Spoliation of Evidence Claim Against Insurance Company in Related Product-Liability and Personal-Injury Action is Dismissed and Affirmed on Appeal

The Illinois Appellate Court has affirmed the dismissal of a 42-count fourth amended complaint for damages arising from an automobile accident in December 2009. The case involved injuries to the wife and son of Nicholas Skridla — Margaret and Maxamillian. The appeal pertains only to the claim of spoliation of evidence against defendant Auto Owners Insurance Co. (Auto Owners). The claims against Auto Owners were added in the fourth amended complaint when Auto Owners was joined as a defendant. The other counts of this product-liability and personal-injury action remained pending in the trial court in Winnebago County, Ill.

The plaintiff alleges that the trial court was wrong in dismissing the spoliation counts with prejudice pursuant to Section 2-615 of the Illinois Code of Civil Procedure on the grounds that plaintiff did not plead sufficient facts to establish that Auto Owners owed plaintiff a duty to preserve the evidence at issue.

Auto Owners argued that the dismissal was proper under Section 2-615 and also maintains that the spoliation count should have been dismissed pursuant to Section 2-619 of the Code (735 ILCS 5/2-619) for the additional reason that they were untimely, as Auto Owners argued in its combined Section 2-619.1 motion. Auto Owners argued that the spoliation counts were statutorily time-barred.

According to the fourth amended complaint, Margaret and Maxamillian were injured on Dec. 3, 2009 when their stopped vehicle was rear-ended by a car driven by the defendant Dana Fanara. Margaret’s injuries led to her death on Jan. 24, 2012. Maxamillian survived.

On Feb. 9, 2014, plaintiff Nicholas Skridla filed his fourth amended complaint adding Auto Owners, Fanara’s automobile liability insurance carrier, as a party defendant. The plaintiff alleged that Auto Owners did an investigation of Fanara’s vehicle inspecting all damages to the vehicle, and, after completing its investigation, sold the vehicle for salvage.

Plaintiff alleged that Auto Owners chose not to download the vehicle’s sensory diagnostic module and also deprived plaintiff of any opportunity to download it, thereby destroying evidence as to Fanara’s speed and braking prior to rear-ending the vehicle occupied by Margaret and Maxamillian. The plaintiff’s complaint as to spoliation does not allege when the event took place although plaintiff’s response to Auto Owners’ motion to dismiss the spoliation count indicates that Fanara’s vehicle was sold to the salvage company on Jan. 21, 2010.

Plaintiff’s spoliation claims were predicated upon wrongful death on behalf of Margaret, survival on behalf of Margaret, personal injury on behalf of Maxamillian, loss of consortium on behalf of plaintiff, family expense on behalf of Margaret for her personal injuries and family expense on behalf of Maxamillian for his personal injuries.

A motion to dismiss under Section 2-619 of the code admits the legal sufficiency of the claim, but asserts an affirmative defense that defeats the claim. Solaia Technology, LLC v. Specialties Publishing Co., 221 Ill.2d 558, 578-79 (2006).

According to this opinion, there was a conflicting opinion in the Illinois Appellate Court as to the appropriate statute of limitations for a cause of action for spoliation of evidence. Spoliation of evidence is a “derivative action that arises out of other causes of action, including a negligence cause of action.” Boyd v. Travelers Insurance Co., 166 Ill.2d 188, 192-93 (1995). According to that case, the same statute of limitations applies to a negligent-spoliation action as applies to the underlying cause of action.

In another case, it was held that because of limitations period for the commencement of a negligent-spoliation claim “is not otherwise provided for by statute”, it is governed by the five-year period in Section 13-205 of the code (735 ILCS 5/13-205), which applies to “civil actions not otherwise provided for.” Schusse v. Pace Suburban Bus Division of the Regional Transportation Authority, 33 Ill.App.3d 960 (2002).

A more recent case has held a better view according to this appellate appeals panel. It held that the limitations period of the underlying action applies because spoliation is a derivative cause of action. Plaintiff alleges that as a proximate result of the defendant’s destruction of evidence they were prejudiced in that they lost the opportunity to examine evidence. The court found that spoliation claims are not independent torts. It was also noted in agreement with the Schusse’s statement that the discovery rule applies to determine the commencement of the limitations (citing Schusse, 334 Ill.App.3d at 970.

In this case, plaintiff’s spoliation-of-evidence counts, with the exception of his wrongful death spoliation count all arise from underlying actions for personal injuries to another-survival, personal injury to Maxamillian, loss of consortium, and family expenses due to injuries to Margaret and Maxamillian. Because these claims are actions “deriving from injury to the person of another,” they are subject to commencement “within the same period of time as actions for injuries to such other person.” 735 ILCS 5/13-203. Thus, the two-year limitations period of Section 13-202 applies to these personal injury actions. Accordingly, the two-year limitations period of the underlying actions also applies to plaintiff’s derivative spoliation action.

The plaintiff had actually two different claims, one for personal injury and another for wrongful death. The personal injury accident date is December 3, 2009 whereas Margaret’s death was January 12, 2012. Notably, however, a wrongful-death claim like a spoliation claim is derivative. “Derivative of the action is [the] decedent had in his lifetime.” Limer v. Lyman, 220 Ill.App.3d 1036, 1043 (1991). Thus, the limitations period for a wrongful death claim begins to run at the time of the death, but “only if the deceased had a claim that was not time-barred on or before his death.”

As long as “the decedent’s claim was not time-barred at the time of his death, the wrongful death statute provides the claimant with a two-year statute of limitations which begins running from the time of death.” The limitations period for a spoliation claim will work the same way. As long as the underlying claim was not time-barred at the time of the destruction of the evidence, the limitations period for the spoliation claim begins running from that time.

Plaintiff had 2 years from Jan. 21, 2010, the date that the vehicle was destroyed or sold for salvage or until January 21, 2012 to file his spoliation claims. Those claims were not filed until Jan. 9, 2014. Even if he had two years from Margaret’s death or until Jan. 12, 2014 to file his spoliation claim arising from his wrongful-death claim, the claim was still filed too late. The spoliation statute begins to run on the day of the destruction of the evidence. That is provided that the underlying claim was not time-barred on that date.

In this case, the destruction of the Fanara vehicle occurred only seven weeks after the accident. Thus, even if the limitations period for plaintiff’s spoliation claims began to run the day of the accident, plaintiff still had nearly two full years to file those claims. There was no unfairness as a result. Accordingly, the judgment of the circuit court was affirmed.

Skridla v. General Motors Company and Auto Owners Insurance Company,
2015 IL App (2d) 141168 (Dec. 28, 2015).

Kreisman Law Offices has been handling automobile accident cases, truck accident cases, bicycle accident cases, pedestrian accident cases and motorcycle accident cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Bridgeview, Glenview, Brookfield, Forest Park, Schiller Park, Itasca, Yorkfield, Oak Forest, Riverdale, Waukegan, Joliet, Aurora, Geneva, St. Charles, Hinsdale, Wheaton, Maywood and Glencoe, Ill.

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