Friday, April 9, 2010
Next Best Thing: Court Of Appeals Of Kentucky Finds 2007 Version Of Rental Folder Admissible Under Rule 1004(2)
Also like its federal counterpart, however, Kentucky Rule of Evidence 1004(1) provides that
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules, in other rules adopted by the Kentucky Supreme Court, or by statute.
Because of this latter Rule, the Court of Appeals of Kentucky in its recent opinion in Fabian Leon v. Penske Trucking Leasing Co., 2010 WL 140676 (Ky.App. 2010), was able to affirm the circuit court's order. In Penske,
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if...[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.
On March 31, 2005, Leon rented from Penske a 22-foot "medium reefer" refrigerated truck in Louisville, Kentucky. In order to take possession of the vehicle, Leon signed a Local Commercial Rental Agreement...which included a $1,000 limited liability waiver. The Agreement was placed in what Penske refers to as a "rental folder" which was given to Leon. The rental folder allegedly set out language holding Leon responsible for any damages caused by insufficient clearance, such as driving on a roadway that was too narrow for the vehicle or driving under an obstruction that was too low for the height of the vehicle. After renting the truck, Leon drove under an overpass which was too low for the vehicle, resulting in extensive damage to the truck and to the refrigeration unit which was affixed to the top of the truck.
Penske accordingly initiated an action against Leon to recover damages resulting from the accident. Penske, however, did not produce the original Agreement, and neither Penske nor Leon was able to produce a copy of the rental folder. Instead, Penske proved the contents of the rental folder by introducing into evidence a 2007 version of the rental folder.
After the jury found for Penske, Leon appealed, claiming, inter alia, that the original rental folder had to be introduced pursuant to Kentucky Rule of Evidence 1002. The Court of Appeals of Kentucky disagreed, finding that "In the matter before us, it is uncontested that the original rental folder was lost or destroyed, and Leon made no claim that Penske destroyed the original in bad faith." Accordingly, the court found that 2007 version of the rental folder admissible under Kentucky Rule of Evidence 1004(1).