Northern Indiana Public Service Company v. Aqua Environmental Container Corp. and Joki Leasing, LLC

FILED
Apr 30 2018, 5:59 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEES
Brent E. Inabnit Thomas M. Dogan
Matthew R. Kaczmarek Dogan and Dogan
Nicholas J. Derda Portage, Indiana
Sopko, Nussbaum, Inabnit &
Kaczmarek
South Bend, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Northern Indiana Public Service April 30, 2018
Company, Court of Appeals Case No.
Appellant-Defendant, 91A04-1707-PL-1653
Interlocutory Appeal from the
v. White Superior Court
The Honorable
Aqua Environmental Container Robert B. Mrzlack, Judge
Corp. and Joki Leasing, LLC, Trial Court Cause No.
Appellees-Plaintiffs. 91D01-1008-PL-10
Kirsch, Judge.
[1] This interlocutory appeal arises out of a fire that occurred at Aqua
Environmental Container Corp.’s (“Aqua”) warehouse facility in Wolcott,
Indiana, which was owned by Joki Leasing, LLC (“Joki Leasing”). Aqua and
Joki Leasing (together, “Aqua” or “Plaintiffs”) filed a complaint against
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Indiana Public Service Company (“NIPSCO”), alleging that NIPSCO
negligently supplied electrical power to the Wolcott area, including Aqua’s
warehouse, resulting in severe power fluctuations that caused a fire in the area
of the ceiling-mounted furnace of Aqua’s warehouse. NIPSCO denied all
liability for the fire. During discovery, it was determined that Aqua preserved
some, but not all, of the ceiling-mounted furnace equipment. NIPSCO filed a
Motion for Default Judgment for Spoliation of Evidence, which the trial court
denied. NIPSCO appeals and raises the following issue: whether the trial court
abused its discretion when it denied NIPSCO’s motion on the basis that Aqua
did not intentionally spoliate evidence.
[2] We affirm and remand with instructions.
Facts and Procedural History1
[3] In March 2010, Aqua was in the business of swimming pool manufacturing,
and it leased a warehouse facility (“the premises”) from Joki Leasing. Kirk
Sullivan (“Sullivan”) is both the president of Aqua and the managing director of
Joki Leasing.2 On the evening of March 28, 2010, a major fire occurred at the
premises, in the ceiling area where the furnace was located, and the fire
1
We held oral argument on this appeal on March 29, 2018 in the Court of Appeals Courtroom in
Indianapolis, Indiana. We commend counsel for both parties on the quality of their oral and written
advocacy.
2
Kirk Sullivan is president or managing director of twelve or thirteen companies, all of which are involved in
some aspect of the swimming pool industry. Appellant’s App. Vol. 3 at 127, 130. Aqua has operations in
various locations, including Florida, Louisiana, Arizona, North Carolina, Washington, Canada, China, and
Russia. Tr. Vol. 2 at 208.
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destroyed about 12,000 square feet of finished warehouse, office, and factory
space.3 The ceiling furnace assembly is the basis of NIPSCO’s spoliation claim.
[4] At around 8:45 p.m. on the night in question, an Aqua sales representative,
John Kantor (“Kantor”), was working in the factory showroom area, heard a
bang sound, and saw in the ceiling area a glow that he suspected was fire, so he
contacted Aqua’s property manager, Mike Storz (“Storz”), who lived in a
residence located next to the warehouse. Storz called 911, and he and Kantor
went back to the premises. Wolcott Volunteer Fire Department Chief Kenneth
Burns (“Chief Burns”) was the first to respond to the fire, arriving about two
minutes after he received the dispatch call. A number of local fire departments
responded to the fire, and it did not get fully extinguished until after around
2:00 a.m. Chief Burns called dispatch and requested they contact the Indiana
State Fire Marshal to send a fire investigator to the scene to investigate the
origin and cause of the fire. Appellant’s App. Vol. 3 at 159.
[5] On his way to the fire, Chief Burns had noticed that the lights to the lumber
yard and about five houses in town were “flickering.” Appellees’ App. Vol. 2 at
35. He also noticed that the generator at the fire station had started up
automatically, which generally occurs if the voltage drops below 200 volts
(from the normal 220 volts) and occurs in order to prevent damage to an electric
3
Sullivan stated in his deposition that Aqua was not covered by property insurance. Appellant’s App. Vol. 2 at
80-81; see also Appellant’s App. Vol. 3 at 3 (Plaintiffs’ Response to NIPSCO’s Motion for Default Judgment,
stating that there was no property insurance on the facility).
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motor. Id. at 28, 38-39. Chief Burns talked to Storz at the scene of the fire, and
Storz told Chief Burns that the lights and television at his residence kept
flickering and surging, going bright and dim, for forty-five minutes prior to the
fire. Tr. Vol. 2 at 209.
