        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                               January 2015 Term
                                                                     FILED
                                _______________
                                                                  March 2, 2015
                                                                  released at 3:00 p.m.
                                                                RORY L. PERRY II, CLERK
                                     No. 14-0212              SUPREME COURT OF APPEALS
                                                                   OF WEST VIRGINIA
                                   _______________

                         JANNELL WILLIAMS, as the

          Personal Representative of the Estate of Kenneth Williams, and

                         CHERYL RUTLEDGE, as the

            Personal Representative of the Estate of Quentin Rutledge,

                          Plaintiffs Below, Petitioners


                                         v.

                        WERNER ENTERPRISES, INC.,
                           a Nebraska Corporation,
                         Defendant Below, Respondent

      ____________________________________________________________

                  Appeal from the Circuit Court of Ohio County

                   The Honorable Martin J. Gaughan, Judge

                            Civil Action No. 09-C-419


                                     AFFIRMED


      ____________________________________________________________

                          Submitted: February 11, 2015

                             Filed: March 2, 2015


Frank P. Bush, Jr., Esq.                         Mary H. Sanders, Esq.
Law Office of Frank P. Bush, Jr.                 Cindy D. McCarty, Esq.
Elkins, West Virginia                            Huddleston Bolen LLP
and                                              Charleston, West Virginia
Christopher J. Heavens, Esq.                     Counsel for the Respondent
Heavens Law Offices
Charleston, West Virginia
JUSTICE KETCHUM delivered the Opinion of the Court.


JUSTICE BENJAMIN concurs and reserves the right to file a separate opinion.


CHIEF JUSTICE WORKMAN dissents and reserves the right to file a separate

opinion.


JUSTICE DAVIS dissents and reserves the right to file a separate opinion.

                               SYLLABUS BY THE COURT


              1.      “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 Casualty &

Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770

(1963).

              2.      “Summary judgment is appropriate if, from the totality of the

evidence presented, the record 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.” Syllabus

Point 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

              3.      “Intentional spoliation of evidence is defined as the intentional

destruction, mutilation, or significant alteration of potential evidence for the purpose of

defeating another person’s recovery in a civil action.” Syllabus Point 10, Hannah v.

Heeter, 213 W.Va. 704, 584 S.E.2d 560 (2003).

              4.      “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 action; and (7)

damages. Once the first six elements are established, there arises a rebuttable

                                               i
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.” Syllabus Point 11,

Hannah v. Heeter, 213 W.Va. 704, 584 S.E.2d 560 (2003).




                                            ii
Justice Ketchum:


              The tort of intentional spoliation of evidence requires a plaintiff to prove

that a defendant had “knowledge” of a pending or potential civil action, at the time that

the defendant disposed of evidence vital to the plaintiff’s action.

              In this appeal from the Circuit Court of Ohio County, the circuit court

granted summary judgment and dismissed two plaintiffs’ claims that the defendant

intentionally spoliated evidence vital to a product liability action by the plaintiffs. The

circuit court determined that there was no indication whatsoever in the record to establish

the defendant knew of any pending or potential civil action when it disposed of the

evidence.

              After a review of the record, we affirm the circuit court’s summary

judgment order.


                                    I.

                   FACTUAL AND PROCEDURAL BACKGROUND


              Defendant Werner Enterprises (“Werner”) is a nationwide freight

transportation company. Quentin Rutledge and Kenneth Williams were long distance

drivers for Werner who drove a tractor-trailer as a team.

              In the early morning hours of January 12, 2009, sometime around 2:30

a.m., Mr. Rutledge was driving northbound on I-79 near Jane Lew, West Virginia. Mr.

Williams was located in the tractor-trailer’s sleeper berth. A winter storm began, and a

police report indicates that the roadway was covered in snow. As Mr. Rutledge crossed a


                                              1

bridge he lost control of the tractor-trailer. The vehicle hit a guardrail, jackknifed,

overturned, then went off the road and slid 30 feet down a steep embankment.

              Witnesses who arrived on the scene discovered a small fire had started that

could not be extinguished.      The fire eventually consumed the tractor-trailer.     Mr.

Rutledge and Mr. Williams died before they could be extracted.

              By 5:30 a.m., Werner had hired an adjuster from Crawford & Company, a

national adjusting firm.    The adjuster arrived at the scene of the accident shortly

thereafter and gathered information.       The adjuster electronically provided Werner a

written report and photographs on the day of the accident. The adjuster also called

Werner and discussed the scene.

