                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Jeremy Brown,
Plaintiff Below, Petitioner                                                        FILED
                                                                               January 13, 2020
vs) No. 19-0114 (Wood County 16-C-432)                                          EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
State Farm Mutual Automobile Insurance Company,
Defendant Below, Respondent


                               MEMORANDUM DECISION

        Petitioner Jeremy Brown, by counsel Brian J. Headley, appeals the Circuit Court of Wood
County’s January 9, 2019, order granting summary judgment in favor of State Farm Mutual
Automobile Insurance Company (“State Farm”). Respondent State Farm, by counsel R. Carter
Elkins, filed a response, and petitioner filed a reply.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.

        This appeal stems from a single vehicle automobile accident that occurred on October 23,
2015. At the time of the accident, petitioner alleges that he was a passenger in a 2009 Ford Taurus,
insured by State Farm, that was being driven by his then-wife, Margaret Brown (hereinafter “Ms.
Brown”). Contrary to petitioner’s allegations, the West Virginia Uniform Traffic Crash Report
indicates that he was actually the driver of the vehicle at the time of the accident. 1 As a result of
the collision, the vehicle struck a guardrail, causing the guardrail to penetrate the cabin of the
vehicle. Although the vehicle was equipped with air bags, the air bags did not deploy and petitioner
was injured when he was struck in the head by the guardrail.



       1
          Ms. Brown initially reported that she was the driver of the vehicle and that she was alone
at the time of the accident. Later, she recanted that story and advised an investigating officer that
Mr. Brown was driving at the time of the accident. Ms. Brown advised an investigating officer that
she originally stated that she was driving because the car was owned by her mother, who would
not have approved of petitioner driving the vehicle. Accordingly, the West Virginia Uniform
Traffic Crash Report was amended to reflect that petitioner was the driver. Per the officer,
petitioner’s injuries were also consistent with the damage reflected on the driver’s side of the car.
        Respondent State Farm took possession of the vehicle after the accident. After inspecting
the vehicle and taking pictures of it, State Farm sold the vehicle for scrap on or about December
31, 2015. At the time that the vehicle was sold by State Farm, petitioner had not retained counsel
in connection with the underlying accident and there is no evidence in the record to suggest that
State Farm received a request to preserve the vehicle. To the contrary, the record reflects that
petitioner placed State Farm on notice of the claim after the vehicle was no longer in State Farm’s
possession.

       On October 17, 2016, petitioner filed suit against Ms. Brown in the Circuit Court of Wood
County.2 In his complaint, petitioner alleged that Ms. Brown negligently operated the vehicle and
crashed it into a roadside guardrail. After engaging in discovery, petitioner settled with Ms. Brown.
The circuit court entered a partial dismissal order for the claims against Ms. Brown on November
1, 2018.

        Prior to the settlement with Ms. Brown, petitioner filed an amended complaint naming
State Farm as a defendant and asserting negligent and intentional spoliation of evidence claims
against State Farm related to the destruction of the vehicle. Petitioner did not conduct discovery
as to the spoliation claims in accordance with the court’s scheduling order. Instead, petitioner’s
counsel alleges that he and counsel for State Farm informally agreed to stay discovery as to the
spoliation claims until after the claims were resolved against Ms. Brown. State Farm’s counsel
concedes that counsel did discuss a stay of discovery, but maintains that the parties never reached
such an agreement. Notably, counsel did not submit any joint motions or proposed orders to stay
discovery or to vacate the scheduling order.

        Respondent filed a motion for summary judgment and the circuit court conducted a hearing
on the motion on December 11, 2018. The circuit court found that petitioner was unable to establish
the required elements for his negligent spoliation or intentional spoliation claims. Thus, the circuit
court entered a January 9, 2019, Judgment Order granting State Farm’s motion for summary
judgment. This appeal followed.

       On appeal, this Court accords a plenary review to the circuit court’s order granting
summary judgment: “[a] circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt.
1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). In conducting our de novo review,
we apply the same standard for granting summary judgment that is applied by the circuit court.
Under that standard,
                “‘[a] motion for summary judgment should be granted only when it is clear
       that there is no genuine issue of fact to be tried and inquiry concerning the facts is
       not desirable to clarify the application of the law.’ Syllabus Point 3, Aetna Cas. &
       Sur. Co. v. Fed. Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).”


       2
         On October 20, 2017, petitioner also filed suit in the United States District Court for the
Southern District of West Virginia, asserting product liability claims against numerous parties
including Ford Motor Company (hereinafter “Ford”). Petitioner voluntarily dismissed the federal
court action on January 31, 2018, shortly after petitioner learned that the vehicle was no longer
available.


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       Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247
       (1992).

Painter, 192 W. Va. at 190, 451 S.E.2d at 756, syl. pt. 2. In other words,

               [s]ummary judgment is appropriate where the record taken as a whole could
       not lead a rational trier of fact to find for the nonmoving party, such as where the
       nonmoving party has failed to make a sufficient showing on an essential element
       of the case that it has the burden to prove.

Id. at 190, 451 S.E.2d at 756, syl. pt. 4. Additionally, we note that “[t]he circuit court’s function at
the summary judgment stage is not to weigh the evidence and determine the truth of the matter,
but it is to determine whether there is a genuine issue for trial.” Id. at 190, 451 S.E.2d at 756, syl.
pt. 3. Finally, we note that “the party opposing summary judgment must satisfy the burden of proof
by offering more than a mere ‘scintilla of evidence’ and must produce evidence sufficient for a
reasonable jury to find in a nonmoving party’s favor. Anderson [v. Liberty Lobby, Inc.], 477 U.S.
[242] at 252, 106 S.Ct. [2505] at 2512, 91 L.E.2d [202] at 214 [1986].” Williams v. Precision Coil,
Inc., 194 W. Va. 52, 60, 459 S.E.2d 329, 337 (1995).

