|2This is a workers’ compensation subro-gation proceeding in which the employer’s workers’ compensation insurer seeks to recover from the manufacturer of an extruder the amounts it paid or may pay in workers’ compensation benefits as a result of an alleged workplace accident involving the extruder. The manufacturer filed a reconventional demand 1 against the insurer in which it alleged the following claims: (1) spoliation of evidence; (2) mishandling of the workers’ compensation claim; and, (3) quantum meruit. The trial judge granted the workers’ compensation insurer’s exception of no cause of action and dismissed the reconventional demand. For the following reasons, we affirm.
Proceedings Below
Zurich American insurance Company, plaintiff/appellee, (Zurich) filed a petition for damages in August 2004 against Queen’s Machinery Co., Ltd., defendant/appellee (Queen’s). Zurich alleged that on or about September 1, 2003 Nhut Nguyen, an Alpine Plastics, Inc. (Alpine) employee, suffered an accident for | -¡which Zurich, as Alpine’s workers’ compensation carrier, paid and may continue to pay workers’ compensation benefits. 2
Zurich alleged that Mr. Nguyen suffered an electrocution injury while working with the Queen’s extruder. It alleged that it would not have had to pay the workers’ compensation benefits had it not been for Queen’s negligence and/or fault.
Mr. Nguyen intervened in the suit in July 2005. He intervened individually and as the natural tutor of his wife and children. He sought damages from Queen’s for himself and loss of consortium for the other family members, alleging that he sustained serious and disabling injuries as a result of the accident.
A few weeks later, Queen’s filed a notice of removal to the United States District Court for the Eastern District of Louisiana. The following year, in September 2006, Queen’s filed a “counterclaim” to Zurich’s petition for damages. Among its defenses, Queen’s pleaded alternatively that Zurich had the right to require Alpine to preserve the evidence related to the accident but that instead Zurich allowed the evidence to be lost and/or destroyed at a time when Zurich was on notice of a potential subrogation claim against Queen’s.
In addition to the defense that Zurich failed to preserve the evidence, Queen’s pled as a “counterclaim” the independent tort of spoliation of the evidence. Queen’s alleged the following:
Zurich, as Alpine’s workers’ compensation insurer, operated under a contract of insurance that provided in the event of an injury to an Alpine employee, Zurich had the right to control Alpine in all matters related to that injury. Specifically, Alpine had an obligation to cooperate with and assist Zurich in the investigation of any claim. And Alpine had an obligation to do everything to | ¿preserve Zurich’s right to *94 assert subrogation rights against third parties. Also, that contract of insurance provided that in the event of an injury to an employee, Alpine had the obligation to give Zurich and/or Zurich’s agent the name and addresses of witnesses and other information that Zurich requested.
On September 1, 2003, Mr. Nguyen was allegedly injured while working in the course and scope of his employment with Alpine. One week later, Zurich received notice of the employee’s alleged injury. About two weeks after the alleged accident, Jack Scheinuk, Zurich’s agent, through his employee, contacted Zurich and requested information regarding Mr. Nguyen’s claim. Zurich appointed its employee Renee Marquez as the workers’ compensation adjuster (file handler), and Ms. Marquez communicated with Joseph B. Guilbeau, the workers’ compensation defense counsel.
Before this incident, Mr. Guilbeau had defended a spoliation of evidence claim asserted against Alpine. As a result, Zurich was on notice of the need to instruct Alpine to preserve all evidence associated with Mr. Nguyen’s alleged injuries.
Ms. Marquez contacted Alpine and received information regarding the incident. But Ms. Marquez gave Alpine no instructions regarding the preservation of evidence. On or before September 19, 2006, Mr. Scheinuk requested that Zurich’s legal personnel and Zurich’s engineering personnel investigate Mr. Nguyen’s alleged accident. Around that date, Mr. Scheinuk, acting on behalf of Zurich, inspected the extruder and took photographs. That date, Mr. Scheinuk provided the photographs of the extruder to Ms. Marquez and advised her to make a subrogation demand on behalf of Zurich against Queen’s. Later that date, Ms. Marquez forwarded the photographs to Daphne Hasten, a subrogation adjustor, and instructed her to call Mr. Scheinuk so that the subrogation could proceed. On the |fisame day, Zurich’s counsel communicated by letter with Ms. Hasten and Ms. Rhonda Kleinman, another subrogation adjustor. Therefore, before the end of September 2003 Zurich was developing its subrogation claim against Queen’s and had decided to file suit against Queen’s. At no time during this period did Zurich take custody of the evidence or instruct Alpine to preserve evidence relevant to the claim.
