from the Circuit Court for Dorchester County, S. James
BY: Philip A. Davolos (de Luca Levine, LLC of Blue Bell, PA)
on the brief, FOR APPELLANT
BY: Lisa C. McLaughlin (Phillips, Goldman & Spence PA of
Wilmington, DE) on the brief, FOR APPELLEE.
[*] Berger, Nazarian, JJ.
Md.App. 693] Nazarian, J.
Wickwire's house in Hurlock, Maryland sustained major
damage from a fire. His homeowner's insurer, Cumberland
Insurance Group (" Cumberland" ), paid his claim,
and came to believe that the fire was caused by faulty wiring
in the house's electric meter box. Cumberland seeks
subrogation from Delmarva Power (" Delmarva" ), Mr.
Wickwire's electric company, but the Circuit Court for
Dorchester County granted Delmarva's motion for summary
judgment on the ground that Cumberland destroyed the fire
scene, which deprived Delmarva of the opportunity to
investigate or defend the claim. Cumberland appeals, and we
Wickwire insured his home with Cumberland, and Delmarva
provided his electric service. A fire broke out at the house
on the morning of May 5, 2013, and local fire department
personnel responded and put out the fire. Delmarva also
responded by sending a lineman, Jeff Willoughby, to
disconnect the power supply to the house, evidently at the
request of the fire department. Mr. Willoughby did not serve
in any investigative capacity that day; his job was to
" make things safe" -- i.e., to "
[m]ake sure the wire was dead going to the house" --so
he " [w]ent to the transformer, figured out [226 Md.App.
694] which wire went
to that house, [and] disconnected it in the transformer . .
Harr, a Senior Deputy State Fire Marshal, investigated the
fire, and noted significant smoke and water damage throughout
the interior of the house. The worst fire damage was in the
utility room: " [t]he ceiling was down and the remains
of the rafters were exposed. The roof was consumed above this
room extending up to the peak. The wires in this are[a]
suffered heavy fire damage." The Fire Marshal concluded
that the fire originated in the meter box. He based his
conclusion on burn patterns, witness statements, and the
heavy fire damage to the meter box (which showed that the
contact lugs in the box were loose at the point where they
connected with the wire). He removed the meter and meter box
from the scene.
retained a fire cause and origin expert, Timothy Hattwick,
who inspected the property on May 8, 2013, three days after
the fire. He walked through the house and took pictures, but
he did not take any evidence from the scene. He reasoned
from what he saw " that the fire had moved in from the
exterior[, and at] that point combining that knowledge or
that observation with what I observed on the exterior, I
refocused my examination on the exterior as the area of
origin." Mr. Hattwick concluded that the fire "
originated in the area of the meter." He contacted Fire
Marshal Harr and asked him to return to the scene to bring
with him the remains of the meter. The Fire Marshal was
unavailable, but the two spoke about the investigation. On
May 24, 2013, Cumberland's electrical engineering expert,
Michael Wald, also inspected the house and examined the
remains of the meter and meter box (or, as he put it, a
" paper bag with remains of electrical devices in
Cumberland investigation proceeded, it does not appear that
Delmarva sent any personnel to inspect the [226 Md.App. 695]
property. Nonetheless Cumberland got an estimate for
demolition of the property and issued a check to Mr. Wickwire
on May 30, 2013, that appeared to include the cost of
demolition. The house and its contents were demolished on
July 3, 2013. We will discuss in greater detail below what
Delmarva knew, and when Delmarva knew anything, about its
potential liability and the eventual destruction of the
scene. Delmarva concedes in its brief that " Delmarva
knew about the fire on May 5, 2013, and knew as early as May
29, 2013 that a claim may at some point be made against
it." Beyond that, though, the parties dispute when, if
at all, Cumberland notified Delmarva about the fact that the
house was to be demolished, and that question underlay
Delmarva's motion for summary judgment (the "
filed the Motion in December 2014. Delmarva argued, among
other things, that Cumberland destroyed the fire scene and
irreversibly crippled Delmarva's ability to mount a
meaningful defense. The trial court held a hearing on January
22, 2015; we will detail the dialogue below, but it will
suffice for now that the court ruled from the bench after
argument and granted the Motion:
We're here on a motion in limine and a motion to
compel and a motion for summary judgment. After reviewing the
motions, the exhibits attached thereto and the--considering
the arguments of Counsel there is--the Court is going to
grant the motion for summary judgment. Specifically without
addressing all of the various arguments the argument that
the Court is going to grant
summary judgment on . . . the destruction of the
The Court finds that based on the factors in Clumpt v.
Krongberg, [sic] which talk[s] about an act of
destruction, discoverability of the evidence, an intent to
destroy the evidence an occurrence of the act at a time when
the filing of a lawsuit is fairly perceived as imminent that
[Delmarva] in this case will not have the opportunity or did
not have the [226 Md.App. 696] opportunity to adequately
prepare a defense. Their experts did not have an opportunity
to review or to examine the house. [Cumberland's]
position of we preserved what we thought caused the fire and
took a bunch of pictures I'm not persuaded that that
actually is fair to [Delmarva] in the preparation and their
experts' preparation of their case.
