                                FIFTH DIVISION
                               MCFADDEN, P. J.,
                            BRANCH and BETHEL, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                      June 29, 2017




In the Court of Appeals of Georgia
 A17A0251. KENNETH PHILLIPS et al. v. OWNERS INSURANCE
     COMPANY.

      BETHEL, Judge.

      Kenneth Phillips (“Phillips”) and Cathy Phillips brought suit against Owners

Insurance Company (“Owners”) alleging third-party spoliation of evidence, breach

of contract, promissory estoppel, and negligence. This appeal follows the trial court’s

order granting Owners’ motion for summary judgment with respect to Phillips’ claim

for third-party spoliation of evidence. Although Phillips asks us to recognize an

independent tort of negligent third-party spoliation of evidence under Georgia law,

we decline to do so and therefore affirm the trial court’s grant of summary judgment.

      Because this case arises from a decision on Owners’ summary judgment

motion, we view the facts in a light most favorable to Phillips as the non-moving
party. Lau’s Corp., Inc. v. Haskins, 261 Ga. 491, 491 (405 SE2d 474) (1991). So

viewed, on May 11, 2013, Phillips was involved in an auto accident in which his

vehicle flipped following a tire blowout.1 He sustained severe injuries and required

extensive medical treatment. Phillips held an auto insurance policy with Owners at

the time, and Owners became aware of the accident and Phillips’ injuries a few days

later. Because of the severity of the property damage, the vehicle was deemed to be

a total loss.

       Phillips’ vehicle was stored at a garage in Swainsboro, Georgia. In a May 17,

2013, letter from Phillips’ attorney, Owners was notified that Phillips was

investigating the cause of the accident and that the vehicle needed to be held for that

purpose. An adjuster from Owners later contacted Phillips’ attorney and asked if the

vehicle could be moved to a different garage in Savannah in order to reduce storage

costs. During a May 31, 2013, phone conversation, a paralegal for Phillips’ attorney

again spoke with Owners’ adjuster to discuss storage of the vehicle and preservation


       1
         Because we construe the facts in the light most favorable to Phillips, for
purposes of this case, both we and the trial court have assumed that the accident
occurred as the result of a tire blowout, as alleged by Phillips. We take notice of the
fact that no judgment has been entered, nor any liability assessed, against any tire
manufacturer in regard to this accident and that Phillips has settled his claims against
the manufacturer of the tires that were on his vehicle at the time of the accident.

                                           2
of the tires for inspection as part of a potential products liability suit. During this

conversation, they agreed that Owners would store the vehicle at the Savannah lot and

would notify Phillips’ attorney before moving it. Later that day, Phillips’ attorney

faxed a letter to the adjuster confirming the parties’ understanding from the telephone

call regarding the vehicle’s storage location and Owners’ agreement to notify

Phillips’ attorney before making any “change in the agreed upon storage location of

Mr. Phillips’ vehicle.” Owners’ adjuster received this fax and placed it in Phillips’

claim file. The vehicle was moved to the Savannah facility, and the adjuster placed

a “seller hold” on the vehicle.

      Meanwhile, on or around May 20, 2013, in exchange for Phillips’ agreement

to execute a power of attorney and transfer the vehicle’s title to Owners, Owners

offered to settle Phillips’ property damage claim arising from the accident. The

parties agreed to this settlement on or about June 12, 2013, and the paperwork settling

the property damage claim was prepared the next day. Phillips signed title to the

vehicle over to Owners a week later.

      The vehicle remained at the Savannah facility under Owners’ seller hold for

nearly a year and a half. In mid-October 2014, the owner of the storage lot indicated

to the Owners’ adjuster that Owners would begin incurring additional storage

                                          3
charges. After receiving that notification, Owners released the seller hold, and the

vehicle (including the tires) was sold a few days later. Owners did not notify Phillips

or his attorney that the vehicle had been sold.

