The short answer is maybe.
One of the first questions many of my clients have after they have been in a car wreck is whether they can accept the insurance company’s pay-off for their totaled car. Most people need the pay-off money to be able to buy substitute transportation as quickly as possible. Some people accept the insurance company’s pay-off well before they even think about hiring a lawyer, and well before they have even spoken to a lawyer about representing them in a car wreck case. This is certainly understandable and normal human conduct when your car has been totaled in a wreck that isn’t your fault. But can there be a problem with accepting the insurance company’s pay-off for your car and, in return, releasing ownership of it to that insurance company for salvage value?
Typically, in a car wreck that has resulted in some personal injuries due to the negligence of the at-fault driver for say, running a stop sign, or rear-ending the car in front, the answer for at least 30 years has been no. In the past, no insurance carrier ever really cared about preserving the car in a plain ordinary negligence car wreck case where there is no evidence of any mechanical failure of the car or any evidence that the car itself was, somehow, defective. In the last 5 years or so, however, that has changed. Now, in an increasingly scorched-earth tactic by defense lawyers, they often file a motion to dismiss even run-of-the-mill car wreck cases for the plaintiff’s failure to preserve or keep the car that was involved in the wreck, even if that car was totaled by the insurance carrier. This motion is referred to as a “spoliation motion” and they are becoming more and more popular as a “gotcha” tactic by defense attorneys who really have no defense for their insured’s actions in actually causing the wreck in the first place. They have to admit their insured was negligent and caused the wreck, but maybe they can get out of the whole thing by arguing that without the car to be examined by an expert, hypothetically, we can never know whether something was wrong with the brakes or the windshield wipers (yes, I have really had that argued by defense counsel in a case) or the seat belts or any of a number of made-up potential problems, even if there exists no evidence that anything about the car caused or contributed to the wreck. At a minimum it is frustrating…at the worst, it can cost a plaintiff her entire case.
Typically, the evidence at issue, here, the plaintiff’s car, must specifically be requested to be kept before there becomes any duty to keep or preserve the car. “A vigilant litigant already has traditional means of securing evidence available. Those means include, for example, a court order directing preservation, along with remedies for a violation of that order, or a contractual agreement with the property owner.” Owens v. American Refuse Systems, Inc., 244 Ga. App. 780, 781, 536 S.E.2d 782, 784 (2000). This is not always true and a trial judge may view all of the circumstances and reach the conclusion the plaintiff should have known to preserve her car. Also, the party requesting the car that is no longer available must show it was prejudiced in some actual way by the inability to examine the car. Hardeman v. Spires, 496 S.E.2d 895 (1998) (injured party must show prejudice resulting from the alleged spoliation). See R.A. Siegel Co. V. Bowen, 246 Ga. App. 147, 539 S.E.2d 873 (whether nonspoliating party was prejudiced and whether prejudice can be cured are among factors that trial court should consider in fashioning remedy for spoliation). Where there is absolutely no evidence of any mechanical problem on the car, it would seem difficult to make a case that the requesting party is prejudiced in any way. But again, the trial court may disagree. Then, where the trial court decides the car should have been kept, it may rule either that the jury will be instructed that they should presume whatever would have been found in the car would have been adverse to the party who destroyed the car or the trial court can dismiss the entire case. Dismissal is, obviously, the harshest of sanctions, but it has happened. Case over.
The Georgia Supreme Court recently addressed this very scenario in March of this year. In Cooper Tire & Rubber Co. v. Koch, S17G0654, 2018 WL 1323994, at 1 (Ga. Mar. 15, 2018) the Georgia Supreme Court reiterated the duty to preserve the car: “Like a defendant’s duty, a plaintiff’s duty to preserve relevant evidence in her control arises when that party actually anticipates or reasonably should anticipate litigation.” Here are the facts in Koch as stated in the opinion:
Plaintiff Renee Koch’s husband, 69-year-old Gerald Koch,] was driving eastbound on Interstate 16 in his 2001 Ford Explorer when the tread on his left rear tire detached. According to the State of Georgia Traffic Crash Report, the Explorer then swerved out of control and traveled approximately 79 feet before striking a guardrail. The vehicle continued to travel in an easterly direction for approximately 134 feet, overturning several times before coming to an “uncontrolled” final rest in the eastbound ditch facing west.
