# Atlantic Specialty Insurance Company v. Deere & Company, Inc

> District Court, N.D. Alabama · June 6, 2023

URL: https://www.frixlaw.com/law-library/cases/9991693

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** June 6, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

ATLANTIC SPECIALTY INSURANCE }
COMPANY, }
}
Plaintiff, }
} Case No.: 4:23-cv-00598-RDP
v. }
}
DEERE & COMPANY, INC., }
}
Defendant. }

MEMORANDUM OPINION

This matter is before the court on Defendant Deere & Company’s (“Defendant”) Motion
to Dismiss or, in the Alternative, for a More Definite Statement. (Doc. # 1-3). The Motion has
been fully briefed. (Docs. # 1-3, 4, 5). After careful review, and for the reasons below, Defendant’s
Motion is due to be denied.
I. Background
On or about March 31, 2021, Jesse Parker Timber, LLC purchased a feller buncher
manufactured by John Deere. (Doc. # 1-1 ¶ 7). The feller buncher was insured by Plaintiff Atlantic
Specialty Insurance Company (“Plaintiff”). (Id. ¶ 9). On February 1, 2022, the feller buncher was
rendered a total loss due to a severe internal fire. (Id. ¶ 11). Plaintiff determined that the fire started
at the rear of the feller buncher, within or near a hydraulic pressure sensor – a subcomponent
manufactured by Danish multinational corporation “Danfoss.” (Id. ¶ 12-13). Plaintiff alleges that
this sensor was defective, and that the defective sensor caused the fire that destroyed the feller
buncher. (Id. ¶ 14-16).
During a joint non-destructive fire origin and cause examination of the feller buncher, a
consultant retained by Defendant removed and flicked away “the deposit of ejected contents which
had been expelled from the subcomponent hydraulic pressure sensor’s housing and was deposited
atop the sensor housing.” (Id. ¶ 18). Plaintiff contends that due to the removal of the expelled and

deposited contents of that hydraulic pressure sensor from the product’s housing, a conclusive
determination of the failure mode of the Danfoss pressure sensor is now impossible. (Id. ¶ 20).
Given the nature and amount of the loss and the obvious visual evidence of subcomponent
malfunction, Plaintiff maintains that Defendant and its representative knew or should have known
of the “potential litigation between Plaintiff and Dan[foss].” (Id. ¶ 21).
According to the terms of the policy covering the feller buncher (the “Policy”), Plaintiff
compensated its Insured for the damage. (Id. ¶ 22). The Policy also provided Plaintiff with a
subrogation interest in any amount paid to the Insured due to the fault of a third party. (Id.). On
May 10, 2023, Plaintiff initiated this action as subrogee of its Insured. (Doc. # 1-1). Plaintiff asserts
one Count of third-party negligent spoliation against Defendant for the actions of its agent. (Id. at

6-7). On May 10, 2023, Defendant filed a Motion to Dismiss or, in the alternative, for a more
definite statement. (Doc. # 1-3).
II. Legal Standard
The Federal Rules of Civil Procedure require that a complaint provide “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
However, the complaint must include enough facts “to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that contain nothing more
than “a formulaic recitation of the elements of a cause of action” do not meet Rule 8 standards,
nor do pleadings suffice that are based merely upon “labels and conclusions” or “naked
assertion[s]” without supporting factual allegations. Id. at 555, 557. In deciding a Rule 12(b)(6)
motion to dismiss, courts view the allegations in the complaint in the light most favorable to the
non-moving party. Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007).
To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible

on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although “[t]he
plausibility standard is not akin to a ‘probability requirement,’” the complaint must demonstrate
“more than a sheer possibility that a defendant has acted unlawfully.” Id. A plausible claim for
relief requires “enough fact[s] to raise a reasonable expectation that discovery will reveal
evidence” to support the claim. Twombly, 550 U.S. at 556.
In considering a motion to dismiss, a court should “1) eliminate any allegations in the
complaint that are merely legal conclusions; and 2) where there are well-pleaded factual
allegations, ‘assume their veracity and then determine whether they plausibly give rise to an

entitlement to relief.’” Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. App’x 136, 138
(11th Cir. 2011) (quoting Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)).
That task is context specific and, to survive the motion, the allegations must permit the court based
on its “judicial experience and common sense . . . to infer more than the mere possibility of
misconduct.” Iqbal, 556 U.S. at 679. If the court determines that well-pleaded facts, accepted as
true, do not state a claim that is plausible, the claims are due to be dismissed. Twombly, 550 U.S.
at 570.
Complaints that tender “‘naked assertion[s]’ devoid of ‘further factual enhancement’” will
not survive a motion to dismiss. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557)
(alteration in original). Stated differently, the complaint must allege enough facts “to raise a
reasonable expectation that discovery will reveal evidence” supporting a claim. Twombly, 550 U.S.
at 556.
III. Discussion

