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Filing # 152073290 E-Filed 06/23/2022 02:30:23 PM
IN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT
IN AND FOR ST. LUCIE COUNTY, FLORIDA
GALLEON RESEARCH GROUP, INC. CASE NO: 2021CA000914
an Arizona limited liability company,
JUDGE: MICHAEL LINN
Plaintiff,
v.
DOUGLAS ALAN GOETHEL and
LAURENCE PRESTON LAVARGNA
Defendants,
____________________________/
ORDER ON DEFENDANTS LAURENCE PRESTON LAVARGNA AND
DOUGLAS ALAN GOETHEL’S MOTION TO STRIKE PLAINTIFF’S COMPLAINT
OR FOR ADVERSE INFERENCE INSTRUCTION BASED ON SPOLIATION OF
EVIDENCE
THIS CAUSE came before the Court on May 18, 2022 for an evidentiary hearing on
Defendants, DOUGLAS ALAN GOETHEL’s and LAURENCE PRESTON LAVARGNA’S
Motion to Strike Plaintiff’s Complaint or for Adverse Inference Instruction Based on Spoliation
of Evidence. The Court, having reviewed the evidence, heard argument of counsel, reviewed the
case law and motion, and being otherwise fully advised in the premises, hereby finds the following
facts:
FINDINGS OF FACT
1. This case arises out of a fire aboard the vessel known as the “Conquistador.” At
issue in the motion before the Court is the consequence of Plaintiff’s decision to have the vessel
and its contents destroyed, which prevented the Defendants from inspecting the vessel and
defending against the allegations in the Amended Complaint that Defendants knowingly and
intentionally caused the fire.
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2. On June 10, 2020, a fire occurred aboard the Conquistador while it was docked at
a marina in Fort Pierce.
3. On June 11, 2020, the vessel was hauled out of the water and then inspected at the
request of Robert Westrick, the manager of Plaintiff GALLEON RESEARCH GROUP, INC.
The inspection was performed by Westrick’s son Brady and his mechanic, Steve McAdoo.
4. Mr. McAdoo admitted that he caused a fuel spill aboard the vessel on June 8 or 9,
2020, and warned that the vapors created a risk of explosion. Nonetheless, when Westrick had
McAdoo and his son inspect the vessel, Westrick “strongly” suspected that the fire was
intentionally caused by Defendants. Westrick Depo, 109:12-25.
5. After the fire occurred and the vessel was hauled out of the water, Westrick had
certain treasure salvaging equipment removed from the vessel and gave it to McAdoo in return
for McAdoo paying to have the vessel and its contents hauled away and destroyed. After this
work was done, Westrick had the vessel hauled off to a dump where it was cut up and buried.
The location of the remnants of the vessel are unknown.
6. Mr. Westrick testified that on the morning on June 11th, the day that the vessel
was taken to the landfill, he had an opportunity to watch Steve McAdoo search through the
vessel for the torch that he believed caused the fire. Westrick Depo, 103:5-9. McAdoo found
something in the vessel that he called the cylinder of the torch. Id. at 103:14. McAdoo showed
that burnt-out, purported torch to Westrick. Id. at 103:21. Westrick did not go aboard the vessel
during the inspection by McAdoo because he thought it was unsafe, but he sent his son Brady
Westrick aboard. Id. at 104:2-7. After the inspection was finished, Westrick approved of the
vessel being hauled away to the landfill. Id. at 104:14-19. He testified that he did not feel that
he had much choice in the matter because he could not think of alternatives. Westrick did not
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call any storage yards or sites or investigate any location to store the vessel during the litigation
or so that it could be inspected by the Defendants. Id. at 104:20-25; 105:1-3.
7. Westrick testified that he did not know where to take the vessel because he lived
in Louisiana, but the vessel had been stored and maintained in Florida from the date it was
purchased by Plaintiff, and Plaintiff’s mechanic McAdoo resides in Florida according to
Plaintiff’s interrogatory answers at #2 (filed on September 24, 2021). The Plaintiff’s
interrogatory answers were admitted into evidence as Exhibit 5.
