Pennsylvania Lumberman's v. Florida Power

724 So. 2d 629 (1998)

PENNSYLVANIA LUMBERMAN'S MUTUAL INSURANCE CO., Appellant,
v.
FLORIDA POWER & LIGHT CO., Appellee.

No. 98-1290

District Court of Appeal of Florida, Third District.

December 30, 1998. Rehearing Denied February 10, 1999.

James C. Kelley; Richard A. Warren, Miami, for appellant.

Barwick, Dillian, Lambert & Ice and Joy Barwick, Miami; FPL Law Department and Robert E. Boan, Juno Beach, for appellee.

Before JORGENSON, LEVY and SHEVIN, JJ.

PER CURIAM.

Pennsylvania Lumberman's Mutual Insurance Company appeals from an Order granting the defendant, Florida Power & Light Company's Motion for Partial Summary Judgment in a case alleging spoliation of evidence.

Unlike the defendant in Bondu v. Gurvich, 473 So. 2d 1307 (Fla. 3d DCA 1984), the defendant in this case was not under any statutory or contractual duty to maintain or preserve the transformer in question. To the extent that the appellant, who was the plaintiff below, argues that the defendant was under some type of common law duty to preserve the transformer in question after being notified of possible legal action against the defendant in connection with the transformer, we note that the record refutes the plaintiff's contention that the defendant's legal department was notified both by a letter and a "fax" concerning the possible initiation of legal action and, therefore, should have preserved the transformer as potential evidence in that legal action. As far as the notification by letter is concerned, it is undisputed that the letter was mailed to an incorrect address. Furthermore, as far as the "fax" is concerned, the plaintiff's own "fax" activity sheet reflects that, although an attempt was made to "fax" two pages, none were actually transmitted.

Accordingly, for the foregoing reasons, the Summary Judgment entered by the trial court in favor of the defendant, which is under review herein, is affirmed.