GERMEL T. CABALLES, a Florida Citizen and Resident, as Personal Representative of the Estate of SHERYLL GRACE DELFIN CABALLES, deceased, and GERMEL T. CABALLES, as Parent and Natural Guardian of S.G.D.C., a minor child (Age 14), and S.G.D.C., a minor child (Age 11), Plaintiffs vs. EAST LAKE R2G OWNER LLC, a Foreign Limited Liability Company, CIRCLE K STORES INC., a Foreign Profit Corporation, SHELL USA, INC. f/k/a SHELL OIL COMPANY, a Foreign Profit Corporation, SHELL OIL PRODUCTS COMPANY LLC, a Foreign Limited Liability Company, MOTIVA ENTERPRISES LLC, a Foreign Limited Liability Company, GILBARCO INC. d/b/a GILBARCO VEEDER-ROOT, a Foreign Profit Corporation, OPW FUELING COMPONENTS, LLC, a Foreign Limited Liability Company, GUARDIAN FUELING TECHNOLOGIES, LLC, a Florida Limited Liability Company, VALLEY TANK TESTING, L.L.C., a Florida Limited Liability Company, D&H UNITED FUELING SOLUTIONS, INC., a Foreign Corporation, LISA HERBOLSHEIMER BLACK, a Florida Citizen and Resident, PAULA ANTUNES, a Florida Citizen and Resident, and BRANDY MCCANN-MERILA, a Florida Citizen and Resident, Defendant. CASE NO.: 22-004014-CI-19 Pinellas County Filed April 19, 2024 Counsel Don Fountain, Counsel for Plaintiff Ben J. Whitman, Counsel for Plaintiff Robert Stoler, Counsel for Defendant Christopher Shand, Counsel for Defendant John Osgathorpe, Counsel for Defendant Kathy Maus, Counsel for Defendant Charles Dewrell, Counsel for Defendant Ramsberger, Thomas, Judge ORDER GRANTING PLAINTIFFS’ MOTION SEEKING A SPOLIATION JURY INSTRUCTION PURSUANT TO FSJI 301.11(b) THIS CAUSE came before the Court for an evidentiary hearing on April 3, 2024, on the Plaintiffs’ Motion Seeking to Compel Both Defendants, Circle K Stores Inc. (“Circle K”), and Guardian Fueling Technologies, LLC (“Guardian”), to Preserve Evidence and Motion for Evidentiary Hearing to Consider Valcin Type Relief for Intentional Spoliation of Physical Evidence by Defendants, Guardian and Circle K, filed on November 25, 2022, and the Plaintiffs’ Update to Plaintiffs’ Motion Seeking a Valcin Instruction Based on the Destruction of Key Evidence in the Hours After Mrs. Caballes Died filed on February 26, 2024 (collectively, the “Plaintiffs’ Motion”). Counsel for the Plaintiffs and counsel for the Defendant, Circle K, appeared and made argument; counsel for Defendant Guardian attended the hearing via telephone but did not make argument since the Plaintiffs have dismissed Guardian from this lawsuit following settlement. The Court, having reviewing the Plaintiffs’ Motion, having reviewed Circle K’s Response filed on March 28, 2024, having reviewed the Plaintiffs’ Reply filed on April 1, 2024, having reviewed the case file, having heard arguments of counsel and having being otherwise apprised of the premises, hereby FINDS AND ORDERS as follows: This case arises out of a fatal fire at Circle K’s gas station, #9798, that killed Mrs. Sheryll Caballes on December 22, 2021. The Plaintiffs, Guardian and Circle K (for purposes of this Order, the “Parties”) agree that within hours of the fatal fire, a managerial level Circle K employee, Christine Smith, contacted Circle K’s fuel maintenance contractor, Guardian, to come to Circle K’s gas station #9798 to clean up the scene and restore normal fueling operations. The Parties agree that after the fatal fire, four of Circle K’s upper-level managers were present at Circle K’s gas station. The undisputed testimony shows that Circle K was aware of the fatality of Mrs. Caballes, and that it foresaw litigation or claims being brought against it after the incident. Circle K had an internal policy to preserve evidence like the evidence at issue here, and testimony confirms such policy was not followed. The evidence received during hearing also establishes that no one on behalf of Circle K ever instructed Guardian to preserve the evidence before or after Guardian began its work to clean up the scene at Circle K’s gas station and restore normal fueling operations, which included physical removal of the subject evidence (as further described below). Ultimately, following Guardian’s clean up the scene and work to restore normal fueling operations, Guardian left Circle K’s gas station with various items of fueling equipment involved with the fatal fire, and some key components (as discussed below) were discarded and otherwise made unavailable to Plaintiffs, as well as unavailable for anyone else to review or inspect. Florida law provides that a Court, in determining spoliation of evidence, must address three threshold questions: (1) whether the evidence existed at one time, (2) whether the alleged spoliator had a duty to preserve the evidence, and (3) whether the evidence was critical to Plaintiffs being able to prove his prima facie case