Further I don't find that there was--that in effect what
was a constructive notice argument to [Delmarva] carries
weight especially in light of the fact that the
demolition had commenced not even sixty days after the
fire. If we were six months out maybe my feelings would
be different, but I think due to the close nature I think due
to the fact that there was no correspondence provided
that actually in effect what I would say put [Delmarva] on
the clock as to the fact that demolition was contemplated
within a soon to be time period. And that, you know,
there was correspondence that put them on notice I guess in
effect that at some point litigation was being contemplated
or that liability was contemplated which is one of the
factors. So there was the idea that a lawsuit was imminent
but no effort to preserve the evidence that the other side
would need to be able to review to have a fair trial and a
So for those reasons the Court grants the motion for summary
judgment in favor of Delmarva Power.
court entered a written order on January 22, 2015. Cumberland
moved for reconsideration on January 30, 2015, and the trial
court denied the motion on March 6, 2013. Cumberland filed a
timely notice of appeal.
doctrine of spoliation is grounded in fairness and symmetry.
simply, a party should not be allowed to [226 Md.App. 697]
support its claims or defenses with physical evidence that it
has destroyed to the detriment of its opponent. In this case,
Cumberland controlled the fire scene and informed Delmarva
for the purpose of pursuing its subrogation claim, but never
told Delmarva of the fire scene's impending destruction.
And as a practical matter, this prevented Delmarva (and,
perhaps more to the point, its experts) from assessing the
causes of the fire first-hand. Cumberland says, correctly,
that it preserved the meter box, which was the culprit in its
view. But this case is not just about the meter box--it's
about the cause of the fire, and specifically whether the
cause, whatever it was, was attributable to Delmarva. And the
destruction of the scene deprived Delmarva of the opportunity
to test Cumberland's hypothesis or establish the
possibility that the fire was caused by anything
Md.App. 698]A. Standard Of
moved for summary judgment on a variety of grounds, and the
circuit court granted the motion as a discovery sanction, so
we review its decision through that lens. See
Erie Insurance Exch. v. Davenport Insulation, Inc.,
659 F.Supp.2d 701, 702 (D. Md. 2009) (granting summary
judgment based on spoliation and dismissing case). We are
bound by a trial court's factual findings in the context
of discovery sanctions unless we find them to be "
clearly erroneous," Md. Rule 8-131(c); see also
Klupt, 126 Md.App. at 192-93. The trial court has
broad discretion to impose sanctions for discovery
violations, " and the decision whether to invoke the
'ultimate sanction' [of dismissal] is left to the
discretion of the trial court." Valentine-Bowers v.
Retina Grp. of Washington, P.C., 217 Md.App. 366, 378,
92 A.3d 634 (2014).
may be justified even without " 'willful or
contumacious behavior'" by a party. Warehime v.
Dell, 124 Md.App. 31, 44, 720 A.2d 1196 (1998) (quoting
Beck v. Beck, 112 Md.App. 197, 210, 684 A.2d 878
(1996)). We explained in Sindler v. Litman that
" [o]ur review of the trial court's resolution of a
discovery dispute is quite narrow; appellate courts are
reluctant to second-guess the decision of a trial judge to
impose sanctions for a failure of discovery." 166
Md.App. 90, 123, 887 A.2d 97 (2005).
The Spoliation Doctrine.
spoliation doctrine is well-established in Maryland.
See Klupt v. Krongard, 126 Md.App. 179, 728
A.2d 727 (1999). Klupt lays out the elements of
spoliation (and we look at those elements next), albeit in
the context of a willful destruction of documents and
recordings unlike anything that occurred here. We have
concluded in other contexts that destruction of evidence is
not an independent tort that itself gives rise to a cause of
action. See Goin v. Shoppers Food Warehouse
Corp., [226 Md.App. 699] 166 Md.App. 611, 613, 619,
890 A.2d 894 (2006) (affirming dismissal of plaintiff's
claim and declining to recognize a separate cause of action
for " [n]egligent and/or reckless spoliation" by
the defendant's employee). And we have affirmed a
spoliation instruction that permits an adverse inference even
without a showing of bad faith. See Anderson v.
Litzenberg, 115 Md.App. 549, 560, 694 A.2d 150 (1997)
(permitting a jury instruction stating that "
'destruction of evidence by a person gives rise to an
inference or presumption unfavorable to [the] spoiler, and .
. . if the intent was to conceal the nature of the defect the
destruction must be inferred to indicate a weakness in the
Maryland appellate courts have not established how to apply
the spoliation doctrine in the context of a situation, like
this one, where the physical object (or in this case, the
building) that was destroyed is itself the subject of the
case. We look below at how other jurisdictions have applied
the doctrine in that context, and we conclude that it is
appropriate to balance the degree of fault (or, in some
instances, intent) on the part of the spoliator, on the one
hand, with the level of prejudice that inures to the defense
because the evidence has been destroyed, on the other. If a
trial court finds that this balance favors imposing some sort
of sanction, the question then becomes what remedy is
appropriate and whether a remedy less drastic than dismissal
can cure the prejudice to the defendant. See
Adkins v. Wolever, 554 F.3d 650, 652 (6th Cir. 2009)
(" [A] proper spoliation sanction should serve both
fairness and punitive functions." ); Vodusek v.
Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995)
(fashioning a sanction to serve the " purpose[s] of
leveling the evidentiary playing field and . . . sanctioning
the improper conduct" ). It also recognizes the
common-sense principle that " one does not ordinarily
withhold evidence that is beneficial to one's case."
Anderson, 115 Md.App. at 562.
Klupt--Establishing when spoliation takes
is no suggestion in this case that Cumberland behaved
anything like Mr. Klupt in Klupt v. Krongard. That
[226 Md.App. 700] case related to Mr. Klupt's invention
of a disposable videocassette and its licensing and
production by other companies. 126 Md.App. at 184. A number
of corporations and counsel became embroiled in the
litigation, and several of Mr. Klupt's one-time business
partners sought a declaratory judgment against him and his
corporation, claiming that they were defrauded into investing
in the manufacture and distribution of his product.
Id. at 184-85. Mr. Klupt filed a separate action
claiming that the plaintiffs ...