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SHOW ME THEEVIDENCE!

INSPECTINGEVIDENCE THATDOES NOTBELONG TO YOUBY DANA R. BOWLING AND THOMAS PAOLINI, LAW OFFICES OFROBERT A. STUTMAN, P.C., BERLIN, NEW JERSEY

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45NATIONAL ASSOCIATION OF SUBROGATION PROFESSIONALS

T here are many instances whenevidence needed to proveyour case, or evidence needed

to rule out other potential causes ofloss, does not belong to your insured.This is frequently the situation in expo-sure losses, landlord/tenant situationsand condominium losses; however, thismay also occur when an insured hasitems or products owned by its clientsor customers in its possession (such asa dry cleaning business or auto bodyshop) or when a residential insured haslong-term house guests. Arguably, thefront line adjuster is in the best posi-tion to identify those in possession ofthe desired evidence, and will have theopportunity to make the initialrequests to preserve the evidence. Inaddition to taking action to preserveevidence, the front line adjuster shouldimmediately advise the subrogationadjuster or subrogation counsel of thesituation so those individuals may takeappropriate action as well.

It is important to remember that

evidence in the possession of someoneother than your insured may not onlyinclude physical evidence, but may alsoinclude documentation or electronicevidence, such as alarm records, workorders or contracts for recent work per-formed at the property, purchaseinvoices that provide identifying infor-mation or emails suggesting priorproblems leading up to the subject loss.These documents may be vital to yoursubrogation claim. Thus, at the outset,it is important to gather them and tonotify others not to destroy them. Astime passes, these items may be dis-carded, destroyed or lost, much to thedetriment of your subrogation case.

There are many different ways toretain evidence and the “right” waymay differ depending on the situation.Therefore, a decision as to how to pro-ceed must be made based on the factsof each case. Perhaps the simplest sce-nario is when representatives of theparty who owns or controls the evi-dence are present at the scene at thesame time as your representatives. Inthis situation, communicationsbetween the representatives may be all

EVIDENCE RETENTION AND PRESERVATION ARE OFTEN DONE AS A MATTER OF

COURSE IN LOSSES THAT MAY HAVE SUBROGATION POTENTIAL.

UNFORTUNATELY, ROADBLOCKS ARE FREQUENTLY ENCOUNTERED WHEN TRYING

TO EFFECTIVELY MAINTAIN EVIDENCE NECESSARY TO A SUBROGATION CASE.

ONE SUCH ROADBLOCK INVOLVES LOCATING AND RETAINING EVIDENCE THAT

IS IN THE CUSTODY OR CONTROL OF SOMEONE OTHER THAN YOUR INSURED.

IN THIS SITUATION, THE FRONT LINE ADJUSTER CAN BE INSTRUMENTAL IN

MAKING SURE EVIDENCE IS PROPERLY PRESERVED.

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that is needed to ensure that all neces-sary evidence is appropriately retained.A more complicated situation presentsitself when others’ representatives arenot present at the scene and efforts tocoordinate with them have beenunsuccessful. In these situations, alter-native approaches to securing theevidence must be used.

For example, in a landlord/tenantsituation, in which the other party hasan insurance carrier and a cause andorigin investigator, the most prudentapproach is to have your front lineadjuster and expert photograph, indetail, any evidence that does notbelong to your insured, which youwish to retain. The expert should placea conspicuous evidence tag on thedesired evidence. Photographs shouldalso be taken after the evidence istagged in order to document yourefforts should the evidence disappearin the future. These steps should besufficient if you verify that the scene issecure and feel comfortable that anyrisk of vandalism or evidence tamper-ing is minimal. When combined withimmediate written notice of yourdesire to have the tagged evidencemaintained and request to be notifiedupon its removal from the scene, thisapproach is an effective way to retainand preserve evidence important toyour case. In addition, written noticeto maintain and produce documentaryor electronic evidence should be for-warded to the adverse party as soon asis practicable after the loss occurs. This

Evidence in the possession of

someone other than your insured

may not only include physical

evidence, but may also include

documentation or electronic

evidence. These documents may

be vital to your subrogation claim.