      In December 2014, Phillips’ attorney communicated a demand for damages to

the tire manufacturer. In response to a request from the tire manufacturer, Phillips’

attorney contacted Owners’ adjuster in February 2015 to procure the damaged tire

from Phillips’ vehicle. This was apparently the first communication between Phillips

(through his attorney) and Owners regarding the vehicle since the title to the vehicle

was transferred to Owners, and it was the first time Phillips’ attorney became aware

that the vehicle had been sold.

      Phillips later brought suit against the tire manufacturer, and the parties reached

a settlement on the claim for a portion of Phillips’ medical expenses from the

accident. Claiming that the sale of the car foreclosed Phillips’ opportunity to recover

his full damages from the tire manufacturer, Phillips brought suit against Owners

alleging third-party spoliation of evidence, breach of contract, promissory estoppel,

and negligence. Owners moved for summary judgment on each claim. The trial court




                                          4
granted that motion with respect to the claim of third-party spoliation of evidence, but

denied it with respect to Phillips’ remaining claims. This appeal followed.2

      In his brief, Phillips correctly points out that only the non-binding decision in

Owens v. Amer. Refuse Sys., Inc., 244 Ga. App. 780, 781 (2) (536 SE2d 782) (2000)

(physical precedent only) explicitly declines to recognize an independent cause of

action for third-party spoliation of evidence. Pointing to a statement in this Court’s

decision in Sharpnack v. Hoffinger Industries, Inc., 231 Ga. App. 829, 830 (499 SE2d

363) (1998) and noting further developments in the law since Owens was decided, he

suggests that the facts of this case call for a “fresh look at this issue.”3




      2
        Owners also brought an appeal with regard to the trial court’s denial of
summary judgment on Phillips’ claims for breach of contract and promissory
estoppel. The trial court did not make a ruling on Phillips’ negligence claim, noting
that Owners’ motion for summary judgment did not specifically ask the court to rule
on that claim. We affirmed the trial court’s denial of summary judgment on those
claims in Case number A17A0252.
      3
         In Sharpnack, we did not reach the question of whether to recognize an
independent tort of spoliation as, in that case, the plaintiff’s underlying claims for
negligence and products liability were negated by an assumption of risk defense.
Sharpnack, 231 Ga. App. at 830. Notably, in Sharpnack, the spoliation claim was
made between parties to an underlying lawsuit, not as between a plaintiff and a third-
party in possession of evidence relevant to the underlying claim. Id. at 829.

                                            5
      While a number of states have recognized causes of action for third-party

spoliation of evidence (including many in the years since Owens was decided),4

neither a statute nor any ruling of the Georgia Supreme Court has established third-

party negligent spoliation of evidence as an independent tort in this state.5 Likewise,

      4
         These decisions have come with a variety of permutations, often (but not
always) including a required showing of intent to destroy evidence on the part of the
third-party defendant, the defendant’s knowledge of potential or ongoing litigation
for which the evidence is relevant, and some showing of the plaintiff’s probability of
success on the merits in the underlying litigation had the lost evidence been available.
Only four states–Florida, Indiana, Montana, and West Virginia–appear to permit
claims against third parties for negligent spoliation evidence. See Townsend v.
Conshor, Inc., 832 So.2d 166, 167 (Fla. Dist. Ct. App. 2002) (recognizing cause of
action for third-party spoliation in Florida); Thompson ex rel. Thompson v. Owensby,
704 N.E.2d 134, 139-40 (Ind. Ct. App. 1998) (recognizing claim for third-party
spoliation of evidence in Indiana); Oliver v. Stimson Lumber Co., 993 P.2d 11, 19
(Mont. 1999) (recognizing torts of intentional and negligent spoliation of evidence
against third parties in Montana); Hannah v. Heeter, 584 S.E.2d 560, 568 (W.Va.
2003) (recognizing torts of negligent and intentional spoliation of evidence against
third parties in West Virginia). The remaining states that recognize claims for third-
party spoliation of evidence appear to require intent or willfulness on the part of the
spoliator. See Hibbits v. Sides, 34 P.3d 327, 329 (Alaska 2001) (recognizing cause of
action for third-party spoliation in Alaska and requiring a showing of intent to
interfere with underlying litigation); Coleman v. Eddy Potash, Inc., 905 P.2d 185, 189
(N.M. 1995), vacated on other grounds, 34 P.3d 1148 (N.M. 2001) (recognizing tort
of intentional spoliation of evidence in New Mexico); and Smith v. Howard Johnson
Co., Inc., 615 N.E.2d 1037, 1038 (Ohio 1993) (recognizing tort of willful spoliation
of evidence against third parties in Ohio).
      5
       We note that this Court’s decision in Lustre-Diaz v. Etheridge, 309 Ga. App.
104, 106 (709 SE2d 309) (2011) recognized that sanctions for spoliation may be
assessed against a litigant based on the conduct of a third party. However, such

