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April 1, 2006

This article was originally published in the Subrogator, a publication by the National Association of Subrogation Professionals, Spring/Summer 2006, Page 130. © Copyright 2006 by NASP. All rights reserved. Republished by Butler with permission from NASP. 
Until 2003, Florida courts recognized an independent tort of spoliation for both first and third party claims. However, that all began to change with the Fourth District Court of Appeal’s decision in Martino v. Wal-Mart Stores, Inc., 835 So. 2d 1251 (Fla. 4th DCA 2003). In Martino, the plaintiffs filed a premises liability action against Wal-Mart, alleging that Mrs. Martino was injured while shopping at a Wal-Mart store when her shopping cart collapsed. Later, when Wal-Mart could not produce the shopping cart nor the security video that may have recorded the incident, the plaintiffs added a claim against Wal-Mart for spoliation of evidence. Wal-Mart filed a motion to dismiss the plaintiff’s spoliation claim, which the trial court granted.

The Fourth District Court of Appeals affirmed the trial court’s decision in Martino and held that there is no independent cause of action when a defendant in a spoliation claim is also the defendant in the claim impaired by the destruction of evidence. See Martino v. Wal-Mart Stores, Inc., 835 So. 2d 1251 (Fla. 4th DCA 2003). The Fourth District upheld the trial court’s decision as there were “any number of sanctions and negative consequences … available against parties to litigation,” and as such, an independent cause of action for spoliation was unnecessary. See Martino, supra at 1256. In support of its finding, the appellate court relied on a California Supreme Court case, wherein the Court favored sanctions as opposed to an independent cause of action. See Cedars-Sinai Medical Center v. Superior Court, 954 P. 2d 511 (Cal. 1998). The California court held that there were adequate remedies already in place to address spoliation of evidence. Id.

In 2005, the Florida Supreme Court approved the Fourth District’s dismissal of the independent cause of action for spoliation of evidence and also held that an independent cause of action for spoliation of evidence “is unnecessary and will not lie where the alleged spoliator and the defendant in the underlying litigation are one and the same.” See Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 1995), citing to 835 So. 2d 1256. The Florida Supreme Court agreed that the adverse inferences and the myriad of other available sanctions were adequate. Consequently, the Supreme Court of Florida overruled several long-standing decisions that had previously recognized an independent cause of action for spoliation where the plaintiff still had other remedies.

In spite of the Martino decision, the Supreme Court of Florida still left open the question of the validity of third party spoliation claims (i.e. claims where the underlying action is against another defendant). Specifically, the Florida Supreme Court stated in a footnote, that it was “not considering whether there is a cause of action against a third party for spoliation of evidence. [The Martino] decision is limited to claims for spoliation of evidence against first-party defendants.” See Martino, supra at 346 n.2 A close reading of Martino reveals that the Court only disapproved of independent spoliation claims where “the defendant in the spoliation claim is also the defendant in the underlying claim allegedly impaired by the loss or destruction of the evidence.” See Martino, 835 So. 2d at 1254.

While the Martino Court failed to expressly address the viability of a third party spoliation claim, the rationale promulgated for denying the availability of a first party spoliation claim seems inapplicable to third party spoliation claims. Without an independent cause of action for third party spoliation, an aggrieved party would have no avenue of recovery where a third party impaired its underlying claim through the spoliation of evidence. On this point, one federal district court in Florida recently addressed the limitations of the Martino decision and stated, “it would appear, however, that the third party spoliation claims, i.e. claims where the underlying action is against another defendant, are permitted even under this cloud of conflicting authority.” James v. U.S. Airways, Inc., 375 F. Supp. 2d 1352, 1354. (M.D. Fla. 2005). Accordingly, under the current state of Florida law, third party spoliation claims appear to be a viable means of recovery when a third party destroys evidence relevant to the potential civil action.

Thus, it would appear that while Martino overruled well established case law and limited the availability of a spoliation claim in certain first party situations, third party spoliation claims are still permitted so long as all the elements for such a claim are established.