              The adjuster informed Werner that this was a single-vehicle accident,

caused by weather conditions, which involved only the two Werner employees. Hence,

Werner (a Nebraska company) knew that it would be responsible (under Nebraska law) to

pay workers’ compensation death benefits to the drivers’ families. Under Nebraska

workers’ compensation law, Werner was required to pay the benefits regardless of who

was at fault for the accident; in return, Werner was immune from tort liability to the

drivers’ families for any tort damages.1


              1
               Nebraska law (specifically Neb. Rev. Stat. §§ 48-111 and 48-148)
provides that workers’ compensation benefits are the exclusive remedy for any employee
who suffers a personal injury that arises out of and in the course of his or her
employment. See, e.g., Skinner v. Ogallala Pub. Sch. Dist. No. 1, 262 Neb. 387, 394, 631
N.W.2d 510, 520 (2001) (“Indeed, the Nebraska Workers’ Compensation Act is an
employee’s exclusive remedy against an employer for an injury arising out of and in the
course of employment.”); Marlow v. Maple Manor Apartments, 193 Neb. 654, 659, 228
                                                                         (continued . . .)
                                              2

              The adjuster also told Werner that there were two other potential

“claimants” from the accident. The first was the State of West Virginia. The adjuster

stated that Werner would likely receive from the State a claim for damage done to the

guardrail, for the cost of cleaning up diesel fuel spilled from the tractor-trailer, and for the

removal of any hazardous substances left behind from the burning of the cargo and

equipment.2 The second potential claimant was the owner of the cargo. The adjuster

thought there might be some scrap value that could be salvaged from the cargo, but also




N.W.2d 303, 306 (1975) (“If coverage exists, even though for some reason compensation
may not be payable, the Workmen’s Compensation Act is exclusive. If the accident does
not arise out of and in the course of the employment, there is no coverage, and the parties
then are not subject to the act.”).

               Furthermore, Nebraska’s workers’ compensation law only allows an action
by an employee against an employer or co-worker if the employee’s “injury or death is
proximately caused by the willful and unprovoked physical aggression of such employee,
officer, or director.” Neb. Rev. Stat. § 48-111. Compare W.Va. Code § 23-4-2 [2005]
(permitting lawsuit in addition to workers’ compensation benefits where “injury or death
result to any employee from the deliberate intention of his or her employer to produce the
injury or death,” and giving an expansive definition to “deliberate intention”); Syllabus
Point 2, Mayles v. Shoney’s, Inc., 185 W.Va. 88, 405 S.E.2d 15 (1990) (“A plaintiff may
establish ‘deliberate intention’ in a civil action against an employer for a work-related
injury by offering evidence to prove the five specific requirements provided in
W.Va.Code § 23-4-2(c)(2)(ii) (1983).”).
              2
                  The report of the adjuster states:

              There will be a claim made by the State of West Virginia for
              damage done to the guard rail and for the cost of cleaning up
              the hazardous substances left behind by the diesel spill and
              fire of the cargo and equipment. The WV Dept. of
              Environmental Protection was scheduled to arrive at the scene
              within the hour after we were released from the scene.


                                                3

thought that the cost to handle and transport the scrap materials would exceed its scrap

value. The adjuster therefore deemed the cargo a total loss.3

              The only question remaining for Werner was whether the vehicle was

repairable, or had any scrap value. The record indicates that by 3:15 a.m., while the

tractor-trailer was still on fire, several heavy-duty tow trucks had arrived at the accident

scene. Cables were attached to stabilize the tractor-trailer wreckage and prevent it from

sliding further down the steep hill. The tow trucks later lifted the wreckage to allow

removal of the bodies of Mr. Rutledge and Mr. Williams. For the remainder of the day –

until approximately 9:00 p.m. – 15 employees of the towing company loaded five dump

and/or flatbed trailers with the remains of the tractor-trailer. Because the local dump was

closed at night, the remains of the tractor-trailer were hauled to the towing company’s

garage.

              At some point within 48 hours of the accident, the assistant director of

Werner’s fleet maintenance program reviewed photos of the fire-burned tractor-trailer

and immediately decided it was damaged beyond repair. Werner directed the towing


              3
                  The report of the adjuster states:

              As is shown by the photographs the cargo on this truck
              consisted of a mixed load. From what we saw there were BB
              guns, custom aluminum wheels, flat screen TVs, hair
              products, two mopeds, and various adult novelties. The cargo
              was totally consumed by the fire. There was some salvage
              value in the wheels but the current [scrap] value of aluminum
              is $.30 and the cost to handle and transport would exceed
              return. We would deem the cargo a total loss.


