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Greenbank v. Great American Assurance Co.

United States District Court, S.D. Indiana, Evansville Division

September 9, 2019

JULIE GREENBANK, Plaintiff,
v.
GREAT AMERICAN ASSURANCE COMPANY, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO PRESERVE EVIDENCE

          SARAH EVANS BARKER, JUDGE.

         Now before the Court is Defendant Great American Assurance Company's (“Great American”) Motion to Preserve Evidence, filed on February 22, 2019 [Dkt. 15]. Specifically, Great American requests an order maintaining the status quo and requiring the parties to preserve the life of the horse that is the subject matter of this case. For the reasons detailed in this entry, we DENY Great American's motion.

         Background

         On December 20, 2018, Plaintiff Julie Greenbank filed her Amended Complaint alleging that Great American, insurer for Ms. Greenbank's horse, Thomas, breached its contract with Ms. Greenbank and was liable for bad faith, theft, conversion, criminal mischief, fraud, and negligence [See generally Dkt. 10]. Ms. Greenbank's legal claims against Great American are grounded in allegations that Great American improperly took possession and control of Thomas, rather than authorizing a necessary and humane euthanization, so that Great American could avoid having to pay out benefits for a mortality loss under the parties' insurance policy [Id.]. Ms. Greenbank argues that Great American has subjected Thomas to inhumane, controversial, and excessive medical procedures to keep him alive and avoid paying out on the policy [Id.].

         Great American asserts that it took possession of Thomas pursuant to a policy provision that permitted it to assume control over Thomas's medical treatment at its expense [See generally Dkt. 11; Dkt 15-1, at 3-4]. Great American subsequently terminated the insurance policy for a multitude of reasons, most notably relevant here that Ms. Greenbank had neglected Thomas, causing his deteriorated state and giving rise to the need for Great American's intervention [Id.]. Great American claims that since it took possession and control of Thomas's care, Thomas has made a significant recovery and is now thriving [Id.]. Despite terminating its policy with Ms. Greenbank, Great American has maintained possession and control of Thomas [Am. Compl. ¶ 76; Dkt. 18, at 2; Dkt. 22, at 3-4].

         Great American now requests an order maintaining the status quo whereby the parties must continue to preserve the life and well-being of Thomas [Dkt. 15]. Specifically, Great American requests that we order the preservation of Thomas by allowing continued treatment at Great American's chosen medical facility, where Thomas has been treated since being taken into Great American's possession, and at the appropriate time, allowing Thomas to be treated at Great American's chosen rehabilitation facility [Id. at 3]. Great American's request includes that the care will be at its sole expense.

         Legal Analysis

         I. Standard

         District courts have broad discretion in matters related to discovery. Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002). “A motion to preserve evidence is an injunctive remedy and should issue only upon an adequate showing that equitable relief is warranted.” Streeter v. SBC, No. 1:04-CV-814-LJM-WTL, 2005 WL 8169093, at *2 (S.D. Ind. Mar. 10, 2005). Although the Seventh Circuit has not described the appropriate standard for deciding a motion for preservation, district courts in our Circuit have previously used the following standard to evaluate this request:

The court will look at three factors in determining whether a preservation order is warranted . . .: 1) whether [Defendant] can demonstrate that [Plaintiff] will destroy necessary documentation without a preservation order; 2) whether [Defendant] will suffer irreparable harm if a preservation order is not entered; and 3) the burden imposed upon the parties by granting a preservation order.

Id. (quoting In re African-Am. Slave Descendants' Litig., MDL No. 1491, Lead Case No. 02C7764, 2003 WL 24085346, at *2 (July 15, 2003)); see also McDaniel v. Loyola Univ. Med. Ctr., No. 13-CV-06500, 2014 WL 1775685, at *2 (N.D. Ill. May 5, 2014).

         II. Discussion

         We note at the outset that the request before us is unlike most other motions to preserve evidence. Namely, the evidence at issue here is not presently at risk of destruction in the hands of its owner; rather, the defendant, who has not asserted any lawful rights to possess the disputed evidence, in fact currently controls and possesses the evidence it seeks to preserve and to maintain in its control and possession. The disputed evidence is not in the form of documentation or some other inanimate object, rather a living horse whose continued physical well-being is paramount. Our analysis of whether to order preservation at this time proceeds with that in mind.

         The first factor we examine in determining if a preservation order is appropriate is whether Great American can and has demonstrated that Ms. Greenbank will fail to preserve Thomas without an order. Great American is concerned that Ms. Greenbank will euthanize Thomas absent a court order prohibiting that action, given Ms. Greenbank's initial intention to do so at the outset of the parties' dispute [Dkt. 15-1, at 6-8]. Alternatively, Great American is concerned that Ms. Greenbank will ...


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