No. 14-0212 -        Jannell Williams, et al. v. Werner Enterprises, Inc.

                                                                              FILED
                                                                            March 2, 2015
                                                                         RORY L. PERRY II, CLERK

                                                                       SUPREME COURT OF APPEALS

                                                                           OF WEST VIRGINIA


Workman, Chief Justice, dissenting:


              Today our Court violates a bedrock principle of our summary judgment

jurisprudence: a court’s function at the summary judgment stage is not to weigh the

evidence and determine the truth of the matter, but is to determine whether there is a

genuine issue for trial. Syl. Pt. 3, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755

(1994). With regard to summary judgment, we have stated that “[t]he essence of the

inquiry the court must make is ‘whether the evidence presents a sufficient disagreement

to require submission to a jury or whether it is so one-sided that one party must prevail as

a matter of law.’” Williams v. Precision Coil, Inc., 194 W.Va. 52, 61, 459 S.E.2d 329,

338 (1995) (citation omitted.). “In assessing the factual record, we must grant the

nonmoving party the benefit of inferences, as ‘[c]redibility determinations, the weighing

of the evidence, and the drawing of legitimate inferences from the facts are jury

functions, not those of a judge[.]’” Id. at 59, 459 S.E.2d at 336 (citation omitted).


              The majority, sitting as a three-member jury, examined the record and

could not uncover the proverbial smoking gun in Werner’s documents that prove it had

actual knowledge of a potential lawsuit against the manufacturer of the tractor-trailer. I

emphasize the word potential because there is virtually no way the plaintiffs could have a



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pending lawsuit within 48 hours of the fatal vehicle accident. Undoubtedly, the families

were making funeral arrangements while the evidence was being destroyed.


              This decision is clearly wrong because it creates a new and unattainable

burden on a plaintiff in an intentional spoliation claim. Even more disturbing, the

decision sends an iniquitous message: a defendant who rushes to destroy evidence will be

rewarded, not sanctioned.


              Viewing the record in a light most favorable to the plaintiffs, material

issues of fact exist as to whether Werner had actual knowledge of potential litigation

involving the tractor-trailer’s manufacturer at the time it sent this essential evidence to a

landfill. Therefore, the plaintiffs presented sufficient evidence to survive Werner’s

motion for summary judgment. The majority makes no mention of the findings of

Kathleen J. Robison, the plaintiffs’ expert on spoliation claims. After reviewing the

documents relating to this litigation, Ms. Robison recognized that Werner’s accident

investigator, Mark Griffith of Crawford and Company, reported to Werner that Mr.

Rutledge was trapped inside the truck and conscious before the fire spread and killed

him. Ms. Robison determined: “Werner knew truck fires after accidents were rare, and

this would have put Werner on notice [that] something could be wrong with the truck.”

Ms. Robison ultimately concluded that


              [b]ased upon industry investigative and claims handling standards
       and practices, it was reasonable to anticipate based upon the type of deaths
       Mr. Williams and Mr. Rutledge endured that litigation would ensue. Due to
       the deaths of the drivers the tractor-trailer would be key evidence in

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         ensuing litigation and should have been preserved. Werner Enterprises had
         at the time the professional experience in handling significant tractor-trailer
         accidents involving significant injuries. It was reasonable for them to
         anticipate that litigation would ensue and that the tractor-trailer would be
         prime evidence that must be preserved.

While weighing the evidence, the majority apparently rejected Ms. Robison’s

conclusions. However, this type of fact-finding is a function of the jury, not a reviewing

court.


                Based on the circumstantial evidence alone, a reasonable person could

conclude that Werner had actual knowledge of potential lawsuits against the

manufacturer of the tractor-trailer. In fact, Justice Davis’ dissent reveals that Werner is no

stranger to claims for spoliation of evidence and other courts have imposed sanctions on

Werner for destroying evidence.


                I further dissent from the majority’s gratuitous suggestion that because the

“investigations by a sheriff’s deputy and by Werner’s adjuster showed the accident

resulted exclusively from snow and ice on the roadway[,]” the plaintiffs could not have a

potential claim against the manufacturer of the tractor-trailer. This inference misses the

point entirely; Mr. Rutledge’s death resulted from a fire due to a significant diesel fuel

leak.


                 A crashworthiness case involving a motor vehicle is sometimes
         referred to as a ‘secondary impact,’ ‘second collision,’ or ‘enhanced injury’
         case. 62A Am.Jur.2d Products Liability § 1020 (1997). This is because a
         defendant’s liability is based on an alleged failure to protect the occupants
         of a vehicle from the consequences of the crash rather than liability for the
         crash itself.


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Estep v. Mike Ferrell Ford Lincoln-Mercury, Inc., 223 W.Va. 209, 216, 672 S.E.2d 345,

351 (2009). See Syl. Pt. 1, Blankenship v. General Motors Corp., 185 W.Va. 350, 406

S.E.2d 781 (1991) (”A complaint against the seller of a motor vehicle states a cause of

action under West Virginia law if the complaint does not allege that a vehicle defect

caused a collision, but alleges only that the injuries sustained by the occupant as a result

of the collision were enhanced by a design defect in the vehicle.”).


              In this case, the plaintiffs’ lawsuit against the manufacturer of the tractor-

trailer was dismissed on summary judgment because they lacked this critical piece of

evidence to determine if a design defect caused this fatal fire. It is patently unfair to now

deny the plaintiffs their day in court on their claims against Werner for its intentional

spoliation of this evidence. For the foregoing reasons, I respectfully dissent.




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