In defending construction defect claims, one must always consider the defense of spoliation of evidence. Often, either before or after making such calims, plaintiffs will repair the alleged defective condition, destroying crucial evidence that must be analyzed by the defense. The law requires that the plaintiff give notice to the defendant of anticipated repairs, providing him with an opportunity to inspect the alleged defcts. When notice is not given, sanctions, including dismissal in some cases, are available.
The Alabama Supreme Court has held that when the subject of the lawsuit is destroyed without giving the defense an opportunity to inspect, and that inspection is necessary to the defense, the lawsuit must be dismissed. Capitol Chevrolet Inc. v. Smedley, 614 So.2d 439 (Ala. 1993); Cincinnati Ins. Co. v. Synergy Gas, Inc, 585 So.2d 822, 827 (Ala. 1991); Ex parte General Motors Corp, 769 So.2d 903 (Ala. 1989).
In Smedley, the Court reversed the trial court’s judgment and ordered that the case be dismissed based on spoliation. The Court recognized that without access to the evidence, to independently evaluate the cause of the fire, the defendants were left with no way to establish a defense. Acknowledging that dismissal was a severe sanction, the Court held that the dismissal of claims may be appropriate if a party destroys or disposes of evidence that it knows or should know is evidence that is important to possible or pending litigation.
The Court has identified five factors to be analyzed in deciding the appropriate remedy for spoliation of evidence: (1) the importance of the evidence destroyed; (2) the culpability of the defending party; (3) fundamental fairness, (4) alternative sources of information obtainable from the evidence destroyed, and (5) the possible effectiveness of other sanctions less severe than dismissal. Vesta Fire Ins. Corp. v. Milam & Co. Constr., Inc., 901 So.2d 84 (Ala. 2004).
In Story v. RAJ Properties, Inc., 909 So.2d 797 (Ala. 2005), the Court affirmed summary judgment in favor of a builder, EIFS installer, and EIFS manufacuturer where the plaintiff homeowner had removed the EIFS form the home, repaired the damaged sheathing, and reclad the home with brick. The defendants were not notified, and their experts testified that they were unable to conduct any significant analysis of the EIFS material or the alleged damage by viewing photographs produced by the plaintiff.
In Flury v. Daimler Chrysler Corp., 427 F.3d 939 (11th Cir. 2005) the 11th Circuit Court of Appeals reversed a jury’s verdict against Daimler with instructions that the district court enter judgment for Daimler based on the spoliation of evidence doctrine. In doing so, the Court noted that the defendant had suffered extreme prejudice when it lost its opportunity to inspect the evidence; that the trial court had erred in leaving the issue of spoliation for the jury and that the “spoliation of critical evidence for whatever reason … may result in trial by ambush.”