In its Motion, Defendant advances two arguments. First, it contends that Plaintiff has failed
to state a claim because Plaintiff’s third-party negligent spoliation claim is not a recognized cause
of action under Alabama law. (Doc. # 1-3 at 4-5). Second, and alternatively, Defendant maintains
that Plaintiff should be ordered to amend its Complaint to specifically allege the claims it would
have brought against Danfoss but for the alleged spoliation. (Id. at 6).
A. Defendant’s Motion to Dismiss
Alabama law does not recognize a cause of action for an independent tort of evidence
spoliation when the spoliator was a party to an action. Smith v. Atkinson, 771 So. 2d 429, 432 (Ala.
2000). But, a party may bring “a claim against a third party for spoliation of evidence under the
traditional doctrine of negligence.” (Id.) (emphasis added). In Smith, the Alabama Supreme Court

answered two questions certified from the United States District Court for the Middle District of
Alabama: “(1) Does Alabama recognize a cause of action for the independent tort of spoliation of
evidence against a third party? and (2) If so, what are the elements of that tort?” Id. at 431.
The court answered the first question in the affirmative. Id. at 432. As to the second
question, the court held that “[a]s in all negligence actions, the plaintiff in a third-party spoliation
case must show a duty to a foreseeable plaintiff, a breach of that duty, proximate causation, and
damage.” Id. (citing Crowne Invs., Inc. v. Bryant, 638 So. 2d 873, 878 (Ala. 1994)). In addition to
the basic elements of a negligence claim, the court established a three-part test for determining
when a third party can be held liable for negligent spoliation of evidence. A plaintiff in a third-
party spoliation case must also show: “(1) that the defendant spoliator had actual knowledge of
pending or potential litigation; (2) that a duty was imposed upon the defendant through a voluntary
undertaking, an agreement, or a specific request; and (3) that the missing evidence was vital to the
plaintiff's pending or potential action.” Smith, 771 So. 2d at 432. If those elements are established,

a Plaintiff is entitled to a rebuttable presumption that “but for the fact of the spoliation of evidence
the plaintiff would have recovered in the pending or potential litigation.” Id. (emphasis added).
Here, Plaintiff has clearly alleged each element required to establish a third-party negligent
spoliation claim. First, Plaintiff alleges that Deere owed its Insured -- and, by extension, Plaintiff
through subrogation -- a duty of reasonable care in inspecting the feller buncher because the
Insured was a foreseeable Plaintiff following the fire. (Doc. # 1-1 ¶ 24). Next, Plaintiff alleges that
Deere breached this duty when its representative used a pocketknife to remove and damage critical
evidence. (Id. ¶ 25). Then, Plaintiff alleges that Defendant’s breach was the proximate cause of
the damage to the critical evidence, which damaged Plaintiff in the amount of $260,000. (Id. ¶¶
26-27). Because Plaintiff clearly alleged the elements required to prove a negligence claim, the

court now considers whether it sufficiently alleged the three further elements required to prove a
negligent spoliation claim in the pleadings. Smith, 771 So. 2d at 432.
Plaintiff alleges that Defendant and its consultant “knew or should have known of the
potential litigation between Plaintiff and Dan[foss] given the nature and amount of loss and the
obvious visual evidence of subcomponent malfunction which was swiftly spoliated before
confirmation of the source of the deposit.” (Doc. # 1-1 ¶ 21). Further, Plaintiff alleges that
Defendant voluntarily undertook a duty of reasonable care in inspecting the feller buncher when
Defendant retained a consultant to examine the vehicle at the joint non-destructive fire origin and
cause examination. (Id. ¶ 18). Finally, Plaintiff alleges that the missing evidence was vital to its
potential action against Danfoss because “the removal of the expelled and deposited contents of
th[e] hydraulic pressure sensor from the product’s housing made a conclusive determination of the
failure mode of the Danfoss pressure sensor impossible.” (Id. ¶ 20). Plaintiff has alleged each
element of a third-party negligent spoliation claim. Defendant’s Motion to Dismiss is due to be