[6] In the morning on March 29, 2010, the day after the fire, Chief of Fire
Investigations for the Indiana Department of Homeland Security Division of
Fire and Building Safety, Robert Dean (“Fire Marshal Dean”), came to the
premises in response to Chief Burns’s request for an investigator. Chief Burns
also returned to the premises, and he told Fire Marshal Dean that he believed
the fire started in the furnace area and may have been caused “by NIPSCO’s
being low on power.” Appellant’s App. Vol. 3 at 161, 163-64. During his
investigation, Fire Marshal Dean determined the area of a ceiling-mounted
furnace was the area of origin and that the furnace was a possible cause of the
fire. Tr. Vol. 2 at 27- 29. The furnace, including a firebox, blower box, and the
A/C ductwork (together, “Furnace Assembly”) survived the fire. Fire Marshal
Dean took the following picture of the entire Furnace Assembly on the day
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following the fire, March 29, 2010:
Ex. Vol. 4 at 159; Appellant’s Br. at 9.
[7] When he took the picture, Fire Marshal Dean was standing inside the building
and under the furnace; because it was unsafe for Storz to accompany Fire
Marshal Dean into the burned building, Storz was not with Fire Marshal Dean
when he took the picture. At some point, while Storz and Fire Marshal Dean
were standing approximately 30 feet outside of the building, Fire Marshal Dean
pointed out the furnace to Storz – as they looked through a hole that had been
made in the wall of the building during the process of fighting the fire – and Fire
Marshal Dean told Storz, “This is a possible cause, you may want to save it for
your insurance company or other entities.” Id. at 31, 222-26. Fire Marshal
Dean’s March 29, 2010 report concluded that the fire was “accidental[,]” and
“[t]he area of origin was in the ceiling of the north portion of the south building.
The possibility of an area of internal failure or resistive heating in a ceiling-
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mounted furnace could not be ruled out as the ignition source of this event.”
Appellant’s App. Vol. 3 at 53.
[8] Sullivan, who was out of state at the time, delegated responsibility for handling
the situation to his uncle, Phil Sullivan (“Phil”), and Storz. Aqua sought
estimates to remove the burned part of the building, and within about a week,
Phil hired Xtreme Contractors (“Xtreme”) for the project. Tr. Vol. 2 at 243.
Phil and Storz worked with Terry Wilson (“Wilson”), an owner of Xtreme, on
the project. Demolition took approximately two weeks, and on or about the
third day, Xtreme removed the furnace with a claw or crane and placed it in a
cleared-out location that was at least 100 feet from any other objects.
According to Xtreme, it cut out and lowered the entire Furnace Assembly,
including the firebox, and set it aside. According to Storz, Xtreme saved only
the A/C ductwork portion, which is what Fire Marshal Dean had pointed out
to him on March 29. Tr. Vol. 3 at 22; Def’t’s Ex. 9; Tr. Vol. 8 at 200. Using a
pallet and a forklift device, Storz moved the saved furnace remains to the
nearby Aqua warehouse for storage. According to Aqua, the saved furnace
remains were untouched for six to eight months, until they were examined by
Aqua’s experts in the fall of 2010. Tr. Vol. 3 at 2-7.
[9] On April 19, 2010, Sullivan traveled from Florida to Wolcott, Indiana to view
the premises and meet with Chief Burns. Chief Burns advised Sullivan that
NIPSCO’s supply of electricity may have played a part in causing the fire.
After talking to Chief Burns and a local electrician about NIPSCO having
electrical surges on the night in question, Sullivan phoned NIPSCO’s claims
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division on or around April 22, 2010, spoke to claims adjuster Cindy Jenkins
(“Jenkins”), and made a claim.
[10] Jenkins took notes of her conversation with Sullivan, and her “Adjuster
Comments” reflect that Sullivan told her that: (1) he had been told by the fire
chief and an electrician that NIPSCO had experienced “brownouts” in Wolcott
and surrounding communities on the night in question; (2) the fire started in or
at a “heater”; (3) the building had been torn down and all that remained was
the slab; (4) the “heater” had been saved, and NIPSCO could view it by calling
Phil Sullivan, and Sullivan gave Phil’s number to Jenkins. Appellant’s App. Vol.
3 at 181, 184. Jenkins sent a follow-up email to Sullivan, stating, “NIPSCO
requests that you preserve and maintain any and all equipment, wiring and
other facilities from the subject building.” Id. Jenkins also stated in her email
to Sullivan, “As we discussed, since the building has been torn down, NIPSCO
would like to view the heater and any other remaining equipment or wiring
from the building. They or someone on their behalf will be contacting Mr.
[Phil] Sullivan to make these arrangements.” Id. at 185. NIPSCO did not
thereafter contact Aqua to arrange to see the saved furnace.
[11] Several months later, in August 2010, Aqua and Joki Leasing filed a Complaint
against NIPSCO and Nisource, Inc., a holding company in the business of
distributing electrical utility service in White County, Indiana (together,
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“Defendants”).4 Appellant’s App. Vol. 2 at 27-36. Plaintiffs asserted claims for
negligence, strict liability, res ipsa loquitur, and breach of implied warranty. Id.
Among other things, Plaintiffs asserted that Defendants were negligent in the
following respects:
a. Defendants improperly installed, serviced, and maintained the
utility service and its various providing implements over which
the Defendants maintained exclusive ownership and control;
b. Defendants failed to conduct proper inspections of its electrical
service implements, wiring and equipment and failed to discover
the defective condition of their delivery of electricity to Joki
Leasing and Aqua Environmental;
c. Defendants had prior notice of and failed to conduct proper
maintenance and/or to repair their transformers and/or other
equipment so that their electricity product could safely be
delivered to Joki Leasing and Aqua Environmental.
