Minden v. Allstate Prop.
Minden v. Allstate Prop.
2023 WL 6542152 (D. Nev. 2023)
July 24, 2023
Weksler, Brenda, United States Magistrate Judge
Summary
Electronically stored information such as emails, claim notes, and deposition transcripts provide evidence of the conversations and assessments between the parties. This includes conversations between Allstate and the Mindens, as well as between Allstate and its vendors, and Chavez's testimony regarding his determination that the felt or underlayment was worn out over time.
MICHAEL MINDEN & THERESA MINDEN, Plaintiffs,
v.
ALLSTATE PROPERTY and CASUALTY INSURANCE COMPANY, an Illinois corporation, Defendant
v.
ALLSTATE PROPERTY and CASUALTY INSURANCE COMPANY, an Illinois corporation, Defendant
Case No. 2:21-cv-00151-APG-BNW
United States District Court, D. Nevada
Filed July 24, 2023
Counsel
I. Scott Bogatz, Kerry Elizabeth Kleiman, Michael S. Kelley, Reid Rubinstein and Bogatz, Las Vegas, NV, for Plaintiffs.Frank A. Toddre, II, Wade M. Hansard, Lewis Brisbois Bisgaard and Smith LLP, Las Vegas, NV, Jonathan W. Carlson, McCormick, Barstow, Sheppard, Wayte & Carruth, LLP, Las Vegas, NV, Michael A. Pintar, McCormick Barstow Sheppard Wayte & Carruth, LLP, Reno, NV, for Defendant.
Weksler, Brenda, United States Magistrate Judge
ORDER
*1 Before the Court is Defendant Allstate Property and Casualty Insurance Company's Amended Motion for Spoliation of Evidence and Sanctions. ECF No. 58. Plaintiffs filed a response in opposition, ECF No. 63, to which Defendant replied, ECF No. 72.
I. Background
Plaintiffs own a home in Henderson, Nevada (“the Property”). Plaintiffs allege that, on or about September 1, 2019, a storm hit the Property and damaged roof tiles. The damage exposed underlying roof membrane (“underlayment”). Several subsequent storms in November 2019 caused water to penetrate the damaged roofing tiles further damaging the underlayment and the interior of the Property. When water began leaking into the interior of the Property, Plaintiffs immediately filed a claim with Defendant Allstate.
On or about November 21, 2019, Allstate's claim adjuster, Adam Chavez, inspected the roof and the interior of the Property. After the inspection of the Property by Chavez on November 21, he determined that the damaged underlayment of the roof was not covered by the policy because it had deteriorated due to “wear and tear ... allowing rainwater to enter home.” Appendix to Plaintiffs’ Response, ECF No. 64-5, p. 3. Chavez, however, extended coverage for 8 broken or cracked tiles on the roof and for the interior of the Property that was damaged by water. Id. Chavez's claim notes under the heading “Coverage Analysis” state, “Extending coverage for interior water damage as sudden and accidental, wear and tear to felt paper is excluded, coverage for several cracked tiles on roof, Coverage pending inspection from GHRN or insd roofer to confirm cause.” Id.
Following Chavez's inspection, Chavez requested that an Allstate contractor also inspect the Property and directed that a temporary tarp be installed over a portion of the roof of the Property. Per Chavez's request, two of Allstate's vendors or contractors – Thistle DKI and D&L Roofing – were retained to inspect and tarp the roof. After Thistle DKI and D&L Roofing inspected the roof, they also determined that the roof was excluded from coverage because of “wear and tear.” Id. Appendix to Plaintiffs’ Response, ECF No. 64-8, p. 1. Indeed, Chavez's claim note on November 27, 2019 states, “Late note: s/w Thistle yesterday confirmed tarping being completed, mitigation started, roof is wear and tear only.” Id.
Chavez testified regarding his determination that the felt or underlayment was worn out over time:
Q. Okay. And then, Origin and cause, you have, Wear and tear to felt paper, allowing rain to enter home. Is that what you entered, the wear and tear part portion?
A. Correct.
Q. What does that mean?
A. It means that the rainwater was entering the home due to the failure of the felt paper that failed over time.
Q. Okay. And how did you determine that?
A. Based on my experience and knowledge of roofs and how tile roofs work. It's very common here in Vegas for it to happen, that the felt paper is the waterproofing of the roof. And when it fails over time, water enters the home.