of negligence (the “three threshold question test”). Adamson v. R.J. Reynolds Tobacco Co., 325 So. 3d 887, 894 (Fla. 4th DCA 2021); Osmulski v. Oldsmar Fine Wine, Inc., 93 So. 3d 389, 392 (Fla. 2d DCA 2012). Regarding the fueling equipment involved with the fatal fire, the Parties agree that the bottom two-thirds portions of all three (3) shear valves that were in the sump of fuel dispenser #7/8 at Circle K’s gas stations did, in fact, exist at one point in time and were ultimately “lost, destroyed or otherwise made unavailable.” The Parties also agree that these components were owned, possessed and controlled by Circle K at the time of the incident, and should have been preserved as potential evidence. The Court finds that two (2) hoses that were used for fueling on fuel dispenser #7/8, the full nozzle from the “pump #8” side of the dispenser, and almost the entire nozzle (except the part that was left in Mrs. Caballes’ vehicle) from the “pump #7” side of the dispenser all existed at one point in time and were ultimately “lost, destroyed or otherwise made unavailable”. The postincident photographs admitted into evidence confirms these components were not completely destroyed by the fire itself and were transported off-property. The Plaintiffs are no longer seeking relief related to alleged spoliation of connective hardware (nuts and bolts). Thus, threshold question number 1 described above is answered in the affirmative. That is, the evidence did exist at one time. Circle K’s Corporate Representative, Christine Smith, admitted that Circle K knew litigation was likely on the day (or within days after) of the incident, and before the evidence was removed from Circle’s premises and destroyed. Circle K’s pleadings in this matter also state the fact that potential civil litigation against it existed on the day of the incident, as it was owner of the fuel station. Although Circle K “owned” the subject evidence, Circle K argues that it is not a “spoliator” of evidence and that threshold question number 2 should be answered in the negative, and relief for the Plaintiffs denied. Circle K argues that Guardian is the sole spoliator. Circle K argues and the evidence confirms that no one at Circle K knew that Guardian was going to discard the shear valves or “what was going to happen to” the equipment ultimately removed by Guardian. However, Circle K owned the evidence, such evidence existed on Circle K’s property at the time of the incident, and Circle knew that its hired agent, Guardian, was removing the evidence from Circle K’s property following the incident. The evidence clearly establishes that Circle K made no effort to communicate to Guardian a desire and/or directive to preserve such evidence. Reasonableness alone dictates that Circle K cannot absolve its obligation to preserve evidence that it reasonably knows will be the subject of litigation involving the fatal fire by simply arguing that Circle K was not directly involved in this spoliation. To allow Circle K to prevail on such argument would allow all potential litigants to avoid its duty to preserve evidence by directing a third-party to take possession of evidence that ultimately is lost, destroyed or otherwise made unavailable, or (as in this case) simply remain silent without directing its agent (Guardian) to preserve such evidence. Specifically to this case, Circle K failed to take any steps to direct or otherwise request its agent (Guardian) in taking possession of Circle K’s property to preserve same as potential evidence in this case. The Court is not suggesting by any means that Circle K directed Guardian to dispose of the evidence. However, by failing to take any steps whatsoever to ensure or attempt to ensure preservation of such evidence, Circle K is complicit in the actions taken by Guardian, which ultimately resulted in the subject evidence being lost, destroyed or otherwise made unavailable. Further, the evidence clearly establishes that Guardian was wholly unaware of Circle K’s desire (whether expressed or not) to preserve the evidence being removed from Circle K’s property for foreseeable litigation involving the fatal fire. Testimony received in evidence demonstrates that, had Guardian be advised to preserve the subject property as evidence, Guardian would have done so. Specifically, John Bland, Guardian’s project manager, testified that if Circle K had advised him to preserve the evidence, he would have done so, but no such request was made to him or to his knowledge, anyone else on behalf of Guardian. Further, when Circle K called Guardian to come to the property, Circle K was aware of the severity of the incident (observed by being there following the fatal fire) and had the opportunity to interact with and advise