                                                4

company to dispose of the wreckage of the tractor-trailer. The towing company then

hauled the wreckage to a local landfill.

              Approximately one month after Werner disposed of the remains of the

tractor-trailer, on February 11, 2009, a lawyer retained by Mr. Williams’s family wrote a

letter to Werner. The lawyer said he had been hired to investigate the January 12th

accident, and said the purpose of the letter was “to request preservation of the vehicle and

all evidence associated with the accident.” Werner received the letter by certified mail on

February 18th.

              Within a week of receiving the letter, general counsel for Werner advised

the lawyer by telephone that the vehicle had been disposed of, and in a letter dated March

4th general counsel clarified that the remains of the vehicle had been hauled to a landfill.

              On December 9, 2009, the plaintiffs (the family of Mr. Williams, later

joined by the family of Mr. Rutledge)4 filed the instant lawsuit. The plaintiffs alleged a

hodgepodge of legal theories, including that Werner acted with deliberate intent in

violation of West Virginia’s workers’ compensation law; that Werner had negligently




              4
                The initial complaint was filed by Jannell Williams, as the personal
representative of the Estate of Kenneth Williams, against various defendants including
Cheryl Rutledge, as the personal representative of the Estate of Quentin Rutledge. Ms.
Williams alleged, in part, that Mr. Rutledge (as driver of the tractor-trailer) negligently
caused or contributed to Mr. William’s death. After various answers, cross-claims,
counter-claims, and dismissals, Cheryl Rutledge was re-aligned as a plaintiff against
Werner Enterprises, Inc.


                                              5

trained and supervised the plaintiffs; and that Werner had caused the wrongful death of

the plaintiffs.5

               Among the various causes of action asserted by the plaintiffs, only two are

relevant to this appeal. First, the plaintiffs asserted product liability claims against the

manufacturer of the tractor-trailer, Freightliner Corporation, Inc. (and its parent

corporation, Daimler Trucks North America, LLC). Second, the plaintiffs alleged that

Werner had either negligently or intentionally spoliated and “disposed of evidence related

to the subject accident, including the aforementioned Freightliner vehicle, with the

knowledge of plaintiff[s’] request that such evidence be preserved[.]”

               At a hearing on October 7, 2011, counsel for Freightliner asked the circuit

court for summary judgment on the plaintiffs’ product liability claims. Counsel for the

manufacturer argued that the plaintiffs were unable to establish any product defect that

caused the fire in the Werner tractor-trailer. Freightliner’s counsel argued, based upon

discussions with expert witnesses,

               that there are multiple potential causes for this fire, and due to
               the inability to inspect the vehicle itself, they are unable to
               arrive at any opinions that would be admissible in a court of
               law.




               5
                 The plaintiffs also brought suit against Crawford & Company (and its
adjuster-employee, Mark Griffith). The plaintiffs alleged that Crawford & Company had
engaged in either negligent and/or intentional spoliation when it worked with Werner to
dispose of the tractor-trailer. The record on appeal suggests that Crawford & Company
settled with the plaintiffs and was dismissed from the action.


                                               6

The plaintiffs’ attorneys conceded that summary judgment was proper because “the

vehicle was destroyed within 48 hours” by Werner, and because the “few photographs

that were taken were both of poor quality and failed to depict the areas . . . that our design

engineer would need to be able to look at . . . to establish a specific defect.” Accordingly,

the circuit court granted summary judgment to Freightliner (and its parent corporation,

Daimler Trucks). The plaintiffs did not appeal that summary judgment order.

              At the same hearing, the circuit court heard a motion for summary

judgment by Werner.       Werner asked that all of the plaintiffs’ claims be dismissed.

However, in an order dated October 17, 2011, the circuit court granted only partial

summary judgment to Werner, dismissing all but one of the plaintiffs’ causes of action

against Werner.

              In its order, the circuit court dismissed the plaintiffs’ claims that Werner

was negligent in its training and supervision of Mr. Rutledge and Mr. Williams; that

Werner had caused the wrongful death of Mr. Rutledge and Mr. Williams; and that

Werner had, in violation of West Virginia workers’ compensation law, caused injuries to

and the death of Mr. Rutledge and Mr. Williams with deliberate intent. Additionally, the

circuit court dismissed the plaintiffs’ claim that Werner had negligently spoliated

evidence.6 The plaintiffs appealed the partial summary judgment order to this Court. In


              6
                “West Virginia recognizes spoliation of evidence as a stand-alone tort
when the spoliation is the result of the negligence of a third party, and the third party had
a special duty to preserve the evidence.” Syllabus Point 5, Hannah v. Heeter, 213 W.Va.
704, 584 S.E.2d 560 (2003).


