Third DCA Rejects Employee's Spoliation of Evidence Claim Against Employer
"Spoliation of evidence" refers to the destruction of or failure to preserve evidence that is relevant to a lawsuit. In Martino v. Wal-Mart Stores, Inc., 908 So.2d 342 (Fla. 2005), the Florida Supreme Court recognized that there are two different kinds of spoliation claims - "first-party" claims where "the defendant who allegedly lost, misplaced or destroyed the evidence was also a tortfeasor in causing the plaintiff's injuries or damages," and "third-party" claims where "a person or entity, though not a party to the underlying action causing the plaintiff's injuries or damages, lost misplaced, or destroyed evidence critical to that action." In Martino, the supreme court held that Florida does not recognize an independent cause of action for "first party" spoliation. Rather, the plaintiff in such cases is entitled to a presumption that the defendant's conduct was negligent.
Third-party spoliation claims can arise in the workers' compensation context because in Florida an injured worker retains his right to pursue an action against a "third-party" tortfeasor who may have been responsible for his on-the-job accident. (In this instance, "third party" refers to parties other than the employer and the claimant's co-employees, who in most instances are immune from tort liability). Under §440.39(7), Fla. Stat., the employer has a "duty to cooperate" with the employee in pursuing any such claim. Thus, questions can arise whether the employer, by its actions or inactions, may have impeded the claimant in pursuing his third-party liability claim. That's what happened in Perez v. La Dove, Inc., decided by the Third District Court of Appeal on 9/12/2007.
Mr. Perez was injured in an on-the-job accident when the forklift he was driving traveled off the end of La Dove's (his employer's) loading dock, crushing and rendering him a paraplegic. He thereafter pursued and settled a liability claim against R&R Industrial, the company responsible for routine maintenance on the the forklift, contending that a malfunction in the forklift's braking or transmission system caused the accident.
But Perez was hampered in his efforts to pursue his claim against R&R Industrial, he said, because his employer had failed to preserve the forklift for use as evidence in his suit against R&R, causing him to settle his claim against R&R for much less than the case otherwise would have been worth. He therefore brought suit against his employer for spoliation of evidence. The Third DCA, however, held that Perez's claim was barred by the "exclusive remedy" provision of §440.11.
Previously, in General Cinema Beverages of Miami, Inc. v. Mortimer, 689 So.2d 276 (Fla. 3d DCA 1995), the Third DCA had held that the duty to cooperate with the employee imposed by §440.39(7) requires the employer to preserve evidence in its possession which is critical to such a claim and that the failure to do so creates another exception to the immunity from tort liability granted by §440.11. But in Perez, the court distinguished its earlier decision, noting that, unlike Mortimer, Mr. Perez had never requested the employer to preserve the evidence. The court rejected Perez's argument that, because of the severity of his injuries, he was unable to ask his employer to preserve the evidence and refused to agree with the Fourth District Court of Appeal, which had previously held that the employer's duty to preserve evidence arises even in the absence of a specific request to do so where the employer reasonably should have known that a third-party liability claim was likely to arise.
