11 Fla. L. Weekly Supp. 117a

Insurance — Uninsured motorist — Evidence — Duplicate document — Authenticity — Torts — Spoliation of evidence — Plaintiff who sought UM benefits under policy issued to employer challenging admission of copy of UM coverage selection/rejection form, which insurer produced because original selection/rejection form had been destroyed by insurer, on ground that copy showed alteration in what was written on original, and on further ground that insurer had in bad faith purposely destroyed original — Plaintiff failed to show that there is genuine issue as to authenticity of copy — Even if genuine issue as to authenticity were raised, copy is admissible, and plaintiff is not entitled to partial summary judgment as to effect of spoliation or destruction of evidence — Plaintiff’s argument that insurer lost or destroyed original in bad faith and plaintiff’s spoliation claim consist of nothing more than conclusory statements that original form reflected selection of UM coverage, that form was destroyed to obscure this evidence, and that copy was altered — This argument is contradicted by depositions and affidavits that it was insured’s corporate policy to reject UM coverage in states where it was permissible, that plaintiff’s employer did desire and intend to reject UM coverage, and that original form was destroyed in normal course of business after microfilming — Plaintiff has neither rebutted this evidence nor set forth evidence that he is unable to prove his prima facie case due to absence of the original form — Adverse presumption or jury instruction is not warranted — Plaintiff will have opportunity to explore possible alteration of form and whether employer did, in fact, knowingly reject UM coverage at trial through testimony of witnesses and production of evidence, and counsel may argue adverse inferences to be drawn from the evidence as part of closing argument

RAIFORD LAMAR BRINSON, Plaintiff, v. THE TRAVELERS INSURANCE COMPANY, a Connecticut corporation, and THE TRAVELERS INDEMNITY COMPANY OF ILLINOIS, an Illinois corporation, Defendants. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 97-14409 (09). November 21, 2003. Robert Lance Andrews, Judge.

ORDER

THIS CAUSE having come before the Court upon Plaintiff’s Motion for Partial Summary Judgment, and the Court having considered same, having heard argument of counsel, and otherwise being duly advised in premises, finds and decides as follows:

The instant action arises out of a claim for uninsured motorists benefits under a policy of insurance issued by Travelers to Plaintiff’s employer, Lance, Inc. Plaintiff was injured in two separate accidents which occurred on December 9, 1993 and March 2, 1994. Plaintiff filed a claim for uninsured motorist benefits under the insurance policy, which was denied by Travelers on the basis that Plaintiff’s employer has rejected UM coverage in its entirety. Travelers produced a copy of the UM selection/rejection form dated July 23, 1993, and executed by Plaintiff’s employer, because the original selection/rejection form had been destroyed by Travelers.

Plaintiff has filed a Motion for Partial Summary Judgment in which he argues that the copy of the selection/rejection form executed by Plaintiff’s employer shows an alteration or change in what was written on the original and therefore the copy should not be admitted into evidence. Plaintiff further argues that Travelers’ destroying the original was purposeful, implying that the destruction was done to destroy evidence that UM coverage was issued for Lance and its employees. Plaintiff argues that the destruction of this key piece of evidence has impacted on Plaintiff’s ability to present a prima facie case and as such, this Court should grant summary judgment and strike Travelers pleadings and enter a default as to liability. In the alternative, Plaintiff argues that he is entitled to have this Court create a rebuttable presumption that UM coverage was not rejected by Lance, but not allow Travelers to rebut that presumption with the use of the questionable selection/rejection form; or this Court should instruct the jury that the original UM selection/rejection form was destroyed by Travelers and that the jury should presume that the original showed that UM coverage was not rejected. For the reasons stated below, Plaintiff’s Motion for Partial Summary Judgment is denied.

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Rule 1.510(c) Fla. R. Civ. Pro. The party moving for summary judgment has the burden of showing the absence of a genuine issue of fact. All inferences must be drawn from the proof in favor of the party opposing the motion. Liberty Mutual Insurance Co. v. Stuckey, 220 So.2d 421 (Fla. 4th DCA 1969). Unless the material facts are so crystallized that nothing remains except question of law, summary judgment should not be granted. Moore v. Morris, 475 So.2d 666 (Fla. 1985). If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it. Id.

Plaintiff initially argues that there is a substantial question as to whether the copy of the selection/rejection form produced by Travelers is authentic, and therefore the copy is inadmissible under §90.953, Fla. Stat. Section 90.953, Fla. Stat., provides in pertinent part that:

A duplicate is admissible to the same extent as an original unless:

(2) A genuine issue is raised about the authenticity of the original or any other document or writing.

(3) It is unfair, under the circumstance, to admit the duplicate in lieu of the original.

The trial court makes a preliminary determination as to whether a genuine issue of authenticity has been raised by the party opposing admission. Van Den Borre v. State, 596 So.2d 687, 690 (Fla. 4th DCA 1992); see also Pennsylvania National Mutual Casualty Insurance Company v. Burns, 375 So.2d 302, 303 (Fla. 2d DCA 1979) (The sufficiency of the foundation necessary for admission of a copy of an original document rests largely in the discretion of the trial court). “The trial court should require persuasive reasons for rejecting a duplicate and a specific objection indicating why the original is needed.” (citations omitted). Viewing the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, this Court finds that the Plaintiff has failed to substantiate his claim that there is a genuine question about the authenticity of the original selection/rejection form.

