Superior Court of Massachusetts, Suffolk, Business Litigation Session
Date: January 30, 2019
MEMORANDUM AND ORDER DENYING DEFENDANTâS MOTION FOR
PARTIAL SUMMARY JUDGMENT
Kenneth W. Salinger, Justice of the Superior Court
Electric Company, now doing business as Eversource Energy,
owns and operates an electrical distribution system in
Boston, Massachusetts, that includes many underground cables.
Veolia Energy North America Holdings, Inc., owns and operates
an underground steam distribution system in Boston. In many
locations Eversourceâs electric cables are located near
Veoliaâs steam pipes.
Eversource alleges that its facilities have been damaged by
steam or heat leaks from Veoliaâs system. Eversource asserts
claims for negligence (on the theory that Veolia did not
exercise due care in operating and maintaining its system),
trespass to chattels (based on allegedly wrongful releases or
leaks of steam), and breach of contract (asserting that
Veolia breached a December 2013 agreement to cooperate with
Eversource in identifying and mitigating steam leaks and to
reimburse Eversource for future and certain past costs caused
by Veolia steam leaks).
has moved for partial summary judgment. It seeks to bar any
claim for damages incurred before this action was filed on
the ground that Eversource allegedly spoliated evidence.
Veolia also contends that it is entitled to summary judgment
in its favor on other grounds on the claims for negligence,
trespass, and breach of the implied covenant of good faith
and fair dealing.
Court will allow the summary judgment motion in part and deny
it in part. It will deny Veoliaâs request to dismiss some of
Eversourceâs claims as a sanction for alleged spoliation of
evidence, but will order that at trial Veolia may present
evidence of the alleged spoliation and receive a jury
instruction permitting an adverse inference if spoliation is
found. As to the statute of limitations issue, the Court
finds that Eversourceâs tort claims are time-barred only to
the extent they seek compensation for damage occurring more
than three years before this action was filed, but that the
statute does not bar Eversourceâs claims based on damage that
occurred later on. The Court will also grant summary judgment
in Veoliaâs favor on the claim for breach of the implied
covenant of good faith and fair dealing, which adds nothing
to Eversourceâs claim for breach of the express terms of the
2013 contract. The Court will deny the request for summary
judgment on the trespass to chattels claim and on the portion
of the negligence claim based on alleged leaks of heat
because Veolia is not entitled to judgment in its favor as a
matter of law on those claims.
Alleged Spoliation of Evidence
has established that by the end of 2009 Eversource suspected
that its facilities were being damaged by steam or heat leaks
from Veoliaâs system, Eversource nonetheless did not preserve
any electric cable that failed before this lawsuit was filed
in early 2015, and as a result Veolia cannot inspect those
cables in an attempt to ascertain why they failed.
argues that this constitutes spoliation of evidence and seeks
dismissal of all claims for damages incurred before the
filing of this action as a sanction for that alleged
"The doctrine of spoliation âis based on the premise
that a party who has negligently or intentionally lost or
destroyed evidence known to be relevant for an upcoming legal
proceeding should be held accountable for any unfair
prejudice that results.â" Westover v. Leiserv,
Inc., 64 Mass.App.Ct. 109, 112-13 (2005), quoting
Keene v. Brigham and Womenâs Hosp., Inc., 439 Mass.
223, 234 (2003). "As a general rule, a judge should
impose the least severe sanction necessary to remedy the
prejudice to the nonspoliating party." Keene,
supra, at 235.
failure by Eversource after 2009 to preserve cables that it
now claims were damaged by heat or steam leaking from
Veoliaâs system constitutes spoliation of evidence. By the
end of 2009 Eversource knew or should have realized that it
could be involved in a lawsuit with Veolia regarding electric
cable failures and that any failed cables would likely be
relevant evidence in such a proceeding. Eversourceâs
negligent failure to preserve that evidence is spoliation.
argument by Eversource that there was no spoliation because
it never instructed its workers to collect and preserve all
failed electric cables is without merit. Once Eversource
realized it had potential claims against Veolia for allegedly
damaging electric cables, it had a duty to preserve that
evidence. Its failure to do so is negligent spoliation.
further argument by Eversource that it no longer had any duty
to preserve evidence of failed cables once it entered into
its December 2013 agreement with Veolia is also unavailing.
In that contract, Veolia agreed to enter into a further
mitigation agreement under which Veolia would reimburse
Eversource all costs of repairs or restorations, over the
prior two years or at any time in the future, that were
caused by Veolia steam leaks. Eversource should have realized
that it would have to preserve failed cables because they
could be important in determining whether particular repair
or restoration costs were made necessary by leaks from the
Veolia steam distribution system. The contract made it even
more important that Eversource preserve this evidence,
because the parties may need to examine damaged cables to
determine whether Veolia complied with the 2013 agreement or
the anticipated future mitigation agreement.
not clear, however, whether or to what extent Veolia has
suffered any unfair prejudice as a result of Eversourceâs
failure to retain damages electric cables. Eversource notes
that not all of its claims are for damage to electric cables.
For example, Eversource claims that a Veolia steam leak
caused a duct bank to collapse under School Street in Boston.
In addition, Eversource has presented expert opinions, by a
polymer scientist and by an electrical engineer, that when an
electric cable short circuits any evidence of what caused
that event is often destroyed by the cable failure. Veolia
has presented expert testimony to the contrary.
Court concludes, in the exercise of its discretion, that the
jury should decide at trial what to make of this conflicting
evidence as to whether Veolia suffered any material prejudice
from Eversourceâs failure to preserve failed electric cables.
The Court will not dismiss any part of Eversourceâs claims as
a sanction for losing or destroying evidence. But it will
allow both sides to present evidence regarding the alleged
spoliation of evidence and regarding whether Veolia suffered
any unfair prejudice as a result. The Court will then
instruct the jury that, if they find that that there was
spoliation of evidence-meaning they find that Eversource
negligently or intentionally lost or destroyed evidence that
it knew or should have known would be relevant if Eversource
were to sue Veolia, and also that Veolia was unfairly
prejudiced as a result-then the jury may, but is not required
to, infer that the missing cables would have provided
evidence unfavorable to Eversource. See Gath v. M/A-Com,
Inc., 440 Mass. 482, 491 (2003); Keene, 439
Mass. at 234.
Statute of Limitations
argues that the claims by Eversource for negligence and
trespass to chattels are barred in whole or in part by the
statute of limitations. Eversource filed this action on
February 18, 2015. Its tort claims for negligence and
trespass are governed by a three-year statute of limitations.
See G.L.c. 260, § 2A. As a ...