Home / Fulltext Opinions / Supreme Court of Virginia / AUSTIN v. CONSOLIDATION COAL COMPANY



June 5, 1998

Record No. 972627







Present: All the Justices

Pursuant to Rule 5:42, the United States District Court for
the Southern District of West Virginia certified to this Court
the following question of law:

"Whether Virginia law would recognize intentional
or negligent interference with a prospective civil action
by spoliation of evidence as an independent tort under
the facts described below."

The order contained the following facts:

"On May 20, 1995, the plaintiff Kenneth Austin
was injured while working in a coal mine in Buchanan
County, Virginia. The accident occurred when a hose that
Mr. Austin was using to cool down a welding area burst in
his hands, causing severe injuries to his face and neck.
Because he received workers’ compensation benefits, Mr.
Austin was barred by statutory immunity under Virginia
law from pursuing a cause of action against his employer,
Consolidation Coal Company (Consolidation), the defendant
in the above-styled case. Therefore, Mr. Austin chose to
pursue a products liability action against the
manufacturer and distributor of the allegedly defective
hose which caused his injuries.

"However, Consolidation allegedly refused to
disclose the identities of the manufacturer and
distributor to Mr. Austin. Consolidation also refused to
provide Mr. Austin with samples of the hose, or to allow
his expert to evaluate the hose on Consolidation’s
property. This is despite the fact that Consolidation
freely granted access to the hose to both the
manufacturer and the distributor for their defense
experts to evaluate. When one year passed and
Consolidation had still failed to provide voluntary
cooperation, Mr. Austin filed an action against them in
the Buchanan County Circuit Court. At a May 23, 1996
hearing, Judge Keary R. Williams ordered that
Consolidation’s purchasing agent sit for a deposition
with plaintiff’s counsel for the purpose of discovering
the identities of the manufacturer and distributor of the
hose. Judge Williams also ordered Consolidation to
preserve the hose as evidence until the plaintiff’s
experts had an opportunity to test it.

"In direct violation of this court order,
Consolidation allegedly destroyed the hose before Mr.
Austin’s experts ever had a chance to conduct independent
testing. Mr. Austin did eventually discover the
identities of the manufacturer, National Fire Hose
Corporation, and the distributor, Fairmont Supply
Company, and subsequently filed suit against both
companies in this Court. Discovery also revealed that the
distributor, Fairmont Supply Company, is either a
subsidiary or an affiliate corporation of Consolidation.
Due to Consolidation’s destruction of the allegedly
defective hose, Mr. Austin claims that he confronts
significant obstacles in proving his products liability
claim. For this reason, Mr. Austin initiated the
above-styled action against Consolidation, claiming that
they tortiously interfered with his ability to pursue a
products liability suit when they destroyed the allegedly
defective hose. Other courts have labeled such tortious
conduct as ‘spoliation of evidence.’"

Even though the federal district court’s certification order
states that the Circuit Court of Buchanan County entered an order
requiring that Consolidation preserve the hose, no such order was
actually entered. The litigants conceded, at the bar of this
Court, that the Circuit Court of Buchanan County did not enter a
written order prohibiting the destruction of the hose. Rather,
the circuit court stated during a hearing on Austin’s petition to
perpetuate testimony that an order granting the relief requested
in the petition "should contain a statement that no parties
are to do anything [which would affect] the integrity of the
hose. . . ."

We have stated that "[i]t is the firmly established law
of this Commonwealth that a trial court speaks only through its
written orders." Davis v. Mullins, 251 Va.
141, 148, 466 S.E.2d 90, 94 (1996). Accord Walton
v. Commonwealth, 256 Va. ___, ___, ___ S.E.2d ___, ___
(1998) (this day decided); Town of Front Royal v. Industrial
, 248 Va. 581, 586, 449 S.E.2d 794, 797 (1994); Robertson
v. Superintendent of the Wise Correctional Unit, 248 Va.
232, 235 n.*, 445 S.E.2d 116, 117 n.* (1994). Therefore,
for purposes of this opinion, we must amend the federal district
court’s statement of facts to reflect that no order to preserve
the hose was entered by the Circuit Court of Buchanan County. Our
answer to the certified question is, in part, predicated upon
this factual modification.

Austin argues that Virginia should recognize a cause of action
for intentional spoliation of evidence based on the facts and
circumstances of his case. Relying upon cases from other
jurisdictions, Austin says that those courts have recognized
"a cause of action in tort for interference with the
preservation of evidence, commonly known as spoliation of
evidence. The elements are: (1) pending or probable litigation
involving the plaintiff; (2) knowledge on part of the defendant
that litigation exists or is probable; (3) willful destruction of
evidence by the defendant designed to disrupt plaintiff’s case;
(4) disruption of plaintiff’s case; and (5) damages proximately
caused by the defendant’s acts." Austin cites the following
authorities in support of his position: Hazen v. Municipality
of Anchorage
, 718 P.2d 456, 463 (Alaska 1986); Smith
v. Superior Ct., 198 Cal. Rptr. 829, 837 (Ct. App. 1984); Bondu
v. Gurvich, 473 So. 2d 1307, 1312-13 (Fla. Dist. Ct. App.
1984); Viviano v. CBS, Inc., 597 A.2d 543, 549-50
(N.J. Super. Ct. App. Div. 1991); Smith v. Howard
Johnson Co.
, 615 N.E.2d 1037, 1038 (Ohio 1993). But see
Panich v. Iron Wood Prod. Corp., 445 N.W.2d 795,
797 (Mich. Ct. App. 1989) (employer has no duty to preserve