                                              7

a memorandum decision, we affirmed the circuit court’s October 17, 2011, order. See

Williams ex rel. Williams v. Werner Enterprises, Inc., 2013 WL 3184845 (No. 12-0847,

June 24, 2013).

              The circuit court’s partial summary judgment order dismissed all of the

plaintiffs’ claims except for one: whether Werner intentionally spoliated evidence when it

disposed of the tractor-trailer. This ruling, favorable to the plaintiffs, was not appealed.

The circuit court initially permitted the intentional spoliation claim to proceed to trial.

However, out of caution the circuit court certified questions to this Court on June 15,

2012, concerning whether the plaintiffs had proffered sufficient evidence to establish a

genuine issue of fact in their intentional spoliation claim against Werner. We refused to

review the certified questions.

              On December 30, 2013, Werner renewed its motion for summary judgment

on the plaintiffs’ intentional spoliation claim.7        To establish Werner intentionally

spoliated evidence to defeat the plaintiffs’ product liability suit, the plaintiffs had to prove

Werner had “knowledge . . . of the pending or potential civil action” against Freightliner

              7
                The plaintiffs argue that the circuit court was precluded from addressing
the motion for summary judgment on the intentional spoliation claim because (a) the
circuit court’s October 2011 order had denied summary judgment on the claim, and (b)
this Court had “affirmed” the circuit court’s order in a June 2013 memorandum opinion.
We reject this argument because none of the parties appealed the circuit court’s
intentional spoliation ruling, and none of our reasoning in the June 2013 memorandum
decision discussed or approved of the ruling. Hence, the circuit court was free to re­
address its ruling on intentional spoliation if it felt “a need to correct a clear error or
prevent manifest injustice.” Tolley v. Carboline Co., 217 W.Va. 158, 161 n.3, 617 S.E.2d
508, 511 n.3 (2005) (quoting Franklin D. Cleckley, Robin Jean Davis & Louis J. Palmer,
Litigation Handbook on West Virginia Rules of Civil Procedure, § 56(c) (Supp.2004)).


                                               8

at the time Werner decided to send the remains of the tractor-trailer to the landfill.

Syllabus Point 11, in part, Hannah v. Heater, 213 W.Va. 704, 584 S.E.2d 560 (2003).

Werner asserted that because there was no evidence suggesting Werner knew that the

plaintiffs intended to sue Freightliner, summary judgment was proper.

              In an order dated January 24, 2014, the circuit court granted Werner’s

motion for summary judgment.         The circuit court could find nothing in the record

suggesting “that Werner, prior to disposing of the subject vehicle in this case, had

examined its records and reached a direct and clear recognition (actual knowledge) that

Freightliner tractor-trailers were defective.” Because there was no material question of

fact favorable to the plaintiffs on this critical point, the circuit court concluded that the

plaintiffs could not establish their intentional spoliation claim.

              The plaintiffs now appeal the circuit court’s summary judgment order.


                                        II.

                                STANDARD OF REVIEW


              We give a de novo review to a circuit court’s order granting summary

judgment under Rule 56 of the WEST VIRGINIA RULES OF CIVIL PROCEDURE. Syllabus

Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Accordingly, we

apply the same standards that the circuit court relied upon in our review.

              Under Rule 56 of the RULES OF CIVIL PROCEDURE, summary judgment is

proper where the record demonstrates “that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law.” “A motion

for summary judgment should be granted only when it is clear that there is no genuine

                                               9

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 Casualty and Surety Company v.

Federal Insurance Company of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

“Summary judgment is appropriate if, from the totality of the evidence presented, the

record 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.” Syllabus Point 2, Williams v.

Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

              Moreover, this Court has observed that, in reviewing an order granting a

motion for summary judgment, any permissible inferences from the underlying facts must

be drawn in the light most favorable to the party opposing the motion. See Mueller v.

