Q

I read an article recently that mentioned spoilation of evidence and noted possible coverage issues under an insurance policy. What is spoilation of evidence, and would a commercial general liability (CGL) form provide coverage for an insured if a claim for spoilation were made against him?

Ohio Subscriber

A

“Spoilation of evidence” is a legal term defined as the destruction or alteration of evidence. To relate it to the insurance world, assume a products claim and resultant lawsuit were filed against the insured. Before any examination of the product by the claimant's attorney or expert could be made, or the trial begun, the product was destroyed or altered. The claimant could then complain that the insured destroyed (that is, spoiled) the evidence needed to support the product injury claim. Since some states allow spoilation of evidence as a separate cause of action, the claimant could then follow up with another lawsuit against the insured.

As for coverage under a CGL form for a spoilation of evidence claim, that is unlikely. Going back to the above product claim as an example, if the insured did destroy or alter the product, he did so either intentionally or negligently. If the insured acted intentionally, the “expected or intended injury” exclusion on the CGL form comes into play; if negligently, the (1) “damage to property owned by the named insured” exclusion or the (2) “care, custody, or control” exclusion applies. Either way, the insurer can legitimately deny coverage.