8. While Westrick’s counsel argued that Westrick’s life savings were tied up in the
vessel and he did not know what to do, nothing prevented Westrick from calling storage yards in
Florida, or calling his Florida attorney to determine what were his responsibilities to preserve the
vessel and torch. Further, Westrick testified that the vessel cost was $10,000 and that his boat
group had a total of $23,000 invested in the vessel, which includes investor money.
9. While Plaintiff alleges that the fire was caused by Defendants, its interrogatory
answer to #9 states that “Q. How did the fire begin on June 10, to the best of your knowledge,
and if you believe an accelerant was used, what is the basis for your belief? Do you contend that
the defendants intended to destroy the Vessel? A. We do not know. Neither of us are experts on
fires or starting fires and the use of accelerants. Mr. Goethel and Mr. Lavargna would be the ones
to ask. I am sure they would have a much better idea of what accelerants would be most effective
with their professional backgrounds.”
10. Defendant's Exhibit 1 is an E-mail dated 6/9/20. The email is from Westrick but
quotes his mechanic as stating, "This bucket has one-half inch of gasoline which is normally
fairly clear. This came out of the fuel filter. When I screwed it off, a lot of gasoline came out of
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the lines above it and went into the bilge...And I pumped a bunch of water out. I can't work on
that today because of the gas smell being explosive.”
11. Westrick testified that about two weeks after the fire, McAdoo began to deny that
it was gasoline that was spilled by McAdoo, and began to claim that it was hydraulic steering
fluid. The court notes that rather hydraulic steering fluid and gasoline smell very different and
that a mechanic would know the different smells, and further that hydraulic steering fluid would
not spill from the fuel filter. Westrick also testified that McAdoo never denied unscrewing the
fuel filter, or causing gas to spill into the bilge from the fuel lines. Westrick Depo, 59:2-4, 12-
17. Westrick testified that McAdoo also never denied that after he pumped a water out of the
bilge he still could not work on the vessel because of the gas smell being so explosive. Westrick
Depo, 60:16-20. Therefore, the Court finds that Plaintiff’s interrogatory answer lacks credibility
in responding to interrogatory 11 by stating “To our knowledge there was no fuel spilled on
those dates. There was an email to that effect, but this was later clarified that it was NOT fuel,
rather hydraulic steering fluid, which is not considered a flammable substance.”
Plaintiff files the lawsuit and Defendant demands an inspection
12. Plaintiff filed this lawsuit on May 19, 2021, alleging claims for conversion and
malicious destruction of property. During the hearing on Defendants’ Motion of Dismiss on
May 19, 2022, Counsel for Plaintiff agreed to the dismissal of the count for malicious destruction
of property.
13. On September 3, 2021, Defendants’ counsel sent a letter to Plaintiff’s counsel,
requesting a date to inspect the vessel and its contents, and the equipment and tools used to work
on the vessel. A copy of the undersigned’s letter was admitted into evidence as Exhibit 2. The
letter states, in pertinent part:
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Your client has wrongly accused my clients of starting the fire aboard the vessel
known as the Conquistador. These are very serious allegations that have
absolutely no basis in fact. It is apparent that that fire was caused by your client
and their reckless work on the vessel which, by Mr. Westrick's own admission,
caused fuel to spill into the bilge and release "explosive" vapors. Mr. Westrick's
June 9, 2020 email admits that he tried to remove a "bucket" of gasoline "out of
the fuel filter and states, When I screwed it off, a lot of gasoline came out of the
lines above it, and went in the bilge. I put in some Dawn detergent and ran a hose.
I know it will evaporate, but just wanted to get it all out. And I pumped a bunch of
water out. I can't work on that today because of the gas smell being explosive.”
[Emph added]. Obviously, Mr. Westrick or his so-called mechanic caused the
explosion, and he is looking to blame others for the explosion he caused and the
ensuing litigation that was filed against him for the fire. As I have repeatedly
stated, the timeline of events also will prove that my clients were nowhere near
the marina when the fire started.
