"3rd cause of action negligence: Sustained without leave to amend since there is no cause of action for negligent spoliation of evidence. Farmers Insurance Exchange v Superior Court (2000) 79 Cal.App.4th 1400, 1404. Moreover, since [Sedlar] admits he has been paid all benefits due to him under the insurance agreement, there is no breach of contract, and consequently no breach of duty arising from the contract. [¶] • • • [¶]
The holding in Reid is consistent with California law: when an insurer breaches a contractual obligation to its insured to preserve evidence, the insurer is subject to contract damages, whether for breach of contract, breach of the implied covenant of good faith, or promissory estoppel. (See Coprich v. Superior Court (2000) 80 Cal.App.4th 1081, 1089-1090 & p. 1090, fn. 5 (Coprich); see Farmers Ins. Exchange v. Superior Court (2000) 79 Cal.App.4th 1400, 1407, fn. 5 (Farmers).) "It has long been recognized in California that '[t]here is an implied covenant of good faith and fair dealing in every contract that neither party will do anything which will injure the right of the other to receive the benefits of the agreement.'
(See, e.g., Coprich v. Superior Court (2000) 80 Cal.App.4th 1081, 1089-1090 [ 95 Cal.Rptr.2d 884] ( Coprich) ["We therefore conclude there is no tort remedy for first party or third party negligent spoliation of evidence."]; Farmers Ins. Exchange v. Superior Court (2000) 79 Cal.App.4th 1400, 1404 [ 95 Cal.Rptr.2d 51] ( Farmers Insurance) ["The policy considerations that led the Supreme Court to refuse to recognize tort causes of action for both first party and third party intentional spoliation apply with equal force when the loss or destruction of evidence was the result of negligence."].)
And is the jury going to be placed, as indicated in Cedars-Sinai and our Farmers [Ins. Exchange v. Superior Court (2000) 79 Cal.App.4th 1400 [ 95 Cal.Rptr.2d 51]] case, in a position of having to speculate as to what effect — what causal effect the piece of lost evidence may or may not have, what weight it would have, what — how would that other case have turned out. There is a host of issues that the Court — I would find almost to be insurmountable.
( Id. at pp. 629, 635.) The Fourth Appellate District disagreed in Farmers Ins. Exchange v. Superior Court (2000) 79 Cal.App.4th 1400 (hereafter Farmers Ins. Exchange). Considering the policy factors identified in Temple Community, the court (1) concluded that the fact the tort "is for negligent rather [than] intentional spoliation carries no significant weight in the balancing process," and (2) "decline[d] to recognize a tort for negligent third party spoliation of evidence." ( Farmers Ins. Exchange, supra, 79 Cal.App.4th at p. 1407.)
We believe that this conclusion follows inexorably from two recent decisions from our Supreme Court: [Cedars-Sinai, supra,] 18 Cal.4th 1 ..., holding that no tort cause of action lies for first party intentional spoliation of evidence, and [Temple, supra,] 20 Cal.4th 464 ..., holding that no tort cause of action will lie against a third party for intentional spoliation of evidence." (Farmers Ins. Exchange v. Superior Court (2000) 79 Cal.App.4th 1400, 1401-1402 (Farmers Ins. Exchange).) "Farmers' position is simply stated: If a party cannot be held liable for intentionally destroying or suppressing evidence that would be relevant to a lawsuit, surely the party cannot be held liable if it negligently commits these acts. We agree.
Although the state's high court has not had the occasion to rule on the viability of the tort of negligent spoliation of evidence, appellate courts have concluded, in reliance on Cedars-Sinai Medical Center v. Superior Court, supra, 18 Cal.4th 1 and Temple Community Hospital v. Superior Court, supra, 20 Cal.4th 464, that the tort of negligent spoliation, whether of the first-party or third-party variety, is no longer viable. (Lueter v. State of California, supra, 94 Cal.App.4th at pp. 1289, 1293-1301; Coprich v. Superior Court (2000) 80 Cal.App.4th 1081, 1083, 1088-1090; Farmers Ins. Exchange v. Superior Court (2000) 79 Cal.App.4th 1400, 1401-1402, 1407.) We agree with the reasoning of these cases and note, as did the court in Coprich, supra, at page 1089, that "it would be anomalous to impose liability for negligence with respect to conduct that would not give rise to liability if committed intentionally."
Although the state's high court has not had the occasion to rule on the viability of the tort of negligent spoliation of evidence, appellate courts have concluded, in reliance on Cedars–Sinai Medical Center v. Superior Court, supra, 18 Cal.4th 1, 74 Cal.Rptr.2d 248, 954 P.2d 511 and Temple Community Hospital v. Superior Court, supra, 20 Cal.4th 464, 84 Cal.Rptr.2d 852, 976 P.2d 223, that the tort of negligent spoliation, whether of the first-party or third-party variety, is no longer viable. ( Lueter v. State of California, supra, 94 Cal.App.4th at pp. 1289, 1293–1301, 115 Cal.Rptr.2d 68;Coprich v. Superior Court (2000) 80 Cal.App.4th 1081, 1083, 1088–1090, 95 Cal.Rptr.2d 884;Farmers Ins. Exchange v. Superior Court (2000) 79 Cal.App.4th 1400, 1401–1402, 1407, 95 Cal.Rptr.2d 51.) We agree with the reasoning of these cases and note, as did the court in Coprich, supra, at page 1089, 95 Cal.Rptr.2d 884, that “it would be anomalous to impose liability for negligence with respect to conduct that would not give rise to liability if committed intentionally.”
Some California courts refuse to consider a negligent spoliation of evidence cause of action, deeming it to be an end-run around settled California law prohibiting spoliation causes of action. See Farmers Ins. Exch. v. Superior Court, 79 Cal. App. 4th 1400, 1404-07 (Cal. Ct. App. 2000). Notwithstanding contrary California law, the implicit acknowledgment of a negligence-based duty to preserve evidence in Timber Tech controls the Court's analysis here.
Cedars-Sinai, 18 Cal.4th at 8, 74 Cal.Rptr.2d 248, 954 P.2d 511, supra; Summit, 27 Cal.4th at 715, 117 Cal.Rptr.2d 541, 41 P.3d 548, supra. See also, Farmers Ins. Exchange v. Superior Court, 79 Cal.App.4th 1400, 95 Cal.Rptr.2d 51 (4th Dist. 2000); Glenn K. Jackson Inc., v. Roe 273 F.3d 1192 (9th Cir. 2001) (court determines whether duty exists under California law). The purpose of these observations about Lippert is not to argue that it was wrongly decided, but to identify some of the reasons why we should be hesitant to consider that opinion to be a sufficient basis for concluding that it is well-settled under current California law that a plaintiff could not state a claim against a carrier's agent under the factual circumstances alleged in the complaint in this case.