Many insurance companies are aware of the numerous pitfalls involved with product liability subrogation claims and maintaining the evidence. But have you thought to get your insured's okay before you salvage the vehicle or get rid of the defective coffee maker??? If you don't, you may be liable to you insured.

The Ohio Supreme Court recognized a cause of action for an insured for intentional spoliation of evidence. See Smith v. Howard Johnson Co. Inc. (1993), 67 Ohio St. 28. See also, Thomas v. Nationwide Mutual Ins. Co. (1992), 79 Ohio App.3d 624; White v. Ford Motor Co. (2001), 142 Ohio App. 3d 384. The five elements are as follows: 1. pending or probable litigation; 2. knowledge on the part of the insurer that litigation exists or is probable; 3. willful destruction of evidence designed to disrupt the case; 4. disruption of the case; and 5. damages caused by the insurer's acts. Smith, 67 Ohio St. 3d at 29 Ohio does not recognize an action for negligent spoliation of evidence. White, 142 Ohio St. 3d at 388.

The recent decision in the White case discusses what "willful" means for destruction of the evidence by the insurer. The Tenth District Court of Appeals refused to find that Grange acted willful by selling the car for salvage. Grange's adjuster maintained a continuing dialogue with the injured party's attorney. Grange may have failed to notify the insured of the destruction date but they did locate the car after sale advising the attorney of its location in an unaltered condition. White, 142 Ohio St. 3d at 388.

A court may possibly find a carrier acted in a "willful" manner by not communicating with the insured at all prior to destruction of the product. A insurer should try to give notice to its insured of the destruction or salvage of the product. Such notice may prevent any claim of "willful" destruction on the insurer's part.