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Jost v. Lakeland Regional Medical Center3/12/2003
ionable under Florida law"). Thus, we affirm the trial court's dismissal with prejudice as to that portion of the amended complaint alleging concealment of evidence.
The Fourth District recently had the opportunity to address the issue of spoliation of evidence in Martino v. Wal-Mart Stores, Inc., 28 Fla. L. Weekly D321 (Fla. 4th DCA Jan. 29, 2003). Certifying conflict with the Third District's opinion in Bondu v. Gurvich, 473 So. 2d 1307 (Fla. 3d DCA 1984), the Martino court held that "an independent cause of action for spoliation of evidence is unnecessary and will not lie where the alleged spoliator and the defendant in the underlying litigation are one and the same." We align ourselves with the Fourth District and agree that the plaintiff can avail itself of "the adverse inferences and the myriad of other available sanctions" to address the harm that it may have suffered due to the destruction of the evidence. Martino, 28 Fla. L. Weekly at D323. Since LRMC is the defendant in the underlying cause of action, we affirm the dismissal of the four counts of the amended complaint dealing with spoliation of evidence. However, on remand, we direct the trial court to apply Martino and to determine what negative inferences, sanctions, or jury instructions, if any, may be appropriate.
Without reaching the merits of whether the destruction of evidence claims state a cause of action for spoliation, we believe that Ms. Jost's claim against ACIC is premature. " spoliation claim is an 'independent cause of action for negligence' that 'does not arise until the underlying action is completed.'" Townsend, 832 So. 2d at 167-68 (quoting Lincoln Ins. Co. v. Home Emergency Serv., Inc., 812 So. 2d 433, 434-35 (Fla. 3d DCA 2001)). Thus, Ms. Jost's spoliation allegations against ACIC will not be ripe until the underlying medical malpractice case has been resolved. Accordingly, the trial court is directed to dismiss these claims without prejudice so that, if appropriate, they can be raised at a later date.
Affirmed in part, reversed in part, and remanded in accordance with instructions.
CASANUEVA, J., and GALLEN, THOMAS M., ASSOCIATE JUDGE, Concur.
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