Guardian about how to handle the equipment. Yet, Circle K failed to so advise Guardian as to preservation of evidence prior to removal of the subject evidence. The Court further notes that at this point in this litigation the Plaintiffs and Guardian have settled all claims related to Guardian. The evidence admitted during hearing includes the video deposition of Guardian’s project manager, John Bland, who testified that he conducted a post-incident inspection of the shear valves and rendered an opinion about the condition and/or functionality of same. Since Guardian is no longer a defendant, there cannot be a jury instruction providing a leveling mechanism for spoliation of evidence directed against Guardian. If there is no such instruction directed against Circle K as owner of the evidence at the time of spoliation, this will likely create an untenable circumstance whereby Circle K receives the benefit of testimony from John Bland, Guardian’s project manager, about the shear valves while avoiding the jury instruction’s leveling mechanism related to the very same evidence that is now lost, destroyed or otherwise made unavailable. Again, the subject evidence at the time of the incident was owned, possessed and controlled by Circle K at the time of the incident, not Guardian. To allow a party in Circle K’s position, as owner of the evidence and first at the scene of the incident, and with a specific policy compelling the preservation of evidence, to simply avoid any responsibility for preservation of the evidence by hiring someone else to handle that evidence, and by not specifically instructing that entity to preserve it, violates both the law and public policy to preserve evidence that remained in Circle K’s control prior to, during and following the incident. Circle K’s duty to preserve the evidence and not allow it to be discarded did not end when it allowed and/or directed its agent, Guardian, to remove such property. The duty to preserve arose at the time Circle K acknowledged litigation was imminent and that duty did not end simply because Circle K relinquished possession of its property to its agent, Guardian. Circle K presented no legal authority allowing for or dictating that Circle K’s duty to preserve evidence simply ends when it authorizes a third party (that is, its agent, Guardian) to take possession of such property. In addition to a lack of any such authority, allowing Circle K’s duty to preserve evidence to end under such circumstances is contrary to common sense and reasonableness. A similar situation was addressed in Federal Ins Co. v. Allistair Mfg. Co, 622 So.2d 1348 (Fla. 4th DCA 1993) (a case relied upon by the Court in Golden Yachts, Inc. v. Hall, 920 So.2d 77 (Fla. 4th DCA 2006)). There, a wholly innocent plaintiff had retained an expert who accidentally threw away material evidence. In noting that while the plaintiff himself was innocent (finding that it was his expert who was negligent by inadvertently disposing of the evidence), the Allistair court stated: Although that result [meaning one of the many sanctions offered by the court including a rebuttable presumption jury instruction], would be hard for this wholly innocent plaintiff to swallow, it was, after all, plaintiff’s expert who was negligent. Where one of two innocent parties must suffer for the negligence of a third party, the loss falls on the party who enabled the third party to cause it.” Id. at 1352 (emphasis added) (citations omitted). Just as the court held the completely innocent plaintiff in Allistair responsible because his expert inadvertently destroyed evidence, Circle K must also be held responsible for the destruction of the evidence that it owned and controlled in this case, irrespective of whether the Court views Guardian as its bailee, agent or as one of the “spoliators”. Also, this Court cannot find that Circle K is “innocent” as was the plaintiff in Allistair. The Plaintiffs are clearly innocent parties relative to the discarded evidence since the Plaintiffs never owner, possessed or controlled such evidence, and were not involved in any manner whatsoever with the destruction or discarding of same. Additionally, Circle K argues that “the playing field is already level” since neither Plaintiffs nor Circle K can now access the discarded evidence. Such argument is unavailing. Circle K had every opportunity to obtain and maintain the fueling equipment that it owned and possessed after the incident, and never told Guardian to retain this evidence that Circle K owned and controlled, despite so many of its upper-level managers being on site before Guardian arrived, and despite its specific policy to preserve evidence. Plaintiffs, however, were never afforded the opportunity to be involved in any