During the following month, Alpine contacted Mr. Scheinuk and inquired whether Zurich’s investigations would interfere with Alpine’s operations. Mr. Scheinuk told Alpine that there may be a need to shut down the machine. Mr. Scheinuk, however, gave Alpine no instructions regarding preserving the evidence nor did he request custody of the machine or any of its component parts. As a result, Alpine did not preserve and it did in fact discard crucial evidence related to Mr. Nguyen’s alleged accident, including but not limited to the configuration of the extruder and the heater bands and physical evidence of or the lack of physical evidence of the alleged accident. Also, although Alpine did locate component parts from other heater bands, Alpine could not produce the actual heater band or Allen wrench allegedly involved in Mr. Nguyen’s accident. Zurich’s failure to preserve or to direct its insured to preserve all evidence related to Mr. Nguyen’s alleged accident has harmed Queen’s. Accordingly, Queen’s requested that in the event it is found liable, in whole or in part, for Mr. Nguyen’s alleged injuries and ordered to pay damages on the principal demand to Zurich and/or to the Nguyens, then there be judgment holding Zurich liable to Queen’s on this “counterclaim” and that Zurich be ordered to pay damages to Queen’s in an amount commensurate with any amount that Queen’s *95 is ordered to pay on the principal demand.; Queen’s sought to have judgment in its favor dismissing Zurich’s petition for damages with prejudice or alternatively in the event that Queen’s is cast in judgment, that ^judgment also be entered in favor of Queen’s against Zurich on Queen’s’ “counterclaim” in an amount commensurate with any amount awarded to Zurich and the Nguyens.
Later, in 2006, The United States District Court for the Eastern District of Louisiana remanded the case to the 24th judicial District Court for the Parish of Jefferson for lack of subject matter jurisdiction.
The following year, Queen’s filed an unopposed motion for leave to amend its “counterclaim.” The trial judge granted the motion.
In its amended counterclaim, Queen’s added two alternative claims — “mishandling of claim” and “quantum meruit.”
In its “mishandling claim,” Queen’s alleged the following:
During the course of discovery, Queen’s learned that Zurich employees failed to properly investigate and administer the medical portion of Mr. Nguyen’s workers’ compensation claim. Zurich employees failed to obtain the most important set of medical records pertinent to Mr. Nguyen’s workers’ compensation claim. These records show that Mr. Nguyen was not paralyzed, despite his alleged presentation of paralysis symptoms. Zurich employees failed to communicate the information in those medical records to other medical providers. Also, Zurich employees failed to communicate properly information included in other medical records to their management showing that doctors’ conclusions regarding Mr. Nguyen’s paralysis symptoms were inconsistent and that no basis existed to pursue a claim against Queen’s. In fact, Zurich employees took affirmative steps to conceal or explain away inconsistencies in the medical records. Had Zurich employees properly investigated and administered the medical portion of Mr. Nguyen’s workers’ compensation claim and communicated the information available to medical providers and Zurich management, Zurich would not have |7paid workers’ compensation benefits to Mr. Nguyen to the extent it did, if at all, and would have had no basis to pursue a subrogation claim against Queen’s. Thus, but for Zurich’s errors in handling Mr. Nguyen’s workers’ compensation claim, Zurich would not have pursued a subrogation claim against Queen’s and Queen’s would not have incurred the attorney fees, expert fees, and expenses associated with investigating and defending Zurich’s sub-rogation claim. Accordingly, Queen’s sought damages in attorney fees and expenses incurred investigating and defending Zurich’s subrogation claim. Queen’s presented rather detailed allegations regarding Zurich employees’ alleged mishandling of the claim.
