Before Dykman, Vergeront and Bridge, JJ.
We certify the following questions in this case involving the spoliation of evidence: (1) under what circumstances may evidence crucial to a potential legal claim be destroyed; and (2) what notice must be given to a civil litigant before the evidence is destroyed.
This case arises from a fire on February 13, 2000, that destroyed a home insured by American Family Mutual Insurance Company. After investigating the fire, American Family notified roofers David, Charles and Joseph Golke that it had concluded that their negligent repair of the roof had caused the fire. American Family sent two identical letters dated March 13, 2000, one copy to David Golke and another copy to Charles and Joseph Golke, which stated:
This letter is to put you and your roofing company on notice for the fire damage that occurred on the above date of loss. Our investigation determined that you were negligent for work performed on our insured’s property at the above loss location.
If you have a liability insurance carrier, please forward this letter to them and we will handle these matters directly with them. If you do not have a liability insurance carrier, we will expect you to pay for the repairs/replacement. The amount of repairs/replacement at this time is pending.
To provide adequate time for yourself or your liability carrier to conduct a proper investigation, any destruction measures of the fire damaged building will not take place until April 1, 2000.
David Golke acknowledged receiving the letter, but Charles and Joseph Golke testified that they did not remember receiving the letter.
American Family sent a second letter by certified mail dated April 6, 2000, one to David Golke and the other to Charles and Joseph Golke, which stated:
This is our second request for insurance information concerning your liability regarding the above loss.
All losses must be reported to your insurance company on a timely basis. Failure to do so may result in denial of your coverages due to your failure to meet policy conditions.
You will need to contact your current insurance carrier and have them contact us as soon as possible.
The trial court found that Joseph Golke received the letter sent jointly to both Charles and Joseph because Joseph signed for it. David also received the second letter. Sometime after April 11, 2000, the home was razed and rebuilt. American Family took pictures of the fire scene, but none of the physical evidence from the fire was preserved. After the trial to the court, the circuit court dismissed the action for spoliation of evidence.
We have held that there is a duty to preserve evidence
essential to a claim that will likely be litigated. See Sentry Ins. v. Royal Ins. Co. of Am.,
196
We have also held that dismissal as a sanction for
destruction of evidence requires a finding of egregious conduct. See
In Garfoot v. Fireman’s Fund Ins. Co.,
228 Wis. 2d 707, 722-24, 599 N.W.2d 411 (Ct. App. 1999), we addressed an
apparent conflict between Sentry, in which no explicit finding
of egregious conduct was made, and Milwaukee Constructors II, which
held that dismissal as a sanction for destruction of evidence requires a
finding of egregious conduct. We
explained that Sentry did not create a lower standard for dismissal than Milwaukee
Constructors II because Sentry’s investigator acted intentionally in
removing the wiring and component parts in the refrigerator. See Garfoot, 228
[Here] the trial court
discussed and carefully analyzed … prior case law and arrived at the conclusion
that Sentry
modifies the standard established in Milwaukee Counstructors II, and
permits the sanction of dismissal without a finding that a party, or the
party’s agents, engaged in egregious conduct or intended to destroy evidence
and affect the litigation. We
acknowledge that this reading of Sentry is a reasonable one. However,
this court does not have the power to overrule, modify or withdraw language
from a published opinion of this court. Cook
v. Cook, 208
We conclude that Sentry may be reasonably read as adhering to, rather than modifying, the standard established in Milwaukee Constructors II. We therefore adopt that reading…. In rejecting Sentry’s arguments based on … Milwaukee Constructors II, we did not state that we were establishing a lower standard, but rather referred to the trial court’s finding that Sentry’s removal of the component parts was intentional rather than negligent, thus indicating that the trial court’s decision was consistent with [that case]. We also summarized Sentry’s conduct as: “intentional and negligent conduct in failing to properly preserve the refrigerator, which it knew was essential to its claim against Royal … [and which] was totally within Sentry’s control….” (Footnotes omitted.)
Garfoot, 228
These cases lead us to the following questions: under what circumstances may evidence crucial to a potential legal claim be destroyed and what notice must be given to a civil litigant before evidence is destroyed? These questions also give rise to additional considerations. When a party allows or causes evidence to be destroyed, what factors should a court consider in evaluating whether the party’s conduct constitutes a flagrant and knowing disregard of the judicial process? Should a court weigh the cost and effort to preserve the evidence? Should a court evaluate only the conduct of the party who allows or causes the evidence to be destroyed because dismissal for spoliation is a sanction, or should a court also consider whether the other parties acted reasonably and whether the other parties did, in fact, receive notice?
Pursuant to Wis. Stat. Rule 809.61 (2005-06), we certify the appeal in this case to the Wisconsin Supreme Court for its review and determination.