Koch suffered serious injuries in the accident and was transported by emergency vehicle to the Medical Center of Central Georgia . . . . He was immediately taken to surgery and then to the intensive care unit, where he remained uncommunicative for several days. However, Mr. Koch eventually regained consciousness and was able to talk to his wife about the accident, telling her that the accident occurred when the "tire blew and the car flipped and rolled three or four times." Unfortunately, Mr. Koch was unable to recover from his extensive injuries, and he died on June 3, 2012 without ever having left the intensive care unit of the hospital.
The Ford Explorer was towed from the accident scene by Brown's Wrecker Service ("Wrecker Service"), where it was placed in a storage yard. Sometime after the accident but before Mr. Koch died, Plaintiff talked to the owner of the Wrecker Service, Edwin Brown, who explained to her that she was being charged a daily storage fee for the vehicle. Plaintiff told Brown she could not afford to pay the storage costs, and he told her that he would not bill her for storage costs if she would transfer the title to him so he could sell the vehicle to a salvage yard where it would be crushed for scrap. Plaintiff said that she did not see any reason to keep the vehicle since it was totaled, so she agreed to transfer the title instead of paying for the vehicle to be stored. However, at some point prior to transferring the title, Plaintiff talked it over with her husband, who told her to tell the Wrecker Service to "save the tires."[1] After instructing Brown to save the left rear tire, Plaintiff relinquished control of the vehicle. Brown then stored the tire, [2] and the vehicle and companion tires were crushed for scrap.
Several weeks after Mr. Koch died, his daughter contacted an attorney in her home state of Missouri. The Missouri attorney contacted the Wrecker Service concerning the preservation of the tire and also recommended the daughter contact an attorney in Georgia. Shortly thereafter, Plaintiff retained Georgia counsel, and her attorney retrieved the tire from the Wrecker Service on or about September 26, 2012.

Cooper Tire, 339 Ga.App. at 357-358 (footnotes in original).

         In March 2014, Plaintiff filed a product liability complaint for damages against Cooper Tire & Rubber Co. and two other defendants in her individual capacity and as administrator of her deceased husband's estate.[3] According to the complaint, the 2006 Cooper Tire Mastercraft Courser HTR tire mounted on the left rear wheel of the Explorer that Mr. Koch was driving suffered a catastrophic tread separation, causing the vehicle to swerve out of control, overturn multiple times, and leave the roadway. The complaint included counts against Cooper Tire for negligent design and manufacture, strict liability, and failure to warn. Cooper Tire filed an answer which noted that the company "reserve[d] the right to plead spoliation of critical evidence." Extensive discovery ensued, including depositions of Plaintiff and others.

         In June 2015, Cooper Tire filed a motion to dismiss the complaint or impose other sanctions for spoliation. On August 27, 2015, the trial court heard arguments on the motion, and on September 9, 2015, the court entered an order denying the motion. The order concluded that:

Viewing the evidence from the perspective of the party having control over the subject vehicle, this Court does not find that the facts and circumstances give rise to litigation being reasonably foreseeable or that it should have been reasonably contemplated by the Plaintiff so as to trigger the duty to preserve the subject vehicle.

         The trial court granted Cooper Tire's request for a certificate of immediate review, and the Court of Appeals granted the company's application for interlocutory appeal but then affirmed the trial court's order, with one judge concurring in the judgment only.

         The Court of Appeals rejected Cooper Tire's argument that the trial court erred by focusing on whether Plaintiff subjectively knew that litigation was likely when the Explorer and the other three tires were destroyed instead of applying the objective standard for spoliation established by this Court in Phillips v. Harmon, 297 Ga. 386 (774 S.E.2d 596) (2015). See Cooper Tire, 339 Ga.App. at 359-362. The Court of Appeals analyzed this Court's decision in Phillips before holding:

[T]he issue of whether litigation was reasonably foreseeable to the plaintiff is separate and distinct from whether a defendant actually or reasonably should have foreseen litigation by the plaintiff, and thus we do not believe that the Supreme Court intended those specific factors [listed in Phillips] to apply ...

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