American Electric Power Energy Services, 214 W.Va. 390, 393, 589 S.E.2d 532, 535

(2003). Nevertheless, Syllabus Point 3 of Williams v. Precision Coil, Inc., 194 W.Va. at

56, 459 S.E.2d at 333, holds:

                     If the moving party makes a properly supported
              motion for summary judgment and can show by affirmative
              evidence that there is no genuine issue of a material fact, the
              burden of production shifts to the nonmoving party who must
              either (1) rehabilitate the evidence attacked by the moving
              party, (2) produce additional evidence showing the existence
              of a genuine issue for trial, or (3) submit an affidavit
              explaining why further discovery is necessary as provided in
              Rule 56(f) of the West Virginia Rules of Civil Procedure.

              With these standards in mind, we turn to the plaintiffs’ challenge to the

circuit court’s summary judgment order dismissing their claim against Werner for

intentional spoliation of evidence.

                                            10

                                            III.

                                         ANALYSIS


               “Intentional spoliation of evidence is defined as the intentional destruction,

mutilation, or significant alteration of potential evidence for the purpose of defeating

another person’s recovery in a civil action.” Syllabus Point 10, Hannah v. Heeter, 213

W.Va. 704, 584 S.E.2d 560 (2003). “The gravamen of the tort of intentional spoliation is

the intent to defeat a person’s ability to prevail in a civil action. Therefore, it must be

shown that the evidence was destroyed with the specific intent to defeat a pending or

potential lawsuit.” 213 W.Va. at 717, 584 S.E.2d at 573. “West Virginia recognizes

intentional spoliation of evidence as a stand-alone tort when done by either a party to a

civil action or a third party.” Syllabus Point 9, Hannah, 213 W.Va. at 708, 584 S.E.2d at

564.

               This Court adopted a seven-factor test in Hannah governing claims of

intentional spoliation of evidence. Those seven factors are (with emphasis on the factor

at issue in this appeal):

                       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 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


                                               11
              litigation. The spoliator must overcome the rebuttable
              presumption or else be liable for damages.

Syllabus Point 11, Hannah, 213 W.Va. at 708, 584 S.E.2d at 564.

              This Court considered the meaning of the first factor – whether there was a

pending or potential civil action – in Mace v. Ford Motor Co., 221 W.Va. 198, 653

S.E.2d 660 (2007) (per curiam). We noted that the dictionary definition of “pending” is:

              Begun, but not yet completed; during; before the conclusion
              of; prior to the completion of; unsettled; undetermined; in
              process of settlement or adjustment. Thus, an action or suit is
              “pending” from its inception until rendition of final judgment.

221 W.Va. at 202, 653 S.E.2d at 664 (quoting Black’s Law Dictionary (5th Ed. 1979)).

We found the dictionary definition of “potential” was “quite distinguishable,” and is this:

              Existing in possibility but not in act. Naturally and probably
              expected to come into existence at some future time, though
              not now existing[.]

Id. We concluded that 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. 221 W.Va. at 203, 653 S.E.2d

at 665.

              This appeal centers exclusively on the second factor of Hannah: the

knowledge of the spoliator of a pending or potential civil action. The dispute in this case

is over the degree of proof necessary to fairly say a spoliator “knew” of a pending or

potential claim, and thereafter destroyed evidence to foil the plaintiff’s pursuit of the

claim.



                                            12

              The plaintiffs in this case contend there is substantial, uncontroverted

evidence from which the only reasonable conclusion is that Werner had actual knowledge

of the plaintiffs’ claims requiring preservation of the tractor-trailer. Based on Werner’s

communication records, the plaintiffs assert Werner was aware that the tractor-trailer had

broken down twice on the trip immediately preceding the trip encompassing the accident

at issue.8 Furthermore, the adjuster who visited the accident scene advised Werner of a

significant diesel fuel leak and subsequent fire that consumed the tractor and trailer. On

the day of the accident, Werner was aware that two of its employees had died in a severe

accident. Werner was also aware it faced claims for damage to the guardrail and for

environmental remediation. Additionally, the cargo in the trailer was a total loss.

              The plaintiffs further assert that Werner is a sophisticated trucking entity

that has an in-house legal department and a claims department that is well versed in

litigation arising from trucking accidents.

              Putting these facts together, the plaintiffs contend that on the same day as

the accident, Werner “knew” that numerous potential claims existed. These claims

included (1) claims by the plaintiffs for negligent maintenance of the tractor-trailer; (2)

product liability claims by the plaintiffs against the manufacturer of the Freightliner

              8
                Aside from Werner’s communication logs, the record contains no other
information about these alleged breakdowns. The log entry, on January 9, 2009, says
only this: “1306 each added to current trip for both breakdowns.” The plaintiff has
provided nothing to suggest what part of the tractor-trailer was involved, the cause of the
breakdowns, who did the repairs (if any), the extent to which Werner was aware of the
breakdowns or repairs, or – most importantly – how these breakdowns may have caused
or contributed to the January 12th accident.