Mr. Koch suffered serious injuries in the accident and was transported by emergency vehicle to the Medical Center of Central Georgia…. He was immediately taken to surgery and then to the intensive care unit, where he remained uncommunicative for several days. However, Mr. Koch eventually regained consciousness and was able to talk to his wife about the accident, telling her that the accident occurred when the “tire blew and the car flipped and rolled three or four times.” Unfortunately, Mr. Koch was unable to recover from his extensive injuries, and he died on June 3, 2012 without ever having left the intensive care unit of the hospital.
The Ford Explorer was towed from the accident scene by Brown’s Wrecker Service (“Wrecker Service”), where it was placed in a storage yard. Sometime after the accident but before Mr. Koch died, Plaintiff talked to the owner of the Wrecker Service, Edwin Brown, who explained to her that she was being charged a daily storage fee for the vehicle. Plaintiff told Brown she could not afford to pay the storage costs, and he told her that he would not bill her for storage costs if she would transfer the title to him so he could sell the vehicle to a salvage yard where it would be crushed for scrap. Plaintiff said that she did not see any reason to keep the vehicle since it was totaled, so she agreed to transfer the title instead of paying for the vehicle to be stored. However, at some point prior to transferring the title, Plaintiff talked it over with her husband, who told her to tell the Wrecker Service to “save the tires.” After instructing Brown to save the left rear tire, Plaintiff relinquished control of the vehicle. Brown then stored the tire, and the vehicle and companion tires were crushed for scrap. Once in litigation, Defendant Cooper Tire filed a motion to dismiss for “spoliation” or failure to preserve the car.
The Georgia Supreme Court affirmed the Georgia Court of Appeals and held no sanctions were necessary against Mrs. Koch for disposing of her car. The Court noted: “the fact that lost evidence is often equally or even more important to the case of the party that controlled it is why fact-finders should not readily presume that lost evidence was favorable to the opposing party absent a showing that the evidence was lost intentionally to deprive the other party of its use in litigation.”At the time the evidence was lost, Plaintiff was not investigating the crash, counsel had not been notified, and neither Plaintiff nor her husband had expressed that anyone was acting in anticipation of litigation.
I believe the Georgia Supreme Court got this case right. Think about this: at a time when the wife, Mrs. Koch, is still in shock and grieving over the death of her husband, probably spending all of her waking time making funeral arrangements, meeting with funeral directors and her pastors or rabbis about the memorial service, having family and friends visit in their home and probably dealing with life insurance companies and notifying the Social Security Office of her husband’s death, Defendant Cooper Tire attempted to blame her for not thinking that she needed to pay to have their totaled car, the place of death of her husband, stored until a representative from Cooper Tire could examine the car. Isn’t that just outrageous? But that is what we are facing time and time again now with these “gotcha” spoliation motions. Recently, in a trial in Gwinnett County involving the deaths of a husband and wife in a Ford Motor Co. roof crush case, the Defendant, Ford Motor Co., filed a spoliation motion against the dead couple’s sons who were bringing the lawsuit, for failure to preserve the bodies of their mom and dad. I am not kidding. Ford Motor Co. claims it needed to be able to examine the dead bodies itself, even though a DeKalb County medical examiner had performed autopsies on them prior to burial. The autopsy report concluded the husband and wife had died from blunt impact to their head, neck, torso and extremities, which the plaintiffs/sons alleged was caused by the roof of their Ford truck crushing down on them in the wreck. I personally have never ever even heard of such a spoliation motion. It is bad enough to argue that a plaintiff who is grieving over the loss of a family member should be clear-minded enough to think to keep the car (and pay storage fees indefinitely to do so) following a loved one’s death in a car wreck, because two or three years from now some defense attorney is going to try to get the case dismissed because there is no car. The motion in the Gwinnett County Ford Motor Co. case, however, reaches a whole new level of outrage. If a Defendant would argue that with a straight face, is there no depth to which they will not sink to try to win a case?
To answer the question definitively of whether you can get rid of a totaled car, you probably need to speak with a plaintiff’s personal injury attorney who has alot of experience handling car wreck cases first before doing anything. The attorney knows the risks of doing so, knows how Georgia law might look on the situation and should be able to analyze whether there may be some product lialbity case that should be pursued against the car manufacture or the manufacturer of any of its component parts, like a seatbelt, or the brakes…or maybe even the windshield wipers. Although some people are often criticized for hiring an attorney early on, given the risks of the “gotcha” spoliation motions, it is a good idea to do so.
Stay safe out there.
Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 30 years. Mrs. Clark is a Barrister in the International Society of Barristers. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.