*2 Q. Did -- you said you were up on the roof. Correct?
A. Correct.
Q. Did you do anything to inspect the felt paper?
A. No, because you'd have to -- that would require moving the tiles and we're -- we don't do that.
Q. Okay. So how did you know the felt paper had worn out over time?
A. Based on my knowledge and experience working on claims in Las Vegas. It's very common and it's the most common cause for a tile roof to leak is because the felt paper has worn out.
...
Q. Okay. In any of your claims for roofs, have you ever inspected the felt paper or the felt -- I call it felt paper, but membrane or felt?
A. Not unless it's already been exposed.
Q. You said you determine that based on your experience. Have you had special training on – or experience with the felt, the membrane in –
A. Yeah, I've actually worked with several roofers here in Las Vegas that have gone over it and showed me and -- and showed -- and they've actually taken tiles off and shown me what the felt paper looks like....
Q. Okay. If you wanted to or needed to, could you inspect the felt paper?
A. Again, it would require removing tile and we would rather have a contractor or roofer do that for us. It wouldn't be something that we would do ourselves as a – as an outside adjuster, because the possibility of causing more damages or being -- better -- lack of a better term, accused of causing more damages, we don't do that.
Q. Okay. But if you wanted to, you could have called the contractor out?
A. Yeah, a contractor was called out. 12 ...
Q. Okay. And then you also talk about the felt is wear and tear as well?
A. Yes.
Q. Do you know at this point if anybody on behalf of Allstate had inspected the felt?
A. I believe that -- I believe that D&L or Thistle may have done it. Because I believe Thistle had stated that felt had worn just wear and tear, the whole roof was just wear and tear.
Q. Did they provide a report, do you know?
A. I don't believe so. I believe it was just a phone conversation.
Appendix to Plaintiffs’ Response, ECF No. 64-7 (“Chavez Deposition Transcript”). Within a month of the claim being submitted, Allstate had its own adjustor inspect the roof of the Property and also had two roofing contractors inspecting and tarping the roof of the Property. After the initial inspection on November 21, 2019, Allstate made the determination that the roof and the underlayment was excluded from coverage except for eight (8) tiles. Allstate never deviated from this assessment.
On November 27, 2019, Allstate's vendor (Thistle DKI) emailed Chavez stating that “mold was found during our initial inspection” and that “[m]old removal will begin once roof is repair[ed]” as there “could be more damage.” Exhibit 8, Allstate Claim Notes. Chavez testified:
Q. Okay. So you shouldn't be drying or doing mitigation or even repairs until the source of the leak is corrected. Is that –
A. Correct. Because the last thing you want to do is go through the whole process of having repairs done and have it happen again....
Q. And that's similar to what you said before, that it's better to -- you need to fix the roof or the source of the leak first before doing any mold or water mitigation. Correct?
*3 A. Correct.
Q. And that would also apply to mold remediation?
A. It would, because you wouldn't be able to stop any additional mold from growing if it was continuing to leak.
Chavez Deposition Transcript, Vol. I at 109-116.
At his only visit to the Property on November 21, 2019, Chavez advised Mr. Minden to have a roofer come inspect the Property and determine the cause of the damage and costs to repair. Id. at 65. The Mindens arranged for a local roofing company, Prestige Roofing, Inc. (“Prestige”), to inspect the roof and determine the cause of the damage. Appendix to Plaintiffs’ Response, ECF No. 64-2 at 41-42 (“Minden Deposition Transcript”). On November 27, 2019, Prestige informed the Mindens that they believed damage to the Property was the result of exposure caused by missing or broken roof tiles that were displaced by wind. Appendix to Plaintiffs’ Response, ECF No. 64-9, p. 36-37 (“Romney Deposition Transcript”).
On December 13, 2019, the Mindens informed Allstate of Prestige's findings – specifically, that extreme winds shattered and displaced roofing tiles – exposing certain portions of the Mindens’ home. Chavez Deposition Transcript Vol. II 34-38. Chavez denied coverage of the damage to the underlying felt and requested an estimate of the repair costs only for those broken tiles that a roofer could support happened during a one-time storm occurrence. Id. In the meantime, water continued to leak into the interior of the Property because the tarp did not cover the entire roof and it was not secured and the wind and elements caused the tarp and sandbags to be blown about and to deteriorate. Appendix to Plaintiffs’ Response, Exhibit 10, ECF No. 64-10.
