No. 14-0212 - Jannell Williams, as the Personal Representative of the Estate of 

Kenneth Williams, and Cheryl Rutledge, as the Personal Representative 

of the Estate of Quentin Rutledge v. Werner Enterprises, Inc., a 

Nebraska Corporation FILED 

March 2, 2015
 

RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 Davis, Justice, dissenting: 

In this case, two truck drivers were killed while traveling in West Virginia. They were 

employed by Werner Enterprises (“Werner”). The truck drivers were killed as a result of a 

single vehicle accident on January 12, 2009. On January 14, 2009, within two days of the 

accident, Werner had the tractor-trailer destroyed. On or about February 11, 2009, counsel 

for the estate of one of the truck drivers, Kenneth Williams, wrote a letter to Werner and 

asked that the tractor-trailer not be destroyed. Counsel was informed by a letter from 

Werner, dated March 2, 2009, that the tractor-trailer had already been destroyed. The estates 

of both accident victims sued Werner in a joint action. One of the causes of action was a 

claim for intentional spoliation of evidence. In other words, the intentional destruction of 

the tractor-trailer. 

Here, the plaintiffs argued that the trial court committed error in granting Werner 

summary judgment on their claim for spoliation of evidence. The majority opinion 

determined that because the plaintiffs did not meet their burden of showing a genuine 

material issue of fact was in dispute, summary judgment was appropriate. For the reasons 

set out below, I dissent. 

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Under the Majority Opinion, Defendants Can Now Destroy All Evidence 

of Their Wrongdoing within 48 Hours of Their Wrongful Conduct 

Let me be clear at the outset. The majority opinion has abolished the tort of spoliation 

of evidence. I do not say this lightly. Under the majority’s decision, no plaintiff will ever 

be able to withstand a summary judgment motion for spoliation of evidence, as long as a 

defendant destroys evidence within 48 hours of the accident and without immediate notice 

from the victim to preserve the evidence. The ramification of the majority’s ruling is mindboggling, because it effectively removes even the possibility of a sanction for such 

outrageous and devious conduct. 

The majority opinion spends an inordinate amount of time consulting dictionary 

definitions for “knowledge” in order to show that the plaintiffs failed to present any evidence 

that Werner had “knowledge” that a lawsuit might be pending. The majority opinion could 

have used its time more productively and uncovered the fact that Werner appears in the 

citation to over 220 cases, including numerous wrongful death and personal injury actions 

naming Werner as a defendant. See, e.g., Keifer v. Reinhart Foodservices, LLC, 563 

F. App’x 112 (3d Cir. 2014) (personal injury action against Werner); LaBarre v. Werner 

Enters., Inc., 420 F. App’x 169 (3d Cir. 2011) (personal injury action against Werner by two 

plaintiffs); Whittenburg v. Werner Enters. Inc., 561 F.3d 1122 (10th Cir. 2009) (injured 

pickup truck driver brought negligence action against Werner, arising from his collision with 

stalled tractor-trailer); Marcano v. Werner Enters., Inc., 113 F.3d 1229 (2d Cir. 1997) 

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(person injury action against Werner); Gruenbaum v. Werner Enters., Inc., 270 F.R.D. 298 

(S.D. Ohio 2010) (survivor of driver brought wrongful death action against Werner); Wallace 

v. Tindall, No. 09-00775-CV-W-FJG, 2010 WL 2545553 (W.D. Mo. June 18, 2010) 

(plaintiff brought personal injury action against Werner); Brown v. Werner Enters., Inc., No. 

04-1664, 2009 WL 1158938 (E.D. La. Apr. 28, 2009) (personal injury action against 

Werner); Yeakel v. Werner Enters., Inc., No. 3:07cv2054, 2008 WL 2120515 (M.D. Pa. May 

19, 2008) (personal injury action against Werner); Blackshear v. Werner Enters., Inc., No. 

2004-4-WOB, 2005 WL 6011291 (E.D. Ky. May 19, 2005) (personal injury action against 

Werner); Werner Enters., Inc. v. Stanton, 690 S.E.2d 623 (Ga. Ct. App. 2010) (two wrongful 

death actions against Werner); Schmitt v. Werner Enters., Inc., 716 N.Y.S.2d 505 (2000) 

(motorist brought action against Werner to recover for physical and psychological injuries 

sustained as a result of accident); Abraham v. Werner Enters., No. E-98-077, 1999 WL 

299540 (Ohio Ct. App. May 14, 1999) (personal injury action against Werner); Forklift Sys., 

Inc. v. Werner Enters., No. 01A01-9804-CH-00220, 1999 WL 326159 (Tenn. Ct. App. May 

25, 1999) (plaintiff sued Werner for property damage); Werner Enters., Inc. v. Brophy, 218 

P.3d 948 (Wyo. 2009) (injured motorist and wife brought action against Werner for personal 

injuries and loss of consortium arising out of accident). 

