If a subrogating carrier’s experts have viewed evidence that is later lost or destroyed before the defendant has the chance to view it, there is a potential for prejudice and a subrogating insurer may be hard-pressed to survive a motion to dismiss.
In Amica Mutual Ins. Co. v. BrassCraft Mfg., Co., 2018 U.S. Dist. LEXIS 88986 (D.R.I. May 29, 2018), the United States District Court for the District of Rhode Island addressed the question of whether the defendant was so unfairly prejudiced by the subrogating insurer’s spoliation of evidence that dismissal of the plaintiff’s case was the appropriate Rule 37(b)(2)(a)(i)-(vi) sanction. The court, focusing on the potential for undue prejudice to the defendant, granted the defendant’s motion to dismiss.
Mr. Skaf may be contacted at skafl@whiteandwilliams.com