In late January 2020, Allstate decided to close or suspend the Mindens’ claim. On January 29, 2020, Allstate sent a letter to the Mindens stating, “We've been unable to reach you regarding the claim you filed under Allstate Property and Casualty Insurance Company 00098637067 on November 14, 2019. As a result, we've temporarily suspended your claim.” Appendix to Plaintiffs’ Response, Exhibit 11, ECF No. 64-11. The same day, Allstate sent a letter to the Mindens stating:
We appreciate the time you've spend assisting us with your claim. To recap our phone conversation about your water damage, you have decided not to accept our offer to hire a professional water removal service for your property. You declined this because you have not decided on how you would like to move forward with the claim.
We hope you will reconsider. It's important to remove water right away after a loss because:
• Water may cause further damage
• Moisture can lead to mold formation
• Failure to remove water could lead to a full or partial denial of your claim
Your policy outlines this in “Section I – Conditions”; Paragraph – “What You Must Do After A Loss.”
This section reads in part as follows:
“In the event of a loss to property that may be covered by this policy, you must ... Protect the property from further loss. Make any reasonable repairs to protect it. Keep an accurate record of any expenses ....”
*4 If you reconsider and would like our assistance in hiring a water removal service, I'd be happy to assist.
Appendix to Plaintiffs’ Response, Exhibit 12, ECF No. 64-12.
In late January/early February 2020, either the Mindens or Allstate arranged for J&J Contracting, LLC (“J&J”) to inspect the Property and prepare a detailed estimate of the repair costs for Allstate.[1] On or about January 31, 2020, J&J estimator, Daniel Merritt, accompanied by one of J&J's senior roofers, performed an inspection of the Property. In an e-mail dated February 3, 2020, Daniel Merritt from J&J wrote to Chavez at Allstate:
Adam we were called to inspect this property and found there are a lot of broken tiles on this rooftop. We want to walk this property with you one more time if you have an availability to show you what we think happened to break all of these roofing tiles. We are doing the estimate on the interior for the water damage as well but the bigger thing is to re-walk the roof with you one more time with what we think is going on there.
Appendix to Plaintiffs’ Response, Exhibit 14, ECF No. 65-2.
J&J alleged that over seventy-five percent (75%) of the Property's roof tiles were cracked either on the corners or straight across. Merritt tested the roof tiles’ strength by walking across tiles and picking up and dropping tiles. Merritt, in an e-mail dated February 6, 2020 from J&J to Chavez at Allstate, stated:
My senior roofer and I walked this property and found that over 75 percent of this roof has broken tiles .... We found that walking on these tiles does not cause this as we tried, but when we attempted to lift the tile and reset it back down, breakage occurred. This is most likely caused by very high and possibly tornadic wind gusts as this is the highest house on the hill and would not receive any protection from the wind from other houses. With this being said, we would recommend a full roof replacement due to this. Please see the photos attached to this email for review. I have not generated this estimate yet pending Allstate review on what is going to be accepted.
Chavez responded by claiming that the pictures provided by J&J supported the inference that the damage was actually caused by normal “wear and tear” and “expansion and contraction” of the roof tiles over time. Id. Allstate continued to deny coverage based on Allstate's determination that leaks in the Mindens’ roof and damage to the Property was caused by “wear and tear only.” Id.
Following a second inspection on May 13, 2020, Merritt e-mailed the Mindens with J&J's findings, which described “[the damage] was due to a sudden wind event such as a micro burst or strong gust which would've lifted these tiles and broke them when they laid back down.” Id. Merritt recommended a full roof replacement “as partial replacement is not and [sic] option due to the amount damaged.” Id.
