I Don't Work That Way!

There have been times when an assignment is received and the client makes known that it wants a certain outcome.  Simply put, the client wants to subrogate against a third party in order to recover its losses.  It is understood that subrogation is in the best interests of the client when the action is justified.  That is, when a product is proven to cause personal injury or property damage, then the insurance carrier should have the right to recover the monetary amount paid to their insured, from the manufacturer.  However, there are times when subrogation is not always possible.  As an example, consider the loss of a building in a fire.  It is suspected that the fire was caused by an electrical malfunction.  The insurance carrier has to indemnify the building owner but doesn’t care who is held responsible as long as some party is identified.  This is where I will NOT work toward accusing any party of wrongdoing unless I have the evidence to do so.  I will not distort facts in favor of a client or create a bias where there is none so that the client can have a favorable position in a subrogation suit.  I believe that all information should be considered.  If that information is contrary to the client’s position, then so be it.  No individual or commercial entity should be treated unfairly.  Let the facts speak for themselves.  If the situation is such that the evidence indicates criminal activity, then my job ends (because I and most engineering investigation companies), do not have any legal authority) and law enforcement begins.   

What Every Property Adjuster Should Know About …

Fire Investigations:

  1. Fire investigations are governed by NFPA 921, published by the National Fire Protection Association.  NFPA 921 is a guide for use by investigators and is not a legal document.
  2. Fire Investigators are certified as Certified Fire Investigators (CFI) or Certified Fire and Explosion Investigators (CFEI).
  3. In the state of Tennessee, fire investigators are also required to be licensed by the state as private investigators.  If necessary, check your state to see if additional licenses are required.
  4. Fire investigation of a structure (or vehicle) is the responsibility of the law enforcement authorities.  Only after the authorities have released “the scene” can a civil investigation proceed.
  5.  Acceptable conclusions for the cause of a fire include intentional, accidental, and undetermined.
  6. There are times when the cause and origin of a fire are not as important as determining if your insured can be implicated in the cause.  Situations do arise where several parties are affected by a massive fire.  Although the cause and origin might not be determinable, it is prudent to determine if the insured can be held culpable.  Sometimes it’s about whether a product is under warranty or who did the work.  These scenarios assume that a fire cannot be attributed to arson or vandalism.
  7. Evidence must be handled carefully.  All parties identified in connection with a fire investigation have to be given notice and allowed to participate in any examination of evidence taken from a fire scene.

The pictures below serve to illustrate some of the investigations that we have been involved with.

Fire Damaged marina, several boats involved, cause and origin undetermined, insured boat owner eliminated as potentially culpable party

Paper Shredder thought to have been the cause and origin of a residential fire due to poor maintenance

Dryer Fire due to accumulation of lint

Fire in senior living center due to electrical short in room A/C unit

Residential structure explosion due to broken gas line

Residential structure fire due to misuse of stove

Defective Products

  1. A defective product is one which is unreasonably dangerous and cannot be used for its intended purpose.
  2. The test for a defective product is that it had to have had the defect at the time it left the possession of the manufacturer.
  3. Not only can be manufacturer be held liable for manufacturing a defective product but, anyone in the distribution/handling chain can also be held liable.
  4. Many times, a recall search can identify a recalled product. The Consumer Product Safety Commission maintains a website and database that lists products that have been identified as hazardous to consumers and recalled. The CPSC website address is http://www.cpsc.gov.
  5. The National Highway Traffic Safety Administration also maintains a website and database that has identified defective cars and trucks. Their website is located at http://www.nhtsa.gov. The NHTSA is searchable by vehicle make and year model as well as vehicle identification number.
  6. When products have been recalled, investigation of defective products cases becomes a much simpler matter because most of the work has already been done. However, when a product has not been recalled, then the investigator must determine if the product meets the criteria given in #1 and 2 above.

“Leave the Friggin Thing Alone!”

It still amazes me that whenever a fire occurs in a machine, like a car or a tractor, somebody who is NOT authorized, has to mess with it. There are still people out there that don’t realize that when they disassemble something they are tampering with evidence.  Even if the case has nothing to do with anything criminal, there is the possibility that a product defect or faulty workmanship might have been responsible for the fire.  But, if the machine (evidence) is disassembled, then evidence is compromised if not destroyed outright.  Disassembly and subsequent testing or examination cannot occur without all interested parties being placed on notice.  Once notified, all parties must be given the chance to participate in formulating a protocol for the disassembly, testing and examination.  After the protocol is formulated, the parties must agree on when and who will perform all necessary functions.  In short, all parties must have access to the same information at the same time.  If not, the potential for spoliation of evidence claims can become an avenue for additional lawsuits or defense, depending on your point of view.  Note that many property insurance policies have a subrogation clause which requires that the policyholder do everything it can to protect their carrier’s right which includes protecting evidence.

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