Id. at 29. Plaintiffs alleged that “[b]y reason of the defective condition of the
electrical delivery system, there was an electrical fire originating in the electrical
furnace motor and/or other equipment at the Plaintiffs’ property, which
resulted in electrical arcing, the generation of excessive heat, and which ignited
fire in Plaintiffs’ building and property[.]” Id. at 29-30, 31-32. In their
Complaint, Plaintiffs averred that “The furnace where the fire originated . . .
4
In November 2010, pursuant to the parties’ stipulation, Nisource, Inc. was dismissed without prejudice
from the action. Appellant’s App. Vol. 2 at 4.
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was in good working order and condition, and contained no defect therein prior
to or on the night of the fire.” Id. at 33. NIPSCO filed its Answer and denied
all liability for the fire.
[12] Discovery began and continued for years. In August 2014, NIPSCO took
Sullivan’s deposition, during which he made statements indicating that, after
conversations with Aqua’s experts and his attorney, he learned that what was
salvaged during demolition “wasn’t really the right part to keep” or “the most
useful part,” agreeing that “the wrong part was kept.” Id. at 48-49, 73, 75.
NIPSCO made various requests for production of documents with regard to the
furnace, and, in January 2015, Aqua advised that it had no records in its
possession regarding the furnace in question, having been destroyed in the fire.
Id. at 158. In early April 2015, almost five years after the fire, experts for
NIPSCO examined, for the first time, the stored furnace remains and
determined that Plaintiffs did not have the entire Furnace Assembly and that
the “firebox” portion was missing. About two weeks later, on April 15, 2015,
NIPSCO filed a Motion for Default Judgment Against Plaintiffs for Spoliation
of Evidence (“Motion for Default Judgment”). Id. at 47-61.
[13] NIPSCO’s Motion for Default Judgment asserted,
This entire case involves what caused the fire in Plaintiffs’
facility. Plaintiffs assert that NIPSCO’S negligence caused the
fire. However, they have destroyed the very evidence essential to
investigating and testing that theory. As such, that issue cannot
be resolved within a reasonable degree of scientific certainty - - by
either Plaintiffs or NIPSCO.
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Id. at 55. NIPSCO also stated, “Plaintiffs claim[] to have no documents in their
possession related to the subject furnace.” Id. at 50. NIPSCO maintained that
Plaintiffs’ spoliation of evidence makes it impossible to determine the origin
and cause of the fire and further prevents NIPSCO from being able to defend
itself in this case or assert any non-party defenses against, for example, the
manufacturer of the furnace or others. Citing to discovery responses,
deposition excerpts, and affidavit testimony, including that of experts, NIPSCO
argued, “[A]ll of the experts in this case are in agreement that the origin and
cause of the fire cannot be determined within any reasonable degree of
engineering and/or scientific certainty - - i.e., any opinion other than
‘undetermined cause’ would be speculation.” Id. at 60. Therefore, NIPSCO
argued, “Plaintiffs’ spoliation warrants a terminating sanction - - i.e., default
judgment.” Id.
[14] Plaintiffs filed a response, asserting that Plaintiffs did not spoliate evidence and
“in fact the Plaintiffs made efforts to preserve all of the furnace with its related
components that were identifiable after the intense fire.” Appellant’s App. Vol. 3
at 7. Plaintiffs opposed NIPSCO’s suggestion that, without the entire furnace,
Plaintiffs cannot prove their case. In support, Plaintiffs relied on National Fire
Protection Association (“NFPA”) 921, Guide for Fire and Explosion
Investigations. NFPA 921 calls for “developing a hypothesis using inductive
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reasoning and after analyzing the available data.”5 Id. at 8 (citing to 2011
NFPA 921 4.3.1, et seq.). Plaintiffs argued, “[T]he investigator uses the
scientific method for data gathering, hypothesis development, and hypothesis
testing regarding the consideration of potential ignition sequences[,]” noting
that, under NFPA 921, “[I]n the instance in which the investigator fails to
identify the ignition source, the fire need not always be classified as
‘undetermined.’” Id. at 10-11.
[15] In opposing the Motion for Default Judgment, Plaintiffs asserted that their
retained experts, who examined the retained furnace in November 2010,
followed the dictates of NFPA 921 in giving their expert opinions that (1) the
origin of the fire was in the area of the furnace located in the ceiling of the
building, (2) NIPSCO’s electrical distribution system was experiencing voltage
disturbances due to a failing transformer in a substation, and electronic
components and electric motors within the gas furnace were susceptible to
damage and failure, and (3) “[d]amage to electrical components which is
sufficient to cause failure within the furnace is considered a competent ignition
source.” Id. at 12. Lastly, Plaintiffs argued that, if the trial court were to find
5
NFPA 921 states, “A fire or explosion investigation may include all or some of the following tasks: a scene
inspection or a review of previous scene documentation done by others; scene documentation through
photography and diagraming; evidence recognition, documentation, and preservation; witness interviews;
review analysis of the investigations of others; and identification and collection of data from other
appropriate sources.” Appellant’s App. Vol. 3 at 9 (citing 2011 NFPA 921, 4.4.3.2).
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that Aqua inadvertently destroyed evidence, lesser sanctions than default would
be appropriate.