Frustrated by what was then almost seven months of disputes and denials from Allstate, the Mindens retained Reid Rubinstein Bogatz to negotiate coverage of the loss. On June 5, 2020, Scott Bogatz, Esq. e-mailed Allstate a demand letter concerning full coverage of the loss. Appendix to Plaintiffs’ Response, Exhibit 16, ECF No. 65-4 (“Jonathan Bourne Deposition Transcript”). The demand letter specifically addressed Allstate's denial of the coverage for the majority of the broken roof tiles as well as the underlying felt. Allstate then transferred the Mindens’ policy dispute to Allstate's claims department, where handling was assigned to Jonathan Bourne. Id. On June 17, 2020, Bourne responded to the June 5, 2020, demand letter through e-mail by maintaining Allstate's position that the corner rooftile breakage was the result of an uncovered loss. Mr. Appendix to Plaintiffs’ Response, Exhibit 17, ECF No. 65-5. Bourne did not authorize full coverage of the damages described by J&J, but instead authorized coverage of only eight (8) individually broken roof tiles. Id.
*5 After another demand letter, Allstate reopened the claim and hired Robert Bosek, of EFI Global Inc. (“EFI”), to inspect the Property. Appendix to Plaintiffs’ Response, Exhibit 19, ECF No. 65-7. On June 30, 2020, Bosek inspected the Property including the roof. On July 13, 2020, Allstate sent Reid Rubinstein & Bogatz a copy of Mr. Bosek's report. Included in Mr. Bosek's report were the following observations of the roof:
• The roof had been previously covered with plastic tarps held down by sandbags. The tarps had deteriorated leaving plastic debris covering the roof and yard, and effectively leaving the roof unprotected from rain (Photo 2).
• Roof area over the second-floor hallway and master closet (Photo 3), over the master bathroom (Photo 4), and over the laundry room (Photo 5), had multiple broken tiles and roof penetrations.
• The one-story roof area near the main floor hallway (Photo 6), had multiple broken tiles and some roof penetrations.
• Several roof tiles were broken across the full width (Photo 7, 8).
• At one of the broken tiles the roofing membrane was exposed (Photo 9). The membrane appeared to be void of any tearing, but there was some silt buildup.
• The lower right corner of many roof tiles had cracked or broken off (Photo 10, 11). This was typical on all roof slopes.
• The corners of the roof tiles appear to touch, while the edge lap space above the corner was consistent (Photo 12).
Appendix to Plaintiffs’ Response, Exhibit 20, ECF No. 64-18 (“Engineering Report”). Additionally, Mr. Bosek's report includes the following conclusions:
The analysis of available evidence related to this assignment supports the following opinions:
1. The interior water damage to the ceilings, walls, finishes, and flooring was due to rain infiltrating the roofing and weatherproofing assembly.
2. The cause of the roof tile damage is twofold. The broken tiles with fractures across the face and with other random fractures are due to foot fall. The nearly identical tile corner failures are due to thermal expansion of the roof tiles, as detailed in the article “Curved Corner Fractures in Concrete Tile.”
3. The broken concrete roof tiles are attributed to causes other than wind and hail.
4. The location of the roof leaks cannot be determined by visual observation alone. The roofing assembly should be tested to locate the leak locations.
5. The broken tiles should be replaced, or new roofing installed.
Id. Allstate never tested the roofing assembly to locate the location of leaks. Chavez testified about Allstate's desire to test the underlayment after Bosek's report:
Q. And then EFI Global was up there in June or July 2020, correct, because Mr. Bourne asked him?
A. Correct.
Q. At this point had Allstate had every opportunity to inspect the underlayment or the felt?
A. Yes.
Q. And at this point Allstate wasn't anticipating sending anyone else out to inspect the felt or the roof?
A. No. It was -- it was determined what was wrong with it.
Chavez Deposition Transcript, Vol. II, at 100:5 – 101:2. Faced with Allstate's unflinching denial of their claim, the Mindens hired Roberts Roof to repair the roof of the Property. Roberts Roof removed all of the ceramic tiles and the felt or underlayment from the roof. Roberts Roof installed a new underlayment and reinstalled the existing tiles that could be reused. Roberts Roof replaced 6-8% of the original roof tiles. Appendix to Plaintiffs’ Response, Exhibit 23, ECF No. 66-2.
