Is Deleting Photographs From A Cell Phone Spoliation Of Evidence?

The "tall building lawyer" found out during the EUO that Bubba took photos of all the hand guns one week before the fire. Bubba was going to send the photos to a disabled vet who just returned home due to a medical discharge for combat injuries.  Bubba has a big heart and wanted to do something for one of our soldiers wounded in the service of our country.  He was going to let this soldier have his pick of any gun he wanted and give it to him as a gesture of appreciation.  The fire destroyed the guns so he never sent the photos.  The insurer learned about the photos and wanted a copy to document the claim.  

The photos no longer exist.  Bubba, while scouting his favorite deer stand, saw a "buck with a rack that makes ya as giddy as a schoolgirl gettin' ready for her first date." He took so many pictures of the buck that he overwrote the photos of the guns.  

The Advisory Committee, in addressing Fed. R. Civ. P. 37(f), noted that once litigation is anticipated or is commenced, a party is under an obligation to halt or alter its destruction policies such that electronically stored information relevant to the litigation will be preserved.

The good faith requirement of Rule 37(f) means that a party is not permitted to exploit the routine operation of an information system to thwart discovery obligations by allowing that operation to continue in order to destroy specific stored information that it is required to preserve. When a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a litigation hold.

When evidence is destroyed, an adverse jury instruction can be imposed as a sanction.  See Stevenson v. Union Pac. R.R., 354 F.3d 739, 747-750 (8th Cir. 2003) (although audio tape recordings were destroyed prior to the litigation as a matter or routine subject to the destruction policy, the adverse inference jury instruction spoliation sanction was affirmed as voice recordings were related to the litigation and lawsuit was certain to arise rendering destruction unreasonable and inferring intent.); In re Prudential Ins. Co. Of Am. Sales Practices Litig., 169 F.R.D. 598,615 (D.N.J. 1997) (adverse inference would be drawn from destruction of computer records when company had a haphazard and uncoordinated retention policy). 

If it ends up with a jury deciding whether or not the photos were destroyed to keep the insurance company from seeing them, there better not be any animal rights activists sitting on the jury!

Bubba Sued With A Declaratory Judgment Action

Bubba had "another one of them envelopes" sitting down at the Post Office. The lady wouldn't let him peek at this one either. He figured it was the "declaration of war suit."  After the EUO, the other lawyer made the comment this might end up as a "dec action."  I had explained to Bubba that insurance companies often file declaratory judgment actions when there is an issue as to coverage.  It allows a judge to decide the question. Our law firm has filed many of them to resolve all sorts of disputes and it's an appropriate method for an insurer to ask the court to make a decision in a fair and impartial way.

One disadvantage to bringing a declaratory judgment action is the potential risk the insured will view it as a hostile act.  Bubba thought suing the policyholder sounded more like "fightin' words" and called it a "declaration of war." Knowing our firm regularly files dec actions for insurance companies didn't really make Bubba feel any happier.  He was ready to "scrap it up!"

Logically, what else can an insurance company do that would be fair?  If the company doesn't believe there is coverage, asking a judge to decide the question is reasonable.  A dec action brings the issue to the court for resolution as opposed to simply saying, "No, we won't pay you."  Franky, our firm believes it is generally a "good faith" practice to ask the court to settle disagreements over coverage.  But, it sometimes results in the insured filing a counterclaim for "bad faith." 

The Inventory Contents List Was Reviewed During The EUO

During the EUO, opposing counsel marked Bubba's personal inventory list as an exhibit and said he wanted to go over some of the items destroyed in the fire. EUOs are a good tool for finding out information and evaluating the credibility of the insured.  On its face, Bubba's contents list probably caused an "inquiring mind" to want to know more.  There were only 9 pages, but Bubba had more handguns than socks, even counting the ones that didn't match.  Shotguns took almost 2 pages, the rifles and semi-autos used almost another 6 pages.  Most homeowners' policies have maximum limits for guns and jewelry.  The Wewoka Worldwide policy limited guns to $2,500.00.  And it was a safe bet Bubba wasn't claiming any jewelry.

I heard the "tall building" lawyer say, "You know sir that your policy has a $2,500.00 limit on your guns?"  Bubba sounded off like he was back in boot camp, "NO SIR, I bought full coverage for my guns, sir!"  I couldn't help laughing when Bubba started telling him "his guns wuz covered under the fishin' " part of the policy. I amused myself listening to the conversation until I saw opposing counsel reach into his brief case and pull out one of those big bottles of Tums. I decided to help him out just a little and said.  "I think Bubba might be talking about his inland marine floater for coverage on the guns."  Bubba's agent had helped Bubba by covering the guns under a floater.  Bubba just associated "floater" and "marine" with "fishin'".