[16] In January 2017, the trial court held a full-day evidentiary hearing on
NIPSCO’s Motion for Default Judgment. NIPSCO presented the testimony of
(1) Fire Marshal Dean, (2) Wilson, owner of Xtreme, and (3) NIPSCO’s expert
Dr. John Martens (“Martens”), who was employed as a principal engineer at
Exponent’s Electrical Engineer and Computer Science practice. Fire Marshal
Dean, who had been in the field of fire investigations for approximately forty
years, stated that when conducting a fire investigation, the specific practice that
is followed is NFPA 921, which he characterized as a standard guide for fire
investigators. With regard to the Aqua premises, Fire Marshal Dean
determined that the furnace area was the likely origin of the fire, and the
furnace was “a possible cause.” Tr. Vol. 2 at 27-29. Fire Marshal Dean stated,
“I always tell the homeowner or business owner that this is a possible cause,
you may want to save it for your insurance company or other entities,” id. at
31, and, in this case, he so informed Storz, telling Storz that he believed the fire
started in the furnace area and that the furnace was a possible cause of the fire
and needed to be preserved. Id. at 30-35, 37. He recalled that, when he was
telling Storz to save the furnace, they were standing outside of the building, and
he was pointing to the ceiling area inside the building through a hole in the wall
and through possible haze and smoky conditions. Id. 37-44, 56. Fire Marshal
Dean confirmed that without the entire furnace, “the actual cause and origin”
of the fire, or the “actual ignition source,” could not be determined. Id. at 35,
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86, 90. When asked if NIPSCO was prejudiced because the entire furnace was
not saved, Fire Marshal Dean responded, “I don’t know if they’d be prejudiced.
All the evidence is not there.” Id. at 35.
[17] On cross-examination, Fire Marshal Dean conceded that he did not know
whether anyone purposely destroyed evidence, noting “I was not there during
deconstruction.” Id. He also agreed that it was “possible” that the entire
furnace broke apart as it was pulled from the roof and that only a portion of it
was kept. Id. at 50. Fire Marshal Dean recalled that NIPSCO was contacted
and asked to come to the scene on March 29, but did not do so. He stated that
he had wanted NIPSCO to come to the premises at that time so that he could
ask them about any power surge, stating that pursuant to NFPA 921 any power
surge would be relevant, explaining, “That would help me to determine the
cause of the fire. If you have a power surge, it may have had surge of power in
that structure.” Id. at 58. He also testified that wiring from the substation to
the Aqua property, the insides of the Aqua on-site transformer box, the Aqua
electrical meter boxes, gas transfer valves, gas regulators, and gas meters, were
all relevant to the investigation. Id. at 66-73. When asked whether the cause of
the Aqua fire could be established without the firebox, Fire Marshal Dean
replied, “I don’t think it can be established because part of the evidence is gone.
The main part of the evidence is gone,” id. at 66, but he also acknowledged that
it is possible to determine cause and origin without the exact ignition source.
Id. at 92.
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[18] Wilson, owner of Xtreme, testified that, at the start of the project, Phil met him
at the premises and walked around outside and inside the building “and pointed
out the furnace and the duct work.” Id. at 99. Wilson stated that, on several
occasions during demolition, Phil told him that it was important to save the
furnace and the ductwork. Id. at 98. Wilson also said that Storz and Sullivan
were present daily. Id. at 103-04, 249. When Wilson was shown the picture
taken by Fire Marshal Dean (of the entire Furnace Assembly), Wilson testified
that the picture depicted what Phil had instructed him to save. Id. at 99-100.
Wilson testified that he personally observed that the entire Furnace Assembly,
as depicted in Fire Marshal Dean’s picture, was recovered. Id. at 106-07.
Wilson described that Xtreme worked its way carefully toward the furnace and
that it was lowered to the floor in a controlled fashion, and the furnace was in
at least two pieces. Id. at 108. He recalled that the furnace firebox part was
sitting on top of the ductwork. Id. at 112. He said Phil and Storz were present
and observed what was recovered by Xtreme. Wilson testified to watching
Storz use a forklift to move the two pieces of the furnace that Xtreme had
recovered to a building. Id. 111, 115. Counsel for NIPSCO showed Wilson the
picture of what Aqua still had in its possession (which was only the ductwork)
and asked Wilson:
Q: So, what you see in that picture is not everything that you
pulled out of the building and put on the side?
A No, it’s not.
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Id. at 109.
[19] Next to testify was NIPSCO’s expert, Martens, whose area of expertise is in
systems and controls and failure analysis of systems and controls. With regard
to the Aqua fire, he examined the portion of the furnace that remained, and he
followed NFPA 921, which includes documenting the scene, collecting the
evidence, defining the problem, gathering the data, analyzing the data,
developing hypotheses, testing those hypotheses, and repeating the process.
Martens was asked for his opinion as to the origin and cause of the fire, based
upon his review of the records and analysis of the only remaining artifacts of
the fire, and he replied, “The conclusion I came to was undetermined.” Id. at
155. He stated that because of the failure to save the furnace, there would be no
way to correlate the fire with NIPSCO’s supply of electricity, or with any other
possible cause and the ignition sequence could be not determined. Id. at 159,
161-62. He testified, that without the entire Furnace Assembly, it is impossible
to know if the internal components were designed correctly, or whether the
furnace was installed correctly or properly maintained. Id. at 187-88. In
Martens’s opinion, the origin and cause of the fire cannot be determined with
any reasonable degree of engineering and/or scientific certainty. Id. at 160-61.