In order to establish as a matter of fact that the fire was caused by Mr. Westrick's
reckless work, we need to inspect the vessel and any boat remnant or boat parts,
including fuel injectors and fuel lines and gasoline cans or tools used aboard the
vessel for any work in May or June 2020. Please let me how when and where the
vessel and items are available to be inspected. I request that this inspection occur
in the next ten (10) days.
14. On September 15, 2021, Plaintiff’s counsel responded by email, stating that “Our
clients inform us that the burned boat was removed from the water by ‘Towboat One’ and then
removed from the Marina by a man named Keith. This was done the morning after the fire, to
wit, June 11, 2020. Sally Gutch, who is an employee at the Riverside Marina, made these
arrangements for The Galleon Group. This is all our clients know concerning the location of the
boat.” A copy of the email was admitted into evidence as Exhibit 3.
15. On September 16, 2021, Defendants’ counsel contacted called “Keith” (who
hauled the vessel to the dump) and exchanged text messages with Keith at 772-532-5567 at the
number provided by Plaintiff’s counsel. Keith stated that he was hired by Plaintiff to dispose of
the vessel, the day after the fire. Keith sent a text message, admitted into evidence as Exhibit 4,
stating that he hauled the vessel to a dump and watched as the vessel was “smashed into a
hundred pieces,” and that the remains of the vessel are now buried at the dump and irretrievable.
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16. Westrick testified that he had McAdoo pay Keith for his services, in return for
Westrick giving McAdoo equipment (two large cylinders called mailboxes, which are used to
treasure hunting) from the vessel. Westrick Depo, 106:20-25; 107:1. At no point in time did
Westrick ever call Defendants to tell them that the vessel was available for inspection or that it
would be destroyed.
CONCLUSIONS OF LAW
17. Spoliation is “[t]he intentional destruction, mutilation, alteration, or concealment
of evidence.” Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 780 (Fla. 4th DCA 2006) (citing
Black’s Law Dictionary 1437 (8th ed. 2004)). A trial court may impose sanctions under Fla. R.
Civ. P. 1.380 or fashion other remedies against a party for either inadvertent or intentional
conduct in the loss, destruction, mutilation, alteration, concealment, or other disposition of
evidence material to a case. See Golden Yachts, Inc., 920 So. 2d at 780; Am. Hosp. Mgmt. Co. of
Minnesota v. Hettiger, 904 So. 2d 547 (Fla. 4th DCA 2005); Jost v. Lakeland Reg. Med. Ctr.,
844 So. 2d 656 (Fla. 2d DCA 2003); Nationwide Lift Trucks, Inc. v. Smith, 832 So. 2d 824 (Fla.
4th DCA 2002); Torres v. Matsushita Elec. Corp., 762 So. 2d 1014 (Fla. 5th DCA 2000); Sponco
Mfg., Inc. v. Alcover, 656 So.2d 629 (Fla. 3d DCA 1995).
18. “In cases involving negligent spoliation, courts prefer to utilize adverse
evidentiary inferences and adverse presumptions during trial to address the lack of evidence.”
Golden Yachts, Inc., 920 So. 2d at 780. “In cases involving intentional spoliation, courts more
often strike pleadings or enter default judgments.” Golden Yachts, Inc., 920 So. 2d at 780 (citing
Martino v. Wal–Mart Stores, Inc., 908 So. 2d 342, 346-347 (Fla. 2005) (finding no independent
cause of action exists for first-party spoliation of evidence).
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19. “Intentional” spoliation does not refer to conduct that was intended to subvert the
discovery process, but rather to conduct that was intentional in failing to preserve evidence.
Thus, a spoliator may be held responsible for intentional spoliation even though it did not act in
bad faith. The Fourth District has observed that even a party who inadvertently destroys crucial
evidence in a case may nevertheless be sanctioned:
Whether the prosthesis was destroyed in bad faith or accidentally is irrelevant in
the present case. The evidence is unavailable for the plaintiffs’ use and they have
demonstrated an inability to proceed without it.