Even if this Court were to find that Plaintiff raised a genuine question as to the authenticity of the duplicate, a copy may still be admitted if it can be shown that all originals are lost or destroyed, unless the proponent lost or destroyed them in bad faith. §90.954(4) Fla. Stat., Fredericks v. Howell, 426 So.2d 1200, 1201 (Fla. 4th DCA 1983). In his motion, Plaintiff does assert that the destruction of the original was purposeful, and was done to destroy evidence that UM coverage was issued for Lance and its employees. Plaintiff further asserts that the destruction of the original not only prevents the copy being admitted into evidence, but has also impacted on Plaintiff’s ability to prevail on his claim and therefore, this Court should strike Travelers’ pleading for spoliation of evidence. In the alternative, Plaintiff asserts that at the very least there should be a rebuttable presumption that because Travelers failed to produce the original form, the jury should presume the original would reflect that Lance did not reject UM coverage.

The elements of a spoliation claim have been set forth as: (1) existence of a potential civil action, (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action, (3) destruction of that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit. Martino v. Wal-Mart Stores, Inc., 835 So.2d 1251, 1253 (Fla. 4th DCA 2003) (citations omitted). “What sanctions are appropriate when a party fails to preserve evidence in its custody depends on the willfulness or bad faith, if any, of the party responsible for the loss of the evidence, the extent of prejudice suffered by the other party or parties, and what is required to cure the prejudice.” Sponco Manufacturing, Inc. v. Alcover, 656 So.2d 629 (Fla. 3d DCA 1995). While courts have not hesitated to find drastic sanctions, including default, to be appropriate when a defendant alters or destroys evidence and the plaintiff has demonstrated an inability to proceed without such evidence, it is well settled that such means are to be cautiously used and should be reserved for the remedy of last resort. Harrell v. Mayberry, 754 So.2d 742, 744 (Fla. 2d DCA 2000). Courts have additionally approved sanctions such as an adverse inference where evidence has been lost or destroyed, if the plaintiff establishes “to the satisfaction of the court that the absence of the records hinders his ability to establish a prima facie case.” Jordan v. Masters, 821 So.2d 342, 346 (Fla. 4th DCA 2002) citing Public Health Trust of Dade County v. Valcin, 507 So.2d 596, 599 (Fla. 1987).

Plaintiff’s argument consists of nothing more than conclusory statements that the original form did reflect UM coverage being selected; was destroyed to obscure this evidence; and that the copy was altered. Depositions and affidavits which have been filed, in fact, contradict Plaintiff’s argument. In his deposition, John Wiggins, former Risk Manager of Lance, Inc., testifies that it had been a long-standing corporate policy to reject UM coverage in those states where it was permissible. Mr. Wiggins further testified that there was not doubt in his mind that Lance intended to reject UM coverage. Affidavits submitted by Jeffrey Young, Travelers’ account executive who handled the Lance account, and Rhonda Woods, the client representative with Marsh McClennan, state that it was their recollection that Lance desired to reject UM coverage in states where permitted. Moreover, Travelers has submitted affidavits to support its argument that the original selection/rejection form was destroyed in the normal course of business after being permanently retained on microfilm on November 18, 1993. (See affidavit of Howard Fitts, Director of Travelers’ Document Management Department). Plaintiff has not offered any evidence to rebut this. Plaintiff additionally has not set forth any evidence, other than conclusory statements, that he is unable to prove his prima facie case due the original form being missing. Based on the foregoing, this Court finds that the copy of the UM selection/rejection form is admissible, and that Plaintiff is not entitled partial summary judgment as to the affect of the spoliation or destruction of evidence as a matter of law.

Additionally, this Court does not find that an adverse presumption or jury instruction is warranted in this case. The Fourth District Court of Appeal, addressing this issue in Jordan, supra, noted that the Valcin court was very clear on the requirement that the missing evidence be essential to the opposing party’s prima facie case limited the function of the presumption. Jordan, 821 So.2d at 347. As the Fourth District Court of Appeal stated:

We have found no case approving an instruction for an adverse inference to be drawn from the failure to produce evidence. Concerning a comparable charge on failure to produce a witness . . . . Florida Standard Jury Instruction 2.3 recommends no charge be given on the failure to produce a witness, except in special circumstances. Instead, this should be left to the argument of counsel because an inference is in essence the determination of the existence of a fact from other facts. “Whether the inferred fact is found to exist will be decided by the trier of fact.” It is not the position of the trial court to instruct the jury as to the facts of a case. For the court to tell a jury that an adverse inference may be drawn from the failure to produce evidence invades the province of the jury.

Jordan, 821 So.2d at 346 (emphasis in original) (citations omitted). This Court agrees with the holding in Jordan as it applies to this case. Plaintiff will have the opportunity to explore the possible alteration of the UM selection/rejection form, and whether Lance, Inc., did in fact knowingly reject UM coverage at trial through testimony of witnesses and production of evidence. Plaintiff’s counsel is entitled to argue adverse inferences from the evidence as part of their closing arguments. This Court will not interfere with the jury’s function by instructing it on what facts that it can find, especially where there is conflicting evidence and inferences can be drawn. Jordan, 821 So.2d at 347.

Accordingly, it is hereby

ORDERED AND ADJUDGED that Plaintiff’s Motion for Partial Summary Judgment is DENIED.

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