denied.
B. Defendant’s Alternative Motion for a More Definite Statement
A survey in this area of the law indicates that the vast majority of negligent third-party
spoliation claims arise in conjunction with underlying tort actions. E.g., Smith, 771 So. 2d 429;
Crowne Invs, Inc. v. Bryant, 638 So. 2d 873 (Ala. 1994); Killings v. Enterprise Leasing Co., Inc.,
9 So. 3d 1216 (Ala. 2008); Brown Electro Mech. Sys., Inc. v. Thompson Eng’g, Inc., 848 So. 2d
238 (Ala. 2002). Here, however, there is no underlying action. Defendant argues that, in the
absence of an underlying tort action, it is unable to determine the “claim or claims Plaintiff would
have brought in an underlying claim against Danfoss.” (Doc. # 1-3 at 5) (emphasis in original).
Consequently, Defendant contends that it is “unable to reasonably respond and assert certain

defenses that may be available to it under Alabama law.” (Id.). Accordingly, Defendant maintains
that “Plaintiff should be ordered to amend its Complaint to specifically allege the claims it would
have … brought against Danfoss but for the alleged spoliation.” (Id.). The court disagrees.
i. Plaintiff was not required to bring an underlying tort action before
filing a suit based on third party negligent spoliation.

First, while historically it appears the majority of claims brought under the third-party
negligent spoliation doctrine have arisen out of underlying tort actions, the Alabama Supreme
Court clearly contemplated such a claim being brought as a standalone action. In Smith, the court
held that once each element of a negligent spoliation claim is established, “there arises a rebuttable
presumption that but for the fact of the spoliation of evidence the plaintiff would have recovered
in the pending or potential litigation.” 771 So. 2d at 432-33 (emphasis added). Further, the court
stated that “under a claim for negligent spoliation, the defendant's breach must be the proximate
cause of the plaintiff's inability to file, or to win, the underlying lawsuit.” Id. at 434 (emphasis
added). Finally, the court explicitly disagreed with the plaintiff’s argument that “a plaintiff, in

order to be able to file an action alleging spoliation of evidence against a third party, must first file
an action pursuing the underlying cause of action and be denied a recovery in that underlying
action.” Id. In sum, Alabama law does not require a plaintiff to bring an underlying action before
raising a negligent spoliation claim.
ii. Plaintiff was not required to allege the specific causes of action it could
have brought against Danfoss in its Complaint.

Nor does Alabama law require a plaintiff to “allege the specific causes of action it could
have brought against” a defendant in an underlying action. (Doc. # 1-3 at 6). Defendant argues that
Plaintiff’s “lack of specificity” prevents Defendant from overcoming the presumption that Plaintiff
would have recovered in an underlying action but for the spoliation. (Id.). To rebut that
presumption, Defendant must introduce evidence showing that Plaintiff would not have prevailed
in the underlying action. (Id.) (citing Smith, 771 So. 2d at 435). But, it is not a plaintiff’s burden
to allege sufficient facts to establish both its own claim and any potential defense against its claim.
The burden to gather evidence rebutting a presumption of recovery falls squarely on Defendant,
and the discovery process is precisely the right vehicle to do so. Therefore, Defendant’s Alternative
Motion for a More Definite Statement is also due to be denied.
C. Fictitious Defendants
“As a general matter, fictitious-party pleading is not permitted in federal court.”
Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010). The Eleventh Circuit has created a
narrow exception to this rule “when the plaintiff’s description of the defendant is so specific as to
be ‘at the very worst, surplusage.’” Jd. (citing Dean v. Barber, 951 F.2d 1210, 1215-16 (11th Cir.
1992)). Here, Plaintiff identifies Fictitious Defendants A, B, C, and/or D as “the manufacturers,
distributors, and/or sellers of the Deere product forming the basis for this case, whose true
identities and legal status are unknown at this time, but will be added by amendment when
ascertained.” (Doc. # 1-1 § 2). Such a description is plainly insufficient. Accordingly, all claims
against Fictitious Defendants A, B, C, and D are due to be dismissed without prejudice.
IV. Conclusion
For the reasons above, Defendant’s Motion to Dismiss or, in the Alternative, for a More
Definite Statement (Doc. # 1-3) is due to be denied. An order consistent with this memorandum
opinion will be entered separately.
DONE and ORDERED this June 6, 2023.

UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9991693. Public record. Not legal advice.