                                           6
dicta in Gardner v. Blackston, 185 Ga. App. 754, 755 (1) (365 SE2d 545) (1988)

(physical precedent only) suggests that spoliation of evidence is not recognized as an

independent cause of action in Georgia, even as a remedy between parties to

underlying litigation.

      In addition to his spoliation claim, Phillips also brought claims against Owners

for breach of contract, promissory estoppel, and negligence, all based generally on

the same underlying conduct. Despite the fact that Owners’ motion for summary

judgment was denied on Phillips’ other claims, Phillips argues that he will be left

without an adequate remedy for the injuries he suffered in the accident if a cause of

action for third-party spoliation against Owners is not available to him. The facts of

this case do not support that argument because Phillips has other potential avenues

of recovering from Owners under existing law.

      As we discussed in Owens, even without a cause of action for third-party

spoliation of evidence,

sanctions are limited to situations in which the third-party is acting as an agent or
contractual privy of a party to an underlying lawsuit when it destroys or fails to
preserve the evidence at issue. Id. In this case, Phillips makes no allegation that
Owners had privity of contract or an agency relationship with the tire manufacturer.
Moreover, the remedy assessed by the court in Lustre-Diaz was a litigation sanction;
it did not arise as part of a separate cause of action. Id. at 106-07. Thus, Lustre-Diaz,
is inapposite to our analysis.

                                           7
      [a] vigilant litigant already has traditional means of securing evidence
      available. Those means include, for example, a court order directing
      preservation, along with remedies for a violation of that order, or a
      contractual agreement with the property owner.


Owens, 244 Ga. App. at 781 (2). As Owens suggests, each mechanism for securing

evidence held or owned by a third party is paired with a means of enforcement (court

sanction or damages for breach of contract) through which a plaintiff in Phillips’

position could recover from a third party if the evidence is not preserved.

      In this case, Phillips fails to show how a court order directing Owners to

preserve the evidence would have been inadequate. Nothing in the record suggests

that Phillips attempted to secure a court order regarding the evidence, and he makes

no argument that he would have been unable to do so or that enforcement of a court

order against Owners would have been inadequate to remedy his injuries.

      Phillips also fails to show how a contract remedy (or a remedy fashioned

through the related equitable doctrine of promissory estoppel) is inadequate. The

record shows that, in anticipation of potential litigation, Phillips made efforts to

preserve the evidence at issue by receiving Owners’ promise to hold the wrecked

vehicle and its tires and to consult with his attorney before moving or disposing of

the vehicle. Phillips, of course, bears the burden of proving that these actions formed

                                          8
a contract between the parties supported by consideration (or, alternatively that he

relied upon this promise to his detriment).6 Whether he can carry that burden is not

at issue here, but the facts of this case do not highlight any unique barrier to securing

evidence in anticipation of litigation by either entering into a contract with the owner

of such evidence or obtaining a promise to preserve such evidence.

      Phillips argues that, because evidence lost or destroyed by a third party may

have only speculative value in the underlying litigation, plaintiffs in his situation have

considerable difficulty proving actual damages in a breach of contract suit. He

suggests that a tort claim for negligent spoliation would somehow avoid these

difficulties and be more viable relative to contract claims. We disagree.

