No. 14-0212 -          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 v. Werner Enterprises, Inc., a
                       Nebraska Corporation
                                                                             FILED
                                                                           March 2, 2015

                                                                        RORY L. PERRY II, CLERK

                                                                      SUPREME COURT OF APPEALS

                                                                          OF WEST VIRGINIA

Davis, Justice, dissenting:

       In this case, two truck drivers were killed while traveling in West Virginia. They were

employed by Werner Enterprises (“Werner”). The truck drivers were killed as a result of a

single vehicle accident on January 12, 2009. On January 14, 2009, within two days of the

accident, Werner had the tractor-trailer destroyed. On or about February 11, 2009, counsel

for the estate of one of the truck drivers, Kenneth Williams, wrote a letter to Werner and

asked that the tractor-trailer not be destroyed. Counsel was informed by a letter from

Werner, dated March 2, 2009, that the tractor-trailer had already been destroyed. The estates

of both accident victims sued Werner in a joint action. One of the causes of action was a

claim for intentional spoliation of evidence. In other words, the intentional destruction of

the tractor-trailer.



       Here, the plaintiffs argued that the trial court committed error in granting Werner

summary judgment on their claim for spoliation of evidence. The majority opinion

determined that because the plaintiffs did not meet their burden of showing a genuine

material issue of fact was in dispute, summary judgment was appropriate. For the reasons

set out below, I dissent.

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      Under the Majority Opinion, Defendants Can Now Destroy All Evidence
        of Their Wrongdoing within 48 Hours of Their Wrongful Conduct

       Let me be clear at the outset. The majority opinion has abolished the tort of spoliation

of evidence. I do not say this lightly. Under the majority’s decision, no plaintiff will ever

be able to withstand a summary judgment motion for spoliation of evidence, as long as a

defendant destroys evidence within 48 hours of the accident and without immediate notice

from the victim to preserve the evidence. The ramification of the majority’s ruling is mind-

boggling, because it effectively removes even the possibility of a sanction for such

outrageous and devious conduct.



       The majority opinion spends an inordinate amount of time consulting dictionary

definitions for “knowledge” in order to show that the plaintiffs failed to present any evidence

that Werner had “knowledge” that a lawsuit might be pending. The majority opinion could

have used its time more productively and uncovered the fact that Werner appears in the

citation to over 220 cases, including numerous wrongful death and personal injury actions

naming Werner as a defendant. See, e.g., Keifer v. Reinhart Foodservices, LLC, 563

F. App’x 112 (3d Cir. 2014) (personal injury action against Werner); LaBarre v. Werner

Enters., Inc., 420 F. App’x 169 (3d Cir. 2011) (personal injury action against Werner by two

plaintiffs); Whittenburg v. Werner Enters. Inc., 561 F.3d 1122 (10th Cir. 2009) (injured

pickup truck driver brought negligence action against Werner, arising from his collision with

stalled tractor-trailer); Marcano v. Werner Enters., Inc., 113 F.3d 1229 (2d Cir. 1997)

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(person injury action against Werner); Gruenbaum v. Werner Enters., Inc., 270 F.R.D. 298

(S.D. Ohio 2010) (survivor of driver brought wrongful death action against Werner); Wallace

v. Tindall, No. 09-00775-CV-W-FJG, 2010 WL 2545553 (W.D. Mo. June 18, 2010)

(plaintiff brought personal injury action against Werner); Brown v. Werner Enters., Inc., No.

04-1664, 2009 WL 1158938 (E.D. La. Apr. 28, 2009) (personal injury action against

Werner); Yeakel v. Werner Enters., Inc., No. 3:07cv2054, 2008 WL 2120515 (M.D. Pa. May

19, 2008) (personal injury action against Werner); Blackshear v. Werner Enters., Inc., No.

2004-4-WOB, 2005 WL 6011291 (E.D. Ky. May 19, 2005) (personal injury action against

Werner); Werner Enters., Inc. v. Stanton, 690 S.E.2d 623 (Ga. Ct. App. 2010) (two wrongful

death actions against Werner); Schmitt v. Werner Enters., Inc., 716 N.Y.S.2d 505 (2000)

(motorist brought action against Werner to recover for physical and psychological injuries

sustained as a result of accident); Abraham v. Werner Enters., No. E-98-077, 1999 WL

299540 (Ohio Ct. App. May 14, 1999) (personal injury action against Werner); Forklift Sys.,

Inc. v. Werner Enters., No. 01A01-9804-CH-00220, 1999 WL 326159 (Tenn. Ct. App. May

25, 1999) (plaintiff sued Werner for property damage); Werner Enters., Inc. v. Brophy, 218

P.3d 948 (Wyo. 2009) (injured motorist and wife brought action against Werner for personal

injuries and loss of consortium arising out of accident).



