MCFADDEN, P. J., RICKMAN and MARKLE, JJ.
personal injury case, Ronnie French appeals the trial
court's order denying his pre-trial motion for sanctions
for the spoliation of evidence. We granted French's
application for interlocutory review but now affirm.
relevant facts are not in dispute. On December 10, 2014,
French was a passenger in his sister's vehicle when it
collided with a Toyota Corolla operated by Reyes Perez, owned
by Perez's wife, and insured by State Farm Fire and
Casualty Company. French sustained injuries.
January 21, 2015, Perez's wife appointed State Farm as
her attorney-in-fact to sign all papers and documents
necessary to secure a Georgia title on the vehicle. On that
day, State Farm took possession of the vehicle. Approximately
two weeks later, French sent State Farm a notice to preserve
any evidence related to the accident, including the damaged
car itself and the black box therein. French stipulated that
"by the time the letter went out, [Perez] didn't
even own the vehicle." There is no evidence that the
notice was sent to Perez or his wife, or received by them.
Despite the request to preserve, State Farm sold the vehicle
the following month.
November 2016, French filed suit against his sister and Perez
alleging that they were both at fault for the collision; he
did not name Perez's wife or State Farm as defendants.
During the litigation, French dismissed his sister as a
defendant, without prejudice. Shortly thereafter, French
filed a motion for sanctions against Perez for spoliation
arising out of loss of the vehicle. Following a hearing, the
trial court denied the motion and a motion for
reconsideration, but issued a certificate of immediate
review, which this Court granted. For the following reasons,
we affirm the trial court.
OCGA § 9-11-37 (b) (2), "a party or an officer,
director, or managing agent of a party" may be
sanctioned for failure to provide discovery, including
spoliation. See, e.g., Howard v. Alegria, 321
Ga.App. 178, 185 (2) (739 S.E.2d 95) (2013). "Spoliation
refers to the destruction or failure to preserve evidence
that is necessary to contemplated or pending
litigation." (Citations and punctuation omitted.)
Bouve & Mohr, LLC v. Banks, 274 Ga.App. 758, 762
(1) (618 S.E.2d 650) (2005). "[A] trial court has wide
discretion in adjudicating spoliation issues, and such
discretion will not be disturbed absent abuse."
Phillips v. Harmon, 297 Ga. 386, 397 (II) (774
S.E.2d 596) (2015).
First, "contemplation of potential liability is not
notice of potential litigation." Kitchens v.
Brusman, 303 Ga.App. 703, 707 (1) (a) (694 S.E.2d 667)
(2010). Thus "the simple fact that someone is injured in
an accident, without more, is not notice that the injured
party is contemplating litigation sufficient to automatically
trigger the rules of spoliation." Id. Here,
French made no showing in the trial court that before State
Farm acquired the vehicle, Perez "[knew] or reasonably
should [have known] that the injured party, the plaintiff,
[was] in fact contemplating litigation."
Phillips, 297 Ga. at 396 (II). Indeed, French never
even argued the point. He only argued that Perez was on
notice as a result of the letter mailed to State Farm. But it
is undisputed that the letter was not sent to Perez or his
wife, and, even if it had been, they no longer had possession
or control of the vehicle at the time. Thus, Perez can only
be found responsible for spoliation if he can be held
responsible for State Farm's disposition of the vehicle.
"Sanctions for spoliation cannot be applied against a
party who did not destroy the evidence when there is no
evidence to show that the destroying party was acting at the
behest of the party." Sheats v. Kroger Co., 336
Ga.App. 307, 311 (1) (b) (784 S.E.2d 442) (2016); see also
Boswell v. Overhead Door Corp., 292 Ga.App. 234,
235-236 (664 S.E.2d 262) (2008) (spoliation presumption
cannot be used against a party where nothing suggested that
the entity that destroyed the evidence did so at the behest
of the first party). In other words, sanctions are not
warranted unless the third party "acted as the
litigant's agent in destroying or failing to preserve the
evidence." Bouve & Mohr, 274 Ga.App. at 762
(1). An agency relationship exists "wherever one person,
expressly or by implication, authorizes another to act for
him or subsequently ratifies the acts of another in his
behalf." OCGA § 10-6-1. And, "[an] agent shall
act within the authority granted to him, reasonably
interpreted." OCGA § 10-6-21. Here, there is simply
no evidence in the record that Perez maintained any authority
over disposition of the vehicle after it was transferred to
State Farm, and no evidence that he authorized State Farm to
destroy the vehicle or that he ratified State Farm's
destruction of the evidence.
dissent attempts to rely on a provision of the policy. But
neither the actual insurance policy between the parties nor
the declarations page is in the record. French filed an
"exemplar" State Farm policy in connection with his
motion for reconsideration in the trial court, Although Perez
has not objected to this document as representing the terms
of an agreement, the absence of the declarations page alone
prohibits our use of the policy to resolve the issue before
us. The exemplar policy states: "This policy contains
all of the agreements between all named insureds who are
shown on the Declarations Page and . . . [State Farm]".
Thus, it is not even clear whether Perez is a named insured.
In fact, he might be considered a "resident
relative" of the named insured under the policy, if, in
fact, the named insured is Perez's wife, the owner of the
car. And the dissent has not determined whether a resident
relative of the named insured is also in an agency
relationship with State Farm.
the dissent has not shown how the specific language of OCGA
§ 33-7-12 is not applicable. That Code section refers
directly to the language that the dissent relies on:
Any provision in a liability policy of insurance which
provides that the insurer shall have the right to compromise
or settle claims of third persons against the insured without
the consent of the insured shall be deemed to create, as
between the insurer and the insured, the relationship of
an independent contractor. . . .
(Emphasis supplied). That Code section was enacted in order
to abrogate case law that held that such a clause in an
insurance contract made the insurer the insured's agent
for the purpose of effecting settlement of claims. See
Brown v. Seaboard Lumber & Supply Co., 221 Ga.
35, 37 (142 S.E.2d 842) (1965).
attempt to overcome his own failure to produce evidence of
agency, French argues that Perez should be held to have
spoliated the evidence because Perez provided no evidence
that State Farm was not acting as his agent when it
received the spoliation letter then disposed of the vehicle.
But "where the existence of an agency is relied upon,
the burden of proof rests with the party asserting the
relationship." Carter v. Kim, 157 Ga.App. 418,
418 (277 S.E.2d 776) (1981); accord H ...