Opinion
[REVIEW GRANTED BY CAL. SUPREME COURT]
[Reprinted without change for tracking pending review and disposition by the Supreme Court.]
Superior Court of Orange County, Nos. 735775 and 760833, James A. Jackman, Judge. [Copyrighted Material Omitted] COUNSEL
Howard, Moss, Loveder, Strickroth & Walker, Robert J. Moss and James E. Loveder for Petitioners.
No appearance for Respondent.
Day & Day and Marjorie W. Day for Real Party in Interest.
OPINION
SILLS, P. J.
The trial court consolidated an action for spoliation of evidence against an insurance company, its adjuster, and defense counsel (the insurance company defendants) with the underlying personal injury action against the insured. The insurance company defendants objected to the consolidation, arguing it will prejudice their interests by introducing evidence of insurance into the underlying negligence action in violation of Evidence Code section 1155. Seeking to undo the consolidation, they petitioned for a writ of mandate, which we initially denied. The Supreme Court then directed us to issue an alternative writ. Having heard the matter, we again deny the petition.
I
On September 13, 1993, James Scott Riley suffered personal injuries and damage to his car in a rear-end collision allegedly caused by Elizabeth Pratt. Pratt's insurer, United Services Automobile Association (USAA), obtained a video of her car's damaged front end. Selected frames from the video were digitally transferred to USAA's computer. Color laser prints of these digitized images were made with a computer printer, photocopied and placed in the accident claim file. USAA settled Riley's property damage claim but contested the extent of the bodily injuries he attributed to the accident. On September 14, 1994, Riley filed a personal injury action against Pratt.
In July 1995, Riley served Pratt with a document inspection request seeking copies of all photographs of damage to Pratt's car. In response, Pratt gave Riley the black and white photocopies from the claim file and promised to make and provide color laser prints. The prints, however, were never produced.
In December 1995, the case was arbitrated and Pratt subsequently requested a trial de novo. In February 1996, Pratt retained an accident reconstruction expert who opined that, based on the black and white photocopies showing the damage to Pratt's car, the accident was of too low an impact to have caused Riley's claimed injuries. A month later, Riley again asked for the promised color prints. Pratt's attorneys, Wilson and Main, informed Riley that no color prints existed or could be made since the original video, digitized images, and color prints of Pratt's damaged car had been lost or destroyed.
On March 12, 1996, Riley filed an action against USAA, its claims adjuster Marian Coombes, and house counsel Wilson and Main for intentional and negligent spoliation of evidence. Nine days later Riley moved to consolidate this action with his pending personal injury case against Pratt. On May 10, 1996, over the objections of the defendants in both cases, the court granted the motion to consolidate. This writ proceeding followed.
On August 27, 1996, the trial court granted Riley's motion for evidentiary sanctions against Pratt and ordered that she be prohibited from introducing into evidence any photos of either of the damaged cars involved in the accident or any expert testimony based on such photos.
II
The consolidation of actions under Code of Civil Procedure section 1048 is a matter of trial court discretion. We will not disturb the trial court's decision absent a clear showing of abuse of discretion. (Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978-979 [56 Cal.Rptr.2d 16].) We find no such abuse here. The insurance company defendants' primary attack on the consolidation order is based on Evidence Code section 1155. That code section makes evidence of a defendant's liability insurance inadmissible to prove negligence or other wrongdoing. (section 1155.) The insurance company defendants assert that consolidation of a spoliation action against an insurer with a negligence action against its insured violates this statutory ban by necessarily injecting the issue of liability insurance into the negligence case. They contend they will suffer undue prejudice as a result. But neither the insurance company defendants' claim of prejudice nor their assertion of a violation of section 1155 withstands analysis.
All further statutory references are to the Evidence Code.
Case law acknowledges the substantial risk of prejudice to a defendant from the introduction of evidence the defendant is insured for the harm he or she allegedly caused. After all, "[a]ny such evidence would have an obvious potential to prejudice the jury's determination of the insured's liability." (Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 311 [250 Cal.Rptr. 116, 758 P.2d 58]; see also Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1270-1271 [258 Cal.Rptr. 66].) In this case, however, it is not the insured defendant, Pratt, who is seeing writ relief from the consolidation order. Instead, the insurance company defendants stand alone in arguing they are prejudiced by the consolidation order, a claim that is tenuous at best.
