Travelers Property Casualty Company of America v. All Seasons Roofing Inc et al

Filing 26

ORDER denying 18 Motion for Summary Judgment. Signed by Judge D. P. Marshall Jr. on 9/9/2016. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
TRAVELERS PROPERTY CASUALTY
COMPANY OF AMERICA

v.

PLAINTIFF

No. 4:15-cv-412-DPM

DEFENDANT

ALL SEASONS ROOFING INC
ORDER

In August 2012 a storm damaged part of the flat roof on USAble's
downtown Little Rock building. All Seasons Roofing had replaced that part
one year before. Within a week of the damage, USAble had a temporary
covering installed, and several weeks later had a permanentreplacementroof
installed. It's unclear whether the whole roof or only part was replaced.
Travelers covered the loss for USAble, stepped into USAble' s shoes, and sued
All Seasons.

The roofer seeks judgment as a matter of law, arguing

spoliation -that USAble destroyed the evidence All Seasons needs to defend
the lawsuit.
All Seasons' s motion for summary judgment is denied for two reasons.
First, when taken most favorably to Travelers, the record shows genuine
issues of material fact. Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007). It's

disputed whether All Seasons was contacted about the damage, or had an
adequate opportunity to inspect, before the new roofing was installed some
six or seven weeks later. USAble, of course, had to get its roof fixed. All
Seasons says no one told it about the damage until after the permanent roof
installation, but Travelers says All Seasons was repeatedly contacted before
then. Compare N!! 18-3, with N!! 22-1, 22-2 & 22-3. Second, just as spoliation
of evidence isn't a cause of action, Goff v. Harold Ives Trucking Company, Inc.,
342 Ark. 143, 150, 27 S.W.3d 387, 391 (2000), it isn't an affirmative defense.
Spoliation is an evidentiary doctrine. Sherman v. Rinchem Company Inc., 687
F.3d 996, 1006 (8th Cir. 2012). The doctrine can become a spear: If All Seasons
showed that Travelers acted in bad faith by intentionally destroying evidence
to suppress the truth, then the Court could impose sanctions, including
dismissal. Sherman, 687 F.3d at 1006-07. But All Seasons hasn't shown bad
faith, whether for this motion or, unless the record changes drastically, for
instructional purposes at trial.

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All Seasons' s motion for summary judgment, N!! 18, is denied.

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So Ordered.
D.P. Marshall Jr. tJ
United States District Judge

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