NEGLIGENCE-SUBROGATION

December 15th, 2022 by Rieders Travis in Negligence

Erie Ins. Exch. v. United Servs. Auto. Ass’n, 2022 Pa. Super. LEXIS 481 (December 6, 2022) (Colins, J.)  Appellant, Erie Insurance Exchange (Plaintiff), as subrogee of its insured, Bates Collision, Inc. (Bates Collision), and four other of its insureds, appeals from an order of the Court of Common Pleas of Erie County (trial court) granting summary judgment for defendant United Services Automobile Association (Defendant) in an action that Plaintiff brought against Defendant for damages from loss of evidence in a fire investigation. We affirm. Plaintiff’s claim was barred by Pyeritz v. Commonwealth, 613 Pa. 80, 32 A.3d 687 (Pa. 2011), in which our Supreme Court held that Pennsylvania does not recognize a cause of action for damages for negligent spoliation of evidence. The trial court also held that Plaintiff’s evidence did not satisfy the elements of promissory estoppel cause of action and that Plaintiff had no subrogation cause of action against Defendant because Defendant did not cause the fire that damaged Plaintiffs’ insureds’ building and vehicles. The public policy considerations that Plaintiff asserts are that practices in the insurance industry allegedly required Defendant to retain the BMW vehicle until the investigation or litigation is complete and that failure to recognize a cause of action will create unnecessary additional litigation and expense. Nothing in the insurance industry practices argued by Plaintiff, which concern which party routinely holds and preserves evidence, however, negates the key public policy rationale of Pyeritz that the damages caused by loss of evidence are too speculative to permit a cause of action. Moreover, denial of a cause of action does not require burdensome litigation to preserve evidence. Other steps to ensure that evidence is in fact preserved, such as payment of storage costs by the party that wishes to retain the evidence, express agreements as to how long evidence is held, and express agreements giving the party that wishes to retain the evidence authority to control its storage and disposal, could achieve protection of evidence without litigation. Because our Supreme Court clearly held in Pyeritz that Pennsylvania does not recognize a cause of action to recover damages caused by negligent spoliation of evidence and Plaintiff’s promissory estoppel claim against Defendant is an action to recover damages for negligent spoliation of evidence based on the same kind of a gratuitous agreement to indefinitely preserve evidence for the plaintiff’s benefit and speculative damages that the Supreme Court held did not permit a cause of action, the trial court properly held that Plaintiff as a matter of law had no cause of action against Defendant. We therefore affirm the trial court’s order granting summary judgment in favor of Defendant and against Plaintiff. Order affirmed.

Attorney Cliff Rieders

Attorney Cliff RiedersCliff Rieders is a Nationally Board Certified Trial Lawyer practicing personal injury law. A large part of his practice involves multi-district litigation, including cases related to pharmaceuticals, vitamin supplements and medical devices. He is admitted in several state and federal courts, as well as the Supreme Court of the United States. Rieders is the past regional president of the Federal Bar Association and is a life member of the distinguished American Law Institute, which promulgates proposed rules adopted by many state courts. He is a past president of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. As a founder of the Pennsylvania Patient Safety Authority, he served on the Board for 15 years.

Not only has Rieders held many highly esteemed, leadership positions, he authored legislation related to the Patient Safety Authority and the Mcare Act, which governs medical and hospital liability actions in Pennsylvania. He authored texts upon which both practitioners and judges rely, including Pennsylvania Malpractice Laws and Forms, and Financial Responsibility Law Issues in Pennsylvania, the latter governing auto and truck collisions in Pennsylvania. In addition, he wrote several books on the practice of law in Pennsylvania regarding wrongful death and survivor actions, insurance bad faith, legal malpractice claims and worker rights, among others. Rieders also serves as a resource to practitioners as a regular speaker for Celesq, an arm of the world’s largest legal publisher, Thomson Reuters West Publishing.

As recognition of his wide range of contribution to his profession and of his dedication to protecting the rights of his clients, he received numerous awards, among them the George F. Douglas Amicus Curiae Award, the Milton D. Rosenberg Award, the B’nai B’rith Justice Award, and awards of recognition from the Pennsylvania Trial Lawyers. [ Attorney Bio ]

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