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Pennsylvania Lumberman's v. Fl. Pwr

District Court of Appeal of Florida, Third District
Feb 10, 1999
724 So. 2d 629 (Fla. Dist. Ct. App. 1999)

Summary

holding that no common law duty to preserve existed, but discussing the possibility that notice could have created a duty if it had been received by the alleged spoliator

Summary of this case from Nelson v. Amica Mut. Ins. Co.

Opinion

No. 98-1290

December 30, 1998. Rehearing Denied February 10, 1999.

Appeal from the Circuit Court, Dade County, Celeste H. Muir, Judge.

James C. Kelley; Richard A. Warren, for appellant.

Barwick, Dillian, Lambert Ice and Joy Barwick; FPL Law Department and Robert E. Boan, for appellee.

Before JORGENSON, LEVY, and SHEVIN, JJ.


Pennsylvania Lumberman's Mutual Insurance Company appeals from an Order granting the defendant, Florida Power Light Company's Motion for Partial Summary Judgment in a case alleging spoilation of evidence.

Unlike the defendant in Bondu v. Gurvich, 473 So.2d 1307 (Fla. 3d DCA 1985), the defendant in this case was not under any statutory or contractual duty to maintain or preserve the transformer in question. To the extent that the appellant, who was the plaintiff below, argues that the defendant was under some type of common law duty to preserve the transformer in question after being notified of possible legal action against the defendant in connection with the transformer, we note that the record refutes the plaintiff's contention that the defendant's legal department was notified both by a letter and a "fax" concerning the possible initiation of legal action and, therefore, should have preserved the transformer as potential evidence in that legal action. As far as the notification by letter is concerned, it is undisputed that the letter was mailed to an incorrect address. Furthermore, as far as the "fax" is concerned, the plaintiff's own "fax" activity sheet reflects that, although an attempt was made to "fax" two pages, none were actually transmitted.

Accordingly, for the foregoing reasons, the Summary Judgment entered by the trial court in favor of the defendant, which is under review herein, is affirmed.


Summaries of

Pennsylvania Lumberman's v. Fl. Pwr

District Court of Appeal of Florida, Third District
Feb 10, 1999
724 So. 2d 629 (Fla. Dist. Ct. App. 1999)

holding that no common law duty to preserve existed, but discussing the possibility that notice could have created a duty if it had been received by the alleged spoliator

Summary of this case from Nelson v. Amica Mut. Ins. Co.

holding that no spoliation claim existed where the defendant "was not under any statutory or contractual duty to maintain or preserve the transformer in question" and no evidence showed the defendant received actual notice before destroying the transformer

Summary of this case from Perez v. La Dove, Inc.

noting that notice could have created a duty to preserve if the alleged spoliator received it

Summary of this case from Steadfast Ins. Co. v. Progressive Cas. Ins. Co.

suggesting that in the context of an action for spoilation of evidence, notification of potential litigation triggers the obligation to preserve evidence

Summary of this case from BAMBU v. E.I. DUPONT DE NEMOURS CO
Case details for

Pennsylvania Lumberman's v. Fl. Pwr

Case Details

Full title:PENNSYLVANIA LUMBERMAN'S MUTUAL INSURANCE CO., Appellant, v. FLORIDA POWER…

Court:District Court of Appeal of Florida, Third District

Date published: Feb 10, 1999

Citations

724 So. 2d 629 (Fla. Dist. Ct. App. 1999)

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