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
FROM THE DISTRICT COURT OF RADY COUNTY, OKLAHOMA HONORABLE W.
MIKE WARREN, TRIAL JUDGE
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
BARBARA 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
Milam's 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, Milam's heat and air technician,
Andy Adkins, went to Plaintiffs' home in Chickasha for a
"no heat" service call. Adkins cleaned rust from
the gas furnace's 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 the
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 don't know what's going on, but I
disabled the unit so it won't -- you can't 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
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 furnace.
Nov. 9, 2007 - Mr. Akins met with Albright H&A about need
for replacing furnace.
Nov. 12, 2007 - Mr. Akins received Meli H&A's
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&A's
proposal to replace gas furnace with new electric heat pump;
order was placed.
Nov. 26, 2007 - Milam's Insurer, Hanover Ins. Grp,
responded to Law Firm; requested: 1) the family's
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 family's
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
Jan. 22, 2008 - Milam and Insurer's expert went to the
Akins' home to inspect the furnace.
Jan. 24, 2008 - Insurer's letter to Law Firm, insisting
on completing the inspection of the Akins' furnace
alleged to be leaking CO. Noted "upon arrival at your
client's 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."
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
Insurer's 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 lost. 
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 professional in the field
of residential heating installation and maintenance."
Milam filed its answer on May 28, 2009, admitting "it
was in the business of providing heating installation and
maintenance" but specifically denied Plaintiffs'
allegations of negligence. As affirmative defenses, Milam
asserted contributory negligence, actions by third parties
over which it had no control, and any defect that existed was
open and obvious. It denied the existence of an unreasonably
hazardous condition and that it had notice of a defect.
Over the next 3-1/2 years, the trial court approved the
parties' nine joint applications to extend the pretrial
schedule. In January 2013, Milam moved for "Judicial
Determination Of Its Entitlement To An Adverse Inference Jury
Instruction Based On Plaintiffs' Willful Destruction Of
Evidence." Noting Plaintiffs' alleged theories for
the furnace's production of toxic CO, "inadequate
combustion air supply in the closet and cracked furnace heat
exchanger," Milam argued it had been substantially
prejudiced because it was unable to fully defend against
their case because Plaintiffs had "willfully"
removed the furnace from the utility closet, without notice
Plaintiffs responded, denying any destruction of evidence and
arguing the factors for spoliation sanctions were not
present. They also argued Milam's authority for
"spoliation" of the furnace from the closet in
which it operated was distinguishable. Milam replied, arguing
Barnett v. Simmons, 2008 OK 100, 197 P.3d 12,
controlled the issue of spoliation. The trial court denied
Milam's sanction motion, holding the issues would be
"ruled on... after the evidence is heard at trial."
Two years later, on April 2, 2015, the original trial judge
recused himself from the case for reasons not disclosed by
the record. Eighteen days later, a second judge was assigned
to the case.
In June of 2015, Plaintiffs moved to transfer the trial to
another county pursuant to 12 O.S. 140,  arguing the marital
relationship between the Milam's owner, Royce Hannah, and
the Court Clerk for Grady County, Lisa Hannah, and also her
position as secretary/treasurer of Milam, raised concerns
with Plaintiffs' ability to get a fair and impartial jury
trial. Milam opposed Plaintiffs' motion to transfer,
which the trial court subsequently denied.
On November 24, 2015, Milam moved for reconsideration of its
sanction motion for an adverse inference jury instruction for
Plaintiffs' spoliation of evidence. Plaintiffs objected
that there was no new evidence or arguments and incorporated
by reference their response to Milam's first sanction
motion. They specifically requested a spoliation instruction
against Milam, attaching evidentiary support for its
possession and control of the furnace when it was permanently
A hearing was held December 16, 2015, on the parties'
numerous motions in limine and counter-motions for sanctions.
Concerning the latter, the order filed January 25, 2016,
states the trial court reviewed "all of the related
pleadings,"  heard "all arguments," and
reserved its ruling "until... determination during the
of the Jury Trial
During the five-day jury trial, January 25-29, 2016, the jury
heard nine witnesses in Plaintiffs' case in chief
premised on Milam's failure to properly service their gas
furnace, specifically: 1) failure to perform a CO test, and
2) failure to warn Plaintiffs of the potential danger obvious
to Milam at the October 26, 2007 service call.  To support
their first theory of liability, expert testimony revealed
several national associations/groups recommend testing for
CO, but there are no Oklahoma or federal statutes or agency
regulations requiring it. All experts agree the National
Field Code sets a 400 ppm limit on the quantity of CO to
safely exit the furnace's flue, and that value cannot be
safely exceeded.  Plaintiffs' expert, Dr. Block,
testified there were clear indications for the CO testing in
this case: 1) the burned wires caused by flame-roll out; and
2) the installation in a closet without venting to provide an
adequate combustion air supply did ...