In Miner Dederick Constr. v. Gulf Chem. & Metallurgical Corp., 2013 Tex. App. LEXIS 4589 (April 11, 2013), the Texas Court of Appeals was asked to review a trial court's consideration and rejection of a spoliation claim brought by a defendant to a construction defect action. In the case the contractor defendant (Miner) was charged with defective construction of a containment structure expansion designed to hold hazardous materials. The work included construction of a 140 foot expansion joint. Post construction, the joint leaked oily substances into the neighboring property.
Miner argued the problem was caused by defective design and refused calls to repair the property pursuant to "repair" drawings Miner argued were in fact "redesign" drawings. Repairs proceeded without Miner, and Miner's requests to observe repairs were ignored. As part of the repairs, Miner's work (and any ability to test the same) was buried beneath half a foot of concrete.
At trial Miner argued in response to a summary judgment motion that its ability to defend against defect claims had been prejudiced by spoliation of evidence. The trial court rejected these arguments, but the court of appeals found that spoliation had occurred. Finding that the buried work constituted material evidence, the court of appeals rejected Gulf's arguments that it needed to be able to repair the defective work and thus the evidence was destroyed in the normal cours eof business. This was not correct, because at the time of the evidence destruction, Gulf was aware of the potential of a dispute with its contractor. Moreover, the "testing" provided by Gulf's own experts was not sufficient to provide a snapshot of the work at issue. Thus, there was spoliation, and the case was remanded to the trial court for determination of the appropriate response.