[20] Martens was asked whether he had any opinions as to whether or not that
furnace would have helped the Plaintiffs or the Defendant in this case, and he
replied:
A: Because I’m not able to evaluate it, we can’t say anything
about it. We don’t know what safeguards were in it, we don’t
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know whether or not they were maintained properly, we don’t
know if they were designed properly, if they were functioning.
Unfortunately, that’s the issue that we’ve had in this project. We
don’t know enough about what we don’t even know.
Id. at 174-75. Martens conceded that, under NFPA 921, the failure to
determine the ignition source of a fire does not, in every case, automatically
require the fire investigator to rule the fire undetermined. Id. at 182-83. He also
acknowledged that evidence of voltage surges, gas and electric meters,
transformer box, electrical conductors downstream, and the furnace were all
evidence relevant to establish a cause and origin of the fire. Id. at 185-92.
[21] Aqua presented the testimony of Storz, who recalled power surges occurring as
he was trying to watch basketball games, stating that “the lights would get real
bright and they would get real dim” for about forty-five minutes before the fire.6
Id. at 209. After Aqua employee Kantor contacted him, Storz called 911 and
drove to the Aqua building, and he saw that “the furnace was glowing” in the
ceiling. Id. at 211. Storz testified that on the morning after the fire, while
standing with Fire Marshal Dean thirty feet outside of the building, Fire
Marshal Dean pointed through a hole in the wall of the building to the furnace
area and told Storz that it should be preserved. Id. at 240. According to Storz,
6
In addition to Storz, Aqua also called as a witness NIPSCO employee David Prather, who was a supervisor
of two NIPSCO employees, an electric lineman and a gas serviceman, who came to the premises at the time
of the fire to shut off electric service and gas service. Prather also testified that the gas and electric meters at
the premises were pulled at some point. He was not aware of any photographs that had been taken of the
premises, meters, or Aqua’s transformer box.
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he could not see the firebox portion of the furnace from his view. Id. at 220-26,
242; Tr. Vol. 4 at 158. On cross-examination, Storz explained that he never said
anything to Fire Marshal Dean such as “I can’t really see what you’re talking
about” or otherwise asked Fire Marshal Dean to further explain what he meant
should be preserved, because “I knew what the furnace was” and “I was
exposed to it regularly,” having had experience with changing the filters in it.
Tr. Vol. 3 at 15-16.
[22] Storz stated that he told Wilson of Xtreme to “save the entire furnace” and that
he had pointed it out to Wilson in the same way that Fire Marshal Dean had
pointed it out to him, from the same angle and the same hole in the wall. Tr.
Vol. 2 at 245. Storz stated that he did not recall going into or walking through
the building with Wilson and that, if Phil had done so, he was not aware of it.
Id. Storz stated that, through the demolition process, he reminded Wilson
repeatedly to make sure to keep the furnace. Id. at 250. Storz recalled that on
about the third day of demolition, Xtreme removed the furnace. Storz
described that he was doing other Aqua work when Wilson came up to him and
said, “There’s your furnace over there,” pointing to an area by the side of the
building near the dumpster. Tr. Vol. 3 at 2. Storz stated that he did not observe
it being pulled from the building. Id. at 3. Storz stated that the only piece that
was saved and set aside on the ground by the dumpster is what is depicted in
this picture:
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Id. at 22; Ex. Vol. 8 at 200. Storz testified that he believed what he saw was the
“whole furnace,” and he took it by pallet and forklift to a pole barn, where it
stayed for five or six years. Tr. Vol. 3 at 6-7, 11. He stated that at no time
during those years did he remove or move anything. Storz stated that Aqua did
not know that anything was missing until NIPSCO experts came to examine
the remains, in April 2015, about five years after the fire. Id. at 8, 11.
[23] In addition to witness testimony, the parties submitted deposition and other
documentary evidence for the trial court’s consideration, and the trial court
took NIPSCO’s Motion for Default Judgment under advisement. The parties
each submitted proposed findings of fact and conclusions of law, and, on
March 31, 2017, the trial court entered its Order on Defendant’s Motion to
Strike and Motion for Default Judgment for Spoliation of Evidence (“the
Order”), denying NIPSCO’s Motion for Default Judgment. Appellant’s App.
Vol. 2 at 17-26. The Order determined, among other things, that (1) Plaintiffs
had a duty “to preserve the furnace,” (2) the duty arose on April 22, 2010
“when Sullivan initiated the claim process,” and (3) the “furnace” saved by the
Plaintiff[s] did not contain certain parts that could be examined by experts to
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possibly determine the origin and cause of the fire. Id. at 23-24. The trial
court’s findings noted that (1) no pictures were produced by either party of the
furnace when Xtreme removed it and placed it in the side area or when Storz
moved the furnace to the pole barn, and (2) April 1, 2015, almost five years
after the fire, was the first time that the “furnace” was inspected by NIPSCO.
Id. at 20-21.
[24] The trial court’s conclusions included the following:
Conclusion 17. Based upon the evidence presented, it is []
reasonable to consider that the evidence could have been
spoliated by Xtreme Contractors, during the demolition process
and the excavating of the furnace from the damaged building by
the use of their heavy equipment.
