dissenting.
The development of the common law through the courts when new situations arise that require resolution in order to achieve justice is essential. Ours is not a static system locked in place to those theories which judges in the past have said deserve recognition. The evolution of the law occurs when a compelling need arises and our sense of justice speaks. This is the traditional role of the courts and is not a usurpation of the authority of the legislature or the unauthorized creation of law.
This case alerts us to a potential evil that may corrupt the process of justice and defeat the rights of individuals to pursue whatever remedies they might have without money dictating the result. The Court’s opinion *181sets forth the Yoakums’ allegations that call into question Hartford’s 'willingness to litigate within the rules of fair play. As a predicate to the more serious claim, the Yoakums allege that the Hartford claims manager attempted to contact the driver of the golf course vehicle, who was a minor, without obtaining his mother’s consent, despite being advised not to do so by the minor’s mother. Further, the Yoakums allege that the claims manager attempted to manipulate the minor driver’s testimony by intimidation, threat and coercion by suggesting to his mother that “they had better have good insurance” and attempting to prevent him from talking truthfully with persons with whom he wished. They also allege that the claims manager told the driver’s mother that Mr. Yoakum had told people he was going to retire on the insurance proceeds from the suit against McCall. These are not actionable events by themselves, but if proved they establish the state of mind and a course of improper conduct on the part of the Hartford representatives in pursuing this case. They are relevant to the event in this case that should be actionable. That is, the allegation that Hartford bought off a neutral witness. These facts are not proved at this stage of the case, but they are allegations which should be taken as true in determining a motion for summary judgment.
Simply stated, a state police officer performed an accident investigation and reconstruction acting in his official capacity. He concluded that the golf course vehicle was unsafe to operate at any speed, basing this conclusion upon calculations he performed. This neutral witness was subsequently hired by Hartford as an expert witness. He performed additional tests and calculations and changed his original opinion. Perhaps his second opinion, which he was paid to render, was correct and his first opinion, formed as a part of his official duties, was incorrect. What the truth is cannot be determined at the summary judgment stage. Only the full discovery and trial process would tell this. However, for purposes of summary judgment it is reasonable to draw the inference that Hartford obtained repudiation of the initial opinion by the payment of money. If proved, this corrupts the process. Even if an improper motive is not proved, the practice brings the justice system into disrepute.
In analyzing the Yoakums’ claim on a theory of spoliation the court makes determinations that are questionable: 1) the change of opinion following the hiring of Thompson does not create the type of destruction or concealment of evidence which the tort of spoliation requires; 2) Hartford’s actions to minimize McCall’s liability by hiring Thompson to reinvestigate the vehicle in the accident was not an improper motive, was not unreasonable interference with the plaintiffs case, and the “mere hiring of Thompson to re-examine the accident vehicle, without more, is insufficient to impose liability.” There are several problems with this analysis.
Reading the evidence in the light most favorable to the Yoakums, as should be done, a jury could determine that Hartford bought off a witness. That is an improper motive. The conclusion that no evidence was destroyed is too limited. Again, reading the evidence in the light most favorable to the Yoakums, Hartford destroyed the opinion of what might have been the Yoakums most favorable witness. Among the definitions of “destroy” appearing in Webster’s II, New Riverside University Dictionary, are the following: “To ruin completely: SPOIL;” and “To render useless or ineffective < destroyed the witness for the prosecution>.” The facts alleged in this case clearly meet those standards. The effect of altering witness testimony by the payment of money, if proved, is as corrosive of the process as burning an exhibit.
The Court notes that the original investigative report, which concluded that the vehicle was unsafe to operate at any speed, was available to the Yoakums and could have been utilized by them in the wrongful death trial. That is true but misses the reality of legal life. It is unlikely the plaintiffs would put on a witness who would recant his opinion in their case in chief. That smacks of legal self-destruction. The plaintiff’s ability to hire their own expert at this point is compromised. The idea that the plaintiffs situation is solved by cross-examination in *182the defendant’s case, if the plaintiffs could make a prima fade case without the expert testimony, is equally doubtful. Weighing the evidence in favor of the Yoakums, as it should be weighed, the conclusion is that the best piece of evidence they had was destroyed (spoiled) by Hartford paying the witness for a different opinion. That is neither legitimate minimization of McCall’s liability nor harmless. Looking the other way on the conduct alleged in this case invites the legal process into the realm of street fights instead of the pursuit of justice in an orderly, fair process.
The Court’s opinion does not recognize or reject the tort of spoliation of evidence, but concludes that even if the tort were recognized this case would not meet the standards to state a claim. The title of the cause of action is not important. If termed spoliation, this case states a cause of action for intentional destruction of evidence. Under whatever title, there should be a recognized cause of action for intentionally depriving a party of the value of a cause of action by improper means. There are sufficient facts shown in this record to allow a case upon that theory to go forward. It should do so.