who the potentially responsible parties
are, they should be put on notice and
given a reasonable time to view the scene.
Most cases will involve some level of ini-
tial investigation to identify potentially
responsible parties; however, the more
time it takes to notify them, the greater
risk of incurring a charge that you altered
or “spoiled” the evidence and are thus
subject to possible sanctions. While every
case is different, the closer the scene is to
the way you found it, the better.
All lawyers in the country involved
in litigation are aware of “spoliation.”
The doctrine has exploded in the last 30
years. Research discloses that from 1970
to 1980, less than 100 judicial opinions
mentioned the term. From 1980 to 1990,
it grew slowly to 147 opinions. From
1990 to 2000, it jumped to 887 opinions
and from 2000 to 2010, it rose to 4,257
judicial opinions where “spoliation” was
referenced.
Identify and Preserve Evidence
The final step in this critical first stage
is identifying and preserving the relevant evidence to prove your theory. It
also may have to include the other potential sources of ignition excluded by
your expert or the fire marshal as the
cause of the fire. Photographs and vid-eotape of the scene as first found and
during the investigation are important
but may not substitute for actual notice
to a defendant if the defendant can prove
it should have been placed on notice before the scene was altered.
Issues can—and will—arise about what
evidence should or must be preserved
and who will bear the costs. Attention
should be placed on chain of custody to
reduce the risk that an opponent can raise
about the evidence’s authenticity. Working through the issues is better than ignoring them and hoping to avoid a spoliation motion or sanctions.
Navigate Legal Hurdles
Contracts, including lease agreements,
often contain clauses that attempt to pre-
clude or limit claims against one or both
parties to the contract. In many cases, the
limitation language, exculpatory clause,
or waiver of subrogation may well ap-
ply. Nevertheless the language must be
carefully reviewed, as such contractual
attempts to reduce or eliminate responsi-
bility are not favored by the law and may
be avoided or circumvented if the proper
language is not used. In that case, the
party trying to enforce the terms itself has
violated the agreement, and there is gross
negligence or other special circumstances.
Obtaining all the relevant documents,
such as contracts and warranties, is a vital
part of the process for gathering evidence
and there will be cases that cannot be
pursued because of such contractual lim-
itations. The decision whether to forego
COVER STORY
20 NOVEMBER 2013 60th Anniversary Claims Magazine PropertyCasualty360.com
www.eagleview.com/futureview
San Antonio, TX | February 9-12, 2014
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