*6 After the reroofing and instigation of this action, Allstate hired Timothy Marshall as an expert and he inspected the roof of the Property on August 21, 2021. Appendix to Plaintiffs’ Response, Exhibit 24, ECF No. 66-3 (“Marshals Expert Report”). In addition, to his inspection, Marshall reviewed photographs taken during the reroofing. Id. Marshall's ultimate conclusion was that there was no wind damage to the roof tiles. Marshall stated that he need not analyze the original roof tiles or underlayment to provide an expert opinion. Id. Appendix to Plaintiffs’ Response, Exhibit 25, ECF No. 66-4. at 46. Marshall further testified that he rarely examines the underlayment when examining roofs. Id. at 34, 39. He also explained that he knew what wind damage looked like and did not need to test the roof tiles to determine what damaged them. Id.
Plaintiff filed this action against Allstate in state court on August 31, 2020. On October 7, 2022, Defendant filed the present motion for spoliation of evidence for the destruction of the roofing materials. Defendant seeks dismissal of the action based on Plaintiff's failure to preserve the allegedly damaged roofing materials.
II. Analysis
Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation. Apple Inc. v. Samsung Electronics Co. Ltd., 888 F.Supp. 2d 976, 989 (N.D. Cal. 2012) (citing Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir.2001)). Evidence of spoliation may be grounds for sanctions. Id.
Here there is no doubt that the roofing material was destroyed or materially altered when the roof was replaced. It was not saved or preserved, even though Plaintiffs knew that they had hired counsel and were contemplating litigation.[2] However, the “bare fact that evidence has been altered or destroyed ‘does not necessarily mean that the party has engaged in sanction-worthy spoliation.’ ” Ashton v. Knight Transp., Inc., 772 F.Supp.2d 772, 799–800 (N.D. Tex. 2011).
In considering what spoliation sanction to impose, if any, courts generally consider three factors: “ ‘(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party.’ ” Apple, 888 F.Supp.2d at 992 (quoting Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir.1994)); see In re Napster, 462 F.Supp.2d 1060, 1066–67 (N.D. Cal. 2006). Courts should choose “the least onerous sanction corresponding to the willfulness of the destructive act and the prejudice suffered by the victim.” Schmid, 13 F.3d at 79. The choice of appropriate spoliation sanctions must be determined on a case-by-case basis and should be commensurate to the spoliating party's motive or degree of fault in destroying the evidence. See Unigard Security, 982 F.2d 363, 368 (9th Cir. 1992); In re Napster, 462 F.Supp.2d at 1066–67.
1. Degree of Fault
Before imposing the sanction of dismissal, the “conduct to be sanctioned must be due to willfulness, fault or bad faith.” Anheuser-Busch, Inc. v. Natural Beverage Dists., 69 F.3d 337, 348 (9th Cir. 1995) (citing Henry v. Gill Industs., Inc., 983 F.2d 943, 946 (9th Cir. 1993)). “Courts have not been uniform in defining the level of culpability—be it negligence, gross negligence, willfulness, or bad faith—that is required before sanctions are appropriate for evidence destruction.” Ashton, 772 F.Supp.2d at 800 (citing Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 529–31 (D. Maryland 2010)).
*7 In this action, Defendants have done little to demonstrate that Plaintiffs acted with bad faith in destroying the evidence. In fact, the preponderance of the evidence shows that Plaintiffs were motivated to replace the roof because the interior of the home was at great risk of damage every time it rained, not because they were motivated to destroy evidence. Allstate had denied Plaintiffs’ claim that the roof was damaged in a storm. They had refused to replace the protective tarp and sandbags further exposing the roof, and thereby, the interior of the home to the elements. Plaintiffs’ homeowners policy required them to mitigate damage, another motivation for replacing the roof.
Additionally, the Mindens had made the roof available for inspection by Allstate on at least four occasions before the roof was replaced.3 There was no evidence during any of those inspections that Plaintiffs interfered with the process of inspection, prevented inspectors from taking photographs, prevented anyone from taking samples of roof tiles or underlayment, from disassembling portions of the roof to see how it was constructed or where and why it was damaged. Instead, they welcomed the inspections. Therefore, the Court cannot find that Plaintiffs acted with bad faith.
While Plaintiffs were at fault for not communicating further with Allstate about the roof replacement and for not preserving the tiles and underlayment, there is no indication that they did this in order to affect the outcome of future litigation. Therefore, while this factor favors sanctioning Plaintiffs for their intentional conduct, it does not weigh in favor of dismissing the action.