                                              13

tractor-trailer; (3) subrogation claims by Werner (or its insurers) for workers’

compensation payments made to the plaintiffs’ survivors; and (4) subrogation claims by

Werner for amounts spent on the lost cargo and property damage. Still, within 48 hours

of the accident Werner approved the disposal of the tractor-trailer in a landfill.

              Werner argues that the facts laid out by the plaintiffs are nothing more than

a case for “constructive” knowledge, not “actual” knowledge. Werner contends that on

the day of the accident, January 12th, no pending or potential claims required the

preservation of the tractor-trailer.   The investigations by a sheriff’s deputy and by

Werner’s adjuster showed the accident resulted exclusively from snow and ice on the

roadway.9 The carcass of the vehicle was irrelevant to the outcome of the only potential

claim from the plaintiffs that Werner knew of: the claim for Nebraska workers’

compensation death benefits. Werner also knew that Nebraska’s workers’ compensation

laws barred any negligence suits by the plaintiffs against Werner, including against

Werner’s maintenance department. The tractor-trailer was also irrelevant to any claims



              9
                 The report of the sheriff’s deputy suggests that a rough road may also
have contributed to the truck sliding on ice. The deputy’s narrative says, in part (with
capitalization removed):

              At approximately 0230 AM . . . the driver . . . lost control of
              this tractor trailer owned by Werner Enterprises while
              crossing an icy snow covered bridge . . . (the bridge was also
              bumpy from several attempts to patch holes on it) . . . This
              officer can only speculate that the cause of the accident was
              the snowy road conditions, and possibly the condition of the
              bridge.


                                             14

that might be asserted by the State for the damage to the guardrail or the environmental

damage, or asserted by the owner of the destroyed cargo.

               Put simply, within 48 hours of the accident, Werner argues that the extent

of its “actual” knowledge was that the tractor-trailer was a total loss, burned, in pieces,

and sitting in five dump or flatbed trailers. Based on that knowledge, Werner authorized

disposal of the vehicle.

               It was not until over a month later, on February 18th, that Werner received a

certified letter from the plaintiffs asking Werner to preserve the remains of the tractor-

trailer.   Hence, Werner claims it had no “actual knowledge” of any claims by the

plaintiffs involving the tractor-trailer until this date.   Since it had relinquished all

possession, custody, and control of the vehicle to the towing company that then dumped

the vehicle in a landfill, Werner asserts it had neither a right nor a duty to extract the

remains of the vehicle for the plaintiffs. Additionally, Werner asserts the plaintiffs had

just as much right to visit the landfill and attempt to inspect the remains of the tractor-

trailer, but did not do so.

               The circuit court and the parties proceeded below on the notion that, in an

intentional spoliation suit, the plaintiff must prove the spoliator “had actual knowledge of

the pending or potential litigation.” On appeal, the parties again dispute whether the

evidence is sufficient to suggest a question of material fact as to whether Werner had

“actual” knowledge of the potential claims requiring preservation of the tractor-trailer.

               Our scrutiny of the seven-factor test in Syllabus Point 11 of Hannah v.

Heeter, as well as the text of Hannah, reveals no requirement of “actual” knowledge.

                                             15

The tort of intentional spoliation requires only proof of “knowledge of the spoliator of the

pending or potential civil action.” Syllabus Point 11, Hannah.

              In the common vernacular, knowledge is an awareness, familiarity or

understanding of a fact or of a range of information. “As a general matter, knowledge

requires awareness of a fact or condition[.]” Bryan A. Garner, A Dictionary of Modern

Legal Usage 495 (1995).        Digging deeper into epistemology, the Oxford English

Dictionary defines knowledge as an “[a]cquaintance with a fact; perception, or certain

information of, a fact or matter; state of being aware or informed; consciousness (of

anything).” It is also defined as “knowledge of a person, thing, or perception gained

through information or facts about it rather than by direct experience” and as an

“[i]ntellectual acquaintance with, or perception of, fact or truth; clear and certain mental

apprehension; the fact, state or condition of understanding.” VIII The Oxford English

Dictionary 517-18 (2nd Ed. 1991).

