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Dowdle Butane Gas Company12/5/2002
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 12/05/2002
EN BANC.
. This matter is before this Court on interlocutory appeal from an order of the Circuit Court of Lafayette County granting leave for Walter S. Moore ("Moore") to amend his original complaint against Dowdle Butane Gas Company, Inc. ("Dowdle"). The amended complaint added a claim for intentional spoliation of evidence and joined, as defendants, Reliance Insurance Company ("Reliance") and Jean L. McDowell ("McDowell"). Because this Court has not yet recognized spoliation of evidence as an independent cause of action, we granted the defendants' petition for interlocutory appeal pursuant to M.R.A.P. 5. Reliance has since been dismissed as a party to this appeal.
FACTS
. On September 23, 1999, the underground propane tank on Moore's residence in Lafayette County, Mississippi, exploded. The accident occurred while John Currie, an employee of Dowdle Gas, was delivering propane into the tank. Both Moore and Currie were injured.
. Dowdle Gas reported the accident to the State of Mississippi's Liquefied Compressed Gas Division of the Department of Insurance, and the State dispatched James Thompson to investigate the scene. Thompson and G.W. Harrell, an employee of Dowdle Gas, approached Moore in the hospital to obtain permission to enter Moore's property. According to Thompson and Harrell, Moore verbally consented to their entry onto the property and investigation of the accident scene, but because Moore was unable to sign a consent form, a friend of Moore's in the hospital room signed Moore's name on Moore's behalf. Moore, however, alleges that he never consented to the investigation.
. Reliance, as insurer of Dowdle Gas, contacted Jean L. McDowell, a propane expert and professional engineer, and requested that he participate in an initial inspection of Moore's premises and excavation and removal of the underground tank. Thompson and McDowell entered Moore's property to investigate the accident and ultimately removed the tank from the premises with the assistance of Dowdle Gas employees. The tank is currently held in storage by Dowdle Gas in Oxford, Mississippi.
. On September 31, 1999, Moore filed suit against Dowdle Gas in the Circuit Court of Lafayette County. On June 19, 2000, Moore filed a motion to amend his complaint, and Circuit Judge R. Kenneth Coleman granted leave to amend on August 1, 2000. Moore's amended complaint added Reliance and McDowell as defendants. The complaint alleged that Dowdle Gas was liable under three counts - strict liability, negligence per se, and sine qua non. The complaint also alleged that all three defendants were liable for trespass, conversion of chattels, and intentional spoliation of the evidence. Finally, the complaint asserted a claim for fraud against Dowdle and Reliance.
. The circuit court certified its ruling for interlocutory appeal, and this Court granted Dowdle's petition for interlocutory appeal, joined by Reliance and McDowell, on February 9, 2001. Dowdle's petition raises the following issues for review:
I. WHETHER SPOLIATION OF EVIDENCE IS RECOGNIZED AS A INDEPENDENT TORT IN THIS STATE.
II. WHETHER THE CIRCUIT COURT ABUSED ITS DISCRETION IN ALLOWING MOORE TO AMEND HIS COMPLAINT TO ADD RELIANCE AS A DEFENDANT.
III. WHETHER THE CIRCUIT COURT ABUSED ITS DISCRETION IN ALLOWING MOORE TO AMEND HIS COMPLAINT TO ADD MCDOWELL AS A DEFENDANT.
DISCUSSION
I. WHETHER SPOLIATION OF EVIDENCE IS RECOGNIZED AS A INDEPENDENT TORT IN THIS STATE.
. Mo
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