Nationwide Lift Trucks, Inc., 832 So. 2d at 826 (quoting DePuy, Inc. v. Eckes, 427 So. 2d 306,
308 (Fla. 3d DCA 1983) (affirming striking of defendant’s answer after defendant lost a crucial
part of prosthesis). See also Sponco Mfg., Inc., 656 So. 2d at 630 (“What sanctions are
appropriate when a party fails to preserve evidence in its custody depends on the willfulness or
bad faith, if any, of the party responsible for the loss of the evidence . . .”). Here, the loss of
evidence was not due to negligence, but due to the intentional decision of Plaintiff to have the
vessel and contents destroyed, without ever giving Defendants notice or an opportunity to
inspect.
20. “The appropriateness of sanctions for failing to preserve evidence depends on: (1)
willfulness or bad faith of the responsible party, (2) the extent of prejudice suffered by the other
party, and (3) what is required to cure the prejudice.” Nationwide Lift Trucks, Inc, 832 So. 2d at
826 (citing Harrell v. Mayberry, 754 So. 2d 742 (Fla. 2d DCA 2000)). See also Sponco Mfg.,
Inc., 656 So. 2d at 630 (same).
21. With regard to these the Nationwide Lift Truck factors, the Court finds that the
striking of Plaintiff’s pleadings is the only appropriate remedy in this case because (1) Westrick
admitted that he willfully had the vessel and its contents destroyed; (2) Defendants are severely
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prejudiced by the destruction of the vessel, because the Defendants are precluded from
inspecting the vessel to prove the true cause of the fire, and from examining the torch, and from
evaluating the circumstances surrounding the fire; and, (3) striking of the pleadings is
proportionate to the prejudice suffered by Defendants.
22. Even if a finding of bad faith was required to strike the Plaintiff’s pleadings, the
Court find that bad faith has been demonstrated. The Plaintiff knew it was important to inspect
the vessel and torch, because the Plaintiff made sure that it conducted its own inspection.
Plaintiff knew or should have foreseen that the vessel and contents would be evidence, because
Plaintiff strongly suspected that Defendants caused the fire. Further, Plaintiff then
misrepresented the facts about the fuel spill caused by McAdoo, and submitted a sworn
interrogatory averring that there was no fuel spill. This is further evidence of Plaintiff’s bad
faith. Lastly, in Exhibit 4, the email form Plaintiff’s counsel, Plaintiff claimed that it knew
nothing of what happened to the vessel after the fire, but that was contradicted by Westrick’s
own testimony, as he admitted that he paid for the hauler to remove the vessel after he had
equipment removed.
23. Even if this Court were to determine that no bad faith existed, the court finds that
lesser sanctions are not appropriate due to the fact that the Plaintiff’s counsel admitted that its
entire case is circumstantial, meaning that the only evidence of the fire’s origin is of paramount
importance. Plaintiff knew or should have known that the vessel would be crucial to
Defendant’s ability to defend the case, and the destruction of the vessel will hamper Defendants’
ability to present expert and factual evidence as to the cause of the fire at trial. If lesser sanctions
could conceivably correct this wrong, the Court finds that a conclusive, irrebuttable presumption
that Defendants did not cause the fire would be entered against the Plaintiff.
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As a result, it is ORDERED AND ADJUDGED that
1. Defendants’ Motion to Strike Plaintiff’s Complaint or for Adverse Inference Instruction
Based on Spoliation of Evidence is GRANTED.
2. The Plantifff’s pleadings are stricken, with prejudice.
3. This court reserves jurisdiction to enter further orders as are appropriate and just.
DONE AND ORDERED in Chambers at Fort Pierce, St. Lucie County, Florida on this
23rd day of June, 2022.