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47NATIONAL ASSOCIATION OF SUBROGATION PROFESSIONALS

efforts to protect your interests withoutviolating anyone else. Moreover, youwill have set the stage for a future spo-liation claim, should the requestedevidence be discarded by others with-out your authorization.1

Be mindful that simply photo-graphing and tagging physical evidencemay not be enough to safeguard theevidence if the loss occurred in a neigh-borhood known for vandalism, lootingor theft, and the loss scene can be eas-ily secured. Also, before authorizingyour expert to simply take possession

of evidence belonging to others, con-sider whether evidence has beenadequately photographed before beingdisturbed, whether detailed records asto the chain of custody will be kept,along with the evidence’s original loca-tion and condition. Proceedingwithout appropriate safeguards canhave serious ramifications, includingclaims of spoliation against you orother legal issues that could arisebecause you took possession of some-thing owned by someone else.Therefore, you must carefully weigh

the consequences of your actionsdeciding how to take custody of evi-dence that is owned or controlled byanother party.

At some point, you may also befaced with a situation in which theparty controlling a scene will not pro-vide you with access to the scene. Inthis situation, you may have to peti-tion the court for immediate injunctiverelief, requesting that the court orderthe party controlling the scene to allowyou access. Remember that seekinginjunctive relief can be time-consum-

Proceeding without appropriate

safeguards can have serious

ramifications, including claims of

spoliation against you or other legal

issues that could arise because you

took possession of something owned

by someone else.

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in your favor if you can show that theadverse party’s initial scene investiga-tion, in your absence, is likely toirretrievably disturb or destroy key evi-dence of liability and damages resultingfrom the loss. The court will likely rulein your favor if the parties who wereexcluded from the inspection will suf-fer irreparable harm under the

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ing. On the other hand, it may be astep that is essential to protecting yourinterests and right to inspect the scene.

Serving request for injunctive reliefis supported by the National Fire Pro-tection Association’s Guide for FireExplosion Investigations:

27.2 Understanding between the Par-

ties. Interested parties should be

allowed to participate in the investi-

gation and examine the evidence in

its undisturbed condition. No party

should remove evidence or materials

without adequate notice to other

interested parties.

27.2.1 Different parties can conduct

a joint investigation and still have sep-

arate and independent examinations.

A joint investigation allows recording

and examination of the scene as it is

altered or examined or as evidence is

collected. Allowing all interested par-

ties an equal opportunity to establish

the facts should eliminate future

accusations of wrongdoing, such as

altering the evidence or hiding facts.

The parties should work together

through coordination of the investi-

gation. Personal interest should be

subjugated to the truth.

Additional arguments can also beused to convince a court that you areentitled to be present and participate ina scene inspection. Courts are cog-nizant of the standard practice in theindustry to include all interested partiesin loss scene inspections, and recognizethat it may be difficult to re-create orsimulate a loss scene to allow others to

make independent observations. Yourargument to the court will be that anyinterested party not included in the ini-tial scene inspection faces an unfairdisadvantage because the parties pres-ent at the scene will be the only partiesallowed to perform the only investiga-tion based on an examination of theactual loss scene. It will weigh heavily

Often, securing necessary evidence

is easily accomplished with the

cooperation of the adverse party;

however, keep in mind that seeking

judicial intervention may be

necessary in order to protect your

subrogation rights.

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49NATIONAL ASSOCIATION OF SUBROGATION PROFESSIONALS

circumstances, and that irreparableharm is outweighed by any potentialburden to the adverse party, includingothers in the investigation.

In light of these concerns, there is acompelling argument that representa-tives of exposure losses need to bepresent during investigations of theoriginal loss scene. Likewise, prejudicecould result if injured parties who mayhave subrogation claims are precludedfrom involvement in the investigation.

In conclusion, it is important toremember that your insured’s evidencemay not be all the evidence needed toassert a successful subrogation action.Physical items of evidence, as well asdocumentation and electronic evi-dence, owned or controlled by others,may be just as, or even more, impor-tant. Early action by the front lineadjuster, subrogation adjuster and sub-rogation counsel is necessary toeffectively retain and preserve all evi-dence. Often, securing necessaryevidence is easily accomplished with thecooperation of the adverse party; how-ever, keep in mind that seeking judicialintervention may be necessary in orderto protect your subrogation rights.

Endnotes1. It should be noted that spoliation is treated differently,

depending upon the jurisdiction and whether the claimarises out of negligent spoliation or intentional spolia-tion, or both. In some states, you may be able to assertan independent action based on claims of intentional ornegligent spoliation of evidence.

Reprint Courtesy of the National Association of Subrogation Professionals. 2010 © NASP Subrogator® Fall 2009 Issue.NASP / 800.574.9961 / www.subrogation.org