Conclusion 22: Based upon the evidence presented, the Court
cannot conclude that the Defendant proved that the Plaintiffs
breached their duty to preserve evidence, when back in April of
2010, every indication suggested that they had done so, since the
Court is not convinced that what Xtreme Contractors identified
as being the furnace, was any different from what Mike Storz
identified as being the furnace that he moved into the pole barn.
Conclusion 24: It would have been helpful, if the [D]efendant
had had employees or others at its direction come to the fire
scene when [Fire Marshal] Dean conducted his fire inspection, or
when the furnace was taken down by Xtreme Contractors, or
within a short period of time after the furnace was taken down,
rather than some five years later when the furnace was examined
by its experts. The Defendant is an electric and gas company.
Surely the Defendant would have had employees available who
could have determined at that time whether all of the salvageable
parts of the furnace were either there or not there.
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Id. at 24-25. The trial court denied NIPSCO’s Motion for Default Judgment.
Id. at 26. NIPSCO now appeals.7
Discussion and Decision
[25] NIPSCO asserts that Aqua spoliated evidence, namely, the furnace, which
prevented NIPSCO from investigating and, ultimately, defending itself against
Aqua’s claims, and, therefore, the trial court should have granted its Motion for
Default Judgment. “Spoliation is a particular discovery abuse that involves the
intentional or negligent destruction, mutilation, alteration, or concealment of
physical evidence.” Popovich v. Ind. Dep’t of State Revenue, 17 N.E.3d 405, 410
(Ind. Tax Ct. 2014). We vest trial courts with wide discretion in dealing with
discovery matters and will reverse a trial court’s decision regarding discovery
only for an abuse of discretion. WESCO Distribs., Inc. v. ArcelorMittal Ind. Harbor
LLC, 23 N.E.3d 682, 703 (Ind. Ct. App. 2014), trans. dismissed. We will find an
abuse of discretion only if it is clearly against the logic and circumstances before
the court, or when the trial court has misinterpreted the law. Prime Mortg. USA,
Inc. v. Nichols, 885 N.E.2d 628, 648-49 (Ind. Ct. App. 2008). This court has
recognized, “‘Although a default judgment plays an important role in the
7
In May 2017, NIPSCO filed a Motion for Certification of the Order, a hearing was held, and in July 2017,
the trial court entered an order certifying the Order for interlocutory appeal. Appellant’s App. Vol. 3 at 219-20.
In its certification order, the trial court indicated the issues to be addressed in the appeal are “(1) whether or
not the Plaintiffs spoliated evidence, specifically the furnace, which they had under their control following
the fire; and (2) whether a party can avoid a finding of spoliation by delegating a duty to preserve evidence to
a third party.” Id.Court of Appeals of Indiana | Opinion 91A04-1707-PL-1653 | April 30, 2018 Page 20 of 28
maintenance of an orderly, efficient judicial system as a weapon for enforcing
compliance with the rules of procedure and for facilitating the speedy
determination of litigation, in Indiana there is a marked judicial deference for
deciding disputes on their merits and for giving parties their day in court[.]’” Id.(quoting Charnas v. Estate of Loizos, 822 N.E.2d 181, 185 (Ind. Ct. App. 2005));
see also Shirey v. Flenar, 89 N.E.3d 1102, 1111 (Ind. Ct. App. 2017) (reversing
trial court’s grant of summary judgment to doctor on patient’s spoliation claim
against him for failing to preserve her medical records, noting “our general
preference for letting even marginal cases proceed to trial”).
[26] A party raising a claim of spoliation must prove that (1) there was a duty to
preserve the evidence, and (2) the alleged spoliator either negligently or
intentionally destroyed, mutilated, altered, or concealed the evidence. Popovich,
17 N.E.3d at 410 (citing Glotzbach v. Froman, 854 N.E.2d 337, 338-39 (Ind.
2006) for the proposition that the duty to preserve evidence may be assumed
voluntarily or imposed by statute, regulation, contract, or certain other
circumstances). In this case, the trial court found that Plaintiffs “had a duty to
preserve the furnace” and that it arose when Sullivan spoke to NIPSCO claims
adjuster Jenkins in April 2010, which began the claims process, and she
specifically told Sullivan to preserve the furnace and wiring. Appellant’s App.
Vol. 2 at 24. We agree with the trial court that Aqua had a duty to preserve the
furnace, in its entirety, and, on appeal, Aqua does not appear to dispute that it
had a duty to preserve it. Appellees’ Br. at 37-38 (stating that “[t]rial court
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correctly determined that the duty to save the furnace arose when [] Sullivan
telephoned his claim in to NIPSCO”).
