OPINION
Case Summary and Issue
Aftеr the death of William D. Feit, Jr. as a result of a motel fire, Joseph A. Kelley, the administrator of Feit’s estate (the “Estate”) filed suit against the motel’s owners and the motel’s liability insurer, Indiana Insurance Company. The Estate appeals the trial court’s entry of summary judgment in favor of Indiana Insurance on the Estate’s claim of spoliation of evidence. The Estate raises one issue on appeal, which we restate as whether the Estate has an available third-party cause of action against Indiana Insurance for spoliation of evidence. Concluding that a cause of action is not available under the facts of this case, we affirm.
Facts and Procedural History 1
On January 28, 2006, a fire broke out in Feit’s room at the Economy Inn (the “Inn”) in Lafayette, Indiana. The Inn was owned and operated by Jagdish Patel (“Mr. Patel”) and Jayandra Patel (together the “Patels”), and its liability insurance was provided by Indiana Insurance.
Members of the Lafayette Fire Department responded to the fire scene. Firefighter Randy Keen observed on the interior wall of the room the “remnants of a circle ... where the smoke detector would have been located” but did not find a smoke detector. Appellant’s Appendix to Brief at 49. None of thе responders found a smoke detector or the remains of a smoke detector inside the room, and no one heard a smoke detector sound, despite smoke billowing from the room. Keen found no evidence of an electrical malfunction in the room and no indication of flammable liquids or accelerants. Keen noted that by the time the firefighters arrived, electricity to the room had been shut off.
Mr. Patel did not see a smoke detector in the room that day but later testified that one had been installed and was hardwired. The handyman responsible for inspecting smoke detectors at the Inn testified they do not have a battery backup. However, another employee of the Inn believed the smoke detector in Feit’s room was battery-powered and that only some othеr rooms which had been remodeled had hard-wired smoke detectors. Mr. Patel was unaware of any indication Feit had tampered with a smoke detector.
One or two days after the fire, Daryl Gordon, an investigator hired by Indiana Insurance, examined the scene and took photographs. He was accompanied by Dean Criss, Indiana Insurance’s claims adjustor. Gordon noted the presence of a television, a refrigerator, a lamp, and a VCR/DVD player in the area of greatest fire damage. Gordon was unable to determine the cause or point of origin of the fire. He did rule out the room’s structural electrical wiring but could not rule out appliance wiring as a possible cause. Gordon took and retained a sample of carpet from the room, to which remnants оf electrical cord had fused.
Three days after the fire, Feit’s father, Quirin Feit (“Quirin”), went to the Inn to retrieve his son’s personal belongings and was given access to the room. Quirin retrieved Feit’s “souvenirs, personal aspects [sic], backpacks, tools, [and] Boots for work,” listing these items in a handwritten statement made at the time. 2 Id. at 51.
At some later point not clear from the record, the Inn’s handyman “gutted” the wall paneling, wallpaper, аnd carpet in the room and discarded them in a dumpster. Id. at 101. The floor and walls were laid bare down to the drywall.
The Estate’s expert, George Van Doren, reviewed various investigation materials and later opined that the appliances and power cords “should have been looked at” and would need to be physically examined in order to determine the cause of the fire. Id. at 59. It wаs Van Doren’s understanding that the television and refrigerator had been property of the Inn and a microwave and DVD player in the room had belonged to Feit. 3
On March 22, 2006, the Estate filed its complaint against the Patels for Feit’s wrongful death, alleging negligence with respect to the smoke detector and the Inn’s electrical system. In May 2007, the Estate amended its complaint to assert a cause of action against Indiana Insurance for spoliation of evidence. Specifically, the Estate alleged Indiana Insurance “permitted and/or authorized the [Patels] to commit spoliation [of] evidence by discarding all appliances and furniture located in the room and by authorizing [the Patels] to completely gut and remodel the subject hotel room.” Id. at 23. The complaint also allеged Indiana Insurance “committed spoliation of evidence by failing to preserve the fire scene for the [Estate]’s investigators and by destroying all appliances and furniture within the subject hotel room and by allowing [the Patels] to completely gut and remodel the room pri- or to any investigation by [the Estate]’s investigators.” Id. The Estate claimed it was damaged by being “prevented from making an accurate determination of the points of origin and/or the cause of the subject fire” and requested an award of wrongful death damages “if the trier of fact is unable to assess fault against [the Patels] due to the destruction and spoliation of all of the evidence.” Id. at 24. Neither the original nor the amended complaint asserted a cause of action against the Patels for spoliation of evidence. 4
The Patels and Indiana Insurance sought summary judgment. Following a hearing, the trial court granted summary judgment in favor of Indiana Insurance and denied summary judgment to the Pa-tels. In a subsequent order, the trial court certified its summary judgment as a final
Discussion and Decision
I. Standard of Review
We review a trial court’s summary judgment order de novo.
Kovach v. Caligor Midwest,
II. Duty to Preserve Evidence
The parties focus their arguments on the legal issue of whether Indiana Insurance had a duty to the Estate to preserve evidence in the motel room after Indiana Insurance completed its investigation of the fatal fire. The Estate argues that Indiana Insurance had such a duty and that a reasonable trier of fact could find the duty was breached whеn Indiana Insurance allowed its insured, the Patels, to dispose of everything in the room. At oral argument, the Estate framed its claim more particularly as an omission: that Indiana Insurance failed to advise the Pa-tels that the evidence should be preserved. Indiana Insurance responds that third-party claims for spoliation of evidence as an independent tort are available only in narrow, limited circumstances and that Indiana caselaw has declined to extend its availability to the facts this case presents.