______________________________
MICHAEL LINN
Circuit Court Judge
Service to:
Scott Konopka, Esq. Mrachek, Fitzgerald, Rose, Konopka, Thomas & Weiss, P.A.
skonopka@mrachek-law.com, Eservice-Stuart@mrachek-law.com
Joseph G. Colombo, Esq., Mommers & Colombo, colombolaw@mommerscolombo.com
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Filing # 152073290 E-Filed 06/23/2022 02:30:23 PM IN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT IN AND FOR ST. LUCIE COUNTY, FLORIDA GALLEON RESEARCH GROUP, INC. CASE NO: 2021CA000914 an Arizona limited liability company, JUDGE: MICHAEL LINN Plaintiff, v. DOUGLAS ALAN GOETHEL and LAURENCE PRESTON LAVARGNA Defendants, ____________________________/ ORDER ON DEFENDANTS LAURENCE PRESTON LAVARGNA AND DOUGLAS ALAN GOETHEL’S MOTION TO STRIKE PLAINTIFF’S COMPLAINT OR FOR ADVERSE INFERENCE INSTRUCTION BASED ON SPOLIATION OF EVIDENCE THIS CAUSE came before the Court on May 18, 2022 for an evidentiary hearing on Defendants, DOUGLAS ALAN GOETHEL’s and LAURENCE PRESTON LAVARGNA’S Motion to Strike Plaintiff’s Complaint or for Adverse Inference Instruction Based on Spoliation of Evidence. The Court, having reviewed the evidence, heard argument of counsel, reviewed the case law and motion, and being otherwise fully advised in the premises, hereby finds the following facts: FINDINGS OF FACT 1. This case arises out of a fire aboard the vessel known as the “Conquistador.” At issue in the motion before the Court is the consequence of Plaintiff’s decision to have the vessel and its contents destroyed, which prevented the Defendants from inspecting the vessel and defending against the allegations in the Amended Complaint that Defendants knowingly and intentionally caused the fire. 1 2. On June 10, 2020, a fire occurred aboard the Conquistador while it was docked at a marina in Fort Pierce. 3. On June 11, 2020, the vessel was hauled out of the water and then inspected at the request of Robert Westrick, the manager of Plaintiff GALLEON RESEARCH GROUP, INC. The inspection was performed by Westrick’s son Brady and his mechanic, Steve McAdoo. 4. Mr. McAdoo admitted that he caused a fuel spill aboard the vessel on June 8 or 9, 2020, and warned that the vapors created a risk of explosion. Nonetheless, when Westrick had McAdoo and his son inspect the vessel, Westrick “strongly” suspected that the fire was intentionally caused by Defendants. Westrick Depo, 109:12-25. 5. After the fire occurred and the vessel was hauled out of the water, Westrick had certain treasure salvaging equipment removed from the vessel and gave it to McAdoo in return for McAdoo paying to have the vessel and its contents hauled away and destroyed. After this work was done, Westrick had the vessel hauled off to a dump where it was cut up and buried. The location of the remnants of the vessel are unknown. 6. Mr. Westrick testified that on the morning on June 11th, the day that the vessel was taken to the landfill, he had an opportunity to watch Steve McAdoo search through the vessel for the torch that he believed caused the fire. Westrick Depo, 103:5-9. McAdoo found something in the vessel that he called the cylinder of the torch. Id. at 103:14. McAdoo showed that burnt-out, purported torch to Westrick. Id. at 103:21. Westrick did not go aboard the vessel during the inspection by McAdoo because he thought it was unsafe, but he sent his son Brady Westrick aboard. Id. at 104:2-7. After the inspection was finished, Westrick approved of the vessel being hauled away to the landfill. Id. at 104:14-19. He testified that he did not feel that he had much choice in the matter because he could not think of alternatives. Westrick did not 2 call any storage yards or sites or investigate any location to store the vessel during the litigation or so that it could be inspected by the Defendants. Id. at 104:20-25; 105:1-3. 7. Westrick testified that he did not know where to take the vessel because he lived in Louisiana, but the vessel had been stored and maintained in Florida from the date it was purchased by Plaintiff, and Plaintiff’s mechanic McAdoo resides in Florida according to Plaintiff’s interrogatory answers at #2 (filed on September 24, 2021). The Plaintiff’s interrogatory answers were admitted into evidence as Exhibit 5. 