       More importantly, Werner is not new to claims for destruction of evidence. For

example, in Ogin v. Ahmed, 563 F. Supp. 2d 539 (M.D. Pa. 2008), the plaintiff was injured


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in an accident on October 4, 2005, when Werner’s truck driver ran into the vehicle the

plaintiff was driving. Prior to commencing the litigation, the plaintiff’s counsel sent Werner

a letter specifically requesting that it not destroy any of the driver’s logs. Once the litigation

began, the plaintiff requested the driver’s logs. Werner informed the plaintiff that it had

destroyed the driver’s logs for the critical period right before the accident: September 4,

2005, through September 26, 2005. The plaintiff filed a motion to have a spoliation of

evidence adverse instruction be given to the jury at the trial. The court granted the motion

and ruled that, “[a]t the time of trial, the Court will instruct the jury as to the proper adverse

inference they may draw from Defendants’ destruction of the actual driver’s logs for the

period from September 4, 2005, through September 26, 2005.” Ogin, 563 F. Supp. 2d at 546.



       Similarly, in Duque v. Werner Enterprises, Inc., No. L-05-183, 2007 WL 998156

(S.D. Tex. Mar. 30, 2007), the plaintiff was injured by a truck being driven by a driver for

Werner. Prior to the litigation, the plaintiff’s counsel requested Werner not to destroy the

tractor-trailer. When the plaintiff’s expert went to inspect the tractor-trailer, the expert found

that the tractor-trailer had been repaired. The plaintiff subsequently filed a motion for

sanctions against Werner that included a spoliation of evidence jury instruction. The trial

court granted the motion, in part, as follows:

              The Court orders the issuance of a permissive inference jury instruction
       as to Defendant Werner regarding the repair of the tractor and trailer, the
       precise wording of which will be determined when jury instructions are
       considered by the Court before trial. The Court also grants Plaintiff monetary

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       sanctions against Defendant Werner in the amount of $6,921.35 for Plaintiff’s
       expert’s expenses and fees, $3,750.00 for Plaintiff’s counsel’s expenses and
       fees, and $10,000.00 as punitive sanctions for the significant prejudice it
       caused Plaintiff by altering this critical evidence. This combination of jury
       instruction and monetary assessment against Defendant Werner is the least
       severe sanction which will adequately address Defendant Werner’s
       misconduct. All other relief requested is hereby denied.

Duque, 2007 WL 998156, at *7.



       These cases clearly demonstrate that Werner has a practiced pattern of destroying

evidence to preclude its use in future litigation against it. While other courts have imposed

sanctions on Werner for destroying evidence, the majority of our Court rewards Werner’s

reprehensible conduct.



       This Court previously has noted that “[a] party’s precise knowledge or state of mind

concerning a situation often cannot be determined by direct evidence, but must instead be

shown indirectly through circumstantial evidence.” Mace v. Ford Motor Co., 221 W. Va.

198, 204, 653 S.E.2d 660, 666 (2007) (citations omitted). The plaintiffs in this case

presented sufficient circumstantial evidence to raise a material issue of fact as to whether

Werner had knowledge that litigation might occur as a result of the accident. The plaintiffs

argued that Werner was an experienced trucking company. My cursory review of litigation

that Werner has been involved with supports the allegation that Werner has extensive

litigation experience as well. Such extensive litigation experience ultimately explains why


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Werner destroyed the tractor-trailer. The plaintiffs also presented evidence that Werner’s

investigator provided a written report and photographs from the accident scene to Werner

electronically on the date of the accident, thus further evidencing Werner’s appreciation of

the need to quickly document the scene of the accident. In sum, the plaintiffs presented

sufficient circumstantial evidence to permit a jury to consider whether they had satisfied the

elements of a claim for intentional spoliation of evidence. I further agree with the analysis

set forth in Chief Justice Workman’s dissenting opinion detailing the myriad of ways in

which the plaintiffs’ evidence is sufficient to survive Werner’s summary judgment motion.



       Werner learned from its investigator that there had been damage to a guardrail, the

tractor-trailer had overturned, there had been a significant diesel fuel leak, and a subsequent

fire engulfed the tractor-trailer. Werner further learned that both of its employees were killed

in the crash. Werner also was informed that the State would be making a claim for damage

done to the guardrail and that claims likely would be made for environmental remediation.

Further, based on its own communication records, Werner knew that the tractor-trailer had

broken down on two separate occasions on a trip immediately preceding the fatal accident.

The majority opinion has described this evidence as being no more than a scintilla of

evidence of Werner’s knowledge. This is nonsensical. If a defendant is going to be

permitted to destroy evidence within two days of an accident, then no plaintiff will ever be

able to present evidence of the defendant’s “knowledge” that a potential lawsuit would


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follow. In other words, the majority has accomplished its implicit intent of abolishing a

cause of action for intentional spoliation of evidence.



       Based upon the foregoing, I strongly dissent from the majority’s opinion in this case.




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