discussions or analysis about whether and what evidence to retain and were never the owner or possessor of such evidence, since Circle K owned and possessed same. Consequently, by virtue of its ownership of the evidence and possession of the evidence before its chosen contractor was provided access to it, and its failure to ever advise Guardian to retain the evidence in light of the forthcoming litigation and evidence preservation policy, the Court finds that Circle K had a duty to preserve the evidence even after it chose to transfer possession to its contractor and hereby concludes that Circle K is as a “spoliator” in this case. Thus, Circle K is a spoliator. Accordingly, threshold question number 2 described above is answered in the affirmative. That is, the alleged spoliator, Circle K, had a duty to preserve the evidence. Turning to the third threshold question, the Parties dispute how Adamson defines the third threshold question. On the one hand, Adamson requires that the missing evidence prevents the Plaintiffs from proving a prima facie case or defense. On the other hand, Adamson requires that the party show the missing evidence is relevant and material to its claim or defense. The Florida Supreme Court adopted FSJI 301.11 in 2016, before the court decided Adamson. This standard jury instruction provides a leveling mechanism for spoliation of evidence, but does not describe any requirement that a party must show that evidence was “critical to an opposing party being able to prove its prima facie case” as a condition precedent before a trial court may give a leveling jury instruction when material evidence has been lost or destroyed. The Court is clearly convinced, based on the foregoing and on argument of counsel as to pertinent case law, that Florida law requires that the Plaintiff show the missing evidence is relevant and material to its claim or defense. Thus, the third threshold question for this inquiry requires that the Plaintiffs show the missing evidence is relevant and material to its claim. A primary issue in this case to be decided by the trier of fact is whether or not the shear valves worked properly at the time of the incident. Indisputability, the destroyed evidence is relevant to a contested issue. Circle K argues that Guardian’s project manager, John Bland, examined the shear valves and provided testimony as to (a) the condition and/or functionality of such shear valves and (b) that any further examination after they were removed from the ground would not have provided any insight as to their functionality on the day of the incidence. Mr. Bland’s testimony clearly demonstrates why the shear valves should have been preserved; that being an equal opportunity for the Plaintiffs to make their own examination of this evidence and have testimony presented regarding same. The Court also addresses this situation should the law provide that threshold question number 3 requires that the missing evidence prevents the Plaintiffs from proving a prima facie case or defense. Circle K argues that Plaintiffs made no such allegation in its pleadings. Even if the Plaintiff did not specifically make such allege, relevancy of this specific evidence guides this Court in finding that Plaintiffs have met its burden to establish that the missing evidence prevents the Plaintiffs from proving a prima facie case or defense. That is, Guardian’s project manager John Bland inspected and provided testimony about the shear valves and that any examination of the shear valves after they removed from the ground would not have provided any insight as to their functionality on the day of the incident. This provides an opportunity for Circle K to present Mr. Bland’s testimony at trial while the Plaintiffs have no opportunity for any such examination and/or any testimony to refute Mr. Bland’s testimony about the shear valves. Such opportunity creates an untenable, one-sided situation wherein a defendant can provide testimony at trial about such evidence but the Plaintiffs denied that same opportunity to do so since the evidence is destroyed and no longer available. This situation clearly demonstrates the Plaintiffs’ inability to make their claims based upon the condition and/or functionality of the shear valves at the time of the incident in the absence of such evidence (that is, the shear valves themselves), notwithstanding whether Plaintiffs specifically plead such inability. The pleadings and the extensive written submissions and arguments during this hearing have clearly demonstrated to this Court that the shear valves will be a significant part of this case during trial. Accordingly, the discarded evidence (shear valves) is clearly relevant to whether the shear valves properly worked at the time of the