8. While Westrick’s counsel argued that Westrick’s life savings were tied up in the vessel and he did not know what to do, nothing prevented Westrick from calling storage yards in Florida, or calling his Florida attorney to determine what were his responsibilities to preserve the vessel and torch. Further, Westrick testified that the vessel cost was $10,000 and that his boat group had a total of $23,000 invested in the vessel, which includes investor money. 9. While Plaintiff alleges that the fire was caused by Defendants, its interrogatory answer to #9 states that “Q. How did the fire begin on June 10, to the best of your knowledge, and if you believe an accelerant was used, what is the basis for your belief? Do you contend that the defendants intended to destroy the Vessel? A. We do not know. Neither of us are experts on fires or starting fires and the use of accelerants. Mr. Goethel and Mr. Lavargna would be the ones to ask. I am sure they would have a much better idea of what accelerants would be most effective with their professional backgrounds.” 10. Defendant's Exhibit 1 is an E-mail dated 6/9/20. The email is from Westrick but quotes his mechanic as stating, "This bucket has one-half inch of gasoline which is normally fairly clear. This came out of the fuel filter. When I screwed it off, a lot of gasoline came out of 3 the lines above it and went into the bilge...And I pumped a bunch of water out. I can't work on that today because of the gas smell being explosive.” 11. Westrick testified that about two weeks after the fire, McAdoo began to deny that it was gasoline that was spilled by McAdoo, and began to claim that it was hydraulic steering fluid. The court notes that rather hydraulic steering fluid and gasoline smell very different and that a mechanic would know the different smells, and further that hydraulic steering fluid would not spill from the fuel filter. Westrick also testified that McAdoo never denied unscrewing the fuel filter, or causing gas to spill into the bilge from the fuel lines. Westrick Depo, 59:2-4, 12- 17. Westrick testified that McAdoo also never denied that after he pumped a water out of the bilge he still could not work on the vessel because of the gas smell being so explosive. Westrick Depo, 60:16-20. Therefore, the Court finds that Plaintiff’s interrogatory answer lacks credibility in responding to interrogatory 11 by stating “To our knowledge there was no fuel spilled on those dates. There was an email to that effect, but this was later clarified that it was NOT fuel, rather hydraulic steering fluid, which is not considered a flammable substance.” Plaintiff files the lawsuit and Defendant demands an inspection 12. Plaintiff filed this lawsuit on May 19, 2021, alleging claims for conversion and malicious destruction of property. During the hearing on Defendants’ Motion of Dismiss on May 19, 2022, Counsel for Plaintiff agreed to the dismissal of the count for malicious destruction of property. 13. On September 3, 2021, Defendants’ counsel sent a letter to Plaintiff’s counsel, requesting a date to inspect the vessel and its contents, and the equipment and tools used to work on the vessel. A copy of the undersigned’s letter was admitted into evidence as Exhibit 2. The letter states, in pertinent part: 4 Your client has wrongly accused my clients of starting the fire aboard the vessel known as the Conquistador. These are very serious allegations that have absolutely no basis in fact. It is apparent that that fire was caused by your client and their reckless work on the vessel which, by Mr. Westrick's own admission, caused fuel to spill into the bilge and release "explosive" vapors. Mr. Westrick's June 9, 2020 email admits that he tried to remove a "bucket" of gasoline "out of the fuel filter and states, When I screwed it off, a lot of gasoline came out of the lines above it, and went in the bilge. I put in some Dawn detergent and ran a hose. I know it will evaporate, but just wanted to get it all out. And I pumped a bunch of water out. I can't work on that today because of the gas smell being explosive.” [Emph added]. Obviously, Mr. Westrick