        In Syl. Pt. 2, in part, Hannah v. Heeter, 213 W. Va. 704, 584 S.E.2d 560 (2003), this Court
spelled out the elements necessary for a negligent spoliation claim:

       (1) the existence of a pending or potential civil action; (2) the alleged spoliator had
       actual knowledge of the pending or potential civil action; (3) a duty to preserve
       evidence arising from a contract, agreement, statute, administrative rule, voluntary
       assumption of duty, or other special circumstances; (4) spoliation of the evidence;
       (5) the spoliated evidence was vital to a party’s ability to prevail in a pending or
       potential civil action; and (6) damages. Once the first five elements are established,
       there arises a rebuttable presumption that but for the fact of the spoliation of
       evidence, the party injured by the spoliation would have prevailed in the pending
       or potential litigation. The third-party spoliator must overcome the rebuttable
       presumption or else be liable for damages.

        Applying Hannah, the circuit court addressed the elements of negligent spoliation and
found that “[t]he inability to meet any one of these elements is fatal to a claim for negligent
spoliation of evidence.” Initially, the circuit court addressed whether petitioner could demonstrate
the existence of a pending or potential civil action. Citing a recent case from this Court, the circuit
court found “‘a pending or potential civil action’ exists where the plaintiff has actually filed a
claim, or where there is evidence objectively demonstrating the possibility that the plaintiff was
likely to pursue a claim in the future.” Williams v. Werner Enters., Inc., 235 W. Va. 32, 39, 770
S.E.2d 532, 539 (2015).

        It is undisputed that there was no pending civil action at the time that State Farm disposed
of the vehicle, therefore the circuit court considered petitioner’s argument that State Farm should
have anticipated a potential civil action in this case because there was “a great deal of blood in the
vehicle and the air bags allegedly did not deploy.” Though petitioner generally contends that this

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Court should presume that State Farm may have had knowledge of a “pending or potential civil
action” at the time that it sold the vehicle, petitioner has not offered even a scintilla of evidence
and has failed to meet his burden. As we held in syllabus point 2 of West Virginia Department of
Health & Human Resources Employees Federal Credit Union v. Tennant, 215 W. Va. 387, 599
S.E.2d 810 (2004),

              “[a]n appellant must carry the burden of showing error in the judgment of
       which he complains. This Court will not reverse the judgment of a trial court unless
       error affirmatively appears from the record. Error will not be presumed, all
       presumptions being in favor of the correctness of the judgment.” Syllabus Point 5,
       Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966).

        Inasmuch as petitioner acknowledged that neither he nor anyone acting on his behalf gave
notice to State Farm of his intention to file a civil action before the vehicle was sold by State Farm,
“[t]he [c]ourt conclude[d] that State Farm did not have ‘actual knowledge’ of a pending or potential
civil action when the Ford Taurus was sold on December 31, 2015.”3 We agree.

        Further, consistent with Hannah, the circuit court considered whether State Farm owed a
duty to petitioner to preserve the vehicle. A duty to preserve evidence for a pending or potential
civil action may arise from a contract, an agreement, the statute or administrative rule, a voluntary
assumption of duty or special circumstances. Here, the circuit court found that State Farm’s
contractual duty was to pay the policyholder and vehicle owner for the property damage claim in
accordance with the collision coverage of the policy. The circuit court found that State Farm did
not owe a duty to petitioner to preserve the vehicle.

        Having found that petitioner failed to meet his burden on each of the elements of the
negligent spoliation claim, the circuit court granted respondent’s motion for summary judgment
as to this cause of action. Applying a de novo review to the record on appeal, we agree with the
circuit court and affirm the circuit court’s grant of summary judgment on petitioner’s negligent
spoliation claim.

        Petitioner also asserted an intentional spoliation claim against State Farm. In Hannah, this
Court also addressed the requisite elements for an intentional spoliation claim, many of which
mirror the elements of a negligent spoliation claim.

               The tort of intentional spoliation of evidence consists of the following
       elements: (1) a pending or potential civil action; (2) knowledge of the spoliator of
       the pending or potential civil action; (3) willful destruction of evidence; (4) the
       spoliated evidence was vital to a party’s ability to prevail in the pending or potential
       civil action; (5) the intent of the spoliator to defeat a party’s ability to prevail in the
       pending or potential civil action; (6) the party’s inability to prevail in the civil


       3
         In Mace v. Ford Motor Co., 221 W.Va. 198, 204, 653 S.E.2d 660, 666 (2007), this Court
looked to textbook definitions from Black’s Law Dictionary of “actual knowledge” which requires
“‘direct and clear knowledge, as distinguished from constructive knowledge’” . . . and “actual
notice” is “‘[n]otice given directly to, or received personally by, a party.’”
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       action; and (7) damages. Once the first six elements are established, there arises a
       rebuttable presumption that but for the fact of the spoliation of evidence, the party
       injured by the spoliation would have prevailed in the pending or potential litigation.
       The spoliator must overcome the rebuttable presumption or else be liable for
       damages.

213 W. Va. at 708, 584 S.E.2d at 564, syl. pt. 11.

        Inasmuch as the circuit court appropriately found that petitioner failed to satisfy several
elements of the negligent spoliation claim that mirror the elements of his intentional spoliation
claim, the circuit court found that this claim also fails. We agree and affirm the circuit court’s order
granting summary judgment to State Farm on petitioner’s intentional spoliation claim.

       For the foregoing reasons, we affirm.

                                                                                             Affirmed.

ISSUED: January 13, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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