incident, and prevents the Plaintiffs from proving a prima facie case. This same analysis dictates that the Plaintiffs and Circle K are not “equally affected” parties by the destruction of physical evidence, as argued by Circle K. Four (4) Circle K managers were present on scene before Guardian was given access to the fueling equipment, as confirmed by testimony (including John Bland’s testimony) and depicted in the post incident surveillance video images. Again, Circle K will have a distinction advantage during trial if such one-side testimony about the condition and/or functionality of the shear valves proceeds without a jury instruction providing a leveling mechanism for spoliation of evidence. While Circle K may feel free to continue to pursue the legal action against Guardian that it has already filed, it still owed a duty to preserve the evidence as to the Plaintiffs. As the court noted in Allistair, “the loss falls on the party who enabled the third party in this case to cause.” Id. at 1352. A. The Court finds that the missing evidence was clearly relevant and material to the disputed issues in this case as well as Plaintiffs’ claims and his defense of Circle K’s affirmative defenses (including Fabre) Adamson requires the Plaintiffs (the party seeking sanctions in this instance) to prove the “relevance” of the evidence but instructs trial courts not to hold the aggrieved party “to too strict a standard of proof” as it would “subvert” the legal underpinnings of Valcin relief in the first place. See, Id. at 895. The Plaintiffs can meet his burden if there “is any likelihood that the destroyed evidence would have been of the nature alleged.” Id.at 896. Adamson states when evidence is destroyed intentionally or willfully, that fact alone establishes its relevance. Adamson, at 896. The Court finds that the destroyed evidence was relevant and material to the issue of whether the fueling equipment functioned properly during the incident, and to the Plaintiffs’ ability to address Circle K’s defenses. Circle K’s evidence admitted at hearing does not refute the relevance or materiality of the shear-valve evidence. Additionally, Circle K argued at the hearing that it has been “penalized” by the absence of the shear valves, and if same were present that their experts would “want to test [the shear valves] to prove they worked,” Its additional assertion that Circle K would want “the evidence just as much [as the Plaintiffs do],” further underscores that both parties find that this evidence is both relevant and material to a disputed issue in the case; i.e., Plaintiffs’ contention the shear valves did not perform as intended on the day of the incident and Circle K’s contention that they worked “perfectly” and did not cause or contribute to the fire and death. Circle K’s claims that it has been penalized by the destruction of evidence, implicitly acknowledges Circle K’s belief that the evidence is relevant and that its absence has penalized the Plaintiffs. Again, although Circle K cannot inspect this evidence and obtain testimony regarding same, Circle K does have the benefit of Mr. Bland’s examination and testimony that clearly favor Circle K at trial. Thus, threshold question number 3 described above is answered in the affirmative. That is, the Plaintiff has shown the missing evidence is relevant and material to its claim or defense (and, alternatively, the evidence was critical to Plaintiffs being able to prove his prima facie case of negligence). In sum, based upon the evidence admitted during hearing and this Court’s findings of facts therefrom being applied to the 3-prong test articulated in Adamson, the Court concludes that (1) the missing evidence did exist, (2) that Circle K had a duty to preserve the evidence and was the “spoliator” in this case, and (3) that the missing evidence is material and relevant to disputed issues in this case and Plaintiffs’ claim and/or to its ability to rebut Circle K’s affirmative defenses. Therefore, the Plaintiffs’ Motion is GRANTED. The Court hereby grants the Plaintiffs’ request for a rebuttable presumption jury instruction under FSJI 301.11(b). Accordingly, at trial, the Court will instruct the jury as follows: The Court has determined that Circle K had a duty to maintain the three shear valves and/or the two hoses, and/or the nozzles (one full nozzle and one partial nozzle). Because Circle K did not maintain the three shear valves, and/or the two hoses, and /or the nozzles (one full nozzle and one partial nozzle) you should find that the Plaintiffs established Plaintiffs’ claim unless Circle K proves otherwise by the greater weight of the evidence.DONE AND ORDERED in the Chambers at St Petersburg, Pinellas County, Florida this _____ day of April, 2024.