Massa, J.
Safeco Insurance appeals the trial court’s dismissal of its third-party spoliation and negligence claims against the Michaelis Corporation, arguing Indiana common law recognizes the tort. We hold that it does not under these facts and affirm the trial court.
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Our Court of Appeals first recognized a cause of action for third-party spoliation in Thompson ex rel. Thompson v. Owensby, 704 N.E.2d 134 (Ind. Ct. App. 1998), trans. denied, and later emphasized it is recognized “only in narrow circumstances where a relationship exists between the claimant and the third party sought to be held responsible for a failure to preserve evidence[,]” Kelly v. Patel, 953 N.E.2d 505, 510–11 (Ind. Ct. App. 2011) (emphasis added). In between these two decisions by appellate panels, our Court declined to recognize a third-party spoliation tort claim “under the circumstances” of the case in Glotzbach v. Froman, 854 N.E.2d 337, 339 (Ind. 2006). We continue to hold that view and land in the same place today under these similar circumstances. We affirm the trial court’s dismissal of Counts III and IV of the amended complaint and apply our precedent in Webb v. Jarvis to explain why we go no further.
I. The trial court properly dismissed Safeco’s third-party spoliation claim in Count III of the amended complaint.
Spoliation is “‘[t]he intentional destruction, mutilation, alteration, or concealment of evidence, usually a document. If proved, spoliation may be used to establish that the evidence was unfavorable to the party responsible.’” Cahoon v. Cummings, 734 N.E.2d 535, 545 (Ind. 2000) (quoting Spoliation, Black’s Law Dictionary (7th ed. 1999)). There are two types of spoliation claims: first-party spoliation and third-party spoliation. First-party spoliation “refers to spoliation of evidence by a party to the principal litigation,” and third-party spoliation refers to the spoliation of evidence “by a non-party.” Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349, 350 (Ind. 2005).
A. Overview of Indiana third-party spoliation law
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B. Relationship between the parties
A “duty to preserve evidence may be assumed voluntarily or imposed by statute, regulation, contract, or certain other circumstances.”…
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Safeco argues a special relationship exists because Michaelis knew there was a need to preserve the dehydrator. Safeco argues the special relationship formed when it “verbally communicated ‘the need to preserve the kitchen’ to Michaelis” and when Michaelis voluntarily constructed a temporary structure to protect evidence against the elements. Appellant’s Br. at 23. But a special relationship does not exist between the parties. Safeco conceded that there is no written or oral contract that would create a special relationship between Michaelis and Safeco. Oral Argument at 7:50–8:20. While Safeco orally communicated the need to preserve the kitchen to Michaelis, Safeco did not communicate the need to preserve the dehydrator was for possible litigation. Moreover, Michaelis is not like an insurance company that regularly participates in litigation, Thompson, 704 N.E.2d at 137, and does not ordinarily “investigate and evaluate claims made by its insureds,” Burr, 560 N.E.2d at 1255. Safeco is the party that is ordinarily involved in litigation, regularly investigates its insured’s claims, and knows the possibility of litigation. Thompson, 704 N.E.2d at 137.
C. Foreseeability of the harm
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Safeco alleges it was reasonably foreseeable that Safeco would be harmed by the loss of the dehydrator because it orally communicated to Michaelis the need to preserve the dehydrator. In Glotzbach, we observed that an “explicit written request from the employee’s attorney to preserve the evidence” could support recognizing a spoliation claim. 854 N.E.2d at 340. By contrast, Safeco orally communicated the general need to preserve the dehydrator to Michaelis and a written request to preserve the evidence to Michaelis was never produced. Cf. id.
Even so, mere knowledge of the relevance to litigation is not enough to establish a duty to maintain evidence; otherwise, third-party spoliation claims would go well beyond the narrow circumstances in which they currently arise because mere knowledge would broaden liability. See Thompson, 704 N.E.2d at 137. In Thompson, the Court of Appeals recognized a duty because an insurance company, who regularly participates in litigation, knew why the evidence needed to be preserved and took possession of the evidence. Id. at 137–38. The court found it was “foreseeable that loss of the evidence would interfere with a claimant’s ability to prove the underlying claim.” Id. at 138. Yet Michaelis is not an insurance company that regularly participates in litigation. Instead, it is a restoration contractor that neither investigates claims nor gathers evidence for pending litigation. Furthermore, Michaelis did not take possession of the dehydrator, unlike the Thompson insurance company. Instead, Michaelis only constructed a temporary structure to protect the origin of the fire from elements, and cleaned up to a degree, during which process the dehydrator was discarded. Foreseeability of harm to Safeco’s future speculative litigation is insufficient under these facts to establish a duty.
D. Public policy concerns
Public policy considerations weigh heavily against recognizing third-party spoliation absent a special relationship …
Safeco argues that public policy supports finding a third-party spoliation claim because the destruction of evidence “can destroy fairness and justice[.]” Appellant’s Br. at 27. Yet “other remedies remain applicable[.]” Glotzbach, 854 N.E.2d at 341. For example, Safeco might have pursued a breach of contract claim. See Thompson, 704 N.E.2d at 140 (explaining the Thompsons could have sought alternative remedies). Safeco also argues a court should consider accountability when considering policy concerns and points to Thompson for support. But Thompson concerned an insurance company with a direct stake in the outcome of the litigation because it understood the significance of the evidence and the need to maintain it for litigation. Id. at 138. While Michaelis has a financial incentive to complete the work as requested and to Safeco’s satisfaction, Michaelis does not have a stake in the result of litigation stemming from the fire. Cf. id. Safeco mainly argues that holding Michaelis accountable for its actions is reasonable because the claim is in the early stages of litigation and preclusion of such claim would ignore the strength of Indiana’s common law tort doctrine. But, like Wilmoth, imposing a duty upon a third party to maintain potential evidence for potential litigation for an unknown amount of time is unreasonable. 893 N.E.2d at 1073. The balance of policy concerns does not support imposing a duty to preserve evidence on Michaelis.
II. The trial court properly dismissed Safeco’s negligence claim in Count IV of the amended complaint.
Safeco argues that if a third-party spoliation claim is not recognized, then Safeco can state a claim for negligence…
The trial court found both Counts III and IV of the amended complaint to be construed as third-party spoliation claims because Safeco incorporated and re-alleged the same acts or omissions as it did in Count III into Count IV. See Appellant’s App. Vol. II, pp. 35–37. Safeco’s negligence claim fails for the same reasons its third-party spoliation claim fails. There is a “preference to place substance over form[,]” MDM Invs. v. City of Carmel, 740 N.E.2d 929, 933 (Ind. Ct. App. 2000), trans. not sought; see also Town of St. John v. Home Builders Ass’n of N. Ind., Inc., 428 N.E.2d 1299, 1302 (Ind. Ct. App. 1981) (treating a party’s motion to reconsider as a T.R. 60 motion because it substantively met T.R. 60 motion’s requirements), and the trial court did not err in dismissing Safeco’s negligence claim because it is substantively a third-party spoliation claim.
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Conclusion
The trial court did not err in dismissing Safeco’s amended complaint against Michaelis. The trial court is affirmed.
Rush, C.J., and Slaughter and Molter, JJ. concur.
Goff, J., concurs in part and dissents in part with separate opinion.