or his so-called mechanic caused the explosion, and he is looking to blame others for the explosion he caused and the ensuing litigation that was filed against him for the fire. As I have repeatedly stated, the timeline of events also will prove that my clients were nowhere near the marina when the fire started. In order to establish as a matter of fact that the fire was caused by Mr. Westrick's reckless work, we need to inspect the vessel and any boat remnant or boat parts, including fuel injectors and fuel lines and gasoline cans or tools used aboard the vessel for any work in May or June 2020. Please let me how when and where the vessel and items are available to be inspected. I request that this inspection occur in the next ten (10) days. 14. On September 15, 2021, Plaintiff’s counsel responded by email, stating that “Our clients inform us that the burned boat was removed from the water by ‘Towboat One’ and then removed from the Marina by a man named Keith. This was done the morning after the fire, to wit, June 11, 2020. Sally Gutch, who is an employee at the Riverside Marina, made these arrangements for The Galleon Group. This is all our clients know concerning the location of the boat.” A copy of the email was admitted into evidence as Exhibit 3. 15. On September 16, 2021, Defendants’ counsel contacted called “Keith” (who hauled the vessel to the dump) and exchanged text messages with Keith at 772-532-5567 at the number provided by Plaintiff’s counsel. Keith stated that he was hired by Plaintiff to dispose of the vessel, the day after the fire. Keith sent a text message, admitted into evidence as Exhibit 4, stating that he hauled the vessel to a dump and watched as the vessel was “smashed into a hundred pieces,” and that the remains of the vessel are now buried at the dump and irretrievable. 5 16. Westrick testified that he had McAdoo pay Keith for his services, in return for Westrick giving McAdoo equipment (two large cylinders called mailboxes, which are used to treasure hunting) from the vessel. Westrick Depo, 106:20-25; 107:1. At no point in time did Westrick ever call Defendants to tell them that the vessel was available for inspection or that it would be destroyed. CONCLUSIONS OF LAW 17. Spoliation is “[t]he intentional destruction, mutilation, alteration, or concealment of evidence.” Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 780 (Fla. 4th DCA 2006) (citing Black’s Law Dictionary 1437 (8th ed. 2004)). A trial court may impose sanctions under Fla. R. Civ. P. 1.380 or fashion other remedies against a party for either inadvertent or intentional conduct in the loss, destruction, mutilation, alteration, concealment, or other disposition of evidence material to a case. See Golden Yachts, Inc., 920 So. 2d at 780; Am. Hosp. Mgmt. Co. of Minnesota v. Hettiger, 904 So. 2d 547 (Fla. 4th DCA 2005); Jost v. Lakeland Reg. Med. Ctr., 844 So. 2d 656 (Fla. 2d DCA 2003); Nationwide Lift Trucks, Inc. v. Smith, 832 So. 2d 824 (Fla. 4th DCA 2002); Torres v. Matsushita Elec. Corp., 762 So. 2d 1014 (Fla. 5th DCA 2000); Sponco Mfg., Inc. v. Alcover, 656 So.2d 629 (Fla. 3d DCA 1995). 18. “In cases involving negligent spoliation, courts prefer to utilize adverse evidentiary inferences and adverse presumptions during trial to address the lack of evidence.” Golden Yachts, Inc., 920 So. 2d at 780. “In cases involving intentional spoliation, courts more often strike pleadings or enter default judgments.” Golden Yachts, Inc., 920 So. 2d at 780 (citing Martino v. Wal–Mart Stores, Inc., 908 So. 2d 342, 346-347 (Fla. 2005) (finding no independent cause of action exists for first-party spoliation of evidence). 