      We acknowledge that the value of lost or destroyed evidence in an underlying

suit may be difficult to prove and that the calculation of damages or sanctions arising

from the unavailability of such evidence will be subject to significant dispute between

the parties. However, this would be the case regardless of whether a duty to preserve

the evidence arose from a court order, contract, promise, or the law of tort. Were we

      6
        See Goddard v. City of Albany, 285 Ga. 882, 886 (684 SE2d 635) (2009)
(party asserting promissory estoppel claim bears the burden of proving all elements
of the claim, including detrimental reliance); Adamson Co. v. Owens-Illinois Dev.
Corp., 168 Ga. App. 654, 657 (309 SE2d 913) (1983) (plaintiff bears the burden of
proving all elements of a breach of contract, including damages).

                                            9
to recognize this cause of action, as in all torts, the calculation of damages would be

an essential feature of any claim attempting to hold a third party accountable for

spoliation of evidence. Accordingly, proving damages in a claim for third-party

spoliation of evidence would be fraught with many of the same valuation problems

that litigants are likely to confront in other types of actions involving spoliation of

evidence, whether the theory of recovery is breach of contract, promissory estoppel,

or enforcement of a judicial order. We thus find this argument unavailing.

      As we find this Court’s reasoning in Owens to be sound, and as the facts of this

case do not suggest that the creation of new duties in tort is necessary to fill a gap in

the remedies provided by judicial process, the law of contract, or the equitable

doctrine of promissory estoppel, we affirm Owens and join a number of other states

in declining to recognize an independent cause of action for third-party negligent

spoliation of evidence.7

      7
         See, e.g., LaRaia v. Sup Ct., 722 P.2d 286, 290 (Ariz. 1986) (declining to
recognize independent claim for spoliation of evidence in Arizona); Forbes v. Cty.
of San Bernadino, 123 Cal. Rptr.2d 721, 726-27 (Cal. Ct. App. 2002) (precluding
cause of action for negligent spoliation of evidence by third parties in California);
Reynolds v. Bordelon, 172 So.3d 589, 594 (La. 2015) (holding that Louisiana does
not recognize tort claim for third-party negligent spoliation of evidence); Fletcher v.
Dorchester Mut. Ins. Co., 773 N.E.2d 420, 422 (Mass. 2002) (declining to recognize
tort action for third-party spoliation of evidence in Massachusetts); Richardson v.
Sara Lee Corp., 847 So.2d 821, 824 (Miss. 2003) (declining to recognize tort for

                                           10
      We note that Phillips also sued Owners for the same conduct under traditional

principles of negligence. However, because Owners did not move for summary

judgment on Phillips’ negligence claim, we are precluded from considering whether

such a claim is cognizable on the facts before us. Therefore, in affirming the trial

court’s grant of summary judgment on Phillips’ claim for third-party spoliation of

evidence, we expressly do not address whether the conduct at issue here is actionable

under traditional negligence principles.8

      Judgment affirmed. McFadden, P. J., and Branch, J., concur.



negligent spoliation of evidence by third parties in Mississippi); and Met-Life Auto
& Home v. Joe Basil Chevrolet, Inc., 807 N.E.2d 865, 868 (N.Y. 2004) (declining to
recognize cause of action for third-party negligent spoliation of evidence in New
York).
      8
          A number of states have expressly declined to recognize a separate tort claim
for spoliation of evidence but have recognized that such claims may be stated under
traditional principles of negligence. See, e.g., Smith v. Atkinson, 771 So.2d 429, 432
(Ala. 2000) (recognizing cause of action for destruction of evidence by third party in
Alabama under traditional negligence principles); Dardeen v. Kuehling, 821 N.E.2d
227, 231 (Ill. 2004) (declining to recognize spoliation of evidence as an independent
tort in Illinois but permitting spoliation claims under existing negligence principles);
Timber Tech Engineered Bldg. Prods. v. The Home Ins. Co., 55 P.3d 952, 954-55
(Nev. 2002) (noting that a negligence claim for spoliation may exist in Nevada where
evidence shows defendant owed a duty to plaintiff to preserve evidence); and Elias
v. Lancaster Gen. Hosp., 710 A.2d 65, 68 (Pa. Super. Ct. 1998) (spoliation of
evidence not recognized as a separate cause of action in Pennsylvania). We express
no opinion as to whether the laws of the State of Georgia recognize such a claim.

                                            11