Initially we note the designated evidence provides no clear answer as to whether any smoke detector in Feit’s room at the Inn was recovered and, if recovered, whether it has been preserved or despoiled. We therefore neither accept nor reject the premise that Indiana Insurance allowed spoliation of the smoke detector. 5 Regarding the electrical appliances in the room, we construe the evidence favorably to the Estate as the non-moving party to allow an inference that several appliances that were property of the Inn were destroyed or otherwise disposed of aftеr Indiana Insurance completed its investigation. As part of that investigation, Indiana Insurance’s investigator and claims adjustor went to the scene and saw the appliances. As a fatality had occurred and no cause of the fire was determined, Indiana Insurance was on notice of the importance of the appliances as evidence in foreseeable litigation, yet it took no steps to preserve the appliances or the state of the room for further investigation. With these factual observations in mind, we turn to the parties’ legal arguments, namely whether Indiana Insurance had an affirmative duty to the Estate to preserve evidence under these circumstances and if a cause of action is otherwise available.
In
Gribben v. Wal-Mart Stores, Inc.,
Our supreme court addressed the tort of third-party spoliation in
Glotzbach v. Froman,
As to policy concerns,
Thompson
reasoned that “[a] liability insurance carrier would be hard-pressed to conduct business without some mechanism for collecting and preserving evidence” and that “[w]hen ...
We revisited the availability of third-party spoliation claims against liability insurers in
Am. Nat’l Prop. & Cas. Co. v. Wilmoth,
Turning to the facts of the present case,
Thompson
is distinguishable because the missing evidence was in the possession of the Patels as owners and operators of the Inn; it was not exclusively possessed by Indiana Insurance. In
Thompson,
the liability insurer took exclusive possession of the dog restraint cable, a highly relevant piece of evidence to the dog-bite plaintiffs claims against thе dog owners and landlord, and thereafter lost the cable before it could be tested or examined.
The Estate emphasizes the seriousness of the facts of this case to argue Indiana Insurance owed the Estate a duty. A fire had occurred at the Inn operated by the insurеd, the cause of the fire was unknown, and a guest of the Inn had died. In these circumstances, Indiana Insurance knew or should have known that litigation was likely. Also, Indiana Insurance’s investigator and adjustor had seen the electrical appliances in the area of greatest fire damage, so they knew or should have known these items would be crucial evidence in the Estate’s claims against the Patels. In light of these facts, the Estate argues the law should not “allow[ ] an insurer to avoid liability for negligence by its insured by the simple expedient of allowing evidence to be destroyed,” and “public policy should not permit an insurer to further its financial interest to avoid potential liability on a claim against its insured by not preserving the very evidence that could establish such liability.” Brief of Appellant at 5,16.
We do not hold thаt third-party spoliation claims could never be available against a liability insurer where death or serious injury resulted on the insured’s business premises. Yet, as the above discussion of Indiana cases illustrates, our courts recognize spoliation of evidence as an independent tort only in narrow circumstances where a relationship exists between the claimant and the third party sought to be held rеsponsible for a failure to preserve
We further point out that since this court’s
Thompson
decision in 1998, no Indiana appellate decision has expanded the availability of spoliation causes of action.
7
Rather, both the Indiana Supreme Court and this court have distinguished
Thompson,
and our supreme cоurt has indicated that the balance of policy reasons weighs against expanding availability of the tort.
See Glotzbach,
While we conclude the Estate has no spoliation cause of action against Indiana Insurance, the Estate is not necessarily without other remedies. For instance, in the Estate’s ongoing action against the Patels, it may seek an adverse inference jury instruction or other sanctions if available. See supra note 6. While the record does not indicate the policy limits of Indiana Insurance’s contract with the Pa-tels, an adverse inferеnce against the Pa-tels as to spoliation indirectly works against Indiana Insurance to the extent the policy limits cover the damages that may be assessed. If the damages exceed the policy limits, our opinion does not preclude the Patels from seeking to impose liability against Indiana Insurance for its failure to advise them to preserve potentially relevant evidence.
Conclusion
Bеcause we conclude the Estate does not have a third-party cause of action against Indiana Insurance for spoliation of evidence, the trial court’s grant of summary judgment to Indiana Insurance is affirmed.
Affirmed.
Notes
. We heard oral argument on July 18, 2011, and thank counsel for their presentations.
. Quirin testified in his deposition that he did not give permission for remaining items to be
. Feit was a long-term resident of the Inn, so it is reasonable to infer that he kept most of his personal belongings in the room.
. Accordingly, the trial court’s grant of summary judgment "as to the issue of spoliation” applies only to Indiana Insurance and is not a partial summary judgment in favor of the Patels. Appellant’s App. at 13. The Estate acknowledged in its response to the Patels’ and Indiana Insurance’s motion for summary judgment that existing precedent precludes the Estate from asserting against the Patels a cause of action for spoliation separate from its tort claim against them.
Id.
at 83;
see Gribben v. Wal-Mart Stores, Inc.,
. As support for its proposition that a smoke detector was recovered and preserved, Indiana Insurance refers us to pages of depositions that were not designated by either party to the trial court. We disregard such materials that were not designated below.
. "It is well-established in Indiana law that intentional first-party spoliation of evidence may be used to establish an inference that the spoliated evidence was unfavorable to the party responsible.”
Gribben,
. In
Howard Reg’l Health Sys. v. Gordon,