[27] We disagree, however, with the trial court’s determination that the duty arose
when Sullivan spoke to NIPSCO adjuster Jenkins, on April 22, several weeks
after the fire. Instead, we find that the duty arose at or near the time of the fire,
on March 28 or 29, 2010, when Chief Burns told Storz that he suspected the fire
originated in the furnace area and when Fire Marshal Dean pointed out the
furnace to Storz and told him that Aqua needed to preserve it. We find that, at
that time, Plaintiffs knew, or at the very least, should have known, that
litigation was possible, if not probable. Indeed, the timeline of events indicates
that Aqua was aware of the need, if not its duty, to preserve the furnace because
Storz and Phil repeatedly instructed Xtreme during the demolition process to
preserve the entire furnace.8
8
NIPSCO observes that the trial court, in reaching its decision to deny NIPSCO’s Motion for Default
Judgment, relied in part on the finding that the evidence could have been spoliated by Xtreme, as opposed to
Aqua. Appellant’s App. Vol. 2 at 24-25. NIPSCO asserts that Aqua’s duty to preserve should be considered a
non-delegable duty, arguing, “[R]egardless of whether it was Xtreme’s actions or those of Plaintiffs, the fact is
[that] the entire Furnace Assembly existed following the fire, as confirmed by Fire Marshal Dean’s
photographs, and it was not preserved by Plaintiffs. It was either Plaintiffs’ own conduct or that of Xtreme
that caused the spoliation of crucial evidence. In either instance, Plaintiffs bear the responsibility for this
spoliation of evidence.” Appellant’s Br. at 24-26 (citing Himes v. Woodings-Verona Tool Works, Inc., 565 N.E.2d
469 (Minn. Ct. App. 1997); Patton v. Newmar Corp., 538 N.W.2d 116, 119 (Minn. 1995); Trull v. Volkswagen of
Am., Inc., 187 F.3d 88, 91 (1st Cir. 1999)). We agree that, even if it was Xtreme that failed to save all the
furnace parts, Aqua may not avoid its duty to preserve the furnace. Rather, if Aqua believes that it was
harmed by Xtreme’s spoliation of the evidence, its remedy would be an independent cause of action for third-
party spoliation of evidence against Xtreme. See Shirey v. Flenar, 89 N.E.3d 1102, 1110-11 (Ind. Ct. App.
2017) (discussing car accident plaintiff’s third party spoliation claim against her physician for his failure to
preserve her medical records, which she needed to substantiate her personal injury claim related to the car
accident); Thompson ex rel. Thompson v. Owensby, 704 N.E.2d 134, 136 (Ind. Ct. App. 1998) (dog bite plaintiffs
Court of Appeals of Indiana | Opinion 91A04-1707-PL-1653 | April 30, 2018 Page 22 of 28
[28] Having found that Aqua had a duty to preserve the furnace, the next inquiry is
whether Aqua “either negligently or intentionally destroyed, mutilated, altered,
or concealed the evidence.” Popovich, 17 N.E.3d at 410. There is no dispute
that part of the Furnace Assembly, including the “firebox,” is no longer in
existence. Aqua maintains that it did not spoliate evidence because (1) it saved
exactly what Xtreme had recovered from the building, (2) Storz believed that
what he moved to storage was exactly the same as what Fire Marshal Dean had
pointed out to him, and (3) Aqua did not know that any part of the Furnace
Assembly was missing, until NIPSCO attorneys came to examine the remains
approximately five years after the fire. Tr. Vol. 3 at 8, 11. Aqua argues, “[T]he
evidence is clear that both Aqua and Xtreme made all reasonable efforts to save
the entire furnace” and, therefore, “NIPSCO failed to show that either Aqua or
Xtreme intentionally destroyed or discarded the furnace components.”
Appellees’ Br. at 36. The trial court agreed and determined that there is no
evidence that Aqua “intentionally destroyed evidence” or “intentionally failed
to save evidence.” Appellant’s App. Vol. 2 at 25. We, too, find that the record
does not support a finding that that Aqua intentionally spoliated evidence;
however, the inquiry does not end there.
had claim for spoliation of evidence against liability insurer of dog owners’ landlord for the insurer’s failure
to preserve dog-restraining cable that it took possession of during investigation), trans. denied.
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[29] In the Order denying NIPSCO’s Motion for Default Judgment, the trial court
acknowledged that Indiana recognizes negligent spoliation of evidence, id. at
23-24, but it did not expressly make any finding about whether negligent
spoliation occurred on the facts of this case. Upon review, we find that it did.
That is, as discussed above, Aqua had a duty to preserve the entire furnace, but,
as Aqua concedes, “apparently inadvertently, some of the furnace components
were not saved.” Appellees’ Br. at 36. Stated differently, Aqua negligently
destroyed or failed to save – that is, spoliated – evidence relevant to its lawsuit.
[30] Our Supreme Court has recognized that “[t]he intentional or negligent
destruction or spoliation of evidence cannot be condoned and threatens the very
integrity of our judicial system.” Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d
349, 354 (Ind. 2005). However, a finding of spoliation alone does not
necessarily require the imposition of sanctions. Popovich, 17 N.E.3d at 410
(citing Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182, 189-90 (Ind. 2011)).
Rather, a trial court has broad discretion to redress spoliation of evidence; its
power to sanction spoliation is derived from its broad and inherent
discretionary powers to issue evidentiary rulings and to manage the orderly and
expeditious disposition of cases. Id. Indiana Trial Rule 37(B) also authorizes
trial courts to respond to discovery violations with such sanctions “as are just,”
which may include, among others, ordering that designated facts be taken as
established, prohibiting the introduction of evidence, dismissal of all or any part
of an action, rendering a judgment by default against a disobedient party, and
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payment of reasonable expenses including attorney fees. 9 Gribben, 824 N.E.2d
at 351. Additionally, if spoliation by a party to a lawsuit is proved, rules of
evidence permit the jury to infer that the missing evidence was unfavorable to
that party. Glotzbach, 854 N.E.2d at 338.