Whether or not the actions are consolidated, the risk of prejudice to the insurance company defendants from disclosure of Pratt's insurance coverage appears inescapable. Given the peculiar nature of the spoliation tort, in which damage consists of the impairment of a plaintiff's ability to prove his or her case due to the loss or destruction of evidence, the jury deciding the spoliation claim will necessarily decide the negligence action as well, even if it has already been tried separately. In other words, if Riley were to try his negligence action against Pratt first, with no discussion of the spoliated evidence, a different jury in the spoliation case would decide whether the first jury would have reached a more favorable result for Riley (e.g., it would have found Pratt negligent, or would have awarded Riley higher damages) had it been presented with the missing evidence. The judgment in the negligence action where insurance was never mentioned would not serve as a cap on damages in the spoliation action where Pratt's negligence would be "retried" by a jury fully aware the alleged spoliator was an insurance company. Given this practical reality, we find the insurance company defendants are not prejudiced by the consolidation order.
As to the argument that consolidation will lead to a violation of section 1155, this argument ignores an important exception to the rule of nonadmissibility of insurance evidence. "[W]here the topic of insurance coverage is coupled with other relevant evidence, that topic may be admitted along with such other evidence. '[¶] It has always been the rule that the existence of insurance may properly be referred to in a case if the evidence is otherwise admissible.' (Turner v. Mannon (1965) 236 Cal.App.2d 134, 140 [45 Cal.Rptr. 831].)" (Blake v. E. Thompson Petroleum Repair Co. (1985) 170 Cal.App.3d 823, 831 [216 Cal.Rptr. 568].)
The consolidation order ensures the "topic of insurance coverage" will be introduced in the trial of Pratt's alleged negligence. But the fact of Pratt's insurance coverage will be "coupled" with relevant evidence of alleged spoliation at the hands of Pratt's insurer and its agents. Such evidence is relevant not only to the spoliation claims against the insurance company defendants, but also potentially to the negligence action against Pratt. To the extent the loss of the color photos compromises Riley's ability to prove his injuries were caused by the accident, the jury may draw adverse inferences from the conduct of Pratt's agents. (See section 413; see also Willard v. Caterpillar, Inc. (1995) 40 Cal.App.4th 892, 907 [48 Cal.Rptr.2d 607]; Walsh v. Caidin (1991) 232 Cal.App.3d 159, 164-165 [283 Cal.Rptr. 326].) The admission of evidence of Pratt's insurance coverage in the consolidated cases will not violate section 1155.
Technically, our conclusion the insurance evidence is admissible because it is coupled with relevant evidence of spoliation does not end the inquiry. A trial court considering the admissibility of insurance evidence must also determine, "pursuant to Evidence Code section 352, whether the probative value of the other evidence outweighs the prejudicial effect of the mention of insurance. [Citations.]" (Blake v. E. Thompson Petroleum Repair Co., supra, 170 Cal.App.3d at p. 831.)
We trust the trial court will carefully instruct the jury as to the proper treatment of insurance evidence so as to minimize its prejudicial effect on both Pratt and the insurance company defendants. In fact, at the hearing on the motion to consolidate, the trial court indicated it would do just that. The court stated, "I believe we can deal with the insurance question appropriately during trial either by proper instruction to the jury, or by other ways of working through the evidence." Case law supports the idea proper limiting instructions can minimize the prejudicial effect of insurance evidence. (See, e.g., 170 Cal.App.3d at p. 833; see also 7 Witkin, Cal. Procedure (4th ed. 1997) Trial section 232, p. 270.) Since consolidation will neither prejudice the insurance company defendants nor violate section 1155, the trial court did not abuse its discretion in ordering it. As almost a side note, the insurance company defendants also argue Riley's damage claim from the alleged spoliation is speculative until resolution of the negligence case. But Smith v. Superior Court (1984) 151 Cal.App.3d 491 [198 Cal.Rptr. 829] flatly rejected the notion the underlying claim must be resolved before a spoliation cause of action can be pursued. (Id. at p. 502.) Moreover, the court in Smith acknowledged "all the obvious and the sound practical reasons for allowing the ... cause of action for intentional spoliation of evidence to be heard at the same time as [the] cause of action for personal injury-needless duplication of effort, two trials involving much the same evidence, time and expense imposed on litigants and the judicial system, and a jury uniquely equipped to determine how the [plaintiffs] were harmed." (Id. at p. 503.) The same considerations apply here.
The petition for writ of mandate is denied. The alternative writ is discharged and the stay is dissolved.
Wallin, J., and Sonenshine, J., concurred.