Court of Civil Appeals of Oklahoma, Division No. 3
Kacy AKINS, Individually, and Velva Akins, Individually and as Next Friend of D.N., a Minor, Plaintiffs/Appellants,
BEN MILAM HEAT, AIR & ELECTRIC, INC., Defendant/Appellee.
Mandate Issued: 10/16/2019
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
FROM THE DISTRICT COURT OF GRADY COUNTY, OKLAHOMA; HONORABLE
W. MIKE WARREN, TRIAL JUDGE
OPINION HAS BEEN RELEASED FOR PUBLICATION BY ORDER OF THE
COURT OF CIVIL APPEALS, Division 3
Laurie Koller, CARR & CARR, Tulsa, Oklahoma, and Tye H.
Smith, CARR & CARR, Oklahoma City, Oklahoma, for
E. Clark, Rachel M. Rogers, RHODES, HIERONYMUS, JONES, TUCKER
& GABLE, P.L.L.C., Tulsa, Oklahoma, for Defendant/Appellee.
G. Swinton, Presiding Judge:
Plaintiffs Kacy Akins, his former wife, Velva Akins now
Phillips, and her son, D.N. (collectively, Plaintiffs),
appeal a judgment based on a jury verdict in favor of
Defendant Milam Heat, Air & Electric Inc. (Milam).
Plaintiffs cause of action for negligence sought damages for
carbon monoxide (CO) poisoning allegedly caused by Milams
failure to properly and safely maintain, inspect, and/or warn
of a hidden dangerous condition existing in the gas furnace
in their home. We conclude the trial court abused its
discretion by determining Plaintiffs breached their duty to
preserve evidence by removing their gas furnace and its
ventpipe or "flue" and lastly by sanctioning them
in giving an adverse inference instruction to the jury. This
record shows a complete absence of evidence of pre-litigation
conduct which was in bad faith, willful or intentional. The
admission of irrelevant evidence concerning the spoliation
circumstances improperly made that issue the focus of the
trial instead of the merits, and prejudiced Plaintiffs right
to a fair trial. The judgment in favor of Milam is reversed,
and a new trial is granted.
Milam is a business in Chickasha, Oklahoma, in Grady County.
On October 26, 2007, Milams heat and air technician, Andy
Adkins, went to Plaintiffs home in Chickasha for a "no
heat" service call. Adkins cleaned rust from the gas
furnaces burners and replaced burned wires. After cycling
the furnace several times, he told Mrs. Akins the furnace was
operating okay and gave her a repair invoice.
Just before midnight November 6, 2007, Mr. Akins was awakened
before midnight by a loud noise. He got up and found Mrs.
Akins on the bathroom floor, passed out with a bloody face.
Mr. Akins screamed for his stepson, D.N., who did not
respond. Mr. Akins called an ambulance, Mrs. Akins was
transported to the local emergency room, and Mr. Akins drove
himself there. While waiting in the lobby, Mr. Akins passed
out, was evaluated, and admitted to the hospital.
During treatment Mrs. Akins inquired about D.N., then 17
years of age. Soon after, her relatives found D.N. in his
bedroom and were dragging him outside when Chickasha
Police Officer T. Breath, who had been dispatched to the
scene, arrived to help. D.N. was transported by ambulance to
Additionally, on November 6, 2007, the local firemen at the
scene ran a CO test inside the house with a meter that starts
to alert at "35." According to Officer Breath, the
CO meter read "1100 (Incident Level)." The firemen
told Officer Breath not to go back into the residence, turned
off Plaintiffs gas furnace, and opened the windows to clear
the air. Officer Breath called the police dispatcher, who
then called the home of Ivan Reed, a local heat and air
technician for Milam, woke him up, asked for his help and
then gave him the address. Mr. Reed arrived between 1-2 a.m.
using his flashlight in the dark house to locate the gas
fueled furnace in a laundry room closet.