2. Prejudice
“The prejudice inquiry ‘looks to whether the [spoiling party's] actions impaired [the non-spoiling party's] ability to go to trial or threatened to interfere with the rightful decision of the case.’ ” Leon v. IDX Systs. Corp., 464 F.3d 951, 959 (9th Cir. 2006) (quoting Wiltec Guam, Inc. v. Kahaluu Constr. Co., 857 F.2d 600, 604 (9th Cir. 1988). In Anheuser–Busch, the court found prejudice when a party's refusal to provide certain documents “forced Anheuser to rely on incomplete and spotty evidence” at trial. 69 F.3d at 354.
That is not the case here, where Allstate has had multiple opportunities to inspect the property and prepared more than one report. Further, Allstate has not met its burden of demonstrating prejudice when both of its experts inspected the roof and declined to take samples of tiles or underlayment. Additionally, one expert testified that he did not need the tiles or the underlayment to determine that wind did not damage the tiles. “Courts have in many cases been unwilling to award sanctions for spoliation of evidence when the moving party has had an adequate opportunity to inspect the evidence prior to its destruction.” Cedar Petrochemicals, Inc. v. Dongbu Hannong Chem. Co., 769 F. Supp. 2d 269, 291 (S.D.N.Y 2011) (collecting cases). The degree of prejudice in this case is minimal.
3. Lesser Available Sanctions
The Court has already determined that Defendant has not demonstrated that Plaintiffs acted in bad faith. Thus, the Court denies Defendant's motion to dismiss the case for spoliation of evidence.
In the alternative, Defendant has moved for an adverse inference spoliation instruction. The test for an adverse inference instruction is similar to the test for spoliation sanctions: “[a] party seeking an adverse inference instruction ... based on the spoliation of evidence must establish the following three elements: (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a ‘culpable state of mind;’ and (3) that the evidence was ‘relevant’ to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.” Apple, 881 F. Supp.2d at 1138 (quoting Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 220 (S.D. New York 2003)).
*8 The Court has already recognized that Plaintiffs had control over the evidence and an obligation to preserve it. While the Court concluded that Plaintiff did not act in bad faith, “all the court must find is that [Plaintiffs] acted with a ‘conscious disregard’ of [their] obligations.” Id. At 1147 (quoting Hamilton v. Signature Flight Support Corp., No. C 05-0490-CW-MEJ, 2005 WL 3481423 at *7 (N.D. Cal. Oct. 19, 2011)). Here, while Plaintiffs may not have intended to destroy evidence to gain a legal advantage, they did act in conscious disregard of their obligation. Finally, the discarded roofing material is relevant to the main breach of contract claim for failure to cover the roofing damage resulting from storm winds.
Accordingly, the Court finds that a sanction in the form of a lesser adverse inference instruction is adequate to address the minimal prejudice suffered by Defendant. The Court orders the jury to be instructed:
Plaintiffs have failed to prevent the destruction of relevant evidence for Defendant's use in this litigation. This is known as the “spoliation of evidence.”
I instruct you, as a matter of law, that Plaintiffs failed to preserve evidence after their duty to preserve arose.
You also may presume that Defendant has met its burden of proving the following two elements by a preponderance of the evidence: first, that relevant evidence was destroyed after the duty to preserve arose. Evidence is relevant if it would have clarified a fact at issue in the trial and otherwise would naturally have been introduced into evidence; and second, the lost evidence was favorable to Defendant.
Whether this finding is important to you in reaching a verdict in this case is for you to decide. You may choose to find it determinative, somewhat determinative, or not at all determinative in reaching your verdict.
See Apple, 881 F.Supp.2d at 1151.
III. Conclusion
IT IS HEREBY ORDERED that Defendant Allstate Property and Casualty Insurance Company's Amended Motion for Spoliation of Evidence and Sanctions, ECF No. 58, is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that a lesser adverse inference jury instruction be given as a sanction for the spoliation of evidence.
IT IS FINALLY ORDERED that the motion for sanctions be DENIED in all other aspects.
Footnotes
While Allstate originally admitted that it had hired J&J Contracting, discovery has produced evidence creating a factual issue regarding who J&J was representing.
Defendant's assertion that it did not know that litigation was probable is not credible given that they commissioned a new expert report in direct response to demand letters from Plaintiffs’ counsel.