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03/03/95 RICKY PEEK AND BARBARA PEEK v. STATE AUTO

March 3, 1995

RICKY PEEK AND BARBARA PEEK
v.
STATE AUTO MUTUAL INSURANCE COMPANY, ET AL.



Appeal from Madison Circuit Court. (CV-92-1932). William D. Page, TRIAL JUDGE.

Rehearing Denied May 5, 1995.

Butts, Justice. Maddox, Almon, Shores, Houston, Kennedy, Ingram, and Cook, JJ., concur.*

The opinion of the court was delivered by: Butts

BUTTS, JUSTICE. *fn1

The plaintiffs, Ricky Peek and his wife Barbara Peek, appeal from a summary judgment entered in favor of the defendants James D. Thornton, Sr., Wikle-Thornton-Holcombe & Associates, Inc. ("WTH"), and State Auto Mutual Insurance Company ("State Auto") on the plaintiffs' claims alleging intentional "spoliation of evidence." We affirm.

I.

This case is related to four other cases decided this same day by this Court in Christian v. Chandler Construction Co., [Ms. 1930517, March 3, 1995] So. 2d (Ala. 1995), and to Rouse v. Chandler, [Ms. 1930871, March 3, 1995] So. 2d (Ala. 1995), also decided this same day. Although this case, Rouse, and the cases decided in Christian arose from the same set of facts and were brought in the same circuit court, they were presided over by different circuit Judges. While in the Christian cases and in Rouse, the circuit Judges entered summary judgments for the defendants Kenneth Chandler, Lee Chandler, and Chandler Construction Company, the circuit Judge in this case did not enter a summary judgment for Kenneth and Lee Chandler (it did enter a summary judgment for Chandler Construction); the Peeks' claims against Kenneth and Lee Chandler are still pending in the circuit court.

Because the facts regarding the incident from which these related lawsuits arose were thoroughly discussed in Christian, only the facts most relevant to this appeal are provided here. In August 1990, the Chandlers purchased a house in Huntsville; the house had an attached wooden deck. The deck stood approximately 20 feet above the ground. The Chandlers later placed the house for sale, and in April 1992 Perry and Vickie Vanderford made an offer to buy it, subject to its passing an inspection by a professional home inspector. During the inspection, the inspector noted the presence of several small spots of rotting wood on the deck's handrail and on two floor boards on the deck. He conveyed the results of his inspection to the Vanderfords in a written report and presented them in a meeting at which Kenneth Chandler, who owns Chandler Construction, was present for at least part of the time. However, the home inspector did not advise the Vanderfords that the deck was dangerous to use or that it needed significant repair. He merely stated that two boards and a handrail needed to be replaced and that the deck had a remaining life span of up to five years. The Vanderfords did not make their purchase contingent on the sellers' performing repairs to the deck, but they did make it contingent upon the sellers' performing repairs to the roof of the house.

On Saturday, June 13, 1992, the Chandlers hosted a baby shower at their house; they served the refreshments on the deck. While approximately 20 guests were standing on the deck, it suddenly collapsed, causing severe injury to many of the guests, including Rick Peek and his wife Barbara Peek. Early the next morning, Sunday, Kenneth Chandler telephoned his insurance agent, Thornton, a principal in the WTH insurance agency, through which Chandler had purchased a homeowner's liability policy with State Auto. Thornton informed Chandler that he would try to contact an insurance claims adjuster, but said that he might not be able to reach one until Monday.

Chandler asked Thornton if he could "clean up" the area, because, he said, he was afraid his young daughter could be injured by debris from the collapsed deck. Thornton told Chandler that he could clean it up, but to take plenty of photographs of the scene and to secure the area. That same morning, Chandler photographed and videotaped the collapsed deck and then caused all of the debris to be removed from his property and eventually destroyed the following day. While the deck debris was being "cleaned up," Ricky Peek's father, James Peek, went to the Chandlers' house and attempted to view the scene of the accident and the "clean up" efforts, but was prevented from doing so.

Thornton stated in an affidavit that he had not instructed Chandler to dispose of the entire remains of the deck. He also stated that Chandler had not informed him of an intent to cause the deck materials to be destroyed. A State Auto claims representative was not informed of the deck collapse until the following Monday morning.

On September 25, 1992, the Peeks sued the Chandlers, alleging negligence and wantonness; they amended the complaint in November 1992 to add a claim against Chandler Construction Company. On August 3, 1993, the Peeks again amended the complaint to add claims against Thornton, WTH, and State Auto, alleging spoliation of evidence. The circuit court granted Chandler Construction's motion for a summary judgment on December 2, 1993, but denied the motion as to the Chandlers. The court entered a summary judgment for the defendants Thornton, WTH, and State Auto on January 3, 1994, and made that judgment final pursuant to Rule 54(b), Ala.R.Civ.P. The Peeks appeal from the judgment in favor of Thornton, WTH, and State Auto.

II.

As in Christian, the plaintiffs in this action have asked this Court to acknowledge a new independent tort based on the intentional spoliation of evidence. However, unlike the Christian plaintiffs, the Peeks argue that a spoliation of evidence tort claim should extend beyond ...


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