In its “Quantum Meruit” claim, Queen’s alleged the following:
During the course of discovery, Queen’s investigated Mr. Nguyen’s workers’ compensation claim. Queen’s discovered evidence favorable to Queen’s that Mr. Nguyen is not paralyzed. Instead, he suffers from a hysterical psychosis or, is malingering. Zurich will benefit from this information, which Queen’s obtained at its cost. Therefore, Queen’s requests that Zurich be ordered to reimburse Queen’s in an amount equal to its attorney fees and expenses incurred investigating and defending Zurich’s subrogation claim. Queen’s provided detailed allegations regarding the expenses it incurred in investigating the workers’ compensation claim.
*96 Zurich filed an exception of no cause of action with respect to Queen’s “counterclaims.” Zurich asserted that the petition failed to state a cause of action for spoliation of evidence, and for attorney’s fees, investigation, and defense expenses. The trial judge granted the exception and dismissed the reconventional demand.
Queen’s argues that the trial judge erred in dismissing the claims for these reasons: (1) Allegations that Zurich had control over the alleged defective product |aand failed to preserve it, and knowing it would file suit against Queen’s, are sufficient to state a spoliation of evidence cause of action against Zurich. (2) Allegations that Zurich’s file handler misrepresented medical information to her superiors and doctors retained by Zurich and such misrepresentations caused Queen’s to incur attorney fees and litigation expenses are sufficient to state a cause of action against Zurich.
Analysis
The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition.
Louisiana Paddlewheels v. Louisiana Riverboat Gaming Commission,
94-2015, p. 5, n. 3 (La.11/30/94),
Spoliation
Queen’s argues that it has alleged facts to support a cause of action for negligent or intentional spoliation of evidence. Furthermore, the spoliator need only have control of the evidence rather than possession of the evidence. On the other hand, Zurich argues that there is only a cause of action for the tort of intentional spoliation of evidence. As such, there is no allegation that Zurich intentionally destroyed evidence or that Zurich ever had possession of the evidence. In fact Queen’s alleges that at no point did Zurich take custody of the evidence or instruct Alpine to preserve evidence.
In
Pham v. Contico International Inc.,
99-945, p. 4 (La.App. 5 Cir. 3/22/00),
Pham
held that a plaintiff must allege an intentional destruction of evidence to assert a cognizable claim for spoliation of evidence.
Id.
99-945 at 7,
Longwell, supra,
cited jurisprudence that held the duty to preserve evidence for the plaintiff could also arise from a statute, a contract, a special relationship between the parties, or an affirmative agreement or undertaking to preserve the evidence.
Id.,
07-259 at 8,
Therefore, we decline to extend the Longwell exception to the factual scenario presented here.
In Queen’s argues that it met the “intent” pleading requirements of the above jurisprudence for two reasons. First, it alleged that Zurich knew it would file suit against Queen’s prior to the time the evidence was discarded. Second, it alleged that “Alpine did not preserve and did in fact discard crucial evidence related to Nguyen’s alleged accident, including but not limited to the configuration of the extruder and the heater bands and physical evidence of or the lack of physical evidence of the alleged accident.”
Additionally, Queen’s argues that its allegations that Zurich had control of the extruder, although not possession, are sufficient to state a spoliation cause of action against Zurich. Queen’s asserts that by virtue of the Zurich workers’ compensation policy with Alpine, Zurich had the right to control Alpine and to do everything to preserve Zurich’s rights to assert subrogation rights against third parties.
Even if true, Queen’s alleged only negligent conduct. Queen’s failed to allege that either Zurich or Alpine intentionally de *98 stroyed evidence. Since allegations of negligent conduct are insufficient, the trial judge did not err in granting the exception of no cause of action and dismissing the spoliation claim.
Misrepresentation Claim and Attorney’s Fees
Queen’s does not dispute Zurich’s right to pursue legitimate subrogation claims. However, Queen’s argues that in this case, Zurich should be held liable and required to pay damages, including attorney fees because of its employees’ misrepresentations. Queen’s asserts that its misrepresentation claim sets forth allegations sufficient to plead both intentional and negligent misrepresentation claims against Zurich, which is vicariously liable for the torts of its employees. The crux of Queen’s argument is that Zurich employees’ misrepresentations 112caused Zurich to erroneously pay workers’ compensation benefits. Hence such misrepresentations caused Queen’s to incur attorney fees and litigation expenses.