6 19. “Intentional” spoliation does not refer to conduct that was intended to subvert the discovery process, but rather to conduct that was intentional in failing to preserve evidence. Thus, a spoliator may be held responsible for intentional spoliation even though it did not act in bad faith. The Fourth District has observed that even a party who inadvertently destroys crucial evidence in a case may nevertheless be sanctioned: Whether the prosthesis was destroyed in bad faith or accidentally is irrelevant in the present case. The evidence is unavailable for the plaintiffs’ use and they have demonstrated an inability to proceed without it. Nationwide Lift Trucks, Inc., 832 So. 2d at 826 (quoting DePuy, Inc. v. Eckes, 427 So. 2d 306, 308 (Fla. 3d DCA 1983) (affirming striking of defendant’s answer after defendant lost a crucial part of prosthesis). See also Sponco Mfg., Inc., 656 So. 2d at 630 (“What sanctions are appropriate when a party fails to preserve evidence in its custody depends on the willfulness or bad faith, if any, of the party responsible for the loss of the evidence . . .”). Here, the loss of evidence was not due to negligence, but due to the intentional decision of Plaintiff to have the vessel and contents destroyed, without ever giving Defendants notice or an opportunity to inspect. 20. “The appropriateness of sanctions for failing to preserve evidence depends on: (1) willfulness or bad faith of the responsible party, (2) the extent of prejudice suffered by the other party, and (3) what is required to cure the prejudice.” Nationwide Lift Trucks, Inc, 832 So. 2d at 826 (citing Harrell v. Mayberry, 754 So. 2d 742 (Fla. 2d DCA 2000)). See also Sponco Mfg., Inc., 656 So. 2d at 630 (same). 21. With regard to these the Nationwide Lift Truck factors, the Court finds that the striking of Plaintiff’s pleadings is the only appropriate remedy in this case because (1) Westrick admitted that he willfully had the vessel and its contents destroyed; (2) Defendants are severely 7 prejudiced by the destruction of the vessel, because the Defendants are precluded from inspecting the vessel to prove the true cause of the fire, and from examining the torch, and from evaluating the circumstances surrounding the fire; and, (3) striking of the pleadings is proportionate to the prejudice suffered by Defendants. 22. Even if a finding of bad faith was required to strike the Plaintiff’s pleadings, the Court find that bad faith has been demonstrated. The Plaintiff knew it was important to inspect the vessel and torch, because the Plaintiff made sure that it conducted its own inspection. Plaintiff knew or should have foreseen that the vessel and contents would be evidence, because Plaintiff strongly suspected that Defendants caused the fire. Further, Plaintiff then misrepresented the facts about the fuel spill caused by McAdoo, and submitted a sworn interrogatory averring that there was no fuel spill. This is further evidence of Plaintiff’s bad faith. Lastly, in Exhibit 4, the email form Plaintiff’s counsel, Plaintiff claimed that it knew nothing of what happened to the vessel after the fire, but that was contradicted by Westrick’s own testimony, as he admitted that he paid for the hauler to remove the vessel after he had equipment removed. 23. Even if this Court were to determine that no bad faith existed, the court finds that lesser sanctions are not appropriate due to the fact that the Plaintiff’s counsel admitted that its entire case is circumstantial, meaning that the only evidence of the fire’s origin is of paramount importance. Plaintiff knew or should have known that the vessel would be crucial to Defendant’s ability to defend the case, and the destruction of the vessel will hamper Defendants’ ability to present expert and factual evidence as to the cause of the fire at trial. If lesser sanctions could conceivably correct this wrong, the Court finds that a conclusive, irrebuttable presumption that Defendants did not cause the fire would be entered against the Plaintiff. 8 As a result, it is ORDERED AND ADJUDGED that 1. Defendants’ Motion to Strike Plaintiff’s Complaint or for Adverse Inference Instruction Based on Spoliation of Evidence is GRANTED. 2. The Plantifff’s pleadings are stricken, with prejudice. 3. This court reserves jurisdiction to enter further orders as are appropriate and just. DONE AND ORDERED in Chambers at Fort Pierce, St. Lucie County, Florida on this 23rd day of June, 2022. ______________________________ MICHAEL LINN Circuit Court Judge Service to: Scott Konopka, Esq. Mrachek, Fitzgerald, Rose, Konopka, Thomas & Weiss, P.A. skonopka@mrachek-law.com, Eservice-Stuart@mrachek-law.com Joseph G. Colombo, Esq., Mommers & Colombo, colombolaw@mommerscolombo.com 9