More importantly, Werner is not new to claims for destruction of evidence. For 

example, in Ogin v. Ahmed, 563 F. Supp. 2d 539 (M.D. Pa. 2008), the plaintiff was injured 

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in an accident on October 4, 2005, when Werner’s truck driver ran into the vehicle the 

plaintiff was driving. Prior to commencing the litigation, the plaintiff’s counsel sent Werner 

a letter specifically requesting that it not destroy any of the driver’s logs. Once the litigation 

began, the plaintiff requested the driver’s logs. Werner informed the plaintiff that it had 

destroyed the driver’s logs for the critical period right before the accident: September 4, 

2005, through September 26, 2005. The plaintiff filed a motion to have a spoliation of 

evidence adverse instruction be given to the jury at the trial. The court granted the motion 

and ruled that, “[a]t the time of trial, the Court will instruct the jury as to the proper adverse 

inference they may draw from Defendants’ destruction of the actual driver’s logs for the 

period from September 4, 2005, through September 26, 2005.” Ogin, 563 F. Supp. 2d at 546. 

Similarly, in Duque v. Werner Enterprises, Inc., No. L-05-183, 2007 WL 998156 

(S.D. Tex. Mar. 30, 2007), the plaintiff was injured by a truck being driven by a driver for 

Werner. Prior to the litigation, the plaintiff’s counsel requested Werner not to destroy the 

tractor-trailer. When the plaintiff’s expert went to inspect the tractor-trailer, the expert found 

that the tractor-trailer had been repaired. The plaintiff subsequently filed a motion for 

sanctions against Werner that included a spoliation of evidence jury instruction. The trial 

court granted the motion, in part, as follows: 

The Court orders the issuance of a permissive inference jury instruction 

as to Defendant Werner regarding the repair of the tractor and trailer, the 

precise wording of which will be determined when jury instructions are 

considered by the Court before trial. The Court also grants Plaintiff monetary 

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sanctions against Defendant Werner in the amount of $6,921.35 for Plaintiff’s 

expert’s expenses and fees, $3,750.00 for Plaintiff’s counsel’s expenses and 

fees, and $10,000.00 as punitive sanctions for the significant prejudice it 

caused Plaintiff by altering this critical evidence. This combination of jury 

instruction and monetary assessment against Defendant Werner is the least 

severe sanction which will adequately address Defendant Werner’s 

misconduct. All other relief requested is hereby denied. 

Duque, 2007 WL 998156, at *7. 

These cases clearly demonstrate that Werner has a practiced pattern of destroying 

evidence to preclude its use in future litigation against it. While other courts have imposed 

sanctions on Werner for destroying evidence, the majority of our Court rewards Werner’s 

reprehensible conduct. 

This Court previously has noted that “[a] party’s precise knowledge or state of mind 

concerning a situation often cannot be determined by direct evidence, but must instead be 

shown indirectly through circumstantial evidence.” Mace v. Ford Motor Co., 221 W. Va. 

198, 204, 653 S.E.2d 660, 666 (2007) (citations omitted). The plaintiffs in this case 

presented sufficient circumstantial evidence to raise a material issue of fact as to whether 

Werner had knowledge that litigation might occur as a result of the accident. The plaintiffs 

argued that Werner was an experienced trucking company. My cursory review of litigation 

that Werner has been involved with supports the allegation that Werner has extensive 

litigation experience as well. Such extensive litigation experience ultimately explains why 

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Werner destroyed the tractor-trailer. The plaintiffs also presented evidence that Werner’s 

investigator provided a written report and photographs from the accident scene to Werner 

electronically on the date of the accident, thus further evidencing Werner’s appreciation of 

the need to quickly document the scene of the accident. In sum, the plaintiffs presented 

sufficient circumstantial evidence to permit a jury to consider whether they had satisfied the 

elements of a claim for intentional spoliation of evidence. I further agree with the analysis 

set forth in Chief Justice Workman’s dissenting opinion detailing the myriad of ways in 

which the plaintiffs’ evidence is sufficient to survive Werner’s summary judgment motion. 

Werner learned from its investigator that there had been damage to a guardrail, the 

tractor-trailer had overturned, there had been a significant diesel fuel leak, and a subsequent 

fire engulfed the tractor-trailer. Werner further learned that both of its employees were killed 

in the crash. Werner also was informed that the State would be making a claim for damage 

done to the guardrail and that claims likely would be made for environmental remediation. 

Further, based on its own communication records, Werner knew that the tractor-trailer had 

broken down on two separate occasions on a trip immediately preceding the fatal accident. 

The majority opinion has described this evidence as being no more than a scintilla of 

evidence of Werner’s knowledge. This is nonsensical. If a defendant is going to be 

permitted to destroy evidence within two days of an accident, then no plaintiff will ever be 

able to present evidence of the defendant’s “knowledge” that a potential lawsuit would 

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follow. In other words, the majority has accomplished its implicit intent of abolishing a 

cause of action for intentional spoliation of evidence. 

Based upon the foregoing, I strongly dissent from the majority’s opinion in this case. 

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