One significant difference between an EUO and a deposition is the "read and sign" part. In deposition, witnesses commonly waive the right to read and review the transcript.  In an EUO, most insurance policies require the witness to read and sign. Bubba's going to "let me do the readin' " of his transcript before he signs.  Lucky me!

Bubba Gives Sworn Testimony In The EUO

An EUO is a lot like a deposition or testifying in court. There is a court reporter present who swears in the insured and takes down the sworn testimony. The insured is asked a lot of questions about their background and the reported claim. A lawyer wouldn't be worth much if he didn't at least try to prepare his client for the questions and go over what to expect. I did my best to help Bubba.

The EUO started with the court reporter asking Bubba to raise his right hand to be sworn.  She then told him "to raise his other right hand to take the oath."  The background questions were anticipated and Bubba managed to answer them. 

It was entertaining to hear Bubba explain his temporary housing expenses.  He ran 275 feet of electrical extension cords from Pudge's kitchen to his tent so he could watch TV. Bubba, who can fix almost anything with duct tape and baling wire, bought a brand new plasma television and it just barely fit inside the 6' wide tent he used as his temporary residence.

The "tall building lawyer" was skeptical Bubba had run extension cords from Pudge's kitchen window down to his tent and he bluntly told Bubba he didn't believe anyone would hook up a 50" plasma TV inside a tent.

Bubba's third wife is the only person I ever saw call Bubba a liar that didn't pay a hefty price for saying it. Judianne, his wife, was 5'2" and 104 lbs., when wearing her tallest, heaviest pair of cowboy boots blurted out in the middle of the "day-vorce" hearing, that Bubba was lying.  When he stood up to protest, she stuck one finger up his nose, another finger in the corner of his eye, and yanked his head around to where he didn't need a rearview mirror to back up.  Judge Smith and I still disagree over whether she whispered in his ear or bit it! Every time the bailiff tried to pull her off, Bubba howled like a calf at branding time. Judge Smith was threatening to hold Judianne in contempt, while alternately yellin' "Order in the Court!" It wasn't till he threatened not to grant the divorce that she finally turned loose.

It could have been downright ugly at the EUO if Bubba had realized his honesty was being questioned. Fortunately, Bubba was so busy explaining how he installed the satellite dish in the tree next to the tent, he didn't even notice his integrity had been challenged.

Bubba's ALE, Additional Living Expense

Bubba came by for an appointment to discuss his fire loss claim. It was one of those meetings that wasn't on my calendar; he just stopped by "to see how things were goin'?"

When I told Bubba we needed to submit his receipts for ALE, he quietly spelled "a-l-e" to himself and suddenly asked "you mean they'll pay for my beer?" I explained to Bubba ALE is an abbreviation for additional living expense. Most homeowners' policies have coverage for the extra expenses the insured will usually have living in a motel, eating out at restaurants, and using temporary facilities until their house can be repaired. After I finished the explanation, I could tell Bubba was trying hard to remember the money he had spent. Bubba isn't much of a record keeper and his memory is sometimes rather short. He only recalled three expenses, $79.95 for his tent, $75.00 for three 100' extension cords, and $0.78 for a new toothbrush.

This was the first time I have ever seen a tent submitted under the ALE provision of a policy for temporary housing (and our firm has defended quite a few fire claims) - in the end the tent was less expensive than a motel or rent house.

He probably had some other expenses, but Wewoka Worldwide, like most insurance companies, require receipts, credit card bills, or some type of documentation.  Bubba found his receipts on the floor of his truck preserved amongst his other valuable papers, lottery tickets, traffic citations, and coupons for 20% off Bar-B-Q at the Wild Pig.

Bubba's Insurance Company Demands An EUO

Bubba's insurance company sent him a letter by certified mail. Bubba didn't sign for it " 'cause he wasn't about to let some @#$%^ serve him any legal papers!"  He tried to talk the lady at the post office into letting him see inside the envelope without signing for it. She really wanted to help him out and said her decision had absolutely nothing to do with Bubba having knocked out her son's four bottom teeth a few years back when the boy tried to grab the last box of shotgun shells at the Super Saver Ammo Sale down at the flea market. I sent Bubba back to the post office.

