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Gladney v. Milam9/21/2005
e of them listing a number of things that could have happened and saying which he thinks was most likely. But in no case does he say, more likely than not, this is what happened." Plaintiffs filed a writ application, which was denied by this court on the basis that plaintiffs' remedy was a direct appeal. Gladney, et al. v. Milam d/b/a U-Save Auto Rental, et al., 39,421 (La. App. 2d Cir. 9/23/04).
Lindsey and Liberty Mutual filed a motion for summary judgment on the grounds that Lindsey had not assumed any contractual obligation to provide insurance coverage for the plaintiffs. After a hearing, the district court granted the motion, finding that Lindsey's obligation was governed by the rental contract and that he had fulfilled his duty. The court rendered summary judgment in favor of Lindsey and Liberty Mutual. Plaintiffs appeal both judgments.
DISCUSSION
The plaintiffs contend the district court erred in failing to consider their motion for partial summary judgment on the issue of spoliation of evidence. Plaintiffs argue that defendants' failure to produce the tire should create a presumption that the evidence would have been favorable to plaintiffs' case.
Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, admissions on file and any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966. The mover has the burden of establishing the absence of a genuine issue of material fact. However, if the mover will not bear the burden of proof at trial on the matter, the mover is not required to negate all essential elements of the adverse party's action or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim or action. The non-moving party must then produce factual support sufficient to satisfy his evidentiary burden at trial. LSA-C.C.P. art. 966(C)(2). Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. NAB Natural Resources v. Willamette Industries, Inc., 28,555 (La. App. 2d Cir. 8/21/96), 679 So.2d 477.
In civil litigation, the theory of spoliation of evidence refers to an intentional destruction of evidence for the purpose of depriving the opposing parties of its use. Holloway v. Midland Risk Insurance Co., 36,262 (La. App. 2d Cir. 10/30/02), 832 So.2d 1004. Generally, a litigant's failure to produce evidence that is available to him raises a presumption that the evidence would have been detrimental to his case. However, this adverse presumption is not applicable when the failure to produce the evidence is adequately explained. Holloway, supra.
In the present case, U-Save and Liberty Mutual submitted the affidavits of Terry Milam and Christopher Reynolds regarding the circumstances surrounding the sale of the van and tire involved in the accident. Milam stated that after the February 2002 accident the van was towed to a garage and was never returned to his possession or control. He explained that in April 2002, he transferred title of the van to Liberty Mutual in return for payment of his property damage claim. Milam stated that U-Save did not have an ownership interest in the van after the claim was paid on April 18, 2002, and that he was never contacted by anyone involved in the accident seeking to inspect the van tires.
Reynolds, a Liberty Mutual claims adjuster, stated that his investigation of the matter indicated that Liberty Mutual had been notified of the accident in March 2002 by a U-Save represe
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