[31] When deciding whether to sanction a party for the spoliation of evidence,
courts consider two primary factors: (1) the degree of culpability of the party
who lost or destroyed the evidence; and (2) the degree of actual prejudice to the
other party. Popovich, 17 N.E.3d at 410; see also WESCO Distribs., Inc., 23
N.E.3d at 703 (trial court’s response to the loss of evidence depends on both the
degree of culpability and the extent of prejudice). Culpability can range along a
continuum, from destruction intended to make evidence unavailable in
litigation to inadvertent loss of information for reasons unrelated to the
litigation. Howard Reg’l Health Sys., 952 N.E.2d at 189 (quoting Rimkus
Consulting Grp., Inc. v. Cammarata, 688 F.Supp.2d 598, 613 (S.D. Tex. 2010)).
Prejudice likewise can range along a continuum, from an inability to prove
claims or defenses to little or no impact on the presentation of proof. Id. “[I]f
there is an inadvertent loss of evidence but severe prejudice to the opposing
party, that [] will influence the appropriate response, recognizing that sanctions
(as opposed to other remedial steps) require some degree of culpability.” Id. at
189-90.
9
The destruction or concealment of evidence may be prosecuted as a felony for obstruction of justice. Kelley
v. Patel, 953 N.E.2d 505, 509 n.6 (Ind. Ct. App. 2011) (citing Ind. Code § 35-44-3-4).
Court of Appeals of Indiana | Opinion 91A04-1707-PL-1653 | April 30, 2018 Page 25 of 28
[32] Here, as to culpability, NIPSCO argues that the entire Furnace Assembly
survived the fire, as captured by Fire Marshal Dean’s picture on March 29, and
“The fact that the Plaintiffs had possession and control of the Furnace
[Assembly] and then allowed the destruction of that evidence demonstrates
culpability on Plaintiffs’ part.” Reply Br. at 10. Aqua maintains, however, that
what was saved by Xtreme and what Storz moved into a pole barn for storage is
exactly the same as what was pointed out to Storz by Fire Marshal Dean as
they stood outside the building on March 29. Aqua further observes that
NIPSCO had plenty of time and opportunities to examine the wreckage and to
conduct any tests and examinations its representatives wished to conduct, but
that it waited five years to do so. Jenkins’s notes following her April 22, 2010,
conversation with Sullivan reflect that she told Sullivan, “NIPSCO would like
to view the heater and any remaining equipment or wiring from the building.
They or someone on their behalf will be contacting Mr. [Phil] Sullivan to make
these arrangements.” Appellant’s App. Vol. 3 at 185. However, NIPSCO’s
experts did not come to view the salvaged furnace part until 2015.
[33] As to the other prong of the balancing inquiry, resulting prejudice, NIPSCO
contends that it was severely prejudiced by the failure to preserve portions of
the furnace, asserting that Plaintiffs will testify that there were no problems with
the furnace and that it was properly installed and maintained, but NIPSCO has
no way to investigate or refute this assertion, including pursuing any non-party
claims, thus impeding its ability to defend itself. Reply Br. at 15. NIPSCO also
maintains that the cause of the fire can never really be determined without the
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entire furnace. NIPSCO refers to the testimony of Fire Marshal Dean, who
agreed that without the firebox part of the furnace, the “ignition sequence” and
cause of the fire cannot be established. Tr. Vol. 2 at 66, 86. NIPSCO expert
Martens similarly testified that the cause of the fire cannot be determined
without the full furnace, stating, “We don’t know if the control system has low
voltage detection, we don’t know if it has a flame roll-off sensor, we don’t know
if it has a high temperature sensor, we don’t know if it has a combustion air
switch. We don’t know if any of those were designed correctly. We don’t
know if they were installed correctly or maintained. I mean, these are all
problems we have.” Id. at 187.
[34] Aqua asserts that NIPSCO is not prejudiced by the missing evidence “any more
than Aqua is,” and, moreover, “no party is required to preserve evidence
beyond reasonable limits.” Appellees’ Br. at 24. Furthermore, Aqua argues, Fire
Marshal Dean stated that, pursuant to NFPA 921, it is possible to determine the
cause and origin of a fire without having the exact ignition sequence. Tr. Vol. 2
at 91-92.
[35] We find that the culpability versus prejudice balancing act, namely, the
prejudice to the non-spoliating party versus the culpability of the spoliating
party, is best left to the trial court. WESCO Distribs., Inc, 23 N.E.3d at 702
(recognizing that determination of appropriate sanction for spoliation is left to
trial court’s discretion). And as we have observed, “[A] variety of spoliation
remedies are available to a party to litigation, such as ‘potent’ discovery
sanctions and an inference that the spoliated evidence was unfavorable to the
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party responsible.” Shirey, 89 N.E.3d at 1007. We affirm the trial court’s
determination that Aqua did not intentionally spoliate evidence, but remand
with instructions to the trial court to determine the appropriate remedy, if any,
for Aqua’s negligent spoliation of evidence.
[36] Affirmed and remanded.
[37] Bailey, J., and Pyle, J., concur.
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