The letter scheduled an EUO and asked Bubba to bring any available documents evidencing title to both real and personal property as well as some other documents concerning his financial condition. While Bubba is no arsonist, I already knew his financial situation was a red flag to the company. I explained to Bubba "EUO" is shorthand for examination under oath and has nothing to do with flying saucers or unidentified flying objects. Although Bubba did mention he thought the adjuster would be unidentifiable when he finished "flying 'em across the pasture."

It turns out the letter actually came from legal counsel for the insurance company, one of those "tall building lawyers" from Oklahoma City. He realized that some sworn testimony from Bubba would provide a good factual basis for how the company should handle things and scheduled the Examination Under Oath to obtain the needed information. I feel torn between the obligation owed to a fellow member of the bar and my family ties to Bubba. I'm really afraid Bubba will be a little humiliated going into the EUO in a straight jacket, but I also don't want to watch a fellow member of the bar choked by Bubba's grease-stained fingers.

Bubba Still Hasn't Been Paid For His Mobile Home

Bubba still hasn't been paid for his mobile home that burned when the squirrel's tail caught fire and went running through the house. The squirrel seems to be doing okay even though he doesn't have a tail anymore. Bubba saw him the other day from his tent he pitched underneath the tree to live in till he gets his claim paid.

I faxed the Conti v. Republic Underwriters Insurance Company opinion to the adjuster and he faxed me a copy of the policy and dec page. The policy has raised a whole new issue. The dec page shows the dwelling was insured for $38,000. If I could find people that would buy mobile homes like Bubba's for anywhere near the price of $38,000, I'd go into the mobile home business today! The actual cash value is probably $12,500. I am curious to see if the insurance company is aware of 36 O.S. Section 4804 that states:

No insurance company shall, knowingly, issue any fire insurance policy upon property within this state for an amount which, with any existing insurance thereon, exceeds the fair value of the property, nor for a longer term than five (5) years. If buildings insured against loss by fire, and situated within this state, are totally destroyed by fire, the company shall not be liable beyond the actual value of the insured property at the time of the loss or damage, and if it shall appear that the insured has paid premiums on an amount in excess of said actual value, the insured shall be reimbursed the proportionate excess of premiums paid on the difference between the amount named in the policy and said actual value, with interest at six percent (6%) per annum from the date of issue. 

If I was Bubba's insurer, I would rather reimburse him part of his premiums along with some interest than agree his mobile home is worth anywhere near $38,000.

Bubba's Luck: The Fire Burned Down His House

Bubba came to the office last week without an appointment. He was hotter than a firecracker on the 4th of July. He was ranting about wanting to sue his insurance company for "bad fate" and that I could have all of the money from the lawsuit. He said I could put it all in that fancy bank where all the rich lawyers keep their money. After about 15 minutes of non-stop babbling, I got up and started walking out of the office. Bubba said, "Heh! Where ya goin'?" I said, "Bubba, I don't have a clue as to what you're talking about and I am getting some aspirin for a headache that just started." He uttered a few more graphic descriptions about what he planned to do to the poor field adjuster and then blurted out "You can just ask Aunt Pudge!" So I picked up the phone and called Pudge.

On the second day of deer season, Pudge was in her kitchen [she always gets her limit on opening morning]. She has a direct view of Bubba's mobile home from there. She told me that two Rambos [city people who come out during gun season armed to the teeth but who can't tell a deer from a Hereford cow] were walking by when a squirrel ran across the top of Bubba's roof. Both of these Rambos started shooting at the squirrel and one of them actually managed to nick the squirrel's hind leg. The squirrel went "bonkers" and ran down the stove pipe into the wood stove that Bubba had set up in his living room.

Pudge didn't actually see the squirrel run down the stove pipe. She learned about that later on. When they started shooting, she went to get her own gun to let those Rambos know how she felt about trespassers hunting near her house. Pudge used to work for the Oklahoma Department of Corrections (penitentiary) as a sharp shooter. The Rambos quickly realized they were out-gunned and out-numbered as they stumbled and tripped over one another trying to "get out of Dodge." Since Pudge didn't see the squirrel go down the stove pipe, she didn't realize that Bubba's mobile home was about to burn down.

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A Lot Of Bull!