Continuing, Austin asserts that we should also recognize a
cause of action for negligent spoliation of evidence. Austin says
that this so-called tort differs from intentional spoliation of
evidence in that the purported tortfeasor negligently damaged or
destroyed evidence which may be necessary as proof in a civil
action. See Velasco v. Commercial Bldg.
Maintenance Co.
, 215 Cal. Rptr. 504, 506 (Ct. App. 1985).

Responding, Consolidation argues that under the facts and
circumstances described in the certification order, it has no
duty to preserve evidence for the benefit of an injured person
who has a potential cause of action against a third party.
Therefore, Consolidation contends that Austin has no cause of
action against it for any so-called tort of intentional or
negligent spoliation of evidence.

The issue whether an employer has a duty to preserve evidence
for the benefit of an employee’s potential tort action against a
third party is a matter of first impression in this Commonwealth.
However, the principles that we must apply to the facts and
circumstances before this Court are familiar and well settled.

"The essential elements of a cause of action
. . . based on a tortious act . . .
are (1) a legal obligation of a defendant to the
plaintiff, (2) a violation or breach of that duty or
right, and (3) harm or damage to the plaintiff as a
proximate consequence of the violation or
breach. . . . A cause of action does not
evolve unless all of these factors are present." Stone
v. Ethan Allen, Inc., 232 Va. 365, 368-69, 350
S.E.2d 629, 631 (1986) (quoting Locke v. Johns-Manville
, 221 Va. 951, 957, 275 S.E.2d 900, 904 (1981));
accord Van Deusen v. Snead, 247 Va.
324, 330, 441 S.E.2d 207, 210, (1994); Atlantic Co.
v. Morrisette, 198 Va. 332, 333, 94 S.E.2d 220,
221-22 (1956).

We hold that under the facts and circumstances of this case,
Austin has no cause of action against Consolidation for
intentional or negligent spoliation of evidence because
Consolidation had no legal duty to preserve the hose.

Austin tries to identify several sources which may have
imposed a duty or obligation upon Consolidation to preserve the
hose. Austin argues that he was an employee of Consolidation at
the time of the accident and, therefore, a master/servant
relationship existed which somehow imposed a duty upon
Consolidation. Austin also asserts that "federal and state
law mandate numerous requirements and duties, particularly in the
context of the coal mining industry, upon employers to their
employees" and that some of these statutes, which require
employers to provide employees with safe working environments and
conditions, may have imposed a duty upon Consolidation to
preserve the hose.

We disagree with Austin. Austin cites no state or federal
statutes or authorities which require an employer like
Consolidation to preserve its personal property so that such
property may be useful to an employee who has filed a tort action
against a third party. Additionally, the employer/employee
relationship that existed between Austin and Consolidation, based
on the record before us, does not give rise to such duty.

Austin also argues that "a fiduciary relationship or one
of trust existed between Austin and Consolidation which mandated
the preservation of the hose." Austin says that Virginia’s
Workers’ Compensation Act, Code Sec.65.2-309, et seq.,
"establishes such a consensual or fiduciary relationship as
a matter of law." Continuing, he contends that a "claim
for [w]orkers’ [c]ompensation benefits operates as an assignment
to the employer of any right to recover damages which the injured
employee may have against any other party for such
injury. . . . Austin’s assignment of rights
created a fiduciary relationship or a relationship of trust
between Consolidation and him. The Act also created a duty upon
Consolidation and elevated it to a position of trust."

We find no merit in Austin’s contentions. We have reviewed the
Virginia Workers’ Compensation Act, and it is devoid of any
language which imposes a duty upon an employer to preserve
property which may be beneficial to an employee who seeks to
prosecute a civil action against a third party.

Austin contends that Consolidation assumed a duty to preserve
this hose because Consolidation conducted an investigation of
Austin’s accident and forwarded the hose to an affiliate
corporation for testing and analysis. We disagree. These facts
are simply not sufficient to support Austin’s assertion that
Consolidation assumed a tort duty to preserve the hose. We also
reject Austin’s argument that the purported "order" of
the Circuit Court of Buchanan County imposed such duty upon
Consolidation. Even assuming that entry of such an order would
have created a duty, Austin conceded at the bar of this Court
that no order was ever entered and, thus, no duty was created.

Accordingly, we must answer the certified question in the

Certified question answered in the negative.