Mr. Reed checked the furnace burner, cleaned off some rust,
inspected the heat exchanger for cracks "as best he
could," but did not see any. He also looked up the
furnace vent or "flue" and did not see any black
soot. He then got his ladder, climbed up on the roof, and
used his flashlight to see if the flue was obstructed
"with a bird nest or something else" that would
prevent CO and other gases from properly venting outside.
Mr. Reed then asked the firemen to run another test for CO,
and they observed the levels in the house begin to rise after
he started the furnace. Officer Breath testified Mr. Reed
stated, "I dont know whats going on, but I disabled
the unit so it wont — you cant turn it back on."
Mr. Reed then asked the police officer to tell the homeowners
to call Milam "first thing in the morning so that they
could discuss the way they are going to fix this."
Testing revealed each family member had elevated
carboxyhemoglobin levels in their blood confirming carbon
monoxide (CO) poisoning. They all were treated with
supplemental oxygen, Mrs. Akins and D.N. were released after
their oxygen levels normalized, and Mr. Akins was kept for
observation. The following timeline demonstrates the events
after his release from the hospital:
Nov. 8, 2007 - Mr. Akins arrived home from
the hospital and called two local HVAC companies. Meli H&A
looked at the furnace and submitted a quote for new gas
Nov. 9, 2007 - Mr. Akins met with Albright
H&A about need for replacing furnace.
Nov. 12, 2007 - Mr. Akins received Meli
H&As proposal for new electric furnace.
On or before Nov. 13, 2007 - Mr. Akins
retained Carr & Carr (Law Firm)
Nov. 13, 2007 - Law Firm wrote letter to
Milam, advising they were retained by the Akins family
"concerning the CO poisoning they sustained after the
work Milam had performed on their heating unit".
Nov. 19, 2007 - Mr. Akins accepted Albright
H&As proposal to replace gas furnace with new electric heat
pump; order was placed.
Nov. 26, 2007 - Milams Insurer, Hanover
Ins. Grp., responded to Law Firm; requested: 1) the familys
authorization for medical records, 2) clarification of date
of loss; 3) "records pertaining to the care and
maintenance of the furnace, names of manufacturer, initial
installer and any other companies who may have done work on
the furnace "; 4) "to inspect this
furnace at your earliest convenience"; and also 5)
"if repairs have been done we will need the name and
contact information of the company doing such repairs."
Insurer finally asked to take the Akins familys statements,
advising of its willingness to get statements "after the
holidays" but asking for "the inspection of the
furnace to take place as soon as practicable, to
avoid any spoliation issues."
Dec. 3, 2007 - New electric heat pump
installed approximately two weeks after Mr. Akins accepted
bid (see November 19, 2007); the installers carried the
furnace to his waterproof backyard shed where it was covered
and stored; flue/vent pipe to furnace apparently discarded.
On or about Jan. 7, 2008 - Mr. Akins
testified he and his brother-in-law removed the original gas
water heater about two months after CO incident, replaced
with an electric one, and carried the gas water heater to the
curb for pickup. The furnace
and water heater were housed in the same utility closet.
Jan. 22, 2008 - Milam and Insurers expert
went to the Akins home to inspect the furnace.
Jan. 24, 2008 - Insurers letter to Law
Firm, insisting on completing the inspection of the Akins
furnace alleged to be leaking CO. Noted "upon arrival at
your clients home on [1-22-2008], our expert and insured
found the original furnace which is the subject of this
action had been removed from the utility closet."
Dec. 17, 2008 - Furnace removed from the
Akins shed for testing requested by Insurer; Milam chose
location at DeHart Heat & Air; Plaintiffs truck was too
small to transport furnace in an upright position and
requested Milam transport to DeHart; test attended by Dr.
Block and Insurers expert was to determine if the furnace
produced excessive CO under optimal conditions; CO test
result 2000 parts per million (ppm) (testing level). Later
inquiry to DeHart revealed the furnace was
On April 19, 2009, Plaintiffs filed their petition against
Milam, alleging negligent failure to properly and safely
maintain, inspect, and/or warn of a hidden dangerous
condition of the furnace in their home. They further alleged
Milam "held itself out to be a ...