The lack of income due to Bubba's injuries was devastating. He couldn't make his mortgage payment and had to move from his home in Wewoka, Oklahoma. When the big day came, Bubba pulled into the yard in his Ford 4x4, and rigged up a homemade hitch to "hook up" his mobile home so that he could pull it down the road to the new homeplace (behind Aunt Pudge"s house just outside of Wetumka). It"s a long way from Wewoka to Wetumka, particularly if you have to go through Weleetka (the mobile home won"t fit across the single lane bridge if you go the short way). During the trip, Bubba decided to stop at Weleetka to use the facilities and "leetka." I have to point out that Bubba's pretty health conscious and he realized pretty quickly that he had just drained out all of his bodily fluids and needed to replace and replenish his system. Fortunately for Bubba, he had stopped just across the road from the High and Dry Bar and Saloon that has some of the cheapest beer in the whole county. Bubba went in and fully replaced his bodily fluids with a few pitchers of beer, then started back down the road to his new homeplace in Wetumka.

On the way, Bubba met a little old lady on her way to bury her pet canary. She was driving down the road in her big yellow Oldsmobile, wiping the tears from her eyes and blowing her nose. In her grief, she veered across the center line and almost hit Bubba head on. The one thing about Bubba, even when he's had a few pitchers of beer, he's still got good reaction time. He swerved to the shoulder of the road and missed the little old lady, but jackknifed his Ford 4x4 and the mobile home in the process. The mobile home spun around and slid through the ditch right up into Moses Brown's pasture. As it slid through the fence, Moses' prize bull was standing right where he could watch the whole thing! The washing machine came flying out the front door of the mobile home and hit him right between the eyes and killed him.

Moses Brown's claim could have been settled for a whole lot less if it had been one of his kids instead of his prize bull. The bull had been in the family for years and was the only bull he had. He has eight kids! Moses decided that he was going to get every last dime for the emotional distress associated with having to butcher and eat a member of the family. He was so mad he sued both Bubba and the High and Dry Bar and Saloon.

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Bubba On Insurance: Lesson 1

The truth is Cousin Bubba doesn't really know a lot about insurance or even law for that matter. He is well versed in the 2nd Amendment and will "tell you right flat out the right to bear arms has nothing to do with the First Lady's sleeveless dresses." Bubba doesn't need to tell you he's a card carrying NRA member; he proudly displays the bumper sticker on his pickup truck.

Times are tough for guys like Bubba right now with the economy slowing down. Not long ago, Bubba needed a little extra money for new tires on his truck. He went to work for his brother-in-law, Buddy. Now Buddy is a General Contractor and works all of Seminole County from one side to the other. Buddy had contracted to build a barn (storage shed for you city folks) and needed Bubba to help cut some of the rafters. Bubba, who has used a skill saw ever since he could look a coon hound in the eye, began cutting the boards by laying one end across his leg and the other end on the tailgate of Buddy's truck. As he was cutting on the line that Buddy had marked, one of those Oklahoma gusts of wind blew through and the end of the board came off the tailgate. The skill saw was placed in a bind and the saw blade came out of the wood. It cut off part of one of Bubba's fingers.

Bubba knew when he went to work for Buddy that there wasn't any workers' compensation coverage through Buddy's company. Although the company has been growing and expanding for years (sometimes as many as four in the crew if you count Buddy's 7 year old), he has never been able to afford workers' comp insurance. But, Bubba knew Old Man Jones, who was having the barn built, had insurance on his house. So Bubba simply filed a "workers' comp" claim against Old Man Jones homeowners' policy to recover for his injuries and his time off work.

I was talking to Bubba about all that had happened and he told me that the homeowners insurance company hired some slick, smooth-talking lawyer who got his case dismissed. He couldn't remember the lawyer's name, but still had a copy of the motion that he filed. There is an exclusion in 85 O.S. § 11 (3) which states that where work is performed on a single family residence, dwelling, or premises occupied by the owner ... such owner . . . shall not be liable for compensation under the workers' compensation act.  Bubba didn't get his claim paid by the homeowners' policy.  He couldn't buy his new tires because Buddy wouldn't pay him "cause he ruint a perfectly good piece of lumber!"

Bubba Teaches Insurance Law

Cousin Bubba has taught more people about insurance law in Oklahoma than anyone I know.  He has an uncanny way of getting into more trouble than a postman in a yard full of pit bulls.  The key to learning from Cousin Bubba is to read about him rather than to experience him.  We hope you enjoy Bubba's lessons on Oklahoma insurance law.