              The Oxford English Dictionary indicates that many of the iterations of the

word “knowledge” are “derived from the verb KNOW[.]” To “know” something means to

“recognize or distinguish,” “to acknowledge,” and “to be acquainted with (a thing, a

place, or a person).” More specifically, “to know” a fact is “[t]o have cognizance of

(something) through observation, inquiry, or information; to be aware or apprised of . . .

to become cognizant of, learn through information or inquiry, ascertain, find out.” It is

also “[t]o apprehend or comprehend as fact or truth; to have a clear or distinct perception

or apprehension of; to understand or comprehend with clearness and feeling of certainty.”

VIII The Oxford English Dictionary at 512-515.

                                            16

              When opposing a motion for summary judgment, a party must show

something more than a metaphysical doubt that there is a genuine issue of fact to be tried.

See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct.

1348, 1356, 89 L.Ed. 2d 538 (1986) (“When the moving party has carried its burden

under Rule 56(c), its opponent must do more than simply show that there is some

metaphysical doubt as to the material facts.”). In the instant case, the plaintiffs assert that

Werner is a sophisticated trucking company, and therefore that it should have known of

the potential for a product liability lawsuit by the plaintiffs against Freightliner.

However, we find no evidence to suggest that when Werner disposed of the tractor-trailer

that it had any inkling of (let alone cognizance, awareness, a clear perception, or

information that would impel it to inquire, ascertain, or find out about) a pending or

potential product liability lawsuit, by the plaintiffs or anyone else. It is only with

hindsight that the plaintiffs can justly say Werner “should have known.”10

              The first evidence that Werner had knowledge of the plaintiffs’ potential

product liability suit was on February 18, 2009, when they received a letter from a

plaintiff’s lawyer asking that the tractor-trailer be preserved.        This is the primary

evidence indicating that a Werner employee had an articulable awareness and

understanding of a potential future suit. But this letter was received over a month after


              10
                 The circuit court noted in its summary judgment order that it was
“disturbed with the conduct of Werner by quickly disposing of the subject vehicle under
the circumstances.” However, as with the plaintiffs, this opinion derives from the circuit
court’s view of the case in hindsight.


                                              17

the remains of the tractor-trailer had been hauled to a landfill (in pieces loaded on dump

and flatbed trailers) and after Werner was alleged to have “spoliated” evidence critical to

the plaintiffs’ case.

               The plaintiffs’ case is therefore staked on whether Werner, in the 48 hours

after the accident, had knowledge of information that would lead it to inquire further, and

to investigate and inquire whether the plaintiffs had some potential claim based upon the

tractor-trailer. However, we can find no such evidence that should have impelled Werner

to act differently. Within 48 hours of the accident, Werner understood that two of its

employees had died in a horrific accident likely triggered by nothing more than snow and

ice.11 The tractor-trailer had plowed into and through a guardrail, jackknifed, rolled over,

and then slid down a steep hillside before being consumed by fire. The vehicle was not

towed from the site; it was hauled away in pieces, collected over 15 hours, on five dump

and flatbed trailers.

               The plaintiffs contend that Werner knew the tractor-trailer had mechanical

difficulties which should have caused Werner to suspect a potential product liability

action.   However, the plaintiffs’ only evidence of the mechanical difficulties is an

abbreviated note in a communication log with Werner, which says simply, “1306 each

added to current trip for both breakdowns.” No other documentation or deposition

testimony is in the record to describe the nature of these breakdowns, the cause of the


               11
                The record also contains allusions that the drivers were inexperienced,
with only four months of truck-driving experience.


                                            18

breakdowns, who conducted the repairs, or how these mechanical problems in any way

caused or contributed to the accident.     Moreover, there is nothing to suggest these

breakdowns were extraordinary, out of the routine, or indicative of a pattern such that

Werner would have been aware of a potential product liability action.12

              The plaintiffs also contend that Werner itself had various potential claims

that should have triggered a more sedulous investigation. For instance, the on-scene

adjuster hired by Werner noted potential claims might be filed by the State of West

Virginia (for the guardrail and environmental damage) and by the owner of the destroyed

cargo. The plaintiffs, however, do not explain why – when liability for these expenses

was so clear – that Werner needed to preserve the tractor-trailer to defend either of these

potential claims.

