Articles

Spotlight on Site Security

August/September 2009 - Claims Canada

By Rob Garland

Does it matter what happens to a fire or other loss scene after the official investigation is over? Clearly, the courts have weighed in with their opinion that site security and continuity of evidence are paramount in any cases involving the defence of an insurance claim or subrogation.

Many remember the devastating blast that rocked a Toronto neighbourhood just before dawn on Aug. 17, 2008. A series of explosions ripped through the Sunrise Propane Industrial Gases plant, leaving two men dead and forcing thousands to flee their homes. For insurance companies and claims adjusters, the work
in these kinds of traumatic events is just beginning. Investigations must be conducted, policies need to be referenced and claims must be processed. In many cases, lawsuits also have to be defended.

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Litigation and Spoliation of Evidence

by Kenneth W. Fitz, Partner McLennan Ross LLP (Edmonton) with the assistance of
Graham Semeniuk

In a recent case in Alberta, a fire causing extensive property damage occurred at the plaintiff’s
home. Fire investigators determined that the cause of the fire was either an un-extinguished
cigar or an overheated cordless drill manufactured by the defendant. The plaintiff’s insurance
company hired an investigator who visited the scene and removed the remnants of the drill and
other evidence for inspection by an engineer.

The plaintiff later sued the defendant claiming, among other things, that the drill had caused the
fire. Black & Decker Canada Inc. defended in part by alleging that by razing the house and
removing some drill components, the plaintiff had deliberately destroyed evidence. Black &
Decker was successful in having the lawsuit dismissed in advance of trial on the basis of
spoliation. Spoliation refers to the destruction or material alteration of evidence, or potentially
the failure to preserve property for another’s use as evidence in litigation that is pending or
reasonably foreseeable.

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