dissenting:
I respectfully dissent. Based on the Illinois Supreme Court’s decision in Dardeen v. Kuehling, 213 Ill. 2d 329 (2004), I would find that, as a matter of law, Country Mutual owed no duty to preserve the wheel assembly at issue. The majority recognizes that, in light of Dardeen, the rationale underlying this court’s holding in its disposition of the first appeal in this case “may no longer be valid, at least with respect to Country Mutual.” 374 Ill. App. 3d at 926; see Jones v. O’Brien Tire & Battery Service Center, Inc., 322 Ill. App. 3d 418, 425 (2001). The majority then goes on to distinguish Dardeen from this case on the basis that the insurance adjustor in Dardeen, by instructing its insured not to preserve the evidence, did not voluntarily assume a duty to preserve the evidence, while the Country Mutual adjustor in this case, by instructing the insured to preserve the evidence, did voluntarily assume a duty to preserve the evidence. I find this to be a distinction that, in addition to misinterpreting the supreme court’s holding in Dardeen, is without merit and goes against logic.
While the Illinois Supreme Court has heretofore declined to specifically decide whether possession is required in every negligent spoliation case, I can conceive of no situation where an insurance company would have control over property owned by its insured absent possession or a possessory interest in the property. This is especially true where, as here, the truck at issue did not have collision coverage with Country Mutual such that the adjustor could potentially control the disposition of salvage parts upon the repair of the vehicle. Country Mutual only issued liability coverage to Sugarloaf and Macios. Consequently, I disagree with the majority’s holding that, in instructing Macios to preserve the wheel assembly, Country Mutual exercised enough control to constitute a voluntary undertaking sufficient to impose a duty to preserve the wheel assembly. Dardeen specifically held that State Farm Fire and Casualty Company, which did nothing but answer a question posed by its insured, had neither possession nor control of the evidence and, therefore, owed the injured party no duty to preserve it. Dardeen, 213 Ill. 2d at 339. In the absence of a clear possessory interest on the part of the defendant insurance company (such as was the case of the defendant workers’ compensation carrier in Boyd v. Travelers Insurance Co., 166 Ill. 2d 188 (1995), the defendant doctor in Miller v. Gupta, 174 Ill. 2d 120 (1996), the defendant employer in Stinnes Corp. v. Kerr-McGee Coal Corp., 309 Ill. App. 3d 707 (1999), and the defendant employer in Andersen v. Mack Trucks, Inc., 341 Ill. App. 3d 212 (2003)), the decision by an adjustor to instruct the owner of the evidence on whether to maintain or discard the evidence does not alter the amount of control the adjustor has over the potential evidence. The person receiving the instruction is still free to disregard that instruction and retain or discard the evidence. Accordingly, although the Dardeen court did not decide whether possession is required, it is clear under Dardeen that Country Mutual did not have the requisite control over the evidence to impose a duty.
In addition, the majority’s distinction goes against logic and would in effect turn public policy on its head. It defies common sense to say that by advising an insured not to preserve evidence, an insurance company can avoid liability (Dardeen, 213 Ill. 2d at 339), but by advising an insured to preserve evidence, an insurance company is assuming liability. The public policy implication of the majority’s holding would be to encourage insurance companies to advise their insureds not to preserve evidence. This cannot be the intention of the Illinois Supreme Court’s pronouncement in Dardeen.
Also troublesome is the majority’s holding that “[o]nce Country Mutual undertook to preserve the evidence for its own benefit, this voluntary undertaking imposed a duty to continue to exercise due care to preserve the evidence for the benefit of any other potential litigants.” (Emphasis added.) 374 Ill. App. 3d 927. Even if Country Mutual’s instruction to its insured constituted a voluntary undertaking sufficient to impose a duty to preserve the wheel assembly, which, as explained above, is contrary to Dardeen, to hold that its duty would continue “for the benefit of any other potential litigants” is unlimited in time and scope and, consequently, unworkable. I do not find any Illinois law or law of any other jurisdiction that imposes such a continuing, limitless duty. This is, in part, because such a rule could conceivably prevent the repair of a vehicle involved in an accident until all the relevant statutes of limitations had run and would require an insurance company to foresee the actions of the injured party or his/ her attorney, who may decide to sue some parties, even after the settlement of litigation against other parties, as was done in this case.
Finally, I disagree with the majority’s conclusion that O’Brien Tire met its burden of proof of causation in this case. The supreme court made clear in Boyd that in order to prove causation, “[a] [spoliation] plaintiff must demonstrate *** that but for the defendant’s loss or destruction of the evidence, the plaintiff had a reasonable probability of succeeding in the underlying suit.” Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 196 n.2 (1995). Here, even assuming that Country Mutual had a duty to avoid the loss of the wheel assembly, Ohio Casualty’s expert, Wade Bartlett, testified that it was his opinion, to a reasonable degree of engineering certainty, that the lug nuts had been improperly tightened within a few miles before the accident. This means that in his opinion, O’Brien Tire was not responsible for the accident because it had replaced the tires approximately 360 miles before the accident.
Although upon further questioning Mr. Bartlett testified that his opinion was only based on 51% certainty, he testified that he could only come to a more definitive opinion if he was able to inspect the wheel assembly itself on the day of the accident or within several days after the accident. In order to come to a more definitive opinion several months after the accident, which is when O’Brien Tire first received notice of the accident, according to the evidence in the record, Mr. Bartlett testified that the wheel assembly would have to be preserved in a way that would prevent corrosion, which meant that it would have had to have been protected from oxygen and moisture by placement in an airtight bag in a humidity-controlled environment or sprayed with a clear laquer. Mr. Bartlett testified that he knew about this preservation requirement due to his work for 4V2 years in a materials testing lab.
The clear implication of Mr. Bartlett’s testimony is that the loss of the wheel assembly did not prejudice O’Brien Tire in its defense. In order for O’Brien Tire to have had any better proof that someone had improperly tightened the lug nuts closer to the time of the accident, O’Brien Tire would have had to have inspected the wheel assembly within days after the accident, and the record shows that O’Brien Tire did not have notice of the accident until several months later. Illinois law certainly does not impose a duty on an insurance company to notify a potential codefendant of its insured of an accident. Alternatively, in order for Mr. Bartlett to formulate a more certain opinion, the wheel assembly would have had to have been preserved in the manner described by Mr. Bartlett, who is a mechanical engineer with expertise in materials testing. If Country Mutual did have a duty to preserve the wheel assembly, it would be a duty to exercise ordinary care. It would not be a duty to preserve the wheel assembly as would a mechanical engineer with expertise in materials testing. Accordingly, the facts in this case were insufficient to prove causation under the “but for” standard enunciated in Boyd.
For the foregoing reasons, I would reverse the judgment of the circuit court.