              Furthermore, the plaintiffs assert that Werner should have perceived a

potential claim by the plaintiffs against Freightliner so that Werner could recover

subrogation of the workers’ compensation death benefits paid to the plaintiffs’ families,

and recover subrogation for the lost cargo and environmental damage. However, to have

perceived a claim for subrogation would have required Werner to first perceive that the


              12
                 As an example of a pattern of breakdowns, see Appalachian Leasing, Inc.
v. Mack Trucks, Inc., 765 S.E.2d 223, 226 (W.Va. 2014). The plaintiff in Appalachian
Leasing bought four Mack trucks that were repeatedly driven or towed back to the
dealership because they “(1) would not run, (2) hard to start, (3) transmission problems,
(4) overheating, (5) leaking water pump, (6) hoods falling off and (7) cabs falling apart.”
Id. The plaintiff sought damages and sought to rescind the purchase contract because the
four trucks failed in their essential purpose of being suitable for off-road coal hauling
purposes.


                                            19

plaintiffs were naturally and probably expected to bring a suit against Freightliner. We

see no evidence of this latter fact.

              We agree with the plaintiffs that Werner is a sophisticated entity, with on-

staff lawyers familiar with trucking accidents. But, until Werner received the letter on

February 18, 2009, we can see no evidence indicating Werner perceived or even

suspected impending future litigation over tractor-trailer defects by the plaintiffs. All of

the evidence of record suggests that when the tractor-trailer was hauled to the landfill,

Werner knew only that the plaintiffs had claims for workers’ compensation benefits. The

remains of the tractor-trailer were irrelevant to that claim.

              The tort of intentional spoliation is designed to preclude a party from

destroying evidence with the intent to harm another party’s ability to bring or defend a

legal claim. But the tort is not intended to unduly interfere with the rights of individuals

to dispose of their property lawfully. Because there is no evidence of record to say

Werner was aware, informed, perceived, or had any knowledge that would lead it to the

conclusion the plaintiffs had a pending or potential suit when it destroyed the tractor-

trailer, the circuit court was correct in granting summary judgment.13


              13
                Werner raises one cross-assignment of error, and asserts that under the
choice-of-law doctrine lex loci delicti, Nebraska law and not West Virginia law should
control this case. Nebraska has never recognized the tort of intentional spoliation of
evidence. See McNeel v. Union Pac. R. Co., 276 Neb. 143, 156, 753 N.W.2d 321, 332
(2008) (“In Nebraska, the proper remedy for [intentional] spoliation of evidence is an
adverse inference instruction.”); State v. Davlin, 263 Neb. 283, 302, 639 N.W.2d 631,
649 (2002) (“an instruction on the inference that may be drawn from spoliation of
evidence is appropriate only where substantial evidence exists to support findings that the
evidence had been in existence, in the possession or under the control of the party against
                                                                            (continued . . .)
                                              20

                                         IV.

                                     CONCLUSION


              The circuit court correctly determined that there was no question of

material fact as whether Werner had knowledge of the plaintiffs’ potential claim when it

disposed of the tractor-trailer. The circuit court’s January 24, 2014, summary judgment

order is therefore affirmed.

                                                                                 Affirmed.




whom the inference may be drawn; that the evidence would have been admissible at trial;
and that the party responsible for the destruction of the evidence did so intentionally and
in bad faith.”).

              Werner urges that we adopt the method of analysis outlined in the
Restatement (Second) of Conflict of Laws § 145 (1971) to guide our choice of applicable
law. However, we have specifically rejected the Section 145 analysis, largely because it
is inherently subject to manipulation. Further, although Section 145 may have been
designed as “a method of analysis that permitted dissection of the jural bundle
constituting a tort and its environment,” history has taught the Court that such schemes
instead “produce protracted litigation and voluminous, inscrutable appellate opinions,
while rules get cases settled quickly and cheaply.” Paul v. National Life, 177 W.Va. 427,
432, 352 S.E.2d 550, 554 (1986).

               This Court has, therefore, consistently applied the common-law “lex loci
delicti choice-of-law rule; that is, the substantive rights between the parties are
determined by the law of the place of injury.” McKinney v. Fairchild Int'l, Inc., 199
W.Va. 718, 727, 487 S.E.2d 913, 922 (1997). The tort of intentional spoliation of
evidence is, in part, a procedural rule designed to protect local courts from the deliberate
destruction of evidence necessary to prosecute claims. Because Werner’s disposition of
the truck occurred in West Virginia, and allegedly impinged upon the plaintiffs’
prosecution of a West Virginia product liability injury suit, West Virginia’s intentional
spoliation rules govern this case.


                                            21