In
Smith v. State, Dept. of Transp. & Development,
04-1317, p. 17 (La.3/11/05),
Queen’s points to neither statutory nor contractual authority to support an award of attorney’s fees for its defense. Instead, it asks this court to recognize the Restatement of Torts “tort of another” exception to the “American Rule.” 3 The Restatement refers to the tort of another which causes a party to file suit against a third party or defend itself in a suit brought by a third party.
Queen’s asserts that the Louisiana Supreme Court recognized such a tort in
Ramp v. St. Paul Fire & Marine Ins. Co.,
haWe decline to recognize such an independent tort under these factual circumstances. Rather, we find that
Matter of Interdiction of Thomson,
In Thomson, the plaintiff sued for the interdiction of her father. He answered the suit, denying the allegations of incapacity. He also alleged that the action was frivolous, and that the plaintiff should be cast for his damages as a result of embarrassment and humiliation, and as a result of the expenses he had incurred in defending the action. The court found that the lawsuit was frivolous when the defendant introduced the report of the court-appointed physician indicating that the father suffered from no disabilities. The court awarded damages, which included the court-appointed doctor’s fee, the plaintiffs *99 attorney’s fees, and a damage award. The plaintiff appealed. The court affirmed the dismissal of the main demand on the basis that the plaintiff failed to appear on the day set for trial. The court affirmed the assessment of costs against the plaintiff, including the assessment of the doctor’s fee as an item of costs.
However, the court reversed and set aside the damage awards. The court reasoned:
The order setting the case for trial summarily and with preference pertained to the interdiction only. The demand for damages in the answer and prayer in [the father’s] answer cannot be treated as a motion for sanctions under La.C.C.P. art. 863. Our Article 863 has its source in Federal Rule 11. Under that rule, as interpreted by the federal courts, a claim for sanctions may not be raised as a counterclaim, but may only be raised by motion. Lenoir v. Tannehill,660 F.Supp. 42 (S.D.Miss.1986). If the hearing in the present case was intended to be a sanctions hearing, it was in violation of La.C.C.P. art. 868(E), because no motion for sanctions was ever made and the plaintiff and her counsel never received any notice of such a hearing. It is a matter of due process. Tom Grouwney Equip. v. Shelley Irr. Development,834 F.2d 833 (9th Cir.1987).
The defendant’s demand for damages asserted in its answer can only be treated as a reconventional demand. This demand was improperly considered. The cause of action asserted in the re-conventional demand |ucould not arise prior to the final determination of plaintiffs claim, and therefore it did not yet exist. It was subject to an exception of no cause of action. Thomas v. Mobley118 So.2d 476 (La.App. 1st Cir.1960); Ortiz v. Barriffe,523 So.2d 896 (La.App. 4th Cir.), writ denied,531 So.2d 273 (La.1988); see, also, Justice Watson’s dissent in Union Service & Maintenance v. Powell,393 So.2d 94 (La.1980). On our own motion, we notice that the reconventional demand states no cause of action. La.C.C.P. art. 927. Accordingly, we dismiss and set aside the judgment as it pertains to the demands raised in defendant’s answer[.]
Id.
Therefore, the cause of action asserted in Queen’s reconventional demand could not arise prior to the final determination of Zurich’s claim, and hence it did not yet exist. Accordingly, the trial judge did not err in granting the exception of no cause of action. On the facts of the case, Queen’s has failed to state a cause of action for the alleged misrepresentation which allegedly caused Zurich to incur litigation expenses.
Accordingly, for the reasons stated, the judgment granting the exception of no cause of action and dismissing Queen’s re-conventional demand is affirmed.
AFFIRMED.
Notes
. These pleadings were styled "counterclaims,” having first been filed in federal court.
. Zurich brought the employee-subrogation action pursuant to La.R.S. 23:1101(B).
. See, infra, note 3.
